ACCEPTED
04-15-00360-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
8/18/2015 3:38:03 PM
KEITH HOTTLE
CLERK
NO. 04-15-00360-CV
*** FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS 8/18/2015 3:38:03 PM
FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE
Clerk
SAN ANTONIO, TEXAS
***
ANDY SANCHEZ,
Appellant
V.
JOHN H. MILLER, JR. CO., INC.,
Appellee
***
BRIEF OF APPELLEE
Stephen B. Schulte
State Bar No. 17836500
STEPHEN B. SCHULTE, P.C.
820 Main Street, Suite 100
Kerrville, Texas 78028
Attorney for Appellee
John W. Miller, Jr. Co., Inc.
TABLE OF CONTENTS
Index of Authorities .................................................................................................. 3
Statement of The Case .............................................................................................. 4
Procedural History .................................................................................................... 4
Summary of the Argument ........................................................................................ 7
Argument .................................................................................................................. 7
A. The Trial Court’s May 20 Order Is Not A Temporary
Injunction That Requires A Bond (Response To Issue 1) ………….7
B. The Trial Court’s Previous Injunction Is Supported By Sufficient
Evidence (Response To Issue 2) ……………………………….…...10
Prayer For Relief …………………………………………………………………11
Certificate of Service ……………………………………………………………..12
2
INDEX OF AUTHORITIES
Cases Page
Bishop v. Clawson, 2012 WL 19668 (Tex. App.—Houston
[14th Dist.] 2012, n.w.h.) 9, 10
Del Valle I.S.D. v. Lopez, 845 S.W.2d 808 (Tex. 1992) 9
F.W. Ludewig v. Houston Pipeline Co., 737 S.W.2d 15
(Tex. App.—Corpus Christi 1987, n.w.h.). 8, 9, 11
3
STATEMENT OF THE CASE
This lawsuit is between appellee John W. Miller, Jr. Co., Inc., which does
business as National Car Sales in Kerrville, Texas (“National”), and its former
employee, appellant Andy Sanchez. After Sanchez quit the company and started
competing with National, National filed suit to enforce a non-competition
agreement and to collect commissions it had overpaid to Sanchez. The trial court,
the Honorable Rex Emerson, temporarily enjoined Sanchez from competing with
National pending trial, but Sanchez ignored the order. At the contempt hearing,
Sanchez argued that the injunction had expired. The trial court disagreed and this
appeal ensued.
PROCEDURAL HISTORY
National filed this lawsuit in 2014 against Sanchez to enforce a non-
competition agreement and to collect overpaid commissions. (CR 4). On June 12,
2014, the trial court entered a temporary restraining order that, among other
things, restrained Sanchez from competing with National. (CR 10). The trial
court conditioned the order on the filing of a $100.00 bond and set a hearing for a
temporary injunction. (CR 11). National posted a cash bond. (Supp. CR 4).
The Court heard National’s Application for Temporary Injunction on June
24, 2014, at which Sanchez appeared and testified. (CR 5, RR(6/24) 41). The trial
court then entered a temporary injunction against Sanchez, enjoining him from
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engaging in retail sales and the purchase of used motor vehicles for the purpose of
reselling (on a wholesale basis) those vehicles in Kerr County or counties
immediately adjacent to Kerr County. (Supp. CR 5). The trial court also ordered
that “Plaintiff’s bond shall remain on file.” (Supp. CR 5-6). It set the case for trial
on August 7, 2014. 1
Sanchez did not appeal the Temporary Injunction. Later, Sanchez filed a
jury demand and the case was removed from the August 7 docket on the trial
court’s own initiative, without putting a new trial setting in place. (RR(5/6) 7-8;
CR 33).
Despite the temporary injunction, Sanchez continued to compete with
National in the wholesale car business, participating in at least 65 wholesale
vehicle transactions with one Kerrville-area business from the date of the
temporary restraining order to January 27, 2015. (Supp. CR 23-24). So National
filed a motion for contempt. (CR 18).
On May 6, 2015, the trial court heard National’s motion for contempt. At
the hearing, Sanchez claimed that the temporary injunction had expired by its
terms on August 7, 2014. (RR 6). The trial court disagreed, but declined to
continue with the contempt proceeding:
1
The trial court later amended the injunction order to correct the June order,
which was misnamed “Temporary Restraining Order”. (CR 16).
5
THE COURT: Mr. Schulte, if you will – the problem, Mr. Ellison,
is the fact that, having been at the initial temporary orders or the
orders hearing in June, I know it was the parties' intentions that
this order was going to carry to trial or until further order of the
Court. Even though paragraph 4 is ambiguous enough that I don't
think you can enforce it under contempt, given the parties'
intentions and the wording in paragraph 4, I believe the Court has
the authority to reinstate the injunction if it was ever lapsed in the
first place.
(RR(5/6) 9-10) (emphasis added).
At the conclusion of the hearing, the trial court specifically asked Sanchez
“do you understand it’s the Court’s intention that the order is in place?” “Yes, I
understand, yes” answered Sanchez. (RR(5/6) 11). Nevertheless, Sanchez kept
defying the trial court, participating in least 124 wholesale vehicle transactions in
Kerrville through July 2015 – 10 of them within days of the trial court’s
admonition. (Supp. CR 35-37).
The trial court then entered its May 20, 2015 order stating that, with respect
to the June 2014 Temporary Injunction as amended on July 7, “[i]t was the Court’s
intent that the injunction remain in place until the matter was called to final trial or
until further order of the court” and that it “disagrees that the injunction expired,
but finds that the language of the July 7 Temporary Injunction is ambiguous such
that Sanchez’s post-injunction conduct cannot be punished by contempt”. (CR
33). The trial court further confirmed that the July 7, 2014 Temporary Injunction
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remained in full force and effect until final trial. (CR 34). Sanchez appeals the
May 20, 2015 order. (CR 35).
SUMMARY OF THE ARGUMENT
The trial court’s May 20 Order was not a new temporary injunction that
required a bond provision (Issue 1). The May 20 Order referenced the court’s
earlier temporary injunction, which Sanchez did not appeal, thus Sanchez has
waived his evidentiary claim (Issue 2).
ARGUMENT
A. The Trial Court’s May 20 Order Is Not A Temporary Injunction That
Requires A Bond (Response To Issue 1)
Sanchez offers inconsistent versions on what he contends the May 20 Order
did – it either “continued” or “extended” the temporary injunction (Brief at 1, 5) or
it imposed a “new” temporary injunction (Brief at 4, 6).
This Court is faced with two possible scenarios. One, the original
temporary injunction did not expire and the May 20 Order confirmed that fact. In
that case Sanchez has nothing to appeal because he failed to appeal the original
temporary injunction.
The second scenario is that the temporary injunction expired in August 2014
and the trial court reinstated it in the May 20 Order. The trial court has indicated
that it will not prosecute Sanchez for contempt of the temporary injunction for the
7
period leading up to the May 20 Order, so whether the temporary injunction
expired on August 7, 2014, is a moot point. Rather, the issue is whether Sanchez
is now subject to a temporary injunction as a result of the May 20 Order. Under
the controlling case law, he is.
National posted a bond in connection with the temporary restraining order.
When it issued its temporary injunction, the trial ordered that “Plaintiff’s bond
shall remain on file.” (Supp. CR 5-6). A trial court has considerable discretion in
setting the amount of a bond for a temporary injunction, and Sanchez did not
appeal then, nor does he challenge now, the amount of the bond.
His issue on appeal relies solely on his claim that the May 20 Order was a
“new” temporary injunction and that the absence of a bond provision renders it
void. The May 20 Order clearly refers back to the original temporary injunction,
which contained the bond provision and the findings essential to a temporary
injunction, and it makes reference to the evidentiary hearing. (CR 33, 16-17).
A similar situation occurred in F.W. Ludewig v. Houston Pipeline Co.,
where the trial court did not set a certain trial date in its temporary injunction
order. After the defendant moved to dissolve the injunction because of the
omission, the trial court amended its order by setting the case for trial. On appeal,
the defendant claimed that the earlier injunction was void and therefore not subject
8
to amendment. It claimed that the second order lacked findings essential to a
temporary injunction. The appellate court rejected these arguments:
It is clear from the amended order that it refers back to the order of
January 15, 1986, which specifies the acts forbidden, requires a
bond, and makes reference to an evidentiary hearing. Appellants’
arguments are without merit.
737 S.W.2d 15, 16 (Tex. App.—Corpus Christi 1987, n.w.h.).
As the trial court correctly recognized at the hearing, if the injunction had
lapsed, the trial court had the discretion to reinstate it. A somewhat drastic
example is found in the Bishop v. Clawson opinion, where the trial court entered a
temporary injunction, amended it, dissolved it, and then reinstated it. The order of
reinstatement contained this language:
The court further finds that such Temporary Injunction should be
reinstated so as to preserve the status quo pending trial. Therefore,
the Order dissolving the Temporary Injunction that was entered
herein on or about January 14, 2011, is hereby vacated and
rescinded, and the Temporary Injunction is reinstated and is in full
force and effect.
2012 WL 19668 (Tex. App.—Houston [14th Dist.] 2012, n.w.h.). Like here, the
appellant argued that the reinstatement order was a new temporary injunction
order. The court of appeals disagreed, stating that “the characterization of an
order as a temporary injunction is controlled by the character and function of the
order, regardless of its form” (citing Del Valle I.S.D. v. Lopez, 845 S.W.2d 808,
809 (Tex. 1992)):
9
The trial court ‘reinstated’ the March 15, 2010 temporary
injunction by vacating and rescinding its order granting Bishop’s
motion to dissolve. The trial court did not issue a new temporary
injunction, instead it reinstated the previously granted injunction
by reconsidering its prior dissolution order and denying Bishop’s
motion to dissolve. The character and function of the trial court’s
February 18 order – and indeed, the form of that order – indicate
that the order decided Bishop’s motion to dissolve. The order did
not decide Clawson and Riddle’s application for temporary
injunction. Thus our review is limited to the trial court’s denial of
Bishop’s motion to dissolve.
Id. at 2.
The facts here are not nearly as convoluted as those in Bishop. Regardless
of how Sanchez wants to characterize the order, it was either a continuation or a
reinstatement of the original temporary injunction, both of which were within the
trial court’s power. The trial court did not abuse its discretion here.
B. The Trial Court’s Previous Injunction Is Supported By Sufficient
Evidence (Response To Issue 2)
Sanchez argues that the May 20 Order is “new” injunction that is not
supported by any evidence. (Brief at 6). Even if the Court were to consider the
May 20 Order to be a “new” injunction, it still complies with all the requisites for
such an order. As discussed above, the May 20 Order expressly refers to the
original temporary injunction. (CR 33). The original injunction contained the
bond provision and the findings essential to a temporary injunction, and it
references the evidentiary hearing. (CR 16-17).
10
At the evidentiary hearing, the trial court had the parties’ Stock Purchase
agreement in which Sanchez acknowledged that (a) “no adequate remedy at law
exists to fully compensate” National for damages resulting from Sanchez’s breach
of the non-competition agreement and that, as a result, (b) National was “entitled
to temporary and/or injunctive relief to enforce” the non-competition agreement.
(RR(6/24) Ex. 3, p. 7).
Because the May 20 Order refers to the original injunction that was
supported by sufficient evidence Sanchez’s “no evidence” argument is without
2
merit. See F.W. Ludewig v. Houston Pipeline Co., 737 S.W.2d 15, 16 (Tex.
App.—Corpus Christi 1987, n.w.h.).
PRAYER FOR RELIEF
Appellee John H. Miller, Jr. Co., Inc. requests that the Court affirm the trial
court’s order in all respects, and requests such other and further relief to which it
may be justly entitled.
2
Sanchez did not appeal the original temporary injunction so any complaint
about the sufficiency of the evidence behind it has been waived.
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Respectfully submitted,
STEPHEN B. SCHULTE, P.C.
820 Main Street, Suite 100
Kerrville, Texas 78028
Telephone: (830) 258-4222
Facsimile: (830) 715-9292
________/s/____________________
Stephen B. Schulte
State Bar No. 17836500
Attorney for John H. Miller, Jr. Co., Inc.
CERTIFICATE OF SERVICE
I certify that on August 18, 2015, a true copy of this brief has been served
on all counsel of record as follows:
Richard Ellison Via E-Serve
_______/s/____________
Stephen B. Schulte
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