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Click here for the full text of this decision FACTS:When Phil Dickey began working as an insulation salesman for 31-W Insulation Co., he signed a “Salesman Employment Agreement.” The agreement agreed to pay Dickey a commission on his sales, reimburse his work-related expenses and pay him a monthly auto allowance. The agreement stated that Dickey was an at-will employee, but that either party was required to give two weeks’ notice before quitting, and 31-W had the obligation to continue paying Dickey’s salaries during those two weeks. The agreement also said that in return for granting Dickey access to confidential information, Dickey promised not to disclose that information without prior written consent. Finally, the agreement contained a non-compete clause. Dickey was to refrain from competition within a 100-mile radius for six months. If he violated the term, 31-W would be entitled to injunctive relief, and the terms of the non-compete clause would be extended for another six months. Dickey resigned from 31-W after two years. The very next week he began working for a competitor in the area. Dickey sought a declaratory judgment that the agreement, “including but not limited to” the non-compete paragraphs, was unenforceable. 31-W filed a counterclaim seeking a temporary injunction in accordance with the agreement’s terms. The trial court denied the temporary injunction request, and 31-W appeals. HOLDING:Affirmed. The court first concludes that when Dickey immediately went to work for a competitor, he was in breach of the agreement. The court therefore says it has to decide if the agreement is enforceable. The non-compete covenant will be enforceable if 31-W can prove that, under Bus. & Com. Code �15.50, the covenant is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made. To determine if the covenant meets this standard, the court applies a three-part analysis: (1) whether an agreement “otherwise” exists apart from the non-compete covenant; (2) whether the remaining promises apart from the non-compete covenant are not illusory promises; and (3) if there is an “otherwise enforceable agreement,” whether the non-compete covenant is a part of or ancillary to that otherwise enforceable agreement. To make the determination on the third part, the court examines whether two conditions are met: the employer’s promise must give rise to the employer’s interest in restraining the employee from competing; and the non-compete covenant must be designed to enforce the employee’s return promise in the otherwise enforceable agreement. The other terms of the agreement, aside from the non-compete provisions, are sufficient to bind the parties and constitute and agreement. Under the second part of the analysis, the court finds evidence of an illusory promise. As Dickey was an at-will employee, 31-W’s promise to provide Dickey with confidential information in exchange for his promise not to reveal it, was illusory since 31-W could have terminated Dickey’s employment prior to any disclosure. On the other hand, the two-week notice provision, 31-W’s promise to compensate Dickey during the two weeks, and Dickey’s promise to return and not use 31-W business information are not illusory. Consequently, the agreement is otherwise enforceable apart from the non-compete covenant. Under the final part of the analysis, the court tests the agreement, apart from the non-compete covenant to see if 31-W’s remaining enforceable promises give rise to its interest in restraining Dickey from competing, and whether the covenant is designed to enforce Dickey’s consideration in the otherwise enforceable agreement. “As to whether 31-W’s remaining promises to give Dickey two weeks’ notice of termination and to compensate him during that two-week period give rise to its interest in restraining Dickey from competing, we find . . . that ‘such promises do not give rise to an interest worthy of protection by a covenant not to compete’,” the court states, citing Strickland v. Medtronic Inc., 97 S.W.3d 835 (Tex.App.-Dallas 2003, pet. dism’d w.o.j.). OPINION:Bob McCoy, J.; Livingston, Dauphinot and McCoy, JJ.

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