Shoreline Gas, Inc. v. Chuck McGaughey ( 2008 )


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  •                                NUMBER 13-07-364-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    SHORELINE GAS, INC.,                                                            Appellant,
    v.
    CHUCK MCGAUGHEY,                                                                 Appellee.
    On appeal from the County Court at Law No. 2
    of Nueces County, Texas
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Vela
    Memorandum Opinion by Justice Garza
    Appellant Shoreline Gas, Inc. (“Shoreline”) appeals from the denial of its application
    for a temporary injunction against appellee Chuck McGaughey, its former employee, under
    the non-competition, non-solicitation, and non-disclosure provisions of a Confidentiality and
    Non-Competition Agreement (“Agreement”) signed by McGaughey. The trial court found
    these provisions to be invalid and unenforceable. This accelerated interlocutory appeal
    ensued. See TEX . R. APP. P. 28.1. By four issues, Shoreline argues that the trial court
    abused its discretion in denying its application for temporary injunctive relief. We affirm the
    judgment of the trial court.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    Shoreline is in the natural gas marketing business. It purchases gas from gas
    producers and then sells or markets that gas to other entities. McGaughey was hired by
    Shoreline in 2002 as a gas supply representative and was expected to solicit gas
    producers, purchase gas from such gas producers, negotiate contracts, and maintain and
    expand Shoreline’s relationships with new and existing producers. It is undisputed that
    McGaughey was an at-will employee. As a condition of his hiring, McGaughey was
    required to sign the Agreement, which contained non-competition, non-solicitation, and
    non-disclosure covenants. Although McGaughey disputes the circumstances under which
    he signed the Agreement,1 it is undisputed that he signed the Agreement immediately upon
    commencing his employment with Shoreline.
    Shoreline abruptly terminated McGaughey’s employment on April 25, 2007. Shortly
    thereafter, Shoreline brought suit against McGaughey seeking a declaratory judgment that
    the non-compete, non-solicitation, and non-disclosure provisions of the Agreement are
    enforceable, and seeking temporary and permanent injunctive relief. Shoreline also served
    McGaughey with a temporary restraining order requiring him to abide by those provisions.
    McGaughey filed a first amended original answer denying Shoreline’s allegations generally,
    and pleading specifically waiver and estoppel, collateral estoppel, failure of Shoreline to
    verify its petition for injunction, and failure of Shoreline to allege with specificity a probable
    injury.
    After temporary injunction hearings on May 7, 22, and 23, 2007, the trial court
    denied Shoreline’s request for temporary injunction. Specifically, the trial court’s order of
    June 6, 2007 stated as follows:
    1
    McGaughey claim s that when he told Rian Grisem er, president of Shoreline, that he would not sign
    the Agreem ent, Grisem er told him “if things don’t work out you can go back to work for a larger com pany.
    That won’t be a problem .” Shoreline disputes this claim .
    2
    ORDER DENYING INJUNCTIVE RELIEF
    On May 7, 2007, the court called for hearing the motion of plaintiff
    Shoreline Gas, Inc., for injunctive relief. All parties appeared and announced
    ready. Having heard the evidence and argument of counsel, the court finds
    that the [sic] all of the provisions of the Confidentiality and Non Competition
    Agreement signed by defendant Chuck McGaughey which limit in any way
    defendant’s right to compete with plaintiff or to solicit plaintiff’s customers are
    unenforceable.
    It is ORDERED that all injunctive relief requested by plaintiff, including
    that relief based upon paragraphs 4 (Non-disclosure or Use of Trade
    Secrets), 5 (Non-disclosure or Use of Confidential Information), 7 (Non
    competition), and 8 (Non-solicitation of Accounts) of the Confidentiality and
    Non Competition Agreement, is DENIED.
    Neither party requested, nor did the trial court supply, findings of fact or conclusions
    of law. Following the court’s denial of its request for a temporary injunction, Shoreline filed
    its notice of interlocutory appeal. See TEX . CIV. PRAC . & REM . CODE ANN . § 51.014(a)(4)
    (Vernon Supp. 2007). Shoreline contends that the trial court abused its discretion by
    denying its application for temporary injunction. Specifically, Shoreline argues that the trial
    court erred by:     (1) finding the non-compete covenant of the Agreement to be
    unenforceable; (2) finding the non-solicitation covenant of the Agreement to be
    unenforceable; (3) finding the non-disclosure covenant of the Agreement to be
    unenforceable; and (4) refusing to reform the geographical area, scope of activity, and time
    of the various covenants of the Agreement and to enforce them as reformed pursuant to
    section 15.51(c) of the Texas Business and Commerce Code. See TEX . BUS. & COM . CODE
    ANN . § 15.51(c) (Vernon Supp. 2007).
    II. STANDARD OF REVIEW
    The decision to grant or deny a temporary injunction lies in the sound discretion of
    the trial court, and the court's ruling is subject to reversal only for a clear abuse of
    discretion. Walling v. Metcalfe, 
    863 S.W.2d 56
    , 57 (Tex. 1993). In reviewing an order
    granting or denying a temporary injunction, we must view the evidence in the light most
    favorable to the trial court’s decision, indulging every reasonable inference in its favor. See
    Diesel Injection Sales & Serv., Inc. v. Gonzalez, 
    631 S.W.2d 193
    , 195 (Tex. App.–Corpus
    3
    Christi 1982, no writ). However, a trial court abuses its discretion in denying a temporary
    injunction when it misapplies the law to the established facts. See Loye v. Travelhost, Inc.,
    
    156 S.W.3d 615
    , 619 (Tex. App.–Dallas 2004, no pet.) (op. on reh’g); see also State v. Sw.
    Bell Tel. Co., 
    526 S.W.2d 526
    , 528 (Tex. 1975).
    It is well established that when no findings of fact or conclusions of law are
    requested or filed, we must uphold the trial court’s judgment on any legal theory supported
    by the record. See, e.g., Davis v. Huey, 
    571 S.W.2d 859
    , 862 (Tex. 1978); Seaman v.
    Seaman, 
    425 S.W.2d 339
    , 341 (Tex. 1968). Here, the trial court did include in its order a
    finding that the non-compete, non-solicitation, and non-disclosure provisions of the
    Agreement are “invalid and unenforceable.” Shoreline argues that the trial court, with this
    statement, has arrived at a conclusion of law on the final issue of the enforceability of those
    provisions, and that our review is therefore limited to this conclusion. We disagree. Even
    if we were to assume that this statement was in fact a conclusion of law, such conclusions,
    although “helpful” in our review of an interlocutory order, are not binding in our
    determination of whether a trial court has abused its discretion. See Tom James of Dallas,
    Inc. v. Cobb, 
    109 S.W.3d 877
    , 884 (Tex. App.–Dallas 2003, no pet.); see also IKB Indus.
    (Nigeria), Ltd. v. Pro-Line Corp., 
    938 S.W.2d 440
    , 442 (Tex. 1997); Chrysler Corp. v.
    Blackmon, 
    841 S.W.2d 844
    , 852 (Tex. 1992). Accordingly, we use the standard of review
    applicable to cases where no findings of fact or conclusions of law have been requested
    or filed. See 
    Davis, 571 S.W.2d at 862
    .
    Moreover, despite the breadth of the trial court’s language in declaring the
    contractual provisions unenforceable, the ultimate issue of enforceability was not before
    the trial court at the temporary injunction hearing, and it is not before this court on appeal.
    See Tom 
    James, 109 S.W.3d at 884-85
    . That is because the trial court’s refusal to grant
    a temporary injunction was based only on the record produced at the temporary injunction
    hearing, not a full trial on the merits. 
    Id. at 885.
    We will not assume that the evidence
    taken at a preliminary hearing will be the same as the evidence developed at a trial on the
    4
    merits, and so we do not reach the ultimate issue of the enforceability of the non-compete,
    non-solicitation, and non-disclosure provisions. 
    Id. We will
    only address the enforceability
    of those provisions insofar as its affects our analysis of whether the elements required for
    issuance of a temporary injunction have been satisfied. See Tom 
    James, 109 S.W.3d at 883
    ; see also Diesel Injection Sales & Servs., Inc. v. Renfro, 
    656 S.W.2d 568
    , 571 (Tex.
    App.–Corpus Christi 1983, writ ref’d n.r.e.) (prior appeals of denial of temporary injunction
    did not determine reasonableness of non-compete covenant because review was restricted
    to abuse of discretion; review in appeal from trial on merits is not so restricted).
    III. DISCUSSION
    The purpose of a temporary injunction is to preserve the status quo of the litigation's
    subject matter pending trial on the merits. Butnaru v. Ford Motor Co., 
    84 S.W.3d 198
    , 204
    (Tex. 2002); City of McAllen v. McAllen Police Officers Union, 
    221 S.W.3d 885
    , 893 (Tex.
    App.–Corpus Christi 2007, pet. denied). A temporary injunction is an extraordinary remedy
    and does not issue as a matter of right. 
    Butnaru, 84 S.W.3d at 204
    . To obtain a temporary
    injunction, the applicant must plead and prove three specific elements: (1) a cause of
    action against the defendant; (2) a probable right to the relief sought; and (3) a probable,
    imminent, and irreparable injury in the interim. 
    Id. The party
    seeking the injunction bears
    the burden of proving each of these elements. City of 
    McAllen, 221 S.W.3d at 893
    .
    A. Cause of Action
    To satisfy the first element of the temporary injunction test, an applicant needs only
    to plead a cognizable cause of action, and does not need to show a definite right to the
    final relief sought. See 
    Walling, 863 S.W.2d at 58
    (“the issue in determining whether an
    applicant has met the first qualification for a temporary writ of injunction is not whether the
    prayer seeking the writ and the ultimate cause of action are related, but whether the
    applicant has a cause of action at all.”); Sun Oil Co. v. Whitaker, 
    424 S.W.2d 216
    , 218
    (Tex. 1968) (holding that “an applicant is not required to establish that he will prevail on
    final trial; he needs only to plead a cause of action and to show a probable right on final
    5
    trial to the relief he seeks and probable injury in the interim.”)
    Shoreline, in its original petition, sought a final remedy of declaratory relief under
    chapter 37 of the Texas Civil Practice and Remedies Code as well as permanent injunctive
    relief. See TEX . CIV. PRAC . & REM . CODE ANN . §§ 37.001-.011 (Vernon Supp. 2007). These
    claims are cognizable under Texas law. We therefore conclude that Shoreline met the first
    requirement to obtain a temporary injunction. See 
    Butnaru, 84 S.W.3d at 204
    .
    B. Probable Right to Relief
    The second element required for the issuance of a temporary injunction is a showing
    of a probable right to relief upon a final trial on the merits. When the final relief sought is
    injunctive in nature, the applicant must show a probable right on final hearing to a
    permanent injunction.2 See Sun Oil 
    Co., 424 S.W.2d at 218
    . Shoreline has requested final
    relief in the form of both injunctive and declaratory relief. Thus, to determine whether
    Shoreline has a probable right to final relief, it is necessary for us to examine the
    enforceability of the non-compete, non-solicitation, and non-disclosure provisions of the
    Agreement.
    1. Enforceability of the Covenant Not To Compete
    The non-compete covenant executed by Shoreline and McGaughey stated as
    follows:
    7. Non competition. In recognition of the fact that the Company is
    engaged in a business involving Confidential Information constituting trade
    secrets and personal relationships with [a]ccounts and prospective accounts
    and prospective business advantages, the success of which business is in
    large part due to the exclusive retention of such Confidential Information and
    continuation of such personal relationships with such Accounts, and for the
    consideration recited above, I covenant and agree as follows: during my
    employment with the Company, and for a period of two (2) years following
    the date that I cease to be employed with the Company for any reason,
    regardless of whether the cessation of my employment is voluntary or with
    or without cause, I will not compete in any way with the business of the
    2
    An applicant for perm anent injunctive relief m ust establish the following four elem ents: (1) the
    existence of a wrongful act; (2) the existence of im m inent harm ; (3) the existence of irreparable injury; and
    (4) the absence of an adequate rem edy at law. Montfort v. Trek Res., Inc., 198 S.W .3d 344, 350 (Tex.
    App.–Eastland 2006, no pet.).
    6
    Company anywhere within the geographical area specified in Exhibit “A” (the
    “Area”), on behalf of myself or any other person or entity, or have a monetary
    interest in any person, firm, corporation or entity that engages in business
    similar to the business of the Company. For the purposes of this paragraph
    and this covenant, the term “compete in any way with the business of the
    Company” shall mean that I shall not, directly or indirectly, or on behalf of
    any person or entity, call on, contact, solicit, handle business for, or perform
    or render any services related to the buying, selling or marketing of natural
    gas or related or derived hydrocarbons or hydrocarbon by-products to any
    person, firm, corporation or other entity that is or was a former Account,
    client, customer, or active prospect for business for the Company, or
    business opportunity of the Company, during my employment and during the
    twelve (12) months immediately prior to the date of termination or cessation
    of my employment with the Company as evidenced by the books and records
    of the Company.
    Covenants not to compete are generally considered restraints of trade and are
    disfavored in law. See TEX . BUS. & COM . CODE ANN . § 15.05(a) (Vernon Supp. 2007)
    (“Every contract, combination, or conspiracy in restraint of trade or commerce is unlawful.”);
    see also Travel Masters, Inc. v. Star Tours, Inc., 
    827 S.W.2d 830
    , 832 (Tex. 1991).
    However, the Covenants Not to Compete Act (the “Act”) sets forth certain circumstances
    under which such covenants are enforceable. See TEX . BUS . & COM . CODE ANN . §§
    15.50-.52 (Vernon Supp. 2007). The Act provides in relevant part that:
    Notwithstanding Section 15.05 of this code, and subject to any
    applicable provision of Subsection (b), a covenant not to compete is
    enforceable if it is ancillary to or part of an otherwise enforceable
    agreement at the time the agreement is made to the extent that 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.
    
    Id. § 15.50(a)
    (emphasis added).
    Therefore, under the Act, we must first determine whether the parties entered into
    an “otherwise enforceable agreement” and we must then determine whether the non-
    compete covenant was “ancillary to or part of” that agreement. See 
    id. If the
    answer to
    both inquiries is affirmative, the non-compete covenant is enforceable as a matter of law
    to the extent that it is reasonably restricted as to time, geographical area, and scope of
    activity. See 
    id. 7 i.
    “Otherwise Enforceable Agreement”
    An employer and an at-will employee cannot, by definition, have an “otherwise
    enforceable agreement” pertaining to the duration of the employee’s employment.
    However, “at-will employment does not preclude the formation of other contracts between
    employer and employee.” Light v. Centel Cellular Co. of Tex., 
    883 S.W.2d 642
    , 644 (Tex.
    1994) (emphasis in original). In other words, an agreement must be supported by
    consideration to be deemed “otherwise enforceable,” but in the context of at-will
    employment, that consideration cannot be dependent on a period of continued
    employment. 
    Id. Such a
    promise would be illusory in that it would fail to bind the promisor,
    who always retains the option of discontinuing employment in lieu of performance. 
    Id. at 645
    (citing E. Line & Red River R.R. Co v. Scott, 
    10 S.W. 99
    , 102 (Tex. 1888) (noting that
    in at-will employment, “it is no breach of contract to refuse to receive further services.”)).
    However, an “otherwise enforceable agreement” can emanate from at-will
    employment so long as the consideration for any promise is not illusory. See 
    Light, 883 S.W.2d at 645
    .      Even if one promise is illusory, a unilateral contract may still be
    formed—the non-illusory promise can serve as an offer, which the promisor who made the
    illusory promise can accept by performance. 
    Id. at 645
    n.6. The fact that the employer
    was not bound to perform because he could have fired the employee is irrelevant; if he has
    performed, he has accepted the employee’s offer and created a binding unilateral contract.
    
    Id. The majority
    opinion in Light contained a footnote suggesting that such a unilateral
    contract might not be sufficient to support a non-compete covenant, because it is not an
    “otherwise enforceable agreement at the time the agreement is made” pursuant to section
    
    15.50(a). 883 S.W.2d at 645
    n.6 (citing TEX . BUS. & COM . CODE ANN . § 15.50(a))
    (emphasis added). Rather, it would only become enforceable upon the performance of the
    employer, which would occur subsequent to the actual execution of the agreement. See
    8
    
    id. However, this
    suggestion was clearly rejected by the Texas Supreme Court in Alex
    Sheshunoff Management Services, L.P. v. Johnson, 
    209 S.W.3d 644
    , 646 (Tex. 2006).
    In Sheshunoff, the court examined the enforceability of a non-compete covenant under
    which the employer had no corresponding enforceable obligation at the time the agreement
    was made—instead, the employer’s obligations were only triggered by its performance
    some time after the execution of the agreement. 
    Id. at 650-51.
    Relying on the footnote
    included in Light, the employee argued that the non-compete covenant was invalid
    because there was no “otherwise enforceable agreement at the time the agreement [was]
    made” as required by section 15.50(a). 
    Id. at 650;
    see Light at 645 n.6; TEX . BUS. & COM .
    CODE ANN . § 15.50(a). The supreme court disagreed with the employee’s interpretation
    of the statute:
    Revisiting the issue of what the clause “at the time the agreement is
    made” in the Act means, we conclude that we must disagree with Light’s
    view that a unilateral contract can never meet the requirements of the Act
    because such a contract is not immediately enforceable when made.
    Section 15.50 states that “a covenant not to compete is enforceable if it is
    ancillary to or part of an otherwise enforceable agreement at the time the
    agreement is made . . . .” Simply reading the text, the clause “at the time the
    agreement is made” can modify either “otherwise enforceable agreement” or
    “ancillary to or part of.” . . . We now conclude, contrary to Light, that the
    covenant need only be “ancillary to or part of” the agreement at the time the
    agreement was made. Accordingly, a unilateral contract formed when the
    employer performs a promise that was illusory when made can satisfy the
    requirements of the Act.
    
    Sheshunoff, 209 S.W.3d at 651
    .
    The Agreement executed by Shoreline and McGaughey is similar in all material
    aspects to the contract considered in Sheshunoff.         See 
    id. As in
    Sheshunoff, the
    employment relationship here was at-will, and the employee promised not to disclose the
    employer’s confidential information. See 
    id. McGaughey’s promise
    not to disclose
    Shoreline’s confidential information, though not enforceable when made, constituted an
    offer for a unilateral contract which Shoreline had the option to accept. Shoreline accepted
    McGaughey’s offer by performing—that is, by supplying McGaughey with confidential
    9
    information—and so a unilateral contract was formed under which McGaughey became
    bound by his promise not to disclose that information. See 
    Light, 883 S.W.2d at 645
    n.6.
    Under Sheshunoff, such a unilateral contract constitutes an “otherwise enforceable
    agreement” sufficient to support an accompanying non-compete covenant.                    See
    
    Sheshunoff, 209 S.W.3d at 651
    ; TEX . BUS. & COM . CODE ANN . § 15.50(a).
    McGaughey denies that he was given confidential information during the course of
    his employment, and claims that his obligation not to disclose such information was
    therefore never triggered. We find this claim to be without merit. Rian Grisemer, president
    of Shoreline, testified at the temporary injunction hearing that “[i]mmediately upon
    employment, [McGaughey] was provided access to all of our files and all information
    regarding our accounts, pricing, and customer needs, and references, all data we have in
    our office.” Grisemer further testified that:
    Over the last . . . 16 years, we have accumulated notes that relate to
    producers that we deal with specifically, accounts that Mr. McGaughey
    managed in our office. We call these working files. We have an ACT
    database where we enter specific information about conversations we have
    with producers. We have spreadsheets where . . . McGaughey would review
    his commissions earned off of each of these accounts showing exact dollar
    margins off of each and every account that he managed for the company.
    We had producer files that contained all of the contract specifics and the
    contracts themselves. We had market pricing which Mr. McGaughey played
    a role in, too, as far as selling gas to our markets and at what price that gas
    was. He not only bought gas, but he also marketed gas on some of these
    accounts. So, he had access to—and had to use to perform his job[—]all of
    this information.
    McGaughey is correct in his assertion that much of the information that he was
    provided was publicly available. For example, the names and addresses of natural gas
    producers is a matter of public record in Texas. However, the evidence adduced at the
    temporary injunction hearing established that McGaughey was provided with margin and
    pricing information, as well as notes compiled by Shoreline’s employees and supplier
    histories. None of this information is publicly available, and the dissemination of any of this
    10
    information would have damaged Shoreline’s business.3 Using the terminology of Light
    and Sheshunoff, Shoreline accepted McGaughey’s offer to not disclose confidential
    information by providing McGaughey with access to these pieces of information. See
    
    Sheshunoff, 209 S.W.3d at 651
    .
    We find, based on the evidence adduced at the temporary injunction hearing, that
    there was an “otherwise enforceable agreement” as required by section 15.50(a). See
    TEX . BUS. & COM . CODE ANN . § 15.50(a). That the “otherwise enforceable agreement” did
    not become enforceable until some time after the Agreement was executed is immaterial.
    See 
    Sheshunoff, 209 S.W.3d at 651
    . Our attention next turns to whether the non-compete
    covenant was “ancillary to or part of” the “otherwise enforceable agreement.”
    ii. “Ancillary To Or Part Of”
    In order for a non-compete covenant to be “ancillary to or part of” the otherwise
    enforceable agreement, two conditions must be met: (1) the consideration given by the
    employer in the otherwise enforceable agreement must give rise to the employer’s interest
    in restraining the employee from competing; and (2) the covenant must be designed to
    enforce the employee’s consideration or return promise in the otherwise enforceable
    agreement. 
    Sheshunoff, 209 S.W.3d at 648-49
    ; 
    Light, 883 S.W.2d at 647
    . To satisfy this
    test, the “otherwise enforceable agreement” must give rise to an “interest worthy of
    3
    W e note that, although this inform ation provided to McGaughey was considered “confidential
    inform ation” and “trade secrets” under the definitions provided in the Agreem ent, this does not m ean that they
    were in fact confidential or trade secrets. In actuality, the definitions provided in the Agreem ent were overly
    broad and included pieces of inform ation that are publicly available, such as the nam es and addresses of gas
    producers.
    It is nevertheless apparent from our review of the record that m uch of the inform ation provided by
    Shoreline to McGaughey in the course of his em ploym ent— such as certain pricing inform ation, profit m argin
    inform ation and supplier history— was in fact confidential and m et the definition of trade secret as provided
    by the Texas Suprem e Court. See In re Bass, 113 S.W .3d 735, 739 (Tex. 2003) (orig. proceeding) (defining
    a trade secret as “any form ula, pattern or device or com pilation of inform ation which is used in one’s business
    and presents an opportunity to obtain an advantage over com petitors, who do not know or use it.”). Moreover,
    this inform ation did not lose its nature as trade secrets because Shoreline never instructed or approved of the
    dissem ination of such inform ation. See CRC-Evans Pipeline Int’l, Inc. v. Myers, 927 S.W .2d 259, 266 (Tex.
    App.–Houston [1st Dist.] 1996, no writ) (stating that “[i]nform ation otherwise qualifying as a trade secret m ay
    lose its ‘secret’ status when disclosed to others with the em ployer’s blessing”).
    11
    protection” by a covenant not to compete. 
    Sheshunoff, 209 S.W.3d at 648-49
    . Examples
    of such legitimate, protectable interests include business goodwill, trade secrets, and other
    confidential or proprietary information. 
    Id. In Light,
    the court identified three promises that were not illusory and therefore were
    capable of serving as consideration for an “otherwise enforceable agreement.” Those
    promises were: (1) the employer’s promise to provide “initial . . . specialized training” to the
    employee;4 (2) the employee’s promise to provide 14 days notice to the employer to
    terminate employment; and (3) the employee’s promise to provide an inventory of all
    employer-owned property upon 
    termination. 883 S.W.2d at 645-46
    . Nevertheless, the
    court ruled that the non-compete covenant that accompanied these promises was
    unenforceable because “[w]hile [the employer’s] consideration (the promise to train) might
    involve confidential or proprietary information, the covenant not to compete is not designed
    to enforce any of [the employee’s] return promises in the otherwise enforceable
    agreement.” 
    Id. at 647.
    As such, the covenant was not “ancillary to or part of” an
    otherwise enforceable agreement under the two-prong test and so was unenforceable
    under the Act. See TEX . BUS. & COM . CODE ANN . § 15.50(a).
    On the other hand, the non-compete covenant in Sheshunoff was found to be
    
    enforceable. 209 S.W.3d at 657
    . That is because, unlike in Light, the employee in
    Sheshunoff made a promise not to disclose the company’s confidential information. 
    Id. at 649.
    Although that promise was unenforceable when the agreement was signed, it
    became enforceable as soon as the employer provided confidential information to the
    employee, and therefore became the “otherwise enforceable agreement” as required under
    the statute.      See TEX . BUS. & COM . CODE ANN . § 15.50(a).                     Moreover, this newly
    enforceable agreement gave rise to an “interest worthy of protection” by a non-compete
    4
    The em ployer obligation to provide initial training in Light did not depend on whether the em ployee
    was still em ployed. See Light v. Centel Cellular Co. of Tex., 883 S.W .2d 642, 646 (Tex. 1994) (“Even if [the
    em ployee] had resigned or been fired after this agreem ent was executed, [the em ployer] would still have been
    required to provide the initial training.”).
    12
    covenant because it protected “confidential or proprietary information.” 
    Sheshunoff, 209 S.W.3d at 657
    ; 
    Light, 883 S.W.2d at 647
    ; see DeSantis v. Wackenhut Corp., 
    793 S.W.2d 670
    , 682 (Tex. 1990) (stating that confidential information is an example of an “interest
    worthy of protection” by a covenant not to compete).
    In the instant case, McGaughey, like the employer in Sheshunoff, made an express
    promise not to disclose his employer’s confidential 
    information. 209 S.W.3d at 647
    . The
    Agreement’s non-disclosure provisions became enforceable immediately upon the
    provision of confidential information by Shoreline to McGaughey, and this “otherwise
    enforceable agreement” directly gave rise to an “interest worthy of protection” by the non-
    compete covenant. As such, the two-prong test elucidated in Light and Sheshunoff is
    satisfied. See 
    Sheshunoff, 209 S.W.3d at 649
    ; 
    Light, 883 S.W.2d at 647
    .5
    McGaughey argues that his Agreement is distinguishable from the employment
    contract considered in Sheshunoff in that the latter contained a provision requiring the
    employer to give the employee notice of termination (unless the termination stemmed from
    employee misconduct) or to pay a specified 
    fee. 209 S.W.3d at 646
    . However, this
    difference is immaterial to our analysis. A covenant not to compete is not designed to
    enforce a notice provision. 
    Id. at 650;
    Light, 883 S.W.2d at 647 
    n.15. As such, the notice
    provision in Sheshunoff could not support a non-compete covenant under the second
    prong of the test.6
    We conclude, based on the evidence adduced at the temporary injunction hearing,
    that the non-compete covenant was “ancillary to or part of an otherwise enforceable
    5
    McGaughey notes that, unlike in the present case, the Sheshunoff em ploym ent contract required
    the em ployer to provide to the em ployee with “access to certain confidential and proprietary inform ation and
    m aterials belonging to Em ployer. . . .” Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W .3d 644, 647
    (Tex. 2006). This prom ise was illusory, however, because the em ployer could avoid perform ance sim ply by
    term inating em ploym ent. Further, this prom ise was not of the type that could be considered an offer for a
    unilateral contract that could be accepted by the perform ance of the prom isee. Therefore, it could not have
    form ed the basis of an “otherwise enforceable agreem ent” capable of sustaining a non-com pete covenant.
    See 
    id. at 650.
           6
    “[Em ployer’s] non-illusory prom ise to give at least two week’s notice before term inating [em ployee]
    does not give rise to its interest in restraining [em ployee] from com peting.” Sheshunoff, 209 S.W .3d at 650.
    13
    agreement” as required by the Act. See TEX . BUS. & COM . CODE ANN . § 15.50(a).
    Shoreline therefore established a probable right to relief on the merits with respect to the
    non-compete covenant. See 
    Butnaru, 84 S.W.3d at 204
    .
    2. Enforceability of the Non-Solicitation Agreement
    The non-solicitation provisions of the Agreement stated as follows:
    8. Non solicitation of Accounts. I covenant and agree that during my
    employment with the Company and for a period of three (3) years following
    the date that, for any reason, I ceased to be employed by the Company
    anywhere within the Area, I shall not, except as specifically authorized by the
    Company in writing, any where [sic] within the Area, call on, contact or solicit,
    directly or indirectly, any Account or prospective Account of the Company
    with whom I have had Substantial Contact during my last twelve (12) months
    of employment with the Company, for the purpose of buying, selling,
    developing, marketing or promoting natural gas or related or derived
    hydrocarbons or hydrocarbon by-products.
    9. Non solicitation of Employees. I covenant and agree that during
    the course of my employment with the Company and for a period of one (1)
    year immediately thereafter, I will not except as specifically authorized by the
    Company in writing, call upon, solicit, recruit, or assist others in recruiting or
    solicitation, any officer, employee, consultant or agent of the Company to
    leave the employ of, or terminate their association with, the Company for any
    reason.
    The Act does not, on its face, apply to non-solicitation agreements. See TEX . BUS.
    & COM . CODE ANN . §§ 15.50-.52. Shoreline urges us to infer from this that non-solicitation
    clauses should be treated differently than non-compete covenants, citing Rugen v.
    Interactive Business Systems, Inc., 
    864 S.W.2d 548
    (Tex. App.–Dallas 1993, no writ), to
    support its argument. In Rugen, the trial court found a non-compete agreement to be
    unenforceable, yet it nevertheless granted a temporary injunction enjoining the employee
    from soliciting or transacting business with the employer’s customers because it found that
    the employer’s confidential information was entitled to protection. 
    Id. at 550.
    The Dallas
    Court of Appeals affirmed the judgment, finding that the trial court did not abuse its
    discretion in ordering the temporary injunction despite finding the non-compete covenant
    to be unenforceable. 
    Id. at 553.
    Despite Shoreline’s claims, however, the Rugen court did
    14
    not treat a non-solicitation clause differently from a non-compete covenant. In fact, the
    parties in Rugen did not enter into a separate non-solicitation agreement; the only
    contractual provision at issue was a non-compete covenant. 
    Id. at 550.
    Shoreline’s claim
    that non-solicitation agreements should be treated differently from non-compete covenants
    is not persuasive.
    Instead, non-solicitation agreements are subject to the same analysis as covenants
    not to compete. See Miller Paper Co. v. Roberts Paper Co., 
    901 S.W.2d 593
    , 600 (Tex.
    App.–Amarillo 1995, no writ) (stating that “other than the moniker assigned it, nothing truly
    differentiates the [non-solicitation] promise at bar from a covenant not to compete”). The
    purpose and effect of a non-solicitation agreement parallel those inherent in a non-
    compete covenant. 
    Id. at 599.
    Both contain geographic and durational parameters, and
    both effectively restrict competition. 
    Id. at 599-600;
    see TEX . BUS. & COM . CODE ANN . §
    15.05(a).   A non-solicitation agreement is sufficiently analogous to a covenant not to
    compete such that the provisions of the Act must apply fully to such agreements. See TEX .
    BUS. & COM . CODE ANN . § 15.50(a).
    Therefore, in accordance with our analysis above with respect to the non-compete
    covenant, we conclude that Shoreline established a probable right to relief with respect to
    the non-solicitation agreement. See 
    Butnaru, 84 S.W.3d at 204
    .
    3. Enforceability of the Non-Disclosure Agreement
    The non-disclosure provisions of the Agreement stated as follows:
    4. Nondisclosure or Use of Trade Secrets. During the course of my
    employment with the Company and for so long thereafter as the pertinent
    information or documentation remains trade secrets of the Company, I will
    not, directly or indirectly, use, disclose or disseminate to any other person,
    organization or entity, or otherwise employ, any trade secrets of the
    Company (whether or not such trade secrets are in written or tangible form),
    except as specifically authorized in writing by the Company.
    5. Nondisclosure or Use of Confidential Information. During the
    course of my employment with the Company and thereafter, I will not, except
    15
    as specifically authorized by the Company in writing, directly or indirectly, (i)
    use for my own gain, or (ii) disclose or disseminate to any other person,
    organization or entity, or otherwise employ, any Confidential Information,
    unless such Confidential Information is required to be produced by myself in
    response to a valid order, summons, or subpoena issued by a court or
    administrative agency of competent jurisdiction. In the event I receive any
    order, summons, or subpoena issued by a court or administrative agency to
    produce Confidential Information, I will promptly notify the Company of such
    subpoena, summons or order to provide the Company the opportunity to
    protect its interests in such Confidential Information.
    Non-disclosure agreements are different than non-compete covenants. Zep Mfg.
    Co. v. Harthcock, 
    824 S.W.2d 654
    , 663 (Tex. App.–Dallas 1992, no writ) (affirming the trial
    court’s summary judgment enforcing a non-disclosure clause despite being accompanied
    by an unenforceable non-compete covenant); see also CRC-Evans Pipeline Int’l, Inc. v.
    Myers, 
    927 S.W.2d 259
    , 265 (Tex. App.–Houston [1st Dist.] 1996, no writ) (affirming the
    trial court’s denial of temporary injunction enforcing non-disclosure agreement, despite the
    fact that such agreements do not restrain trade, because trial court could have reasonably
    found that former employees did not learn any trade secrets during the course of their
    employment). A non-disclosure agreement may be enforceable even if a covenant not to
    compete is not. Tom 
    James, 109 S.W.3d at 888
    ; 
    CRC-Evans, 927 S.W.2d at 265
    . That
    is because, while non-compete covenants are considered restraints of trade, non-
    disclosure agreements are not. 
    CRC-Evans, 927 S.W.2d at 265
    ; 
    Zep, 824 S.W.2d at 663
    .
    Non-disclosure agreements do not necessarily restrict a former employee’s ability to
    compete with the former employer, nor do they prohibit the former employee from using,
    in competition with the former employer, the general knowledge, skill, and experience
    acquired in former employer. 
    Zep, 824 S.W.2d at 663
    . Rather, such agreements prevent
    only the disclosure of trade secrets and confidential information acquired by the former
    employee. 
    Id. McGaughey did
    not assert any defense to the enforceability of the non-disclosure
    agreements other than that they are impermissible restraints of trade under the Act.
    However, the non-disclosure agreement at issue here is not a “restraint of trade” and so
    16
    it does not come under the rubric of the Act. See 
    CRC-Evans, 927 S.W.2d at 265
    ; 
    Zep, 824 S.W.2d at 663
    ; TEX . BUS. & COM . CODE ANN . § 15.50(a). We therefore conclude that
    Shoreline established a probable right to relief with respect to the non-disclosure
    agreement.7
    C. Probable Irreparable Injury
    Having found that Shoreline established a probable right to recovery upon a final
    trial on the merits with respect to all of the contractual provisions at issue, we turn our
    attention finally to whether Shoreline satisfied the final element required for the issuance
    of a temporary injunction; namely, whether Shoreline faced probable imminent and
    irreparable injury if the injunction were not issued. See 
    Butnaru, 84 S.W.3d at 204
    .
    An irreparable injury exists if the party injured cannot sufficiently be compensated
    in damages or the amount of damages is immeasurable by pecuniary standards. 
    Id. (citing Canteen
    Corp. v. Republic of Tex. Props., Inc., 
    773 S.W.2d 398
    , 401 (Tex. App.–Dallas
    1989, no writ)). The contract provisions at issue here “will not be enforced by an injunction
    where the party seeking the injunction has failed to show that without injunctive relief he
    will suffer irreparable injury for which he has no adequate legal remedy.” Reach Group,
    L.L.C. v. Angelina Group, 
    173 S.W.3d 834
    , 837-38 (Tex. App.–Houston [14th Dist.] 2005,
    no pet.). However, the purpose of injunctive relief is to halt wrongful acts that are
    threatened or in the course of accomplishment, rather than to grant relief against past
    actionable wrongs or to prevent commission of wrongs not imminently threatened. See
    Tex. Health Care Info. Council v. Seton Health Plan, Inc., 
    94 S.W.3d 841
    , 853 (Tex.
    App.–Austin 2002, pet. denied). Although an injunction is a preventive device, injunctive
    7
    W e note that the definition of “Confidential Inform ation” contained in the Agreem ent expressly
    included “trade secrets” and also included the following statem ent: “I acknowledge and agree that the
    Confidential Inform ation of the Com pany described above constitutes and com prises trade secrets of the
    Com pany and will at all tim es be treated by m yself as such.” As discussed above, however, sim ply because
    the Agreem ent defined a certain piece of inform ation as “confidential” or a “trade secret” does not m ean it was
    in fact confidential or a trade secret. Still, McGaughey asserts no defense, on this appeal, to the enforceability
    of the non-disclosure paragraphs other than claim ing that they are restraints of trade barred by the Covenants
    Not to Com pete Act. Therefore, Shoreline established a probable right to relief with respect to the
    enforcem ent of these paragraphs.
    17
    relief is improper when the party seeking the injunction has mere fear or apprehension of
    the possibility of injury. Harbor Perfusion, Inc. v. Floyd, 
    45 S.W.3d 713
    , 716 (Tex.
    App.–Corpus Christi 2001, no pet.).
    Shoreline noted at the temporary injunction hearing that the Agreement signed by
    McGaughey included a section entitled “Remedies” which specifically stated that monetary
    damages would be insufficient to compensate for any breach or violation of the
    Agreement’s provisions.8 However, Shoreline has pointed us to no Texas case holding
    that an agreement such as this establishes, for injunction purposes, that remedies at law
    will be inadequate or that irreparable injury will necessarily be suffered. See 
    Wright, 137 S.W.3d at 294
    .
    Moreover, as discussed above, Shoreline produced no evidence that McGaughey
    had actually breached or violated any covenant or undertaking contained in the Agreement,
    or even that McGaughey had threatened to breach or violate any such undertakings. At
    the temporary injunction hearing, Grisemer testified as follows:
    Q.        Now, if the Court in this particular hearing were not to enforce the
    provisions, the Non-Compete provisions as we’ve asked the Court to
    enforce in paragraph seven and paragraph eight, and Chuck
    McGaughey would be allowed to violate the provisions of this
    agreement, in your opinion, would Shoreline Gas be irreputably [sic]
    injured?
    A.        Yes, we would.
    Q.        And how is that in your opinion?
    A.        Well, I suppose he would be free to violate the entire agreement and
    8
    That section stated as follows:
    I recognize and agree that the ascertainm ent of dam ages in the event of by breach
    [sic] or violation of any covenant or undertaking contained in this Agreem ent would be
    difficult, if not im possible, and further that the various rights and duties created hereunder are
    extraordinary and unique so that the Com pany will suffer irreparable injury that cannot
    adequately be com pensated by m onetary dam ages in the event of m y breach or violation of
    any covenant or undertaking contained in this Agreem ent.
    18
    take all the business away from us that we spent so many years to
    develop by under cutting [sic] our pricing and taking advantage of the
    relationships that have been developed over the years. And I think
    there would be some jobs lost.
    Q.     If Mr. McGaughey were in fact to violate this agreement and solicit
    customers, or compete with Shoreline Gas with respect to the
    customers that it had significant responsibility over, would it create a
    problem in terms of determining exactly what damage Shoreline Gas
    would suffer? Would there be any kind of practicable problems
    associated with that?
    A.     There would. We’d have to prove the damages and then recover the
    damages. The concern would be that Mr. McGaughey would not be
    capable of financially paying back the damages.
    On cross-examination, Grisemer also testified as follows:
    Q.     When did Mr. McGaughey tell you he was going to go set up in
    competition with you?
    A.     He did not tell me that.
    Q.     Okay. When did he tell you he was going to disclose your secrets to
    somebody outside the Company?
    A.     He did not tell me that.
    The record, including this testimony, reflects only that Shoreline had a fear or
    apprehension of the possibility of injury. See Harbor 
    Perfusion, 45 S.W.3d at 716
    . This
    is insufficient to establish a probability of irreparable injury as would support a temporary
    injunction. 
    Id. Because we
    must uphold the trial court’s judgment on any grounds
    supported by the record, see 
    Davis, 571 S.W.2d at 862
    , we conclude that the trial court did
    not abuse its discretion in denying Shoreline’s request for temporary injunction with respect
    to any of the three contractual provisions at issue. Shoreline’s first, second, and third
    19
    issues are therefore overruled.9
    IV. CONCLUSION
    Viewing the evidence in the light most favorable to the trial court’s order, we
    conclude that the trial court did not abuse its discretion in denying Shoreline’s application
    for a temporary injunction. See 
    Gonzalez, 631 S.W.2d at 195
    . Accordingly, we affirm the
    judgment of the trial court.
    __________________________
    DORI CONTRERAS GARZA,
    Justice
    Memorandum Opinion delivered and
    filed this the 17th day of April, 2008.
    9
    W e need not reach Shoreline’s fourth issue challenging the trial court’s failure to reform the non-
    com pete, non-solicitation, and non-disclosure provisions of the Agreem ent under section 15.51(c) of the
    business and com m erce code. See T EX . B U S . & C O M . C OD E A N N . § 15.51(c). That is because, as discussed
    above, we review the trial court’s statem ent that the provisions at issue are unenforceable only insofar as it
    affects one or m ore of the elem ents required for a tem porary injunction. See Butnaru v. Ford Motor Co., 84
    S.W .3d 198, 204 (Tex. 2002); Tom James of Dallas, Inc. v. Cobb, 109 S.W .3d 877, 883 (Tex. App.–Dallas
    2003, no pet.); see also T EX . R. A PP . P. 47.1. W hether the trial court erred in failing to reform those provisions
    does not affect our analysis of whether Shoreline established a cause of action, a probable right to relief, or
    probable im m inent and irreparable injury. Butnaru, 84 S.W .3d at 204.
    20