Ricky D. Parker and James Myers v. Schlumberger Technology Corporation ( 2015 )


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  •                                                                                    ACCEPTED
    01-14-01018-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    1/28/2015 6:06:44 PM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-14-01018-CV
    FILED IN
    IN THE COURT OF APPEALS     1st COURT OF APPEALS
    FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS
    HOUSTON, TEXAS         1/28/2015 6:06:44 PM
    CHRISTOPHER A. PRINE
    Clerk
    RICKY D. PARKER AND JAMES MYERS
    Appellants
    v.
    SCHLUMBERGER TECHNOLOGY CORPORATION
    Appellee
    Interlocutory Appeal
    from the 268th Judicial District Court of Fort Bend County, Texas
    Cause No. 14-DCV-218252
    APPELLANTS RICKY D. PARKER AND JAMES MYERS’
    BRIEF ON THE MERITS
    Levon G. Hovnatanian
    State Bar No. 10059825
    hovnatanian@mdjwlaw.com
    Robert T. Owen
    State Bar No. 24060370
    owen@mdjwlaw.com
    Kevin G. Cain
    State Bar No. 24012371
    cain@mdjwlaw.com
    MARTIN, DISIERE, JEFFERSON &
    WISDOM, L.L.P.
    808 Travis, 20TH Floor
    Houston, Texas 77002
    (713) 632-1700 – Telephone
    (713) 222-0101 – Facsimile
    ORAL ARGUMENT REQUESTED
    IDENTITY OF PARTIES AND COUNSEL
    APPELLANTS/DEFENDANTS
    Ricky D. Parker and James Myers
    In this appeal, Mr. Parker and Mr. Myers are represented by the following
    attorneys:
    Levon G. Hovnatanian
    State Bar No. 10059825
    hovnatanian@mdjwlaw.com
    Kevin G. Cain
    State Bar No. 24012371
    cain@mdjwlaw.com
    Robert T. Owen
    State Bar No. 24060370
    owen@mdjwlaw.com
    MARTIN, DISIERE, JEFFERSON, & WISDOM, L.L.P.
    808 Travis, 20th Floor
    Houston, Texas 77002
    Telephone: (713) 632-1700
    Facsimile: (713) 222-0101
    In the trial court, AGCS was represented by the following attorneys:
    W. Jackson Wisdom
    State Bar No. 21804025
    wisdom@mdjwlaw.com
    James M. Cleary
    State Bar No. 00783838
    cleary@mdjwlaw.com
    MARTIN, DISIERE, JEFFERSON, & WISDOM, L.L.P.
    808 Travis, 20th Floor
    Houston, Texas 77002
    Telephone: (713) 632-1700
    Facsimile: (713) 222-0101
    i
    APPELLEE/PLAINTIFF
    Schlumberger Technology Corporation
    In the trial court and in this appeal, Schlumberger was and is represented by the
    following attorneys:
    Jeff Barnes
    State Bar No.: 24045452
    barnesj@jacksonlewis.com
    JACKSON LEWIS P.C.
    1415 Louisiana, Suite 3325
    Houston, Texas 77002
    Telephone: 713-650-0404
    Facsimile: 713-650-0405
    William L. Davis
    State Bar No. 05563800
    davisw@jacksonlewis.com
    JACKSON LEWIS P.C.
    500 N. Akard, Suite 2500
    Dallas, Texas 75201
    Telephone: (214) 520-2400
    Facsimile: (214) 520-2008
    ii
    TABLE OF CONTENTS
    PAGE
    IDENTITY OF PARTIES AND COUNSEL ............................................................i
    TABLE OF CONTENTS ........................................................................................ iii
    TABLE OF AUTHORITIES ....................................................................................v
    STATEMENT OF THE CASE .................................................................................x
    STATEMENT REGARDING ORAL ARGUMENT .............................................xi
    ISSUES PRESENTED........................................................................................... xii
    STATEMENT OF FACTS .......................................................................................1
    SUMMARY OF THE ARGUMENT .......................................................................8
    ARGUMENT ..........................................................................................................10
    I.       THE DISTRICT COURT IMPROPERLY DENIED PARKER AND
    MYERS’ MOTION TO COMPEL ARBITRATION. .................................10
    A.       Standard Of Review ...........................................................................10
    B.       The APA Requires Schlumberger’s Claims To Be Presented To
    An Arbitrator. .....................................................................................10
    1.       The arbitrability of the claims against Parker and Myers
    should be determined by the arbitrator, not a state court
    judge. ........................................................................................10
    2.       The APA’s arbitration provision requires each of
    Schlumberger’s claims to be arbitrated. ..................................14
    a.       There is a valid agreement to arbitrate. .........................14
    b.       The claims asserted are encompassed by the
    arbitration agreement. ....................................................15
    c.       Schlumberger is equitably estopped from avoiding
    arbitration. ......................................................................23
    iii
    II.     THE   DISTRICT               COURT                IMPROPERLY                       GRANTED
    SCHLUMBERGER                   A           TEMPORARY                          INJUNCTION
    PROHIBITING PARKER AND MYERS FROM WORKING IN
    THE WIRELINE, SLICK-LINE, AND BRAIDED LINE
    INDUSTRY. .................................................................................................25
    A.       The Temporary Injunction Should Be Reversed To Allow The
    Arbitrator To Adjudicate The Dispute. ..............................................25
    B.       Oklahoma Law Applies To The Non-Compete Agreements. ............26
    C.       The Non-Competition Provisions In The ICN Agreement And
    Retention Bonus Contract Are Void Under Oklahoma Law. ............33
    D.       Even Under Texas Law, The Non-Competition Agreements,
    And The District Court’s Temporary Injunction, Are
    Unenforceable Restraints On Trade. ..................................................36
    E.       There Is No Evidence Of Irreparable Harm As Required To
    Support Injunctive Relief. ..................................................................54
    CONCLUSION AND PRAYER ............................................................................56
    CERTIFICATE OF COMPLIANCE ......................................................................58
    CERTIFICATE OF SERVICE ...............................................................................58
    APPENDICES
    iv
    TABLE OF AUTHORITIES
    PAGE
    Cases
    Abetter Trucking Co. v. Arizpe,
    
    113 S.W.3d 503
    (Tex. App.—Houston [1st Dist.] 2003, no pet.) ......................55
    Allan J. Richardson & Assocs., Inc. v. Andrews,
    
    718 S.W.2d 833
    (Tex. App.—Houston [14th Dist.] 1986, no writ) ...................46
    Am. Emp’r Ins. Co. v. Aiken,
    
    942 S.W.2d 156
    (Tex. App.—Fort Worth 1997, no writ) ..................................14
    Andrews v. Diamond, Rash, Leslie & Smith,
    
    959 S.W.2d 646
    (Tex. App.—El Paso 1997, writ denied)..................................13
    Bayly, Martin & Fay, Inc. v. Pickard,
    
    780 P.2d 1168
    (Okla. 1989) ................................................................................35
    Borders v. KRLB, Inc.,
    
    727 S.W.2d 357
    (Tex. App.—Amarillo 1987, writ ref’d n.r.e.) .........................55
    Burlington Res. Oil & Gas Co. LP v. San Juan Basin Royalty Trust,
    
    249 S.W.3d 34
    (Tex. App.—Houston [1st Dist.] 2007, pet. denied)..................11
    Butler v. Arrow Mirror & Glass, Inc.,
    
    51 S.W.3d 787
    (Tex. App.—Houston [1st Dist.] 2001, no pet.) ............46, 47, 48
    Butnaru v. Ford Motor Co.,
    
    84 S.W.3d 198
    (Tex. 2002) .................................................................................56
    Cardinal Health Staffing Network, Inc. v. Bowen,
    
    106 S.W.3d 230
    (Tex. App.—Houston [1st Dist.] 2003, no pet.) ................56, 57
    Cardoni v. Prosperity Bank.
    
    2014 WL 4982600
    (S.D. Tex. Oct. 6, 2014) .......................................................33
    Coinmach Corp. v. Aspenwood Apartment Corp.,
    
    417 S.W.3d 909
    (Tex. 2013) ...............................................................................37
    Cotton Commercial USA, Inc. v. Clear Creek Indep. Sch. Dist.,
    
    387 S.W.3d 99
    (Tex. App.—Houston [14th Dist.] 2012, no pet.) ......................16
    v
    Desantis v. Wackenhut Corp.,
    
    793 S.W.2d 670
    (Tex. 1990) ....................................................................... passim
    Ellis v. Schlimmer,
    
    337 S.W.3d 860
    (Tex. 2011) ...............................................................................16
    Exxon Mobil Corp. v. Drennen,
    --- S.W.3d ----, 
    2014 WL 4782974
    (Tex. 2014) .................................................31
    Forest Oil Corp. v. McAllen,
    
    268 S.W.3d 51
    (Tex. 2008) .................................................................................10
    Gallahger Healthcare Ins. Servs. v. Vogelsang,
    
    312 S.W.3d 640
    (Tex. App.—Houston [1st Dist.] 2009, pet. denied)........ passim
    Glassell Producing Co., Inc. v. Jared Res., Ltd.,
    
    422 S.W.3d 68
    (Tex. App.—Texarkana 2014, no pet.) ................................16, 22
    Grigson v. Creative Artists Agency, L.L.C.,
    
    210 F.3d 524
    (5th Cir. 2000) .........................................................................23, 24
    GTE Sw., Inc. v. Bruce,
    
    998 S.W.2d 605
    (Tex. 1999) ...............................................................................52
    Hall v. GE Plastic Pac. PTE Ltd.,
    
    327 F.3d 391
    (5th Cir. 2003) ...............................................................................13
    Hammerly Oaks, Inc. v. Edwards,
    
    958 S.W.2d 387
    (Tex. 1997) ...............................................................................52
    Howard v. Nitro-Lift Technologies, L.L.C.,
    
    2011 OK 98
    , 
    28 P.3d 20
    ,
    cert. granted, judgment vacated on other grounds,
    
    133 S. Ct. 500
    , 
    184 L. Ed. 2d 328
    (2012) ...........................................................32
    In re Credit Suisse First Boston Mortg. Capital, L.L.C.,
    
    273 S.W.3d 843
    (Tex. App.—Houston [14th Dist.] 2008, no pet.) ....................52
    In re FirstMerit Bank, N.A.,
    
    52 S.W.3d 749
    (Tex. 2001) .................................................................................16
    In re Kellogg Brown & Root, Inc.,
    
    166 S.W.3d 732
    (Tex. 2005) .........................................................................24, 25
    vi
    In re Weekley Homes, L.P.,
    
    180 S.W.3d 127
    (Tex. 2005) .........................................................................10, 24
    Investors Diversified Servs. v. McElroy,
    
    645 S.W.2d 338
    (Tex. App.—Corpus Christi 1982, no writ))................47, 51, 52
    J.J. Gregory Gourmet Servs., Inc. v. Antone’s Imp. Co.,
    
    927 S.W.2d 31
    (Tex. App.—Houston [1st Dist.] 1995, no writ) ........................26
    John R. Ray & Sons, Inc. v. Stroman,
    
    923 S.W.2d 80
    (Tex. App.—Houston [14th Dist.] 1996,
    writ denied)........................................................................................39, 41, 42, 44
    Juliette Fowler Homes, Inc., v. Welce Assocs., Inc.,
    
    793 S.W.2d 660
    (Tex. 1990) ...............................................................................37
    Marsh USA Inc. v. Cook,
    
    354 S.W.3d 764
    (Tex. 2011) ....................................................................... passim
    Martin v. Linen Sys. for Hospitals, Inc.,
    
    671 S.W.2d 706
    (Tex. App.—Houston [1st Dist.] 1984, no writ) ................37, 39
    Maxxim Med., Inc. v. Michelson,
    
    51 F. Supp. 2d 773
    (S.D. Tex. 1999) ..................................................................31
    McNeilus Companies, Inc. v. Sams,
    
    971 S.W.2d 507
    (Tex. App.—Dallas 1997, no writ) ....................................44, 46
    Meyer v. WMCO-GP, LLC,
    
    211 S.W.3d 302
    (Tex. 2006) ...............................................................................23
    Minnesota Min. & Mfg. Co. v. Nishika Ltd.,
    
    953 S.W.2d 733
    (Tex. 1997) ...............................................................................29
    My Cafe-CCC, Ltd. v. Lunchstop, Inc.,
    
    107 S.W.3d 860
    (Tex. App.—Dallas 2003, no pet.) ...........................................16
    Nationwide of Bryan, Inc. v. Dyer,
    
    969 S.W.2d 518
    (Tex. App.—Austin 1998, no pet.) ....................................14, 22
    Neatherlin Homes, Inc. v. Love,
    
    2007 WL 700996
    (Tex. App.—Corpus Christi Mar. 8, 2007, no pet.) ........23, 24
    vii
    Okorafor v. Uncle Sam & Assocs., Inc.,
    
    295 S.W.3d 27
    (Tex. App.—Houston [1st Dist.] 2009, pet. denied)..................10
    Peat Marwick Main & Co. v. Haass,
    
    818 S.W.2d 381
    (Tex. 1991) .........................................................................38, 39
    Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd.,
    
    139 F.3d 1061
    (5th Cir. 1998) ...........................................................17, 18, 21, 22
    Pleasant Glade Assembly of God v. Schubert,
    
    264 S.W.3d 1
    (Tex. 2008) ...................................................................................12
    Rachal v. Reitz,
    
    403 S.W.3d 840
    (Tex. 2013) ...............................................................................16
    Recon Exploration, Inc. v. Hodges,
    
    798 S.W.2d 848
    (Tex. App.—Dallas 1990, no writ) .........................................44
    Revere Oil Co. v. Bank of Chillicothe,
    
    255 S.W. 219
    (Tex. Civ. App.—Amarillo 1923, no writ) ..................................52
    S. Distrib. Co. v. Carraway,
    
    127 S.E. 427
    (N.C. 1925) ....................................................................................52
    Schlumberger Tech. Corp. v. Baker Hughes Inc.,
    
    355 S.W.3d 791
    (Tex. App.—Houston [1st Dist.] 2011, no pet.) .............. passim
    Stocks v. Banner Am. Corp.,
    
    599 S.W.2d 665
    (Tex. Civ. App.—Texarkana 1980, no writ)............................47
    Thompson v. Cont’l Airlines,
    
    18 S.W.3d 701
    (Tex. App.—San Antonio 2000, no pet.) ...................................13
    Totino v. Alexander & Assocs.,
    
    1998 WL 552818
    (Tex. App.—Houston [1st Dist.] Aug. 20, 1998, no pet.) .....47
    Wright v. Sport Supply Group, Inc.,
    
    137 S.W.3d 289
    (Tex. App.—Beaumont 2004, no pet.) ........................41, 42, 43
    viii
    Statutes
    OKLA. STAT. tit. 15
    § 217 (2001) ..................................................................................................33, 36
    OKLA. STAT. tit. 15
    § 219A (2001) ...................................................................................31, 33, 34, 36
    TEX. BUS. & COMM. CODE
    § 15.51 .................................................................................................................31
    TEX. BUS. & COMM. CODE
    § 15.50 ......................................................................................................... passim
    TEX. CIV. PRAC. & REM. CODE
    § 171.001 .............................................................................................................15
    Other Authorities
    RESTATEMENT (SECOND) OF CONFLICT OF LAWS
    § 187 (1971) ........................................................................................................27
    W. Wendall Hall et al., Hall's Standards of Review in Texas, 42 ST. MARY’S
    L.J. 1, (2010) ......................................................................................................10
    ix
    STATEMENT OF THE CASE
    Nature of the This is an interlocutory appeal of three orders: an order denying
    Case:         Parker and Myers’ Motion To Compel Arbitration (C.R. 284); an
    order denying Parker and Myers’ Motion For Reconsideration of
    that order (C.R. 285); and an order granting temporary injunction
    enjoining Parker and Myers (C.R. 296-305).
    Trial court:    The Honorable Brady G. Elliot, 268th Judicial District Court of
    Fort Bend County, Texas.
    Course of trial Schlumberger sued Ricky Parker and James Myers, alleging that
    court           they breached various contracts and committed other torts. C.R.
    proceedings:    7-21. Schlumberger also alleges that the district court should
    permanently enjoin Parker and Myers from competing with it.
    C.R. 17-20.
    Parker and Myers moved the district court to compel
    Schlumberger to arbitrate the dispute, which motion the trial
    court denied. C.R. 160-68, 284. Parker and Myers also moved
    the district court to reconsider its denial of the motion to compel,
    which motion the district court also denied. C.R. 277-80, 285.
    Schlumberger moved the trial court to sign a temporary
    injunction barring Parker and Myers from competing with
    Schlumberger, which injunction the trial court signed following
    an evidentiary hearing. C.R. 17-20, 296-305
    Parker and Myers timely appealed the district court’s orders
    denying their motion to compel and motion for reconsideration
    of same as well as the district court’s order granting
    Schlumberger’s temporary injunction pursuant to sections
    51.014(a)(4); 61.016; and 171.098 of the Texas Civil Practice
    and Remedies Code. C.R. 306-07.
    x
    STATEMENT REGARDING ORAL ARGUMENT
    Parker and Myers respectfully suggest that the Court should grant oral
    argument. This case concerns whether an Asset Purchase Agreement requires the
    parties to arbitrate a dispute where a party sues a signatory and non-signatory to
    the Agreement for breach of contracts signed in connection with the agreement and
    torts connected with the Agreement. This case also concerns whether the district
    court properly applied Texas law in signing a temporary injunction barring
    Oklahoma and Arkansas residents from competing with Schlumberger in
    Oklahoma, and whether the district court’s limitations on its temporary injunction
    are reasonable. Parker and Myers believe that hearing from the parties in person
    would provide the Court helpful elaboration on the issues, which, as the Court will
    see, are detailed and particular.
    xi
    ISSUES PRESENTED
    (1)   Whether the district court erroneously concluded that an Asset
    Purchase Agreement, which provides that all disputes “arising under
    or in connection with” the Agreement must be resolved via
    arbitration, did not require the parties to submit disputes arising in
    connection with the Agreement to an arbitrator?
    (2)   Whether the district court properly enjoined Parker and Myers from
    competing with Schlumberger where Parker and Myers work
    primarily in Oklahoma and Schlumberger’s covenant-not-to-compete
    is void and unenforceable under Oklahoma law?
    (3)   Whether the district court’s injunction is reasonably limited in
    geography, scope, and time where it bars Parker and Myers from
    competing with Schlumberger in the entire wireline industry, applies
    to 142 counties in eight states, and contains no temporal limitation?
    (4)   Whether the district court may properly grant Schlumberger injunctive
    relief where it admits that it has a legal remedy for its claims?
    xii
    STATEMENT OF FACTS
    On September 9, 2011, Parker Energy Services Company (now known as
    Parker Close Out Company) entered into an “Asset Purchase Agreement” (“APA”)
    with Production Wireline and Cased Hole Services Group, LLC, to sell the assets
    of Parker Energy, an oilfield company offering wireline, slick-line, and braided
    line services,1 to Production Wireline. See 5 R.R. Defs.’ Ex. 1. 2 Schlumberger
    Technology Corporation is the successor-in-interest, by merger, of Production
    Wireline. See 3 R.R. 81. Appellants Ricky D. Parker and James Myers were
    employees of Parker Energy, and Parker, in his individual capacity, is a party to the
    APA. See 5 R.R. Defs.’ Ex. 1 at 38, 48.
    In addition to requiring Parker Energy to transfer its assets to Production
    Wireline, the APA required that certain employees of Parker Energy, including
    1
    “Wireline,” “slick-line,” and “braided line” operations are specialized operations attendant to
    oil and gas field work. “Wireline” generally refers to a cabling technology used by operators of
    oil and gas wells to lower equipment or measurement devices into the well for the purposes of
    well intervention, reservoir evaluation, and pipe recovery. “Slick-line” refers to a single strand
    wire which is used to run tools into wellbore, and is generally used to lower downhole tools into
    an oil or gas well to perform maintenance downhole. “Braided line” generally refers to an inner
    core of insulated wires that provide power to equipment located at the end of the cable and
    provides a pathway for electrical telemetry for communication between the surface and
    equipment at the end of the cable.                     See Wikipedia: Wireline (Cabling),
    http://en.wikipedia.org/wiki/Wireline_(cabling) (last visited January 27, 2015); See also 2 R.R.
    17-18; 2 R.R. 47.
    2
    Volume 5 of the reporter’s record, which includes the exhibits presented during the temporary
    injunction hearing and the hearing on Parker and Myers’ motion to reconsider the district court’s
    denial of their motion to compel arbitration, is not paginated. Accordingly, Parker and Myers
    will refer to the various exhibits contained therein by the exhibit number noted by the district
    court.
    1
    Parker and Myers, agree to Production Wireline’s “standard employment forms,”
    which included an “Intellectual Property, Confidential Information, and Non-
    Compete” Agreement (“ICN Agreement”). 5 R.R. Defs.’ Ex. 1 at 38 ¶ 9.1(j); 4
    R.R. 12-13. The APA also required that Myers agree to a “Retention Bonus
    Contract,” a form which was attached as an exhibit to the APA. 5 R.R. Defs.’ Ex.
    1 at 38 ¶ 9.1(j), (n). Parker and Myers signed the required forms. See 5 R.R. Pl.’s
    Ex. 1-3.
    The APA includes an arbitration clause requiring that:
    Any controversy, dispute or claim arising under or in connection with
    this Agreement (including, without limitation, the existence, validity,
    interpretation or breach hereof and any claim based on contract, tort
    [or] statute) shall be resolved by a binding arbitration, to be held in
    Houston, Texas pursuant to the Federal Arbitration Act and in
    accordance with the then-prevailing Commercial Arbitration Rules of
    the American Arbitration Association (the AAA”).
    5 R.R. Defs.’ Ex. 1 at 44-45 ¶ 12.3(b).
    Parker worked for Schlumberger from September 2011 until October 2,
    2013. 2 R.R. 15-16. Myers worked for Schlumberger from September 2011 until
    September 16, 2014.       2 R.R 33-34.        Both Parker and Myers worked for
    Schlumberger in its Pocola, Oklahoma office with their work primarily focused in
    Oklahoma, although they did supervise work crews operating in some other states.
    3 R.R. 23-24.
    2
    In the underlying lawsuit, Schlumberger complains that, after leaving its
    employ in October 2013, Parker purchased trucks and other equipment which
    could be used to perform wireline, slick-line, and braided line work. C.R. 11-12.
    It also complains that, on September 17, 2014, eleven and a half months after
    resigning from Schlumberger, Parker hired Myers and other Schlumberger workers
    to work for Professional Wireline Services, LLC (“PWL”), a company that would
    compete with Schlumberger for wireline, slick-line, and braided line work. C.R.
    12. PWL performed its first job on September 29, 2014, nearly one year after
    Parker resigned from Schlumberger. 3 R.R. 69.
    Schlumberger contends that such actions violate a covenant not to compete
    included in the ICN Agreements Parker signed in connection with the APA, which
    provided:
    Employee agrees for a period of one (1) year following the date of
    termination of his/her employment with Company, Employee will not
    directly or indirectly work for or assist (whether as an owner,
    employee, consultant, contractor or otherwise) any business or
    commercial operation whose business is – even in part – in direct or
    indirect competition with any area of the Company’s business in
    which Employee was employed by Company.
    ...
    Employee agrees that in order to protect Company Confidential
    Information, business interests and goodwill, the foregoing restriction
    on Employee’s subsequent employment shall extend to any county,
    parish, borough, or foreign equivalent: (1) in which Employee had a
    customer or service assignment for Company in the one-year period
    preceding Employee’s termination; (2) in which Company has
    3
    customers or service assignments about which Employee obtained
    Company Intellectual Property during his/her employment with
    Company; (3) in which Company has a manufacturing site,
    development site, work site, job site, or offices; and/or (4) in which
    any business or commercial operation whose business (a) is – even in
    part – in direct or indirect competition with any area of the
    Company’s business in which Employee was employed by Company
    or (b) has a manufacturing site, development site, work site, job site,
    or offices.
    C.R. 15-16, 25; 5 R.R. Pl.’s Ex. 1-2 at ¶ 5.
    Schlumberger also contends that Myers, who signed an identical agreement,
    violated the non-compete provision above by (1) communicating with Parker
    regarding the acquisition of wireline equipment before retiring from Schlumberger
    (C.R. 11-12); (2) meeting with Schlumberger employees on September 16, 2014
    after his resignation to discuss employment opportunities with PWL (C.R. 12); and
    (3) going to work for PWL on September 17, 2014, the day after he retired from
    Schlumberger. (See C.R. 12-13). Schlumberger also contends that Myers failed to
    return certain tools to it following his retirement from Schlumberger. See C.R. 13.
    Schlumberger contends such acts also violate a non-compete provision in the
    Retention Bonus Contract Myers signed, which provides:
    As further condition of eligibility for the Bonus Award, and as
    additional protection for the Company’s Confidential Information,
    Employee agrees that:
    (a) During Employee’s employment with the Company and for a
    period of one year following the end of that employment, Employee
    will not solicit, contact or accept work, which is the same or
    substantially similar to work and/or services performed by Employee
    4
    for Company, from clients of Company with whom Employee had
    business dealings during Employee’s employment with the Company;
    (b) During Employee’s employment by the Company and for a period
    of one year following the end of that employment, Employee will not
    provide services (including consulting services), which are the same
    or substantially similar to services and/or work performed by
    Employee for Company, to clients of Company with whom Employee
    had business dealings during Employee’s employment with Company;
    (c) During Employee’s employment with the Company and for a
    period of one year following the end of that employment, Employee
    will not solicit, recruit, encourage, hire or assist any other person or
    entity to solicit, recruit, encourage or hire for employment any other
    employee or independent contractor to work for a competitor of the
    Company;
    (d) During Employee’s employment with the Company and for a
    period of one year following the end of that employment, Employee
    will not directly or indirectly own, manage, operate, control, be
    employed by, be a consultant for, or perform any job functions for,
    any business that is in competition with Company that is located or
    performs services within the geographic territory serviced by the
    Company’s offices where Employee has been employed during the
    one year immediately before the end of Employee’s employment with
    Company or any Affiliate. A “business that is in competition with
    Company” is defined as a business that provides or offers the same or
    similar services, goods or material to those offered by Company or
    any Affiliate for which Employee works or performs services during
    the term of Employee’s employment.
    C.R. 15-16; 5 R.R. Pl.’s Ex. 3 at ¶ 5.
    On October 29, 2014, Schlumberger sent a demand letter to Parker Close
    Out Company and Parker alleging that Parker Close Out Company, Parker, and
    Myers had breached the APA. C.R. 180-81. Schlumberger contended that (1)
    Parker was continuing to utilize e-mail addresses that had been transferred under
    5
    the APA; (2) that certain tools had not been transferred as required by the APA;
    and (3) Parker’s hiring of various Schlumberger employees, including Myers,
    violates the APA. C.R. 180-81. Schlumberger also asserted that “failure to take
    the steps set forth above will be a breach of . . . the APA . . . [i]f you fail to cure the
    breaches of the Agreement, the likely next step will be to proceed to arbitration
    under section 12.3 of the Agreement.” C.R. 181. In response to the demand letter,
    Parker Close Out Company, Parker, in his individual capacity, and Myers, in his
    individual capacity, filed and served a demand for arbitration with the AAA on
    November 26, 2014; which arbitration remains pending. C.R. 170-77.
    However, despite asserting that Parker’s acts constitute breaches of the
    APA, on October 8, 2014, Schlumberger sued Parker and Myers, in their
    individual capacities, in the state district court of Fort Bend County, Texas. C.R.
    7-21.    Schlumberger contends that (1) Parker tortiously interfered with the
    Retention Bonus Contract and ICN Agreement between Schlumberger and Myers
    (C.R. 14); (2) Parker and Myers tortiously interfered with Schlumberger’s
    prospective business relations (C.R. 15); (3) Myers breached a fiduciary duty owed
    to Schlumberger and that Parker aided and abetted that breach of fiduciary duty
    (C.R. 16-17); and (4) Parker and Myers breached the Retention Bonus Contract
    and ICN Agreements signed in connection with the APA (C.R. 15-16).
    Schlumberger also asserts that it is entitled to permanently enjoin Parker and
    6
    Myers from “soliciting, contacting, or accepting work, which was the same or
    substantially similar to the work and/or services performed by them for the
    Company, from clients of the Company with whom they had business dealings
    during their employment with the Company.” C.R. 19.
    Parker and Myers moved the district court to compel arbitration as required
    by the APA. C.R. 160-68. The district court denied the motion on December 10,
    2011 ruling:
    The Court finds . . . that Plaintiff in this action is not bringing claims
    against the Defendants under the APA. The Court also finds that any
    claims brought under the following agreements are not arbitrable: (1)
    the Intellectual Property, Confidential Information and Non-Compete
    Agreement between Plaintiff and Parker dated September 10, 2011,
    (b) the Intellectual Property, Confidential Information and Non-
    Compete Agreement between Plaintiff and James Myers (“Myers”)
    dated September 10, 2011, and (c) the Retention Bonus Contract
    between [Production Wireline] and Myers dated September 15, 2011.
    C.R. 284. On December 18, 2014, the district court also granted Schlumberger a
    temporary injunction providing, in part:
    6.     Enjoined Parties shall not directly or indirectly work for, or
    assist (whether as an owner, employee, consultant, contractor or
    otherwise) any business or commercial operations of wireline, slick
    line and braided line operations in the counties set forth in Plaintiff’s
    Exhibit 74 which is attached.
    7.     Enjoined Parties shall not solicit, contact, or accept wireline,
    slick line or braided line work and/or service, from the Established
    Customers of Schlumberger in the states of Oklahoma, Texas,
    Arkansas, Kansas, Pennsylvania, and Louisiana.
    8.   Enjoined Parties shall not provide, or supervise, advise,
    manage, or serve as a consultant for businesses who are performing,
    7
    wireline, slick line or braided line work for the Established Customers
    of Schlumberger in the states of Oklahoma, Texas, Arkansas, Kansas,
    Pennsylvania and Louisiana.
    C.R. 304. Parker and Myers timely filed this interlocutory appeal of the order
    denying their motion to compel arbitration as well as the district court’s temporary
    injunction on December 22, 2014. C.R. 306-07.
    SUMMARY OF THE ARGUMENT
    The district court committed reversible error by failing to stay the
    proceedings in the underlying lawsuit and compel Schlumberger’s claims to
    arbitration. Parker and Schlumberger’s predecessor-in-interest agreed to arbitrate
    disputes arising under or in connection with the APA. Schlumberger’s claims for
    breach of contracts signed in connection with the APA are encompassed within
    that arbitration agreement. Further, Schlumberger’s tort claims for interference
    with relationships created by the APA also fall within the arbitration agreement
    and must be presented to the arbitrator. Moreover, Schlumberger is equitably
    estopped from avoiding arbitration due to the presence of Myers, a non-signatory
    defendant, because Schlumberger seeks direct benefits of the APA from Myers and
    its claims against Myers are substantively intertwined and rest on the same facts as
    its claims against Parker, a signatory to the arbitration agreement.
    The district court also erred by signing an order enjoining Parker and Myers
    from working in the wireline industry. The evidence in the record establishes that
    8
    Schlumberger’s covenants not-to-compete should have been evaluated under
    Oklahoma law, which state’s public policy renders such covenants void. Further,
    even assuming the district court properly applied Texas law, which it did not, the
    district court erred by imposing unreasonable restrictions as to geography, scope,
    and time in violation of section 15.50 of the Texas Business and Commerce Code.
    The district court also erred by awarding Schlumberger injunctive relief when the
    record establishes it has an adequate remedy at law.
    9
    ARGUMENT
    I.     THE DISTRICT COURT IMPROPERLY DENIED PARKER AND
    MYERS’ MOTION TO COMPEL ARBITRATION.
    A.    Standard Of Review
    Generally, this Court reviews a trial court's denial of a motion to compel
    arbitration for abuse of discretion. Schlumberger Tech. Corp. v. Baker Hughes
    Inc., 
    355 S.W.3d 791
    , 800 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing
    Okorafor v. Uncle Sam & Assocs., Inc., 
    295 S.W.3d 27
    , 38 (Tex. App.—Houston
    [1st    Dist.]    2009,     pet.     denied);   W.     Wendall      Hall    et    al.,
    Hall's Standards of Review in Texas, 42 ST. MARY’S L.J. 1, 78 (2010)). However,
    when an appeal from a denial of a motion to compel arbitration turns on a legal
    determination, the court applies a de novo standard. Forest Oil Corp. v. McAllen,
    
    268 S.W.3d 51
    , 55 n. 9 (Tex. 2008).
    B.    The APA Requires Schlumberger’s Claims To Be Presented To
    An Arbitrator.
    1.     The arbitrability of the claims against Parker and Myers
    should be determined by the arbitrator, not a state court
    judge.
    At the outset, the district court erred by refusing to stay the proceedings and
    submitting the jurisdictional question to the arbitrator. See Schlumberger Tech.
    
    Corp., 355 S.W.3d at 802
    .          While the general rule under Texas law is that
    questions of arbitrability are to be resolved by a court, see In re Weekley Homes,
    L.P., 
    180 S.W.3d 127
    , 130 (Tex. 2005), this Court recognizes that “the express
    10
    incorporation of rules that empower the arbitrator to determine arbitrability—such
    as the [American Arbitration Association] Commercial Arbitration Rules—has
    been held to be clear and unmistakable evidence of the parties’ intent to allow the
    arbitrator to decide such issues.” Schlumberger Tech. 
    Corp., 355 S.W.3d at 802
    (citing Burlington Res. Oil & Gas Co. LP v. San Juan Basin Royalty Trust, 
    249 S.W.3d 34
    , 39-41 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)) (emphasis
    added).
    As in Schlumberger v. Baker Hughes, the APA incorporates the Commercial
    Arbitration Rules of the American Arbitration Association (“AAA”). 5 R.R. Defs.’
    Ex. 1 at 45 ¶ 12.3(b) (“Any controversy, dispute or claim arising under or in
    connection with this Agreement . . . shall be resolved by a binding
    arbitration . . . in accordance with the then prevailing Commercial Arbitration
    Rules of the American Arbitration Association.”) (emphasis added). The AAA
    Commercial Arbitration Rules provide:
    The arbitrator shall have the power to rule on his or her own
    jurisdiction, including any objections with respect to the existence,
    scope, or validity of the arbitration agreement or to the arbitrability of
    any claim or counterclaim.
    COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION,
    Rule 7(a) (2014). This Court recognizes that, where an arbitration agreement
    incorporates the AAA rules, and no provision negates an arbitrator’s power under
    AAA Rule 7(a) to determine the scope of the arbitration, the arbitrator must be
    11
    allowed to determine arbitrability. Schlumberger Tech. 
    Corp., 355 S.W.3d at 803
    .
    There are no provisions in the APA that negate an arbitrator’s power under AAA
    Rule 7(a) to determine the scope of the arbitration. Accordingly, the arbitrator, not
    the district court, had the exclusive authority to decide whether Schlumberger’s
    claims were arbitrable. See 
    id. The district
    court erred by failing to stay its
    proceedings to allow the arbitrator to decide the proper scope of the arbitration,
    usurping the arbitator’s agreed upon authority to make such a decision. 
    Id. Indeed, that
    the arbitrator had such authority should have been readily
    apparent to Schlumberger as it has, in the past, argued to this Court that an
    arbitrator, not a state court judge, has the exclusive right to resolve questions of
    arbitrability where the arbitration agreement provides the arbitrator with such
    authority. Schlumberger Tech. 
    Corp., 355 S.W.3d at 802
    -03. Schlumberger’s
    prior position before this Court, with which this Court properly agreed, precludes it
    from taking a contrary position in this matter pursuant to the doctrine of judicial
    estoppel.
    Judicial estoppel “precludes a party from adopting a position inconsistent
    with one that it maintained successfully in an earlier proceeding.” Pleasant Glade
    Assembly of God v. Schubert, 
    264 S.W.3d 1
    , 6 (Tex. 2008). Its essential function
    “is to prevent the use of intentional self-contradiction as a means of obtaining
    unfair advantage.” See Andrews v. Diamond, Rash, Leslie & Smith, 
    959 S.W.2d 12
    646, 650 (Tex. App.—El Paso 1997, writ denied); Hall v. GE Plastic Pac. PTE
    Ltd., 
    327 F.3d 391
    , 396 (5th Cir. 2003) (noting basis for judicial estoppel is the
    assertion of a position clearly inconsistent with a previous position accepted by the
    court).   “The policies underlying the doctrine include preventing internal
    inconsistency, precluding litigants from playing fast and loose with the courts, and
    prohibiting parties from deliberately changing positions according to the
    exigencies of the moment.” Thompson v. Cont’l Airlines, 
    18 S.W.3d 701
    , 703
    (Tex. App.—San Antonio 2000, no pet.).
    In its prior case before this Court, Schlumberger asserted that an arbitrator
    has the exclusive right to determine the jurisdiction of the arbitration where the
    arbitration agreement incorporates the AAA commercial arbitration rules, as the
    APA does in this case. See Schlumberger Tech. 
    Corp., 355 S.W.3d at 803
    . This
    Court agreed with Schlumberger, holding that “the trial court should have
    granted . . . Schlumberger’s motion [to compel arbitration] so that the dispute
    could be resolved by the AAA panel.”           
    Id. Accordingly, having
    previously
    asserted a (correct) position with which this Court agreed, Schlumberger is
    judicially estopped from asserting that a state court judge, rather than the arbitrator,
    is the proper person to determine the jurisdictional scope of the arbitration. See
    
    Thompson, 18 S.W.3d at 703
    .
    13
    As the APA provides the arbitrator with exclusive authority to determine
    arbitrability, and Schlumberger is judicially estopped to contest this issue, the
    Court should reverse the district court’s denial of Parker and Myers’ motion to
    compel arbitration, stay the proceedings in the underlying litigation, and allow the
    arbitrator the opportunity to rule regarding the scope of its jurisdiction.       See
    Schlumberger Tech. 
    Corp., 355 S.W.3d at 802
    -03.
    2.    The APA’s arbitration provision requires                each    of
    Schlumberger’s claims to be arbitrated.
    Even assuming for the sake of argument that the district court could properly
    preclude the arbitrator from adjudicating the scope of the arbitration, which it
    cannot, the APA requires each of Schlumberger’s claims to be arbitrated. District
    courts are required to grant motions to compel arbitration where (1) there is a valid
    arbitration and (2) the agreement encompasses the claims presented. Nationwide
    of Bryan, Inc. v. Dyer, 
    969 S.W.2d 518
    , 520 (Tex. App.—Austin 1998, no pet.).
    “In Texas, every reasonable presumption must be decided in favor of arbitration.”
    
    Id. “Once a
    party to a suit comes forward with a presumptively valid arbitration
    agreement, the court must order the parties to arbitrate.” 
    Id. a. There
    is a valid agreement to arbitrate.
    Whether a valid arbitration agreement exists is a question of law. Am.
    Emp’r Ins. Co. v. Aiken, 
    942 S.W.2d 156
    , 159 (Tex. App.—Fort Worth 1997, no
    writ). “A written agreement to arbitrate is valid and enforceable if the agreement is
    14
    to arbitrate a controversy that: (1) exists at the time of the agreement; or (2) arises
    between the parties after the date of the agreement.” TEX. CIV. PRAC. & REM.
    CODE § 171.001.
    Production    Wireline    (Schlumberger’s predecessor-in-interest), Parker
    Energy, and Parker each entered into the APA, a written contract including an
    agreement to arbitrate all disputes “arising under or in connection with” the APA.
    5 R.R. Defs.’ Ex. 1 at 45 ¶ 12.3(b). The written arbitration agreement meets the
    enforceability requirements under Texas law and constitutes a valid agreement to
    arbitrate. See Tex. Civ. Prac. & Rem. Code § 171.001.
    b.    The claims asserted are encompassed by the
    arbitration agreement.
    Despite the agreement to arbitrate, the district court denied the motion to
    compel arbitration because it concluded that Schlumberger’s claims under the
    Retention Bonus Contracts and ICN Agreements signed in connection with the
    APA, were “separable” from the APA, concluding: “Plaintiff in this action is not
    bringing any claims against the Defendants under the APA.” C.R. 284; 3 R.R. 7.
    Such analysis, however, fails to apply the proper legal standards relative to a
    motion to compel arbitration.
    The supreme court instructs that, when determining whether a claim falls
    within the scope of an arbitration agreement, a court must look to the factual
    allegations asserted, not the legal claims. Rachal v. Reitz, 
    403 S.W.3d 840
    , 850
    15
    (Tex. 2013); In re FirstMerit Bank, N.A., 
    52 S.W.3d 749
    , 754 (Tex. 2001) (“To
    determine whether a party’s claims fall within an arbitration agreement’s scope, we
    focus on the complaint’s factual allegations rather than the legal causes of action
    asserted.”). A claim is not subject to arbitration “only if the facts alleged in
    support of the claim are completely independent of the contract and the claim
    could be maintained without reference to the contract.” Glassell Producing Co.,
    Inc. v. Jared Res., Ltd., 
    422 S.W.3d 68
    , 77 (Tex. App.—Texarkana 2014, no pet.)
    (emphasis added) (citing Cotton Commercial USA, Inc. v. Clear Creek Indep. Sch.
    Dist., 
    387 S.W.3d 99
    , 108 (Tex. App.—Houston [14th Dist.] 2012, no pet.)).
    Courts should resolve doubts as to the agreement’s scope in favor of arbitration.
    Ellis v. Schlimmer, 
    337 S.W.3d 860
    , 862 (Tex. 2011).
    The APA requires that “[a]ny controversy, dispute or claim arising under or
    in connection with this Agreement (including, without limitation, the existence,
    validity, interpretation or breach hereof and any claim based on contract, tort [or]
    statute) shall be resolved by a binding arbitration.” 5 R.R. Defs.’ Ex. 1 at 44-45 ¶
    12.3(b) (emphasis added). Texas courts recognize that the term “arising under or
    in connection with” is broad in scope and must be given a broad construction. See
    My Cafe-CCC, Ltd. v. Lunchstop, Inc., 
    107 S.W.3d 860
    , 866 (Tex. App.—Dallas
    2003, no pet.) (construing term “any dispute arising under or in connection with”
    broadly as encompassing any dispute connected to or relating to the agreement);
    16
    Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 
    139 F.3d 1061
    , 1067–68
    (5th Cir. 1998) (noting, in context of arbitration clauses, “in connection with”
    language is broad and dispute need only “touch” matters covered by the contract to
    fall within scope of arbitration agreement). Looking to the facts alleged, each of
    Schlumberger’s asserted claims “arises under” or “in connection with” the APA.
    Schlumberger asserts six claims against Parker and Myers alleging (1)
    Parker breached the ICN Agreement and Myers breached the Retention Bonus
    Contract and ICN Agreement (C.R. 16); (2) Parker tortiously the Retention Bonus
    Contract and ICN Agreement between Production Wireline and Myers (C.R. 14);
    (3) Parker and Myers tortiously interfered with Schlumberger’s prospective
    business relationships with third parties (C.R. 15); (4) Myers breached his
    fiduciary duty to Schlumberger by working for a competing business; and (5) that
    Parker, “as a result of his knowledge of the terms of the APA,” knowingly “aided
    and abetted” Myers’ breaches of fiduciary duty (C.R. 16-17).
    The facts supporting each of these claims arise under or in connection with
    the APA; any dispute regarding them must be resolved by arbitration.
    The APA required, as conditions precedent to closing:
    (j) [E]ach of the Transferred Employees shall have executed and delivered
    Purchaser’s standard employment documentation for new hires;
    ***
    17
    (n) . . . James O. Myers . . . shall have executed and delivered to Purchaser a
    retention bonus contract substantially in the form of Exhibit C hereto (the
    “Retention Bonus Contract”).
    5 R.R. Defs.’ Ex. 1 at 38, ¶ 9.1 (emphasis in original). Parker and Myers qualify as
    “Transferred Employees” under the APA, and the evidence in the record shows
    that the ICN Agreements they signed are part of Schlumberger’s “standard
    employment documentation” referenced by the APA. See 4 R.R. 13. Myers’
    execution of the retention bonus agreement was also an express condition to the
    APA, and a form retention bonus contract was included as an exhibit to the APA.
    5 R.R. Defs.’ Ex. 1 at 38, ¶ 9.1. As the Retention Bonus Contract and ICN
    Agreements are ancillary to the APA, and Parker and Myers agreement to those
    contracts were, in fact, required by the APA, any dispute regarding the Retention
    Bonus Contract or ICN Agreements necessarily “arises under or in connection
    with” the APA. Schlumberger’s claims for breach of the Retention Bonus Contract
    and ICN Agreements, therefore, are encompassed within the APA’s arbitration
    provision and those claims must be compelled to arbitration pursuant to Texas law.
    See Pennzoil Exploration & Prod. 
    Co., 139 F.3d at 1068
    (compelling claims to
    arbitration where claim is based upon a subsequent letter agreement ancillary to the
    agreement containing the arbitration clause).
    Indeed, the fact that Schlumberger’s claims are not “completely
    independent” of the APA as required to avoid arbitration is confirmed by
    18
    Schlumberger’s conduct before and after it filed the underlying lawsuit. This is
    clear from a comparison of Schlumberger’s pre-suit demand letter to Parker
    alleging that he had breached the APA and its petition in this case, under which the
    factual allegations supporting the alleged violation of the APA asserted in the
    demand letter are the same facts that Schlumberger now says support its tort and
    contract claims in the underlying lawsuit:
    Demand Letter                                    Petition
    With respect to Purchased Intellectual       The business name used by [Parker and
    Property . . . We have learned that your     Myers], ‘PW’ and ‘Professional
    new business is using a deceptively          Wireline’ is similar to the name used by
    similar name to the trade name you sold      Schlumberger – Production Wireline.
    in the Asset Purchase Agreement. C.R.        C.R. 13.
    180
    With respect to the tool boxes in the        Schlumberger      also    found      that
    truck used by Mr. Myers, those were          Schlumberger property was missing and
    Purchased Assets . . . of the Agreement      made a demand for the return of the
    and must be returned along with all of       property. Some of the property has
    the tools contained in the boxes.” C.R.      been returned, but other property is still
    181                                          under investigation. C.R. 13.
    A large portion of the purchase price        Ricky Parker knew that James Myers
    was allocated to goodwill. Demand is         entered into the Retention Bonus
    hereby made that you cease all activities    Agreement and the ICN Agreement. He
    which interfere with Schlumberger            willfully and intentionally interfered
    receiving the full value of the goodwill     with these agreements. C.R. 14
    purchased from you.         This would
    include making sure that James Myers         As a result of his knowledge of the
    [and others] comply with their               terms of the APA, Ricky Parker knew
    obligations under their agreements they      that James Myers had a fiduciary
    signed which were referenced in the          duty . . . to Schlumberger following the
    APA. C.R. 181                                acquisition . . . Ricky Parker aided and
    abetted James Myers in breaching James
    19
    Myers’ duty of loyalty and his fiduciary
    duties as set forth in more detail above.
    C.R. 16-17
    The fact that Schlumberger’s claims are not completely independent from
    the APA is also readily apparent from its repeated reference to the APA in its
    petition. See C.R. 8 (“Having signed the APA, Ricky Parker was put on notice of
    paragraph 9.1(n) which required that employees James O. Myers . . . execute
    Retention Bonus Contracts.”); C.R. 8 (“The APA further put Ricky Parker on
    notice that he . . . would have to agree to Schlumberger’s policies and
    agreements.”); C.R. 10 (“As contemplated by the APA, on September 15, 2011,
    James Myers signed a Retention Bonus Contract.”); C.R. 13 (“Schlumberger also
    found that Schlumberger property was missing and made a demand for the return
    of the property.”); C.R. 16 (“[A]s a result of his knowledge of the terms of the
    APA, Ricky Parker knew that James Myers had a fiduciary duty and duties of
    loyalty to Schlumberger following the acquisition.”).
    Moreover, Schlumberger has repeatedly acknowledged in its filings in the
    district court and this Court that the Retention Bonus Contract and ICN
    Agreements were signed “in connection with” the APA and are “ancillary” to the
    APA. See C.R. 18 (Application For Injunction) (“[Parker and Myers] were paid
    substantial sums of money in connection with the sale of the business [the APA]
    and ancillary Retention Bonus Agreement . . . .”); Appellee’s Response To
    20
    Appellant’s Emergency Motion To Stay Trial Court Order at p. 2 (“In connection
    with the sale, Parker and Myers . . . signed separate Intellectual Property,
    Confidential Information, and Non-Compete Agreements . . . Additionally Myers
    signed a Retention Bonus Agreement wherein he was paid a substantial amount of
    money in connection with the sale of the business and his agreement to remain
    employed for a period of two years after he signed the agreement.”). Accordingly,
    as even Schlumberger admits that the ICN Agreement and Retention Bonus
    Contract were signed “in connection with” the APA (See Appellee’s Response To
    Appellant’s Emergency Motion To Stay Trial Court Order at p. 2), any dispute for
    breach of those agreements necessarily touches upon the APA and must be
    compelled to arbitration. See Pennzoil Exploration & Prod. 
    Co., 139 F.3d at 1068
    .
    The torts asserted by Schlumberger also “arise under or in connection with”
    the APA and must be compelled to arbitration. Each of the alleged torts concerns
    relationships created by the APA and those agreements ancillary to it. See C.R. 7-
    17. For example, the alleged claims for tortious interference with the Bonus
    Retention Contract and ICN Agreement and breach of fiduciary duty claim arise
    out of the employment relationship between Schlumberger and Myers. See C.R.
    16. This relationship was expressly created by the APA because Myers is a
    “Transferred Employee,” i.e., an employee transferred between Parker Energy and
    Schlumberger pursuant to the APA.      5 R.R. Defs.’ Ex. 1 at 35-36 ¶ 8.1, 37 ¶
    21
    9.1(n). Such claims, indisputably, “touch upon” the APA and are connected with
    that agreement.   Pennzoil Exploration & Prod. Co., 
    139 F.3d 1068
    ; Glassell
    Producing Co., 
    Inc., 422 S.W.3d at 77
    .
    Likewise, Schlumberger’s claims for tortious interference with its
    prospective business relationships also concern the relationships created by the
    APA.     Schlumberger contends that, by hiring other former Parker Energy
    employees, Parker and Myers tortiously interfered with Schlumberger’s
    prospective business relationships because “staffing projects being performed for
    customers with key personnel is essential for Schlumberger to maintain its
    relationships.” C.R. 15. Such relationships, both between Schlumberger and the
    former Parker Energy employees, as well as between Schlumberger and Parker
    Energy’s customers, however, were created by the APA. See C.R. 15, 5 R.R.
    Defs.’ Ex. 1 at 8 ¶ 2.1. Therefore, the alleged interference with prospective
    business relationships tort also touches upon the APA and should be compelled to
    arbitration. Pennzoil Exploration & Prod. Co., 
    139 F.3d 1068
    . As the APA’s
    arbitration agreement encompasses each of Schlumberger’s claims, the dispute, in
    its entirety, should be compelled to binding arbitration and the proceedings in the
    district court stayed. See Nationwide of Bryan, 
    Inc., 969 S.W.2d at 520
    .
    22
    c.     Schlumberger is equitably estopped from avoiding
    arbitration.
    Pursuant to the doctrine of equitable estoppel, “a defendant-signatory to an
    arbitration agreement [can] compel arbitration with a plaintiff-signatory.” Grigson
    v. Creative Artists Agency, L.L.C., 
    210 F.3d 524
    , 526 (5th Cir. 2000); see also
    Meyer v. WMCO-GP, LLC, 
    211 S.W.3d 302
    , 307 (Tex. 2006) (applying equitable
    estoppel to compel arbitration against signatory-plaintiff); see also Neatherlin
    Homes, Inc. v. Love, 
    2007 WL 700996
    , at *4 (Tex. App.—Corpus Christi Mar. 8,
    2007, no pet.) (applying equitable estoppel to compel arbitration where “[signatory
    to arbitration agreement] brought the same causes of action against [signatory and
    non-signatory to agreement] and alleged concerted, coordinated acts by these
    parties, and all of [signatory-plaintiff’s] causes of action arise from the same
    operative facts concerning the allegedly defective construction of her home.”)
    Equitable estoppel allows a nonsignatory to compel arbitration in two
    different circumstances: “[f]irst, equitable estoppel applies when the signatory to a
    written agreement containing an arbitration clause must rely on the terms of the
    written agreement in asserting its claims against the nonsignatory . . . [s]econd,
    application of equitable estoppel is warranted when the signatory to the contract
    containing an arbitration clause raises allegations of substantially interdependent
    and concerted misconduct by both the nonsignatory and one or more of the
    signatories to the contract.” 
    Grigson, 210 F.3d at 527
    . In other words, equitable
    23
    estoppel to compel arbitration is proper where the claims against a signatory to an
    arbitration agreement and the claims against a non-signatory are intertwined,
    otherwise the arbitration provision between the two signatories would be rendered
    meaningless and the public policy in favor of arbitration would be subverted. See
    
    id. Here, for
    the reasons noted above, it is indisputable that Schlumberger’s
    claims against Parker arise under and are connected with the APA. Likewise, as
    the facts supporting Schlumberger’s claims against Myers are the same facts
    supporting its claims against Parker (see C.R. 7-17), the claims against Parker and
    Myers are substantively intertwined such that Schlumberger is equitably estopped
    from avoiding its agreement to arbitrate the dispute by suing Myers, a non-
    signatory to the agreement. See Neatherlin Homes, 
    2007 WL 700996
    , at *4.
    In the district court, Schlumberger contended that the supreme court had
    overruled the equitable estoppel doctrine with respect to non-signatories. It has
    not. The supreme court has noted that an estoppel theory remains applicable where
    there are intertwined facts and a signatory-plaintiff seeks a direct benefit from a
    contract containing an arbitration agreement from a non-signatory defendant. See
    In re Merrill Lynch Trust Co. FSB, 
    235 S.W.3d 185
    , 191 (Tex. 2007); see also In
    re Weekley Homes, 
    L.P., 180 S.W.3d at 131
    –32; In re Kellogg Brown & Root, Inc.,
    
    166 S.W.3d 732
    , 741 (Tex. 2005). As noted above, Schlumberger seeks numerous
    24
    direct benefits from the Myers including damages for loss of goodwill allegedly
    caused by various torts connected with the APA and injunctive relief pursuant to
    contracts signed in connection with the APA. See C.R. 14-20; see also 4 R.R 93-
    99.
    Accordingly, the district court erred by declining to compel arbitration of the
    related, intertwined claims asserted in Schlumberger’s petition, which all arise
    under or are connected with the APA. The district court’s order denying Parker
    and Myer’s motion to compel arbitration should be reversed and the state court
    proceedings stayed to allow the claims to be presented to binding arbitration in
    compliance with the APA’s arbitration provision. 
    Id. II. THE
       DISTRICT     COURT     IMPROPERLY GRANTED
    SCHLUMBERGER A TEMPORARY INJUNCTION PROHIBITING
    PARKER AND MYERS FROM WORKING IN THE WIRELINE,
    SLICK-LINE, AND BRAIDED LINE INDUSTRY.
    A.    The Temporary Injunction Should Be Reversed To Allow The
    Arbitrator To Adjudicate The Dispute.
    For the reasons noted above, each of Schlumberger’s claims “arise under or
    in connection with” the APA such that the claims should be compelled to
    arbitration. Moreover, as Schlumberger’s claims for injunctive relief rely upon the
    same facts as its claims for damages (see C.R. 18), and there is no provision in the
    APA prohibiting the arbitrator from granting injunctive relief, the arbitrator, as
    opposed to the district court, should have been afforded the opportunity to address
    25
    those claims as well. See J.J. Gregory Gourmet Services, Inc. v. Antone’s Imp.
    Co., 
    927 S.W.2d 31
    , 36 (Tex. App.—Houston [1st Dist.] 1995, no writ) (holding
    that arbitrators have authority to grant injunctive relief in the absence of any
    language specifically prohibiting the arbiters from same). Accordingly, this Court
    should reverse the district court’s injunction to allow the arbitrator to adjudicate
    the dispute as required by the APA. See 
    id. B. Oklahoma
    Law Applies To The Non-Compete Agreements.
    Even assuming for the sake of argument the district court could properly
    adjudicate Schlumberger’s application for temporary injunction, which it cannot,
    the district court committed numerous reversible errors in granting Schlumberger’s
    application. First and foremost, the district court erred in applying Texas rather
    than Oklahoma law to the covenants not to compete.
    The APA, as well as the ancillary Retention Bonus Contract and ICN
    Agreements, contain choice of law provisions designating Texas law to apply to
    any dispute. See 5 R.R. Pl.’s Ex. 1 at ¶ 17; 5 R.R. Pl.’s Ex. 2 at ¶ 17; 5 R.R. Pl.’s
    Ex. 3 at ¶ 11; 5 R.R. Defs.’ Ex. 1 at 46 ¶ 12.5. However, the Texas Supreme Court
    has imposed limits to a contracting party’s ability to choose the jurisdictional law
    applying to contracts, noting that parties “cannot by agreement thwart or offend the
    public policy of the state the law of which ought otherwise to apply.” Desantis v.
    Wackenhut Corp., 
    793 S.W.2d 670
    , 677 (Tex. 1990) (emphasis added).                In
    26
    effectuating this policy, the supreme court adopted section 187 of the Restatement
    of the Conflict of Laws, which provides:
    (2) The law of the state chosen by the parties to govern their
    contractual rights and duties will be applied, even if the particular
    issue is one which the parties could not have resolved by an explicit
    provision in their agreement directed to that issue, unless either
    (a) the chosen state has no substantial relationship to the parties or
    the transaction and there is no other reasonable basis for the
    parties' choice, or
    (b) application of the law of the chosen state would be contrary to
    a fundamental policy of a state which has a materially greater
    interest than the chosen state in the determination of the particular
    issue and which, under the rule of § 188, would be the state of the
    applicable law in the absence of an effective choice of law by the
    parties.
    
    Desantis, 793 S.W.2d at 677-78
    (citing RESTATEMENT (SECOND) OF CONFLICT OF
    LAWS § 187 (1971)).
    Parker and Myers have not asserted that Texas has no substantial
    relationship to the parties, and do not so assert in this appeal. Accordingly, the
    choice of law issue turns on whether the application of Texas law would be
    contrary to the fundamental policy of a state that has a materially greater interest.
    
    Id. Distilling the
    rules set forth in the restatement, the supreme court instructs that
    the following three-prong test applies to such an issue:
    (1) whether a state has a more significant relationship with the parties and
    their transaction than the state they chose;
    (2) whether that state has a materially greater interest than the chosen
    state in deciding whether the agreement should be enforced; and
    27
    (3) whether that state’s fundamental policy would be contravened by the
    application of the law of the chosen state.
    
    Desantis, 793 S.W.2d at 678
    . Applying the supreme court’s three prong test,
    Oklahoma, not Texas, law should apply to the non-compete agreements.
    Oklahoma has a more significant relationship to the non-compete
    agreements and enjoined parties than Texas.
    To determine what state has the “more significant relationship” to a
    contractual agreement, the Court should consider the following factors:
    (a)   the place of contracting;
    (b)   the place of negotiation;
    (c)   the place of performance;
    (d)   the location of the contract’s subject matter; and
    (e)   the parties’ domicile, residence, nationality, place of incorporation,
    and place of business.
    
    Desantis, 793 S.W.2d at 678
    , n. 2; Minnesota Min. & Mfg. Co. v. Nishika Ltd., 
    953 S.W.2d 733
    , 735-36 (Tex. 1997). Considering the factors set forth above shows
    that Oklahoma, not Texas, has the more significant relationship to the non-compete
    agreements Schlumberger seeks to enforce and the enjoined parties.
    Parker negotiated the sale of Parker Energy and the ancillary agreements
    necessary to complete the sale primarily in Oklahoma. See 3 R.R. 55. After
    execution of the APA, both Parker and Myers then went to work for Schlumberger
    28
    in its Pocola, Oklahoma office and worked for it primarily in Oklahoma. See 3
    R.R. 25.
    Moreover, by seeking to enjoin Parker and Myers from working for P.W.L.,
    an Oklahoma business entity, the non-compete provisions will be fully performed
    in Oklahoma. P.W.L. is located in Oklahoma, and Oklahoma is the only state
    where P.W.L. has performed any wireline operations. See 3 R.R. 56-58. Myers is
    also a resident of Oklahoma, while Parker is a resident of Arkansas who lives
    seven to eight miles from P.W.L.’s offices in Oklahoma. 3 R.R. 23, 56-58. While
    Parker and Myers acknowledge that the APA was signed in Texas (3 R.R. 55), that
    Schlumberger has offices in Texas (3 R.R. 23), and that Parker and Myers, while
    working for Schlumberger, supervised some Schlumberger workers working in
    Texas (see, e.g., 3 R.R. 52-53), the record reflects that Oklahoma has a more
    significant relationship to the non-compete provisions and the enjoined parties than
    Texas. See 
    Desantis, 793 S.W.2d at 678
    . Indeed, the substantive effect of the
    district court’s injunction has been to stop an Oklahoma company’s employees
    (one of which is an Oklahoma resident) from working for it in Oklahoma; in such
    instances the Texas Supreme Court has held that the state where the work is
    enjoined has the more substantive relationship to the non-compete and parties. See
    
    id. (holding that
    where employee lived and worked in Texas, Texas had a more
    29
    significant relationship to employee and non-complete provision than the foreign
    state whose law the employer had chosen to apply to the non-compete provision)
    Oklahoma has a materially greater interest than Texas in deciding whether
    the non-compete agreement should be enforced.
    Where an employer seeks to enforce a non-compete agreement against a former
    employee in another state, the state where the employee works has a materially
    greater interest in deciding whether the non-compete agreement should be enforced
    over the contractually chosen jurisdiction. See 
    Desantis, 793 S.W.2d at 679
    ; see
    also Exxon Mobil Corp. v. Drennen, --- S.W.3d ----, 
    2014 WL 4782974
    at *6 (Tex.
    2014). For example, in Desantis, the supreme court held that where the issue was
    “whether a Texas resident can leave one Texas job to start a competing Texas
    business,” Texas had a materially greater interest than a foreign national employer
    that had chosen Florida as the law to govern a non-compete agreement. 
    Desantis, 793 S.W.2d at 679
    ; see also Maxxim Med., Inc. v. Michelson, 
    51 F. Supp. 2d 773
    ,
    781 (S.D. Tex. 1999), rev’d on other grounds, 
    182 F.3d 915
    (5th Cir. 1999)
    (holding that when an employee involved is from a certain state and that state has a
    strong public policy against non-competition agreements, that state has a materially
    greater interest in the enforceability of the non-compete agreement). Schlumberger
    seeks to enforce a non-competition agreement against two employees that worked
    for it in its Pocola, Oklahoma office, and indisputably, worked and work primarily
    in Oklahoma. See 3 R.R. 56-58. Further, it seeks to enjoin those employees from
    30
    working for their new Oklahoma employer in Oklahoma. See 3 R.R. 56-58. The
    evidence establishes that Oklahoma has a materially greater interest than Texas in
    the enforceability of the non-compete agreements. See 
    Desantis, 793 S.W.2d at 679
    .
    Application of Texas law would contravene the public policy of Oklahoma.
    Under Oklahoma law, an employee has the affirmative right to “engage in
    the same business as that conducted by the former employer or in a similar
    business as that conducted by the former employer” and any non-compete that
    purports to restrict that right “shall be void and unenforceable.” OKLA. STAT. tit.
    15 § 219A (2001). Schlumberger, however, is using its non-competes to prohibit
    Parker and Myers, its former employees, from competing with it in a similar
    business, which violates the public policy of Oklahoma. See 
    id. Application of
    Texas law would contravene this public policy. Under Texas
    law, courts have the authority to reform non-competition clauses to make them
    enforceable.    Tex. Bus. & Comm. Code § 15.51.            Indeed, Schlumberger
    specifically requested that the district court reform its exceedingly broad non-
    compete agreements to make them enforceable. See C.R. 19. The district court
    did so by crafting some, albeit unreasonably broad, limitations to its temporary
    injunction that are not included in Schlumberger’s non-competes. Compare C.R.
    304 with 5 R.R. Pl.’s Ex. 1-3.       Oklahoma, however, does not permit such
    31
    reformation; under Oklahoma law, if a non-compete clause contains restrictions
    prohibited by Oklahoma public policy, the non-compete agreement is simply void.
    OKLA. STAT. tit. 15 § 219A(A), (B) (2001). Courts are prohibited from reforming
    unenforceable agreements. See Howard v. Nitro-Lift Technologies, L.L.C., 
    2011 OK 98
    , ¶ 28, 
    273 P.3d 20
    , 30, cert. granted, judgment vacated on other grounds,
    
    133 S. Ct. 500
    , 
    184 L. Ed. 2d 328
    (2012) (holding that Oklahoma courts may not
    reform non-compete agreements that violate section 219A).        Accordingly, the
    application of Texas law, which permits reformation of covenants not to compete
    containing unenforceable limitations on a person’s constitutional right to work,
    would contravene the Oklahoma public policy prohibiting such reformation, and
    Oklahoma law should apply. See 
    Desantis, 793 S.W.2d at 679
    .
    Such analysis comports with Judge Gray Miller’s recent analysis of identical
    issues in Cardoni v. Prosperity Bank. 
    2014 WL 4982600
    (S.D. Tex. Oct. 6, 2014).
    In Cardoni, an employer sought to enforce a non-competition provision in which
    the parties had contractually agreed was governed by Texas law. 
    Id. at *2.
    After
    applying the conflicts of laws principals set forth above, Judge Miller concluded
    that, despite the choice of law provision, the court was required to apply Oklahoma
    law to the non-competition agreement. 
    Id. at *
    12-13. Judge Miller reasoned that
    the provisions in the agreement exceeded the bounds of Oklahoma law and
    unreasonably restrained fair competition. 
    Id. at *
    13. Judge Miller concluded that,
    32
    where the agreement prohibited the employee from “engaging in any business
    similar to that of [the former employer] or any business in which [the former
    employer] may prospectively become engaged,” the non-competition agreement
    violated the mandatory language of section 219A and required the application of
    Oklahoma law. 
    Id. This Court
    should apply the same analysis as Judge Miller and
    look to Oklahoma law to judge the enforceability of Schlumberger’s non-compete
    covenants. See 
    id. at *13.
    C.     The Non-Competition Provisions In The ICN Agreement And
    Retention Bonus Contract Are Void Under Oklahoma Law.
    Oklahoma law provides that non-competition agreements are void and
    unenforceable, except in very limited circumstances. OKLA. STAT. tit. 15 § 219A
    (2001) (declaring “void and unenforceable” any contract between employer and
    employee that restricts an employee from conducting the “same” or “similar”
    business as employer); see also OKLA. STAT. tit. 15 § 217 (2001) (declaring void,
    except in limited circumstances, every contract by which anyone is restrained from
    carrying on a lawful profession or business). The non-competition provision of the
    ICN Agreements and Retention Bonus Contract violate the public policy of
    Oklahoma as set forth in these statutes.
    The ICN Agreements state that the employee will not “directly or indirectly
    work for or assist (whether as owner, employee, consultant, contractor, or
    otherwise) any business or commercial operation whose business is – even in part
    33
    – in direct competition with any area of the Company’s business in which
    Employee was employed by Company.” 5 R.R. Pl.’s Ex. 1-2 at ¶ 5. The Retention
    Bonus Contract similarly provides that the employee will not “directly or indirectly
    own, manage, operate, control, be employed by, be a consultant for, or perform any
    job functions for, any business that is in competition with Company.” 5 R.R. Pl.’s
    Ex. 3 at ¶ 5. A “business that is in competition with Company” is defined as “a
    business that provides or offers the same or similar services, goods or material to
    those offered by Company.”        
    Id. The non-competition
    provisions of these
    contracts violate Oklahoma law because they do not allow Parker and Myers to
    “engage in the same business as that conducted by the former employer or in a
    similar business as that conducted by the former employer.” OKLA. STAT. tit. 15
    § 219A (2001). Therefore, as required by section 219A, the Court should conclude
    that the non-competition provisions Schlumberger seeks to enforce against Parker
    and Myers are void and unenforceable. Howard, 
    2011 OK 98
    , ¶ 19 (noting that
    where a covenant not to compete “prevent[s] the employees from taking jobs in
    any capacity from a competing business” it violates Oklahoma public policy and is
    void).
    Furthermore, the district court’s temporary injunction modifying and
    restricting the scope of the non-competition provisions violates Oklahoma public
    policy prohibiting reformation of non-competition provisions when such
    34
    reformation requires the court to materially alter the provisions at issue. Bayly,
    Martin & Fay, Inc. v. Pickard, 
    780 P.2d 1168
    , 1175 (Okla. 1989) (forbidding
    courts from modifying non-competition provisions to bring them within the rule of
    reason if the provisions require “material judicial alteration” of essential terms).
    Under Oklahoma law, judicial modification of non-competes is not appropriate if
    “the contractual provisions would have to be substantially rewritten to cure
    multiple defects.” Howard, 
    2011 OK 98
    , ¶ 3. The non-competition provisions in
    the ICN Agreements cannot be properly reformed under Oklahoma law as the
    contracts prevent Parker and Myers from directly or indirectly working for or
    assisting “(whether as owner, employee, consultant, contractor, or otherwise) any
    business or commercial operation whose business is – even in part – in direct
    competition with any area of the Company’s business in which Employee was
    employed by Company.” 5 R.R. Pl.’s Ex. 1-2 at ¶ 5. The Retention Bonus
    Contract also requires substantial reformation because, it prevents Myers from
    directly or indirectly working, managing, operating, controlling, being employed
    by, being a consultant for, or performing any job functions for “any business that is
    in competition with Company.” 5 R.R. Pl.’s Ex. 3 at ¶ 5. Because it is against
    Oklahoma public policy to prohibit workers in Oklahoma from “exercising a
    lawful profession,” except in limited circumstances not applicable here, the non-
    35
    competition agreements at issue violate Oklahoma public policy and are void and
    unenforceable. OKLA. STAT. tit. 15 §§ 217, 219A (2001).
    The district court erred in refusing to apply Oklahoma law rendering
    Schlumberger’s non-competition covenants void. The temporary injunction should
    be reversed for this reason.
    D.     Even Under Texas Law, The Non-Competition Agreements, And
    The District Court’s Temporary Injunction, Are Unenforceable
    Restraints On Trade.
    Even though the Court should apply Oklahoma law in evaluating the
    enforceability of the non-competition agreements, even under Texas law the
    agreements, and the district court’s injunction, constitute unreasonable restraints on
    trade. Covenants not to compete are restraints on trade and unenforceable as a
    matter of public policy unless they are reasonable restraints. See Juliette Fowler
    Homes, Inc., v. Welce Assocs., Inc., 
    793 S.W.2d 660
    , 662 (Tex. 1990)
    superseded on other grounds by statute as stated in Coinmach Corp. v.
    Aspenwood Apartment Corp., 
    417 S.W.3d 909
    , 923 (Tex. 2013); see also TEX.
    BUS. & COMM. CODE § 15.50(a). Indeed, as this Court recognizes, “[c]ovenants
    against competition are generally not favored by our courts because of the public
    policy against restraints of trade and the hardships resulting from interference with
    a person’s means of livelihood.” Martin v. Linen Sys. for Hospitals, Inc., 
    671 S.W.2d 706
    , 709 (Tex. App.—Houston [1st Dist.] 1984, no writ). “Noncompetes
    36
    tailored to protectable business interests have their lawful place, but they should be
    used sparingly and drafted narrowly. And employers must demonstrate special
    facts that legitimize the noncompete agreement. Squelching competition for its
    own sake is an interest unworthy of protection. Competition by a former employee
    may well rile an employer, but companies do not have free rein to, by contract,
    indenture an employee or dampen everyday competition that benefits Texas and
    Texans.” Marsh USA Inc. v. Cook, 
    354 S.W.3d 764
    , 788 (Tex. 2011) (Willet, J.,
    concurring).
    The Business and Commerce Code provides that a covenant not to compete
    is enforceable only if:
    (1)   it is ancillary to or part of an otherwise enforceable
    agreement at the time the agreement is made and;
    (2)   it contains limitations as to time, geographical area, and
    scope of activity to be restrained that are reasonable and
    do not impose a greater restraint than is necessary to
    protect the goodwill or other business interest of the
    promisee.
    TEX. BUS. & COMM. CODE § 15.50(a). A restraint on trade is unnecessary if it is
    broader than necessary to protect the legitimate interests of the employer.
    Gallahger Healthcare Ins. Servs. v. Vogelsang, 
    312 S.W.3d 640
    , 654 (Tex. App.—
    Houston [1st Dist.] 2009, pet. denied). A restrictive covenant is “overbroad and
    unreasonable when it extends to clients with whom the employee had no dealings
    during his employment.” Id.; see also Peat Marwick Main & Co. v. Haass, 818
    
    37 S.W.2d 381
    , 386–88 (Tex. 1991). The Texas Supreme Court instructs that an
    agreement is overbroad and unreasonable if:
    (1)    it inhibits a departing employee from servicing clients
    who were acquired after the employee left; or
    (2)    it inhibits departing employees from servicing clients
    whom the employee had no contact while associated with
    his former employer.
    
    Id. Moreover, this
    Court recognizes that an industry-wide exclusion is
    unreasonable. 
    Vogelsang, 312 S.W.3d at 654
    ; see also John R. Ray & Sons, Inc. v.
    Stroman, 
    923 S.W.2d 80
    , 85 (Tex. App.—Houston [14th Dist.] 1996, writ denied)
    (holding covenant not to compete prohibiting insurance agent from selling
    insurance policies within a county and all adjacent counties constitutes an
    unreasonable industry-wide restraint).
    Standard of Review
    Whether a covenant not to compete is reasonable is a legal question for the
    court. 
    Haass, 818 S.W.2d at 386
    . The burden of proving the necessity for and the
    reasonableness of the non-competition covenant falls upon the employer. 
    Martin, 671 S.W.2d at 709
    . Moreover, a court of appeals cannot uphold a noncompete
    absent a record that demonstrates the limitations are reasonable and as
    nonburdensome as possible. Marsh USA 
    Inc., 354 S.W.3d at 785
    . As Justice
    Willet recognized, “Every company has customer relationships and attendant
    goodwill it wants to cultivate by incentivizing employees to stay, but merely
    38
    asserting goodwill is not enough . . . The evidentiary record must demonstrate
    special circumstances beyond the bruises of ordinary competition such that, absent
    the covenant, [the former employee] would possess a grossly unfair competitive
    advantage. And even then the restrictions imposed must be as light as possible and
    not restrict [the former employee’s] mobility to an extent greater than [the
    employer’s] legitimate need.” 
    Id. at 784-85
    (emphasis in original).
    The non-competition agreements, and the district court’s temporary
    injunction, are unreasonable restraints that prohibit Parker and Myers from
    working in an entire industry.
    Texas courts have repeatedly recognized that a covenant not to compete is
    unreasonable if it seeks to prohibit a former employee from working in an entire
    industry. 
    Vogelsang, 312 S.W.3d at 654
    ; 
    Stroman, 923 S.W.2d at 85
    ; Wright v.
    Sport Supply Group, Inc., 
    137 S.W.3d 289
    , 298 (Tex. App.—Beaumont 2004, no
    pet.). Schlumberger sought to enjoin Parker and Myers from working in the entire
    wireline, slick-line, and braided line industry (see 3 R.R. 19). The district court’s
    order does so, providing:
    6. Enjoined Parties shall not directly or indirectly work for, or assist
    (whether as an owner, employee, consultant, contractor or otherwise)
    any business or commercial operations of wireline, slick-line and
    braided line operations in the counties set forth in Plaintiff’s Exhibit
    74 which is attached.
    39
    C.R. 304. 3 The sole limitation to that order is a broad geographic one limiting the
    order to “the counties set forth in Plaintiff’s Exhibit 74.” 
    Id. Plaintiff’s Exhibit
    74
    is a list of 142 counties in Oklahoma, Arkansas, Texas, Louisiana, Pennsylvania,
    Ohio, West Virginia, and New York that purportedly constitutes the complete list
    of every county a work crew reporting to Myers ever worked during his three-year
    tenure with Schlumberger. See 4 R.R. 69-70.
    Such a restriction, however, is not reasonable under the business and
    commerce code and constitutes an unreasonable industry-wide restraint under
    Texas law. See 
    Vogelsang, 312 S.W.3d at 654
    ; 
    Stroman, 923 S.W.2d at 85
    ; Wright
    v. Sport Supply Group, Inc., 
    137 S.W.3d 289
    , 298 (Tex. App.—Beaumont 2004,
    no pet.). For example, in Stroman, the Fourteenth Court of Appeals held that a
    non-competition agreement that provided “[the employee] would not engage in or
    have an interest in any business that sold insurance policies or engaged in the
    insurance agency business within Harris County and all adjacent counties for a
    period of five years from the date of the Agreement” constituted an unreasonable
    industry-wide restraint on trade. 
    Stroman, 923 S.W.2d at 83
    , 85. The court
    reasoned that the restraint could not be enforced because it completely prohibited
    3
    Plaintiff’s Exhibit 74 is not attached to the temporary injunction as the order states. See C.R.
    299 - 306. However, there is a Plaintiff’s Exhibit 74 in the record, which was admitted without
    objection and which identifies 142 counties in Oklahoma, Arkansas, Texas, Louisiana,
    Pennsylvania, Ohio, West Virginia, and New York in which Parker and Myers are prohibited
    from working. See 5 R.R. Pl.’s Ex. 74.
    40
    the employee’s “ability to work in the insurance business in and around Harris
    County.” 
    Id. at 85.
    As in Stroman, the district court’s injunction prohibits Parker
    and Myers from working in the entire wireline, slick-line, and braided line industry
    in the 142 counties in Oklahoma, Arkansas, Texas, Louisiana, Pennsylvania, Ohio,
    West Virginia, and New York listed in Plaintiff’s Exhibit 74. See C.R. 304; 5 R.R.
    Pl.’s Ex. 74. Such restrictions constitute unreasonable industry-wide prohibitions,
    which are improper under Texas law. See 
    Stroman, 923 S.W.2d at 83
    , 85; see also
    
    Wright, 137 S.W.3d at 298
    (holding that agreement prohibiting employee “from,
    either directly or indirectly, conducting any sales related activities for a business
    related to the promotion, marketing, distribution, manufacturing, sourcing,
    importing and/or sale of sports related equipment and/or supplies to institutional
    customers in certain counties” constitutes an unreasonable restriction on trade).
    In contrast, this Court has held that where an employer’s non-competition
    agreement merely prohibits the employee from working in a specific industry for
    specific former clients of the employee, such a restriction does not constitute an
    industry-wide restraint because it “does not limit [the employee] from working in
    the insurance business, and she can practice her livelihood anywhere in the
    world . . . [h]owever, she cannot work with her [former] clients” for a limited
    period. 
    Vogelsang, 312 S.W.3d at 655
    . This Court concluded that such a restraint
    was a reasonable because the restraint was narrowly tailored to individual clients
    41
    and did not prohibit the employee from working in the industry as a whole and
    earning a living. 
    Id. Here, the
    district court’s injunction prohibits Parker and
    Myers from earning a living in the wireline, slick-line, or braided line work in 142
    counties in eight states. C.R. 304. Unlike the restriction in Vogelsang, the district
    court’s injunction is not narrowly tailored merely to Parker and Myers’ former
    clients with Schlumberger. See 
    id. Accordingly, it
    is axiomatic that the industry-
    wide restriction covering 142 counties in eight states is not “as light [a restriction]
    as possible” as required to constitute a reasonable limitation on Parker and Myers’
    right to work. Marsh USA 
    Inc., 354 S.W.3d at 785
    . Instead, the injunction
    prohibits Parker and Myers from earning a living in the wireline industry, which is
    improper under Texas law. See 
    Stroman, 923 S.W.2d at 85
    . The injunction should
    be reversed for this reason.
    The non-competition agreements, and the district court’s temporary
    injunction, are unreasonable in scope.
    Even setting aside the fact that the district court’s injunction constitutes an
    improper industry-wide prohibition, the scope of the district court’s injunction is
    overly broad and unreasonable. Where a covenant not to compete prohibits the
    employee from working “in any capacity” for a competitor of the former employer,
    the covenant is overbroad in scope as a matter of law. McNeilus Companies, Inc.
    v. Sams, 
    971 S.W.2d 507
    , 511 (Tex. App.—Dallas 1997, no writ).; see also Recon
    Exploration, Inc. v. Hodges, 
    798 S.W.2d 848
    , 853 (Tex. App.—Dallas 1990, no
    42
    writ) (non-competition covenant prohibiting employment in any business of type
    and character engaged in and competitive with former employer presented question
    of reasonableness).
    While Schlumberger’s employees repeatedly testified that it sought only to
    limit Parker and Myers in their ability to compete with Schlumberger in the
    wireline business (see, e.g., 3 R.R. 19), the temporary injunction is not so limited.
    The injunction states:
    6.     Enjoined Parties shall not directly or indirectly work for, or
    assist (whether as an owner, employee, consultant, contractor or
    otherwise) any business or commercial operation of wireline, slick
    line and braided line operations in the counties set forth in Plaintiff’s
    Exhibit 74 which is attached.
    ***
    8.     Enjoined Parties shall not provide, or supervise, advise, manage
    or serve as a consultant for businesses who are performing wireline,
    slick line or braided line work for the Established Customers of
    Schlumberger in the states of Oklahoma, Texas, Arkansas, Kansas,
    Pennsylvania and Louisiana.
    C.R. 304. Despite Schlumberger’s stated intent, the injunction does not prohibit
    Parker and Myers merely from engaging in wireline, slick-line, and braided line
    work. The phrases “wireline, slick line and braided line operations” and “wireline,
    slick line or braided line work” identify the type of business that Parker and Myers
    cannot work for, but those phrases do not limit the type of work that Parker and
    Myers are prohibited from engaging in. See C.R. 304. Under the district court’s
    injunction, Parker and Myers cannot do any kind of work for any business that
    43
    engages in wireline-type work, regardless if that business was ever a client of
    Schlumberger. C.R. 304. For example, the injunction would prevent Parker and
    Myers from working as custodians or caterers for a business that has never done
    business with Schlumberger that happens to perform wireline, slick-line, or braided
    line work in one of the 142 counties listed on Plaintiff’s Exhibit 74. See C.R. 304.
    Likewise, Parker and Myers could not even perform custodial work for
    Schlumberger’s “Established Customers.” See 
    id. As the
    injunction prohibits
    Parker and Myers from working in any capacity for any business that performs
    wireline-type work, the injunction is simply not narrowly tailored to protect
    Schlumberger’s goodwill as required by the business and commerce code.          See
    TEX. BUS. & COMM. CODE § 15.50. Accordingly, the district court’s injunction
    should be reversed as it fails to comply with the statutory requirements imposed by
    the Texas Legislature. See McNeilus Companies, 
    Inc., 971 S.W.2d at 511
    .
    The non-competition agreements, and the district court’s temporary
    injunction, do not include reasonable restraints on the geographic area in
    which Parker and Myers are enjoined from working.
    Moreover, the evidence in the record demonstrates that the geographic area
    in which Parker and Myers have been enjoined from working is also unreasonable.
    The breadth of enforcement of territorial restraints in covenants not to compete
    depends upon the nature and extent of the employer’s business and the degree of
    the employee’s involvement. Butler v. Arrow Mirror & Glass, Inc., 
    51 S.W.3d 44
    787, 793 (Tex. App.—Houston [1st Dist.] 2001, no pet.); Allan J. Richardson &
    Assocs., Inc. v. Andrews, 
    718 S.W.2d 833
    , 835 (Tex. App.—Houston [14th Dist.]
    1986, no writ). The covenant must bear some relationship to the activities of the
    employee. 
    Butler, 51 S.W.3d at 793-94
    . Non-compete covenants with broad
    geographical scopes are unenforceable, particularly when no evidence establishes
    that the employee “actually worked” in all areas covered by the covenant. 
    Id. (emphasis added).
       Courts have also concluded that limitations to clients the
    employee dealt with constitutes a reasonable alternative to a geographical
    limitation. See 
    Vogelsang, 312 S.W.3d at 654
    (citing Stocks v. Banner Am. Corp.,
    
    599 S.W.2d 665
    , 666–68 (Tex. Civ. App.—Texarkana 1980, no writ); Totino v.
    Alexander & Assocs., 
    1998 WL 552818
    , at *4 (Tex. App.—Houston [1st Dist.]
    Aug. 20, 1998, no pet.); Investors Diversified Servs. v. McElroy, 
    645 S.W.2d 338
    ,
    339 (Tex. App.—Corpus Christi 1982, no writ)).
    Paragraph 6 of the district court’s injunction attempts to set a geographic
    limitation by prohibiting Parker and Myers from performing “wireline, slick line
    and braided line operations in the counties set forth in Plaintiff’s Exhibit 74 which
    is attached.” C.R. 304 at ¶ 6. As noted above, Plaintiff’s Exhibit 74 identifies 142
    counties in Oklahoma, Arkansas, Texas, Louisiana, Pennsylvania, Ohio, West
    Virginia, and New York. 5 R.R. Pl.’s Ex. 74. This does not, however, constitute a
    reasonable geographic limitation under Texas law, which requires that such an
    45
    order be limited to locations in which the enjoined party “actually worked.” See
    
    Butler, 51 S.W.3d at 793
    . It is Schlumberger’s burden to produce evidence in the
    temporary injunction hearing that Parker and Myers actually worked in the areas it
    seeks to enjoin them from working. Marsh USA 
    Inc., 354 S.W.3d at 785
    .
    At the temporary injunction hearing, Schlumberger’s Production Manager
    for North America, who managed Schlumberger’s entire wireline and slick-line
    operations in North America, admitted that Parker and Myers worked from
    Schlumberger’s Pocola, Oklahoma office. See 3 R.R. 24-25. The Schlumberger
    Production Manager also admitted that Parker and Myers’ work was focused
    primarily within the state of Oklahoma. 3 R.R. 25. Indeed, relative to the list of
    142 counties in eight states in which Parker and Myers are now prohibited from
    working, Schlumberger’s evidence is simply that a work crew under Myers worked
    in each of those counties at one time or another. See 4 R.R. 69-70.
    There is no evidence that Parker or Myers traveled to any of these counties,
    actually supervised the work, had any contact with the clients Schlumberger was
    servicing in the counties, or otherwise were connected with the listed counties
    outside Oklahoma in any way, with the sole exception that, Schlumberger says,
    Myers was responsible for “making sure that the charges were right on the ticket.”
    4 R.R. 69-70. Evidence that Myers ensured that charges were correct, however, in
    no way satisfies Schlumberger’s burden to prove that Myers and Parker “actually
    46
    worked” in the 142 counties listed in Plaintiff’s Exhibit 74. See, e.g., 
    Butler, 51 S.W.3d at 793
    (requiring evidence that employee “actually worked” in location to
    prohibit him from subsequently working there based upon a covenant not to
    compete). Indeed, there can be no reasoned basis for enjoining Parker and Myers
    from working in the 142 counties in eight states listed in Plaintiff’s Exhibit 74 as
    the purpose of such injunctions is to prohibit former employees from possessing a
    “grossly unfair competitive advantage” over their former employer, and one can
    gain no such advantage by merely approving bills to be sent to the employer’s
    customers. See Marsh USA 
    Inc., 354 S.W.3d at 785
    . As the record provides no
    evidence establishing that Parker and Myers actually worked in the 142 counties in
    eight states listed in Plaintiff’s Exhibit 74, the district court’s order granting
    temporary injunction does not include a reasonable geographic restriction and
    should be reversed. 
    Id. Moreover, the
    order does not meet the alternative requirement of substituting
    geographic restrictions for a limitation to clients Parker and Myers dealt with. See
    
    Vogelsang, 312 S.W.3d at 654
    . Paragraphs 7 and 8 of the injunction prohibit
    Parker and Myers from soliciting “wireline, slick line or braided line work and/or
    service, from the Established Customers of Schlumberger in the states of
    Oklahoma, Texas, Arkansas, Kansas, Pennsylvania, and Louisiana,” and from
    performing “wireline, slick line or braided line work for the Established Customers
    47
    of Schlumberger in the states of Oklahoma, Texas, Arkansas, Kansas,
    Pennsylvania and Louisiana.”        C.R. 304.      The “Established Customers” of
    Schlumberger are set forth in Plaintiff’s Exhibit 13, which is a list of 62 various
    business entities. C.R. 293-94.
    However, it is, again, Schlumberger’s burden, as an employer seeking to
    enjoin Parker and Myers, to produce competent evidence that Parker and Myers
    dealt with each of those customers while working for Schlumberger. See Marsh
    USA 
    Inc., 354 S.W.3d at 785
    . It attempted to do so by offering Plaintiff’s Exhibit
    13, which purports to be a list of “Parker Energy Services” customer base, into
    evidence. See 4 R.R. 114. That list, however, is a hearsay statement the district
    court improperly admitted into evidence over Parker and Myers’ objection, and is
    not competent evidence of the customers Parker and Myers dealt with while
    employed by Schlumberger. See TEX. R. EVID. 801-03.
    “Hearsay” is a statement, other than one made by the declarant while
    testifying at the trial or hearing, offered in evidence to prove the truth of the matter
    asserted. TEX. R. EVID. 801. The list of customers set forth in Plaintiff’s Exhibit
    13 is an out-of-court statement offered for the truth of the matter asserted. See 4
    R.R. 114; 5 R.R. Pl.’s Ex. 13. Despite Parker and Myers objection to the exhibit,
    Schlumberger offered no evidence that Plaintiff’s Exhibit 13 meets any exception
    to the hearsay rule or otherwise does not qualify as hearsay. Compare 3 R.R. 114
    48
    with TEX. R. EVID. 801-03. Moreover, other than the document itself, which is not
    competent evidence, Schlumberger offered no evidence demonstrating that each of
    the entities listed on the exhibit were customers of Parker or Myers during their
    respective tenures with Schlumberger or that Parker and Myers otherwise had any
    dealings with those customers while employed by Schlumberger. Accordingly, as
    the document is hearsay that the district court should have been excluded from
    evidence, there is simply no competent evidence demonstrating that Parker and
    Myers dealt with each of the 62 entities listed on Plaintiffs’ Exhibit 13 as required
    to support the trial court’s restriction of Parker and Myers’ right to perform
    wireline, slick-line, or braided line work for those entities. See TEX. R. EVID. 801-
    03; Marsh USA 
    Inc., 354 S.W.3d at 785
    .4
    Moreover, even if Plaintiff’s Exhibit 13 constituted competent evidence,
    which it does not, it is not evidence that Parker or Myers, in their individual
    capacities, had a relationship with any of the listed entities. See 3 R.R. 114. It is
    simply a list of entities “Parker Energy Services” worked for at some point in time.
    
    Id. While Parker
    and Myers were managers of Parker Energy, there is no evidence
    Parker or Myers had a personal relationship with, or otherwise dealt with, each of
    4
    Out of the 62 entities listed in Plaintiff’s Exhibit 13, there is evidence in the record that Parker
    or Myers dealt with only five during their tenure with Schlumberger: B.P., Chevron, Unit
    Petroleum, X.T.O.Energy, and Jones Energy. See 3 R.R. 33-34, 69, 87.
    49
    the listed entities. See 
    Vogelsang, 312 S.W.3d at 654
    ; Investors Diversified 
    Servs., 645 S.W.2d at 339
    (concluding that noncompetition covenant restricted “to 150
    current customers of the [employer], with whom the [employee] had contacted or
    dealt with” was reasonable).
    It is “well-settled that corporations can act only through its agents and
    employees.” In re Credit Suisse First Boston Mortg. Capital, L.L.C., 
    273 S.W.3d 843
    , 849 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing GTE Sw., Inc. v.
    Bruce, 
    998 S.W.2d 605
    , 618 (Tex. 1999); Hammerly Oaks, Inc. v. Edwards, 
    958 S.W.2d 387
    , 391 (Tex. 1997)). When a party sues a person in their individual
    capacity, as Schlumberger sued Parker and Myers, it must prove that the individual
    performed the act complained of. See, e.g., Revere Oil Co. v. Bank of Chillicothe,
    
    255 S.W. 219
    , 220 (Tex. Civ. App.—Amarillo 1923, no writ). “‘Individually’
    means separately and personally, as distinguished from jointly or officially, and as
    opposed to collective or associate action or common interests.” S. Distrib. Co. v.
    Carraway, 
    127 S.E. 427
    , 428 (N.C. 1925) (citing Revere 
    Oil, 255 S.W. at 220
    ).
    Accordingly, a document showing that “Parker Energy Services” had a relationship
    with another business entity is no evidence that Parker or Myers, in their individual
    capacities, dealt with those other entities. See 
    id. As Texas
    public policy prohibits
    injunctions simply to stifle competition, without evidence that Parker or Myers
    specifically dealt with the 62 entities listed on Plaintiff’s Exhibit 13, the district
    50
    court’s injunction is unreasonable. See 
    Vogelsang, 312 S.W.3d at 654
    ; Investors
    Diversified 
    Servs., 645 S.W.2d at 339
    .
    The non-competition agreements and the district court’s temporary
    injunction are not reasonably limited in time.
    In addition to being reasonably limited in scope and geography, the Business
    and Commerce Code requires that covenants not to compete be reasonably limited
    in time. See TEX. BUS. & COMM. CODE § 15.50(a). Although the district court
    recognized that the ICN Agreements and the Bonus Retention Contract each
    provided Schlumberger with only a one year period during which the non-compete
    provisions would apply, 5 the district court indefinitely enjoined Parker and Myers
    from performing wireline work.             See C.R. 296-305.         Such an open-ended
    injunction is not reasonable and does not comply with the requirements of the
    Business and Commerce Code. See TEX. BUS. & COMM. CODE § 15.50(a).
    Moreover, as to Parker, the district court’s injunction is not reasonably
    restricted in time as he resigned his position with Schlumberger on October 2,
    2013 (2 R.R. 15-16), and there is no proper basis to continue to enjoin him from
    working in the wireline industry months after his covenant not to compete expired
    by its own terms. 5 R.R. Pl.’s Ex. 1 at ¶¶ 5, 7.
    5
    See C.R. 298 (“The ICN Agreements also contained one year restrictions on certain competitive
    activities after their employment ended.”); 
    Id. (“Paragraph 5
    of the Retention Bonus Contract
    provides that during his employment with the Company and for a period of one year following
    the end of his employment, he would not [compete with Schlumberger]”).
    51
    By its own terms, Parker’s non-competition covenant expired on October 2,
    2014, one year after he resigned his position with Schlumberger. See 3 R.R. 31; 5
    R.R. Pl.’s Ex. 1 at ¶ 5 (“Employee agrees that for a period of one (1) year
    following the date of termination of his/her employment with Company, Employee
    will not directly or indirectly work for or assist . . . [any competing business]”).
    Parker, however, has been restrained and enjoined from performing wireline work
    since October 9, 2014, when the district court signed a temporary restraining order
    prohibiting him from working. C.R. 304. Accordingly, Parker has been prohibited
    from working for months after his covenant not to compete expired by its own
    terms.
    The district court, however, ruled that the evidence showed that the non-
    compete agreement should be tolled and extended, specifically referencing
    Parker’s purchase of equipment in preparation to compete with Schlumberger in
    early 2014. See C.R. 300, 4 R.R. 124. 6 However, as this Court recognizes: “[T]o
    resign from one’s employment and go into business in competition with one’s
    6
    A tolling provision in the ICN Agreement provides: “If Employee is found to have breached
    any promise made in Paragraph 5 of this Agreement, the one-year period specified in Paragraph
    5 shall be extended by the period of time for which Employee was in breach.” 5 R.R. Pl.’s Ex. 1
    at ¶ 7. Relative to the tolling provision, the evidence in the record shows that Parker (1)
    purchased wireline trucks in January 2014 (3 R.R. 46); (2) purchased additional tools in April
    2014 (3 R.R. 46); (3) purchased miscellaneous pick-up trucks for P.W.L. in August or September
    2014 (3 R.R. 48); (4) hired Myers to work for P.W.L. on September 17, 2014 (see 3 R.R. 58);
    and (5) performed the first job for P.W.L. on September 29, 2014 (3 R.R. 68).
    52
    former employer is, under ordinary circumstances, a constitutional right. There is
    nothing legally wrong in engaging in such competition or in preparing to compete
    before the employment terminates.” See Abetter Trucking Co. v. Arizpe, 
    113 S.W.3d 503
    , 510 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (emphasis added)
    (citations omitted).    It is only where a covenant not to compete specifically
    prohibits preparing to compete that one may be prohibited from engaging in such
    preparations. See 
    id. The I.C.N.
    Agreement does not preclude Parker from “preparing” to
    compete, it provides that, for a period of one year, he may not “work for or
    assist . . . any business . . . whose business is . . . in direct or indirect competition
    with [Schlumberger].” 5 R.R. Pl. Ex. 1 at ¶ 5 (emphasis added). Such language is
    written in the present tense, and, therefore, precludes Parker from working for
    businesses in present competition with Schlumberger. See 
    id. To conclude,
    as the
    district court did, that the non-compete provision precludes preparing to compete
    in the future, improperly adds restrictions to the agreement. Borders v. KRLB, Inc.,
    
    727 S.W.2d 357
    , 359 (Tex. App.—Amarillo 1987, writ ref’d n.r.e.) (“The ultimate
    restraint is that a court cannot, through the construction process, make a new
    contract for the parties, one they did not make.”). Indeed, the district court’s
    injunction, which penalizes Parker for preparing to compete, violates the public
    policy of the state set forth by this Court that persons may properly “prepare[] to
    53
    compete” with their former employers absent an express agreement to the contrary.
    Abetter Trucking 
    Co., 113 S.W.3d at 510
    .
    At the earliest, Parker’s non-compete agreement was tolled on September
    17, 2014, when he hired Myers to work for P.W.L. See 3 R.R. 58. Even tolling
    the non-compete agreement for that 15 day period (the time period between
    September 17, 2014 and October 2, 2014), that the injunction against Parker should
    have expired on October 24, 2014 (15 days after the district court’s initial entry of
    a temporary restraining order prohibiting Parker from working).         The district
    court’s continued indefinite injunction prohibiting Parker from working is
    unreasonable as he has now been restrained and enjoined from working for months
    after his non-compete agreement should have expired.           The district court’s
    injunction should be reversed for this additional reason as it is not reasonably
    limited in time as required by the Business and Commerce Code. TEX. BUS. &
    COMM. CODE § 15.50.
    E.     There Is No Evidence Of Irreparable Harm As Required To
    Support Injunctive Relief.
    To be entitled to a temporary injunction, a party must establish that it has an
    inadequate remedy at law. Butnaru v. Ford Motor Co., 
    84 S.W.3d 198
    , 210 (Tex.
    2002). In other words, the party must establish that it will suffer irreparable harm
    if the injunction is not granted. See id; see also Cardinal Health Staffing Network,
    Inc. v. Bowen, 
    106 S.W.3d 230
    , 240 (Tex. App.—Houston [1st Dist.] 2003, no
    54
    pet.) (holding that party must prove irreparable injury to be entitled to injunctive
    relief stemming from breach of non-competition agreement).          On appeal, the
    standard of review for determining whether the record demonstrates an irreparable
    harm is abuse of discretion. Cardinal Health Staffing 
    Network, 106 S.W.3d at 234
    .
    Review of the record demonstrates that there is no evidence that
    Schlumberger will suffer irreparable harm in the absence of an injunction.
    Schlumberger’s corporate representative repeatedly admitted that Schlumberger
    had an adequate legal remedy for each of its claims against Parker and Myers -
    damages. See 4 R.R. 93 (“Q: The loss of tools a harm Schlumberger can’t fix? Or
    can Schlumberger buy more tools? A: We can buy more tools.); 4 R.R. 93 (Q: The
    loss of employees is not a harm that Schlumberger can’t fix; you can hire and train
    more people, correct? A: We can hire and train more people over a period of
    time”); 4 R.R. 98-99 (Q: So you can calculate monetary damages for lost business,
    can’t you? A: We can calculate? Q: Monetary damages for lost business. A: An
    estimated amount. Q Okay. And then you can be paid for the lost business caused
    by any wrongdoing of Mr. Parker and Mr. Myers, correct? A: We can be paid for
    damages.”).
    Such admissions show that Schlumberger has an adequate remedy at law -
    damages for lost business.     Indeed, Schlumberger is seeking to recover such
    damages in the underlying lawsuit. See C.R. 14-16. As Schlumberger admits it
    55
    has an adequate remedy at law, the district court abused its discretion in signing a
    temporary injunction prohibiting Parker and Myers from working, and the
    temporary injunction should be reversed for this independent reason. Cardinal
    Health Staffing Network, 
    Inc., 106 S.W.3d at 243
    (affirming trial court’s order
    denying the temporary injunction where record showed applicant had an adequate
    legal remedy to enforce non-competition agreement).
    CONCLUSION AND PRAYER
    For the reasons noted above, Appellants Ricky Parker and James Myers
    respectfully request that the Court reverse the district court’s interlocutory orders
    denying their motion to compel arbitration and denying the motion for
    reconsideration of their motion to compel arbitration. Parker and Myers further
    request that the Court reverse the district court’s order granting Schlumberger’s
    application for temporary injunction and permit Parker and Myers to resume work
    for their Oklahoma employer Professional Wireline LLC.
    56
    Respectfully submitted,
    MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
    By: /s/ Robert T. Owen
    Levon G. Hovnatanian
    State Bar No. 10059825
    hovnatanian@mdjwlaw.com
    Kevin G. Cain
    State Bar No. 24012371
    cain@mdjwlaw.com
    Robert T. Owen
    owen@mdjwlaw.com
    State Bar No. 24060370
    808 Travis, Suite 20th Floor
    Houston, Texas 77002
    (713) 632-1700 – Telephone
    (713) 222-0101 – Facsimile
    ATTORNEYS FOR APPELLANTS
    RICKY D. PARKER AND JAMES MYERS
    Of Counsel:
    W. Jackson Wisdom
    State Bar No. 21804025
    wisdom@mdjwlaw.com
    James M. Cleary
    State Bar No. 00783838
    cleary@mdjwlaw.com
    808 Travis, Suite 20th Floor
    Houston, Texas 77002
    (713) 632-1700 – Telephone
    (713) 222-0101 – Facsimile
    57
    CERTIFICATE OF COMPLIANCE
    This is to certify that this computer-generated Appellant’s Brief contains
    13,516 words.
    /s/ Robert T. Owen
    Robert T. Owen
    Dated: January 28, 2015
    CERTIFICATE OF SERVICE
    I hereby certify that on this 28th day of January, 2015, a true and correct
    copy of the foregoing appellants’ brief on the merits was sent by the method(s)
    indicated to the following individuals:
    Mr. Jeff Barnes                via e-file and e-mail: barnesj@jacksonlewis.com
    JACKSON LEWIS, P.C.
    1415 Louisiana, Suite 3325
    Houston, Texas 77002
    Mr. William L. Davis           via e-file and e-mail: davisw@jacksonlewis.com
    JACKSON LEWIS, P.C.
    500 N. Akard, Suite 2500
    Dallas, Texas 75201
    /s/ Robert T. Owen
    Robert T. Owen
    58
    APPENDICES
    INDEX
    Order Denying Defendants’ Motion to Compel Arbitration ............................ 1
    Order Denying Defendants’ Motion for Reconsideration of
    Its Motion to Compel Arbitration ..................................................................... 2
    Temporary Injunction ....................................................................................... 3
    Asset Purchase Agreement dated September 9, 2011 ...................................... 4
    Intellectual Property, Confidential Information and
    Non Compete Agreement (Ricky Parker)......................................................... 5
    Intellectual Property, Confidential Information and
    Non Compete Agreement (James Myers) ......................................................... 6
    Retention Bonus Contract ................................................................................. 7
    Oklahoma Statute tit. 15 § 217 ......................................................................... 8
    Oklahoma Statute tit. 15 § 219A....................................................................... 9
    Texas Business & Commerce Code § 15.50..................................................... 10
    Texas Business & Commerce Code § 15.51..................................................... 11
    1
    2
    3
    4
    7
    8