holding that covenant can permissibly accomplish a “salutary purpose” that encourages “an employer to share confidential, proprietary information with an employee in furtherance of their common purpose,” but may not “take unfair advantage” of its employee, thereby impairing the “employee’s personal freedom and economic mobility”
How later courts described this case
- holding that covenant can permissibly accomplish a “salutary purpose” that encourages “an employer to share confidential, proprietary information with an employee in furtherance of their common purpose,” but may not “take unfair advantage” of its employee, thereby impairing the “employee’s personal freedom and economic mobility”
- holding that under Texas law, Texas’s greater relationship to the parties and interest in the dispute dictated applying Texas law in contravention of parties’ choice of law clause; no mention is made of apply- *847 mg the choice of law rules of the state specified in the choice of law clause
- stating that the elements for a fraudulent inducement claim are a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of the truth, which was intended to be acted upon, which was relied upon, and which caused injury
- stating that because the issue of whether a non-competition agreement is enforceable “is not ‘one which the parties could have resolved by an explicit provision in their agreement,’ ” section 187(2) governs the enforceability of such an agreement (quoting Restatement § 187 emt. d (1971))
Written by the judges who cited it.
The opinion
MAUZY, Justice,
concurring.
The Court takes pains to avoid overruling Hill v. Mobile Auto Trim, Inc., 725 S.W.2d 168 (Tex.1987), and Bergman v. Norris of Houston, 734 S.W.2d 673 (Tex.1987) and I am therefore able to concur in the Court’s judgment. However, by even discussing these cases, the Court reaches too far.
In Hill and Bergman , “[w]e specifically rejected from being enforceable covenants restricting the right to engage in a common calling.” Bergman, 734 S.W.2d at 674 . In the instant case, however, the noncompetition agreement is unenforceable without regard to whether it restricts the right to engage in a common calling. Thus, the Court’s discussion of the common calling doctrine is unnecessary, gratuitous and ill-advised. Is this not the very definition of “judicial activism”?
I disagree, too, with the Court’s conclusion that “the Legislature has now rejected common calling as a test for the reasonableness of noncompetition agreements.” 793 S.W.2d at 683. The statute in ques *690 tion, Tex.Bus. & Com.Code § 15.50, effective in 1989, provides in part that “a covenant not to compete is enforceable to the extent that it ... contains reasonable limitations as to time, geographical area, and scope of activity to be restrained.” The “scope of activity” language, in my view, leaves adequate room for the continued vitality of the common calling doctrine. In any case, this is not a question the Court needs to decide today.
Finally, I must make two comments regarding the Court’s complaint that we have not previously provided a comprehensive definition of “common calling”. First, reasonably precise definitions have been formulated. See e.g., C.L. Ray & M. McKelvey, Drafting Enforceable Noncompetition Agreements in Texas, 20 Tex.Tech L.Rev. 63, 68 (1989); W. White, Common Callings and the Enforcement of Postemployment Covenants in Texas, 19 St. Mary’s L.J. 589, 611 (1988). Second, it is the genius of the common law that it evolves slowly in the light of reason and experience. I am content to allow the common calling concept to be worked out on a case-by-case basis.
SPEARS, J., joins in this concurring opinion.