Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
AMERICAN SURGICAL ASSISTANTS, INC. D/B/A AMERICAN SURGICAL PROFESSIONALS, Appellant,
JUAN "JOHNNY" DE DIOS VILLEGAS, PATRICIA TROMBLEY, SCOTT ROBIN, ABEL GARCIA, AND WILLIAM BERRY, Appellees,
appeal from the 148th District Court of Nueces County, Texas.
Justices Contreras, Benavides, and Longoria
L. LONGORIA, Justice
American Surgical Assistants, Inc. d/b/a American Surgical
Professionals (American) perfected an appeal from a
take-nothing judgment rendered against it and in favor of
appellees, Juan "Johnny" de Dios Villegas, Patricia
Trombley, Scott Robin, Abel Garcia, and William Berry,
following a bench trial. As discussed below, we dismiss the
appeal as moot.
filed suit under the Covenants Not To Compete Act (the Act)
for reformation and injunctive relief to enforce noncompete
covenants against five former employees, the appellees in
this case. See Tex. Bus. & Com. Code Ann.
§§ 15.50-.52 (West, Westlaw through 2015 R.S.). The
trial court granted temporary restraining orders against
appellees, then subsequently dissolved the temporary
restraining orders and denied American's application for
a temporary injunction. After a bench trial on the merits,
the court rendered final judgment on February 19, 2016
denying all relief sought by American. American has filed its
brief in this matter, and by five issues, American generally
contends that the trial court erred in concluding that the
noncompete covenants were not enforceable and further erred
by not reforming the covenants to render them enforceable.
than file a brief in this matter, appellees have filed a
motion to dismiss this appeal on grounds that it has been
rendered moot because the two-year covenants not to compete
at issue herein have now expired: four of the covenants
expired in October of 2016 and the fifth covenant expired on
February 5, 2017. American has filed a response in opposition
to the motion to dismiss. It urges that this matter is not
moot because American requested equitable tolling of the
noncompete period before it expired and that request, if
granted, would affect the parties' rights or interests.
American further contends that the non-competition period
expired during the pendency of this appeal and enforcement
has been delayed due to the duration of the judicial process
and not because of delays that it has caused. Finally,
American contends that if this Court determines that the case
is moot, the proper action is to vacate the judgment below
and dismiss the entire case. Appellees have filed a reply in
support of their motion to dismiss this appeal.
mootness doctrine applies to cases in which a justiciable
controversy exists between the parties at the time the case
arose, but the live controversy ceases because of subsequent
events. Matthews, on behalf of M.M. v. Kountze Indep.
Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016); Heckman
v. Williamson Cnty., 369 S.W.3d 137, 149-50 (Tex. 2012).
It prevents courts from rendering advisory opinions, which
are outside the jurisdiction conferred by Texas Constitution
article II, section 1. See Matthews, 484 S.W.3d at
418; Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d
821, 822 (Tex. 2000) (per curiam). "[A] suit can become
moot at any time, including on appeal, and . . . courts have
an obligation to take into account intervening events that
may render a lawsuit moot." Heckman, 369 S.W.3d
at 166-67. If a proceeding becomes moot, the court must
dismiss the proceeding for want of jurisdiction. See
case, appellant sought reformation and injunctive relief, but
did not seek damages or other relief. The Texas Supreme Court
has held that issues regarding injunctive relief and
reformation of covenants not to compete become moot after the
term of the noncompetition covenant has expired. See
Weatherford Oil Tool Co. v. Campbell, 340 S.W.2d 950,
952 (Tex. 1960); Sadler Clinic Ass'n, P.A. v.
Hart, 403 S.W.3d 891, 899 (Tex. App.-Beaumont 2013, pet.
denied) ("The Texas Supreme Court has indicated that the
issue of reformation becomes moot after the term of the
noncompetition covenant has expired."); Rimes v.
Club Corp. of Am., 542 S.W.2d 909, 912 (Tex. Civ.
App.-Dallas 1976, writ ref'd n.r.e.) ("Here, the
parties entered into a contract providing for a
noncompetitive period following cessation of employment and
such period is now past which causes the issue [of extending
the applicable period of the non-compete agreement] to become
moot."); see also White v. Cannon, No.
12-05-00095-CV, 2005 WL 1405003, at *1 (Tex. App.-Tyler June
15, 2005, no pet.) (mem. op.) ("Based upon our review of
the record and White's brief, we conclude that the
covenant not to compete cannot be enforced against White
after June 15, 2005, the date the permanent injunction
expires. Consequently, the question of its validity is moot
because of the passage of time, and any relief we could grant
would have no practical effect."); Leon's Fine
Foods, Inc. v. McClearin, No. 05-97-01198-CV, 2000 WL
277135, at *1 (Tex. App.-Dallas Mar. 15, 2000, pet. denied)
(mem. op.) (stating that when the non-competition period
ends, "the trial court's ability to enforce the
covenant by injunction becomes moot" and the trial court
"could not reform the covenant since the covenant was no
longer in effect.").
covenants not to compete have expired, and accordingly, we
agree with appellees that, on the record presented, this
appeal has been rendered moot. If an appeal has become moot,
we "vacate any order or judgment previously issued and
dismiss the case for want of jurisdiction."
Heckman, 369 S.W.3d at 162; see Speer v.
Presbyterian Children's Home & Serv. Agency, 847
S.W.2d 227, 229 (Tex. 1993). We grant the appellees'
motion to dismiss, we vacate the judgment of the trial court,