in Re Natural Soda, LLC

ACCEPTED
03-16-00867-CV
14440701
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/23/2016 1:00:46 PM
JEFFREY D. KYLE
CLERK
03-16-00867-CV
NO. ________________

FILED IN
IN THE THIRD DISTRICT COURT OF APPEALS
3rd COURT OF APPEALS
AUSTIN, TEXAS
AT AUSTIN, TEXAS
12/23/2016 1:00:46 PM
JEFFREY D. KYLE
IN RE NATURAL SODA, LLC, Clerk

RELATOR
Original Proceeding from Cause No. D-1-GN-15-005653
In the 200th Judicial District Court of Travis County, Texas
(Hon. Gisela D. Triana, Presiding)

PETITION FOR WRIT OF MANDAMUS

Matthew Dow William N. Withrow Jr.
State Bar No. 06066500 Pro Hac Vice
Joshua A. Romero Michael E. Lacy
State Bar No. 24046754 Pro Hac Vice
JACKSON WALKER L.L.P. David Gettings
100 Congress Ave., Suite 1100 Pro Hac Vice
Austin, Texas 78701 TROUTMAN SANDERS LLP
22 Central Park Ave., Suite 2000
Virginia Beach, Virginia 23462

ATTORNEYS FOR RELATOR NATURAL SODA, LLC
 IDENTITIES OF PARTIES AND COUNSEL

The following is a complete list of all parties before the trial court and the

names and addresses of all trial counsel and appellate counsel:

1. Relator Defendant/Counterclaim Plaintiff Natural Soda, LLC

Represented by: Matthew Dow
Joshua A. Romero
JACKSON WALKER L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
512.236.2230 – Telephone
512.391.2113 – Facsimile
and
William Withrow (pro hac vice)
David Gettings (pro hac vice)
Michael Lacy (pro hac vice)
TROUTMAN SANDERS LLP
222 Central Park Ave, Suite 2000
Virginia Beach, VA 23462
757.687.7747 – Telephone
757.687.1545 – Facsimile

2. Real Party in Interest Plaintiff/Counterclaim Defendant
Bunnett & Company, Inc.

Represented by: Matthew F. Prewitt
Michael Molzberger
SCHIFF HARDIN LLP
233 S. Wacker Drive, Suite 6600
Chicago, Illinois 60606
312.258.5583 - Telephone
312.258.5600 - Facsimile
and

ii
 Michael J. Golden
BOULETTE GOLDEN & MARIN LLP
2801 Via Fortuna, Suite 530
Austin, Texas 78746
512.732.8900 - Telephone
512.732.8905 – Facsimile

3. Respondent Hon. Gisela D. Triana
200th District Court at Travis County, Texas
1000 Guadalupe, 5th Floor
Austin, Texas 78701
512.854-9306 - Telephone
512.854.4523 – Facsimile

4. Additional Parties in Defendant Enirgi Group Corporation
Trial Court and Non- Defendant Sara Schaeffner
Parties to Mandamus Represented by:
Proceeding Matthew Dow
JACKSON WALKER L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
512.236.2230 – Telephone
512.391.2113 – Facsimile
and
William Withrow (pro hac vice)
David Gettings (pro hac vice)
Michael Lacy (pro hac vice)
TROUTMAN SANDERS LLP
222 Central Park Ave, Suite 2000
Virginia Beach, VA 23462
757.687.7747 – Telephone
757.687.1545 – Facsimile

iii
Plaintiff and Third-Party Defendant William Bunnett
Plaintiff Energy Feeds International, LLC
Represented by:
Matthew F. Prewitt
Michael Molzberger
SCHIFF HARDIN LLP
233 S. Wacker Drive, Suite 6600
Chicago, Illinois 60606
312.258.5583 - Telephone
312.258.5600 - Facsimile
and
Michael J. Golden
BOULETTE GOLDEN & MARIN LLP
2801 Via Fortuna, Suite 530
Austin, Texas 78746
512.732.8900 - Telephone
512.732.8905 - Facsimile

iv
 TABLE OF CONTENTS

Identities of Parties and Counsel ............................................................................................ ii

Table of Authorities ................................................................................................................vii

Statement Regarding Oral Argument ..................................................................................... x

Statement of the Case .............................................................................................................. xi

Statement of Jurisdiction ........................................................................................................xii

Issues Presented ......................................................................................................................... 1

Mandamus Record .................................................................................................................... 2

Statement of Facts ..................................................................................................................... 3

I. The Parties .......................................................................................................... 3

II. The Lawsuit and Temporary Restraining Order ........................................... 4

III. Bunnett & Co.’s Motion for Contempt and Sanctions ................................ 5

IV. The Contempt Hearing ..................................................................................... 6

V. The Contempt Order ........................................................................................ 9

Argument ..................................................................................................................................10

I. The Trial Court’s Contempt Power .............................................................. 10

II. Mandamus Relief is Available to Correct the Trial Court’s
Erroneous Contempt Order .......................................................................... 12

III. The Trial Court Abused its Discretion in Issuing the Contempt
Order, and Natural Soda Has No Adequate Remedy by Appeal ............. 13

A. The Trial Court Clearly Abused Its Discretion in Holding
Natural Soda in Criminal Contempt ................................................. 13

v
 1. There is no evidence Natural Soda solicited business
from Hi-Pro in the restricted area on December 18,
2015, in violation of the TRO ................................................ 14

2. Even assuming a violation of the TRO, there is no
evidence that Natural Soda acted with willful intent .......... 20

B. Natural Soda Has No Adequate Remedy by Appeal ...................... 21

Prayer .........................................................................................................................................23

Rule 52.3(j) Certification ........................................................................................................24

Rule 9.4 Certificate of Compliance .......................................................................................24

Certificate of Service ...............................................................................................................25

vi
 TABLE OF AUTHORITIES

Cases Page(s)

Deramus v. Thornton,
333 S.W.2d 824 (Tex. 1960) ....................................................................................... 13

Ex parte Chambers,
898 S.W.2d 257 (Tex. 1995) (orig. proceeding) .................................. 11, 12, 14, 20

Ex parte Elmore,
342 S.W.2d 558 (Tex. 1961) (orig. proceeding) ......................................... 11, 16, 17

Ex parte Gordon,
584 S.W.2d 686 (Tex. 1979) (orig. proceeding) ...................................................... 11

Ex parte Green,
603 S.W.2d 216 (Tex. 1980) (orig. proceeding) ......................................... 12, 18, 19

Ex parte Price,
741 S.W.2d 366 (Tex. 1987) (orig. proceeding) ...................................................... 14

Ex parte Sanchez,
703 S.W.2d 955 (Tex. 1986) (orig. proceeding) ...................................................... 12

Ex parte Stephens,
734 S.W.2d 761 (Tex. App.—Fort Worth 1987, orig. proceeding) ..................... 18

Ex parte Storlie, No. 07-98-0040-CV, 1998 Tex. App. LEXIS 1427
(Tex. App.—Amarillo Mar. 9, 1998, orig. proceeding).......................................... 18

Ex parte Sweeney,
628 S.W.2d 855 (Tex. App.—Fort Worth 1982, orig. proceeding)
(per curiam)................................................................................................................... 20

Ex parte Werblud,
536 S.W.2d 542 (Tex. 1976) (orig. proceeding) ............................................... 10, 11

Hood v. United States,
326 F.2d 33 (5th Cir. 1964) ........................................................................................ 11

vii
In re Choice! Energy, L.P.,
325 S.W.3d 805 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding) ........... 16

In re D.A., No. 02-14-00198-CV, 2014 Tex. App. LEXIS 9018
(Tex. App.—Fort Worth Aug. 14, 2014, orig. proceeding)
(per curiam)................................................................................................................... 22

In re Khaledi,
138 S.W.3d 77 (Tex. App.—San Antonio 2004, orig. proceeding) ..................... 18

In re Long,
984 S.W.2d 623 (Tex. 1999) (orig. proceeding) ...................................................... 12

In re Maddin, No. 2-08-475-CV, 2009 Tex. App. LEXIS 2828
(Tex. App.—Fort Worth Apr. 20, 2009, orig. proceeding) (mem. op.) .............. 14

In re Office of Att’y Gen. of Tex.,
215 S.W.3d 913 (Tex. App.—Fort Worth 2007, orig. proceeding) ..................... 22

In re Reece,
341 S.W.3d 360 (Tex. 2011) (orig. proceeding) ............................................... 11, 12

In re Smith,
310 S.W.3d 908 (Tex. App.—Eastland 2010, orig. proceeding) ................... 17, 19

In re Stanley, No. 04-06-00549-CV, 2006 Tex. App. LEXIS 7635
(Tex. App.—San Antonio Aug. 30, 2006, orig. proceeding)
(per curiam) (mem. op.) .............................................................................................. 14

Kinney v. Barnes,
443 S.W.3d 87 (Tex. 2014) ......................................................................................... 16

Rowe v. Moore,
756 S.W.2d 117 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding) ............ 20

Urbano v. State,
837 S.W.2d 114 (Tex. Crim. App. 1992) .................................................................. 17

viii
Statute

TEX. GOV’T CODE § 21.002(b) .............................................................................................. 10

Other Authority

9 WILLIAM V. DORSANEO, III,
TEX. LIT. GUIDE § 133.04[6][b] (2016) ............................................................. 11, 17

ix
 STATEMENT REGARDING ORAL ARGUMENT

Relator Natural Soda, LLC submits that oral argument is not necessary for the

Court’s analysis of the criminal contempt order at issue. This case involves a straight-

forward application of the evidentiary standard for criminal contempt findings—i.e.,

beyond a reasonable doubt—to the evidence presented to the trial court. If, however,

the Court determines that oral argument will assist it in making a decision, counsel for

Relator requests to be heard.

x
 STATEMENT OF THE CASE

Underlying Suit: Real Party in Interest/Plaintiff Bunnett & Company, Inc.
(“Bunnett & Co.”) filed a breach-of-contract case against
Relator/Defendant Natural Soda, LLC (“Natural Soda”)
arising from the termination of a sodium bicarbonate
distributorship agreement. Natural Soda filed various
counterclaims arising from Bunnett & Co.’s material
breaches of the distributorship agreement.

The trial court entered a temporary restraining order
restricting Natural Soda’s ability to solicit business from
certain customers under certain conditions for a two-day
period. (Tab A). Bunnett & Co. subsequently sought
sanctions and contempt against Natural Soda and others
for allegedly violating the temporary restraining order.

On November 17, 2016, the trial court entered an order
finding Natural Soda in criminal contempt for
purportedly soliciting business from one customer during
the effective date of the temporary restraining order.

Jury trial is scheduled for January 9, 2017.

Respondent: The Honorable Gisela D. Triana of the 200th Judicial
District Court of Travis County, Texas

Action from which Relator On November 17, 2016, the trial court found Natural
seeks relief: Soda in criminal contempt for allegedly soliciting business
from one customer during the two-day period the
temporary restraining order was in place. (Tab B).
Because Natural Soda will suffer irreparable harm from
the contempt order, particularly with the impending jury
trial, Natural Soda respectfully seeks relief from the
contempt order.1

1
Temporary relief in the form of a stay may be necessary if the trial court permits
Bunnett & Co. to mention the criminal contempt finding to the jury or to otherwise disclose the
contempt finding to the jury through a jury instruction, as Bunnett & Co. has requested. See R.R.2,
pp. 41:22-25, 42:1-12.
xi
 STATEMENT OF JURISDICTION

This Court has jurisdiction to issue a writ of mandamus pursuant to Article 5,

Section 6 of the Texas Constitution and Section 22.221 of the Texas Government

Code.

xii
 ISSUES PRESENTED

1. Whether the trial court abused its discretion in finding, beyond a

reasonable doubt, that Natural Soda violated the temporary restraining order by

soliciting business from one customer, when there was no evidence that Natural Soda

solicited that customer’s business during the two-day period the temporary restraining

order was in effect?

2. Whether the trial court abused its discretion in finding, beyond a

reasonable doubt, that Natural Soda acted with willful intent to violate the temporary

restraining order by allegedly soliciting business from one customer during the two-

day period the order was in place, when the only evidence of Natural Soda’s intent

showed that it acted in good faith?

1
 MANDAMUS RECORD

The sworn mandamus record is cited as “Tab ___, p. ___.” The Reporter’s

Record is composed of three volumes containing the testimony and evidence adduced

at the contempt hearing. The Reporter’s Record is cited as “R.R.___, p. ___.”2

2
Relator’s counsel received the Reporter’s Record on December 19, 2016.
2
 STATEMENT OF FACTS

I. THE PARTIES

Natural Soda is one of North America’s leading producers of sodium

bicarbonate (better known as baking soda) for use predominantly in the food,

industrial, and animal feed markets. Tab C ¶ 7. Bunnett & Co. is a distributor of

sodium bicarbonate to end-users. Id. ¶ 8.

In September 2005, Natural Soda entered into an Animal Feed Distributor

Agreement with Bunnett & Co. (the “Agreement”). Id. ¶ 8. The Agreement

appointed Bunnett & Co. as Natural Soda’s exclusive sales representative for the

solicitation of orders for feed-grade sodium bicarbonate within a fifteen-state sales

territory. Id.; R.R.3, Pls. Ex. 4.

On December 2, 2015, Natural Soda terminated the Agreement based on

Bunnett & Co.’s repeated material breaches of the Agreement. Tab C ¶ 39. After

termination, Natural Soda began contacting customers who had previously purchased

its sodium bicarbonate to assess their interest in purchasing directly from Natural

Soda. R.R.2, pp. 44:1-13, 73:9-25, 74:1-13.

3
II. THE LAWSUIT AND TEMPORARY RESTRAINING ORDER

On December 14, 2015, Bunnett & Co. sued Natural Soda based on Natural

Soda’s termination of the Agreement. Tab C ¶ 40.3 The crux of Bunnett & Co.’s

claim is that Natural Soda did not provide Bunnett & Co. with a ten-day notice of

termination, which Bunnett & Co. claims is required. R.R.2, p. 16:21-24. Bunnett &

Co. also sought injunctive relief to force Natural Soda to comply with the exclusivity

provision in the Agreement. Tab C ¶ 40. Natural Soda opposed the request for

injunctive relief, arguing that equitable relief was unavailable and inappropriate in a

breach-of-contract case. Tab E.

The trial court heard the application for a temporary restraining order on

December 15, 2015, and issued a temporary restraining order on December 16, 2015

(the “TRO”). Tab A. The TRO provided in pertinent part:

Defendant shall honor its exclusivity obligations with respect to
Plaintiff, provided, except Defendant may sell to a third party who
had, prior to December 15, 2015, communicated to Defendant that it
refused to do business with Plaintiff. This limited exception does not
apply to people who communicate such issues on or after December
15, 2015, for which Plaintiff’s exclusivity still applies until the
expiration of this court order.

3
Bunnett & Co. later amended the petition to add two additional defendants: Sara
Schaeffner (Natural Soda’s president) and Enirgi Group Corporation (Natural Soda’s parent
company). Natural Soda filed counterclaims against Bunnett & Co. and a third-party claim against
its owner, William Bunnett. Tab C.
4
Id. at ¶ 4. The TRO’s restriction on Natural Soda’s ability to sell product to certain

customers expired by its terms on December 18, 2015. Id. at ¶ 2.4 There was not a

preliminary injunction hearing and no preliminary injunction order was entered.

III. BUNNETT & CO.’S MOTION FOR CONTEMPT AND SANCTIONS

On September 21, 2016, Bunnett & Co. filed a motion for sanctions and

contempt. Bunnett & Co. argued, in relevant part, that Natural Soda, Defendant Sara

Schaeffner (Natural Soda’s president), Non-Party Wayne Richardson (CEO of

Natural Soda’s parent company, Enirgi Group Corporation), and Non-Party Jackie

Deiter (Natural Soda’s sales representative) (collectively “Respondents”) should be

held in criminal contempt for violating the TRO. Tab D. Specifically, Bunnett & Co.

alleged that the Respondents violated the TRO by soliciting business from six

customers—Hi-Pro Feeds, Mission Ag Resources, J.D. Heiskell-Idaho, Nutrius LLC,

J.D. Heiskell-California, and Pacific Elements—during the two-day period in which

the TRO was in effect. Id. at pp. 14-16.5

4
The TRO provided that it was “vacated without further order of the Court” if
Bunnett & Co. failed to submit to Natural Soda signed orders from clients by December 18, 2015 at
5:00 p.m. in excess of the contractual minimums. Tab A ¶ 2. It is undisputed that Bunnett & Co.
failed to submit the requisite orders; therefore, it is also undisputed that the TRO expired by its
terms at 5:00 p.m. on December 18, 2015. Tab C ¶¶ 41-42; R.R.2, pp. 47:21-23, 97:12-15.
5
Bunnett & Co. made additional accusations in its motion regarding alleged pre-TRO
conduct and discovery conduct, which Respondents adamantly denied. The trial court ultimately
rejected Bunnett & Co.’s arguments and therefore they are irrelevant in this mandamus proceeding.
See Tab B, p. 2.
5
 Respondents filed a response to the motion for sanctions and contempt,

explaining the inaccuracies and misstatements contained in the motion. Tab E.

Respondents provided evidence that (i) they only solicited business from customers

who refused to do business with Bunnett & Co. before December 15, 2015, as

permitted by the TRO; and (ii) Respondents did not solicit business from any

restricted customers in the relevant markets during the effective dates of the TRO. Id.

On October 14, 2016, pursuant to Bunnett & Co.’s request, the trial court issued a

show-cause order directing Respondents to show cause why they did not violate the

TRO. Tab F.6

IV. THE CONTEMPT HEARING

On November 7, 2016, the trial court conducted a show-cause hearing. The

trial court heard live testimony from four witnesses and deposition testimony from

several other witnesses. See generally R.R.1-R.R.3. Natural Soda presented deposition

testimony from four of the customers at issue: Pacific Elements,7 J.D. Heiskell-

California,8 Animal Nutrition System,9 and J.D. Heiskell-Idaho.10 Their testimony

6
The trial court considered Bunnett & Co.’s motion for contempt and sanctions on
October 13, 2015, but did not issue a ruling on that date; instead, the trial court set an evidentiary
hearing on the motion for November 7, 2015. Tab F.
7
R.R.2, pp. 140-42.
8
Id. at pp. 141-43.
9
Id. at pp. 144-45.
10
Id. at pp. 145-47.
6
corroborated the testimony of Non-Party Jackie Deiter (Natural Soda’s sales

representative) that each customer had expressed an unwillingness to conduct

business with Bunnett & Co. R.R.2, pp. 152:21-25, 153:1. The testimony from each

of these customers was striking in the consistent disdain for Bunnett & Co. and their

intention to take their business elsewhere. For instance, Pacific Elements’

representative testified as follows:

Q: So as long as you were able to get Natural Soda sodium bicarbonate on a
reliable basis at a fair price, you still would have been willing to purchase
it through Bunnett & Co. Right?
A: No.
Q: Why not?
A: Because their customer service is horrible. At that point, if we couldn’t
get Natural Soda, we would have moved to Church & Dwight and
bought their products.

R.R.2, pp. 140:22-25, 141:1-6.11

In support of its motion, Bunnett & Co. introduced evidence of one phone

record showing that, on December 18, 2015, a representative of Hi-Pro Feeds (“Hi-

Pro”) placed a call to Natural Soda. The phone record provides as follows:

Date Time Caller Customer/Individual Callee Direction Duration (min) Source
2015- 14:17 8065590517 Jason Rector (Hi-Pro) Jackie In 7 NS_3758
12-18 Deiter

11
This testimony is consistent with the testimony of other customers. See, e.g., R.R.2, p.
143 (J.D. Heiskell: “I don’t want to have any dealings to do with Bunnetts anymore.”); Id. at p. 144
(Animal Nutrition System: “[Y]es, it was a kind of refusal and basically saying, we don’t want to [do
business with Bunnett & Co.].”); Id. at p. 145 (J.D. Heiskell: “I wasn’t happy with Bunnett &
Company. They-they really ticked my customers off.”).
7
Tab G; R.R.3, Pls. Ex. 16. The phone record shows that the call lasted seven minutes,

and was placed from Hi-Pro to Natural Soda. Id. Bunnett & Co. did not introduce any

evidence about the substance of the call or ask Non-Party Jackie Deiter (the recipient

of the call and a witness at the hearing) about the call.

At the conclusion of the hearing, the trial court expressed concern regarding

Natural Soda’s contact with one customer, Hi-Pro. R.R.2, p. 206. Notably, the phone

record above encompassed the entirety of the evidence introduced at the contempt

hearing regarding Natural Soda’s communications with Hi-Pro from December 16,

2015 (the date the TRO was entered) to December 18, 2015 (the date the TRO

expired). R.R.3, Pls. Ex. 16.

Bunnett & Co.’s “evidence” of Natural Soda’s communications with Hi-Pro

stopped there. Bunnett & Co. did not adduce any evidence regarding the substance

of that single call; Bunnett & Co. did not introduce evidence regarding the reason Hi-

Pro called Natural Soda on December 18, 2015; there was no testimony or evidence

from Hi-Pro about the call; Bunnett & Co. did not solicit any evidence from Jackie

Deiter about the call; and, most critically, there was no evidence that, during the

seven-minute call, Jackie Deiter solicited or even attempted to solicit Hi-Pro to

purchase sodium bicarbonate from Natural Soda in the restricted area. Indeed, the

only evidence presented at the hearing about that call is the phone record itself. Tab

G; R.R.3, Pls. Ex. 16.

8
 Importantly, the TRO did not prevent Natural Soda from talking to any person

or entity; it only prevented Natural Soda from “sell[ing]” sodium bicarbonate to

certain customers in the restricted area from December 16 to December 18, 2015. See

Tab A ¶ 2. Thus, the critical question is whether Natural Soda was “selling” any

sodium bicarbonate to Hi-Pro within the restricted area during the seven-minute

phone call on December 18, 2015.12

V. THE CONTEMPT ORDER

On November 16, 2016, the trial court issued an order finding Natural Soda in

criminal contempt for soliciting sodium bicarbonate business from Hi-Pro in the

restricted area during the two-day period in which the TRO was in effect. Tab B.

Specifically, the trial court found the following:

The Court . . . finds beyond a reasonable doubt that Natural Soda
violated this Court’s Temporary Restraining Order entered on
December 16, 2016 [sic], by breaching the exclusivity provisions in
the agreement between the parties. The Court specifically finds
beyond a reasonable doubt that, after the hearing on Bunnett &
Company’s petition for a temporary restraining order and after the
Court entered the Temporary Restraining Order on December 16,
2016 [sic], Natural Soda conducted business negotiations with Hi-Pro
Feeds in an effort to convince Hi-Pro Feeds to purchase sodium
bicarbonate directly from Natural Soda, even though Hi-Pro Feeds
has not refused to do business with Bunnett & Company.

Tab B.

12
Natural Soda and Hi-Pro also conduct business in Canada, which is indisputably
outside the scope of both the TRO and the fifteen-state exclusive distributorship area covered by
the Agreement. See R.R.2, p. 209:15-16; Tab C ¶ 8.
9
 Pursuant to the statutory limitations set forth in TEX. GOV’T CODE § 21.002(b),

the trial court imposed a monetary fine of $500 on Natural Soda. Id. p. 2 (“[I]t is

ORDERED that Natural Soda be found guilty of contempt and fined $500 pursuant

to TEX. GOV’T CODE § 21.002(b).”). The trial court denied all other relief Bunnett &

Co. requested in its motion for sanctions and contempt. Id. (“All other relief not

expressly granted herein is DENIED.”).

As discussed below, the trial court abused its discretion in finding Natural Soda

in contempt, and Natural Soda lacks an adequate remedy on appeal. Accordingly,

mandamus relief is appropriate.

ARGUMENT

I. THE TRIAL COURT’S CONTEMPT POWER.

There are two types of contempt: (1) civil contempt; and (2) criminal contempt.

Civil contempt is “remedial and coercive in nature” with the goal of persuading the

contemnor to obey an order of the court. See Ex parte Werblud, 536 S.W.2d 542, 545

(Tex. 1976) (orig. proceeding). Criminal contempt, on the other hand, is punitive in

nature; the punishment “is not conditioned upon some promise of future

performance because the contemnor is being punished for some completed

10
act. . . .” Id.13 In this case, the trial court expressly found Natural Soda in criminal

contempt because it sought to punish Natural Soda for alleged completed acts. Tab B.14

Criminal contempt “for disobedience to a court order requires proof beyond a

reasonable doubt of: (1) a reasonably specific order; (2) a violation of the order; and (3)

the willful intent to violate the order.” Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.

1995) (orig. proceeding) (emphasis added). A party accused of contempt is presumed

innocent, and the movant “has the burden of proving guilt beyond a reasonable

doubt.” Hood v. United States, 326 F.2d 33, 34 (5th Cir. 1964); see also 9 WILLIAM V.

DORSANEO, III, TEX. LIT. GUIDE § 133.04[6][b] (2016) (“DORSANEO”) (“[T]he

moving party bears the burden of pleading, producing evidence, and persuading the

trier of fact regarding each element of the offense.”). Notably, “contempt is not

presumed to exist but rather is presumed not to exist.” DORSANEO at § 133.04[1]

(emphasis added) (citing Ex parte Elmore, 342 S.W.2d 558, 561 (Tex. 1961) (orig.

proceeding)).

13
The “distinction between criminal and civil contempt does not turn on whether the
underlying litigation is civil or criminal, but rather on the nature of the court’s punishment.” In re
Reece, 341 S.W.3d 360, 365 (Tex. 2011) (orig. proceeding).
14
In addition to categorizing contempt as criminal or civil, contempt is also sometimes
classified as “direct” or “constructive.” Direct contempt occurs in the presence of the court, and
constructive contempt occurs outside the court’s presence. See Ex parte Chambers, 898 S.W.2d 257,
259 (Tex. 1995) (orig. proceeding). The contempt in this case is properly classified as constructive
contempt because the alleged violation occurred outside of the court’s presence. The distinction is
significant because cases of constructive contempt are afforded greater procedural protection. See
Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding) (holding that due process
requires constructive contemptor to be given full and complete notification of charge and right to
defend).
11
 The Texas Supreme Court has recognized that contempt proceedings are quasi-

criminal and that, although the power of contempt is broad, it “is a tool that should

be exercised with caution.” Reece, 341 S.W.3d at 364; see also Ex parte Sanchez, 703

S.W.2d 955, 957 (Tex. 1986) (orig. proceeding). Indeed, the Supreme Court has

cautioned that contempt is “strong medicine” and “should be used only as a last

resort.” Reece, 341 S.W.3d at 364 (internal citations omitted).

II. MANDAMUS RELIEF IS AVAILABLE TO CORRECT THE TRIAL COURT’S
ERRONEOUS CONTEMPT ORDER.

It is well settled that “mandamus is available to challenge an order of contempt

not involving confinement.” Reece, 341 S.W.3d at 370. As the Texas Supreme Court

has explained, “[c]ontempt orders that do not involve confinement cannot be

reviewed by writ of habeas corpus, and the only possible relief is a writ of

mandamus.” In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding).

To obtain mandamus relief, a relator must demonstrate that (1) the trial court

clearly abused its discretion, and (2) the relator has no adequate remedy by appeal.

Reece, 341 S.W.3d at 364. On mandamus review, this Court should void a contempt

order when there is “no evidence to support” the contempt finding. Chambers, 898

S.W.2d at 259 (voiding contempt order because no evidence supported contempt

finding); Ex parte Green, 603 S.W.2d 216, 217 (Tex. 1980) (orig. proceeding) (“Since

we are of the opinion that the record contains no evidence to support the present

contempt order, we hold that the contempt order is void, and order the relator

12
discharged.”); Deramus v. Thornton, 333 S.W.2d 824, 830 (Tex. 1960) (“A judgment of

contempt without support in the evidence is void, and the Court is without

jurisdiction to order punishment in the absence of some evidence of contemptuous

disobedience.”).

III. THE TRIAL COURT ABUSED ITS DISCRETION IN ISSUING THE CONTEMPT
ORDER, AND NATURAL SODA HAS NO ADEQUATE REMEDY BY APPEAL.

Mandamus relief is appropriate in this case because: (1) the trial court clearly

abused its discretion in finding Natural Soda in criminal contempt; and (2) Natural

Soda has no adequate remedy by appeal. These two elements are discussed below.

A. The Trial Court Clearly Abused Its Discretion in Holding Natural
Soda in Criminal Contempt.

As a threshold matter, the trial court had to find beyond a reasonable doubt that

Natural Soda violated the TRO. Here, there is no evidence in the record—much less

evidence beyond a reasonable doubt—to support the trial court’s finding that Natural

Soda solicited Hi-Pro’s sodium bicarbonate business in the restricted area during the

seven-minute phone call on December 18, 2015. Accordingly, as discussed below, the

contempt order is void as a matter of law.

Further, even assuming there was a violation of the TRO, which there was not,

Bunnett & Co. failed to meet its burden to prove beyond a reasonable doubt that

Natural Soda acted with willful intent to violate the order. Thus, the contempt order is

also void on this independent basis.

13
 1. There is no evidence Natural Soda solicited business from
Hi-Pro in the restricted area on December 18, 2015, in
violation of the TRO.

Bunnett & Co. sought sanctions and contempt against Respondents on various

grounds—all of which the trial court rejected with one exception. Compare Tab D

(motion for sanctions and contempt) with Tab B (contempt order). Specifically, while

dismissing nearly all of Bunnett & Co.’s arguments, the trial court found criminal

contempt on one basis:

The Court specifically finds beyond a reasonable doubt that . . . after the
Court entered the Temporary Restraining Order on December 16, 2016
[sic], Natural Soda conducted business negotiations with Hi-Pro Feeds in
an effort to convince Hi-Pro Feeds to purchase sodium bicarbonate
directly from Natural Soda, even though Hi-Pro Feeds had not refused
to do business with Bunnett & Company.

Tab B, p. 1.15

The relevant inquiry here is whether the record evidence supports the trial

court’s finding that Bunnett & Co. established beyond a reasonable doubt that,

between December 16 and December 18, 2015, Natural Soda “conducted business

15
The trial court correctly rejected Bunnett & Co.’s arguments regarding alleged
conduct that occurred before the TRO issued, since such conduct cannot form the basis of a
contempt finding. Tab B. Indeed, Texas courts have long recognized that an alleged “contemnor
cannot be held in constructive contempt of court for actions taken prior to the time that the court’s
order is reduced to writing.” Chambers, 898 S.W.2d at 262 (citing Ex parte Price, 741 S.W.2d 366, 367
(Tex. 1987) (orig. proceeding)); see also In re Stanley, No. 04-06-00549-CV, 2006 Tex. App. LEXIS
7635, at *2 (Tex. App.—San Antonio Aug. 30, 2006, orig. proceeding) (per curiam) (mem. op.); In re
Maddin, No. 2-08-475-CV, 2009 Tex. App. LEXIS 2828, at *6–7 (Tex. App.—Fort Worth Apr. 20,
2009, orig. proceeding) (mem. op.).

In any event, Respondents’ conduct prior to the entry of TRO fully complied with the TRO,
and the trial court agreed. Tab B. But, as set out above, pre-TRO conduct is irrelevant for the
purpose of a contempt finding. See Chambers, 898 S.W.2d at 262.
14
negotiations with Hi-Pro Feeds in an effort to convince Hi-Pro Feeds to purchase

sodium bicarbonate directly from Natural Soda” in the restricted territory. Tab B.

Bunnett & Co. introduced one piece of evidence regarding Natural Soda’s

communication with Hi-Pro between December 16 (the date the TRO was entered)

and December 18, 2015 (the date the TRO expired): A phone record from December

18, 2015 at 2:17 p.m. reflecting an incoming call from Hi-Pro to Natural Soda lasting

seven minutes. Tab G; R.R.3, Pls. Ex. 16.

The phone record is the entirety of Bunnett & Co.’s evidence regarding Natural

Soda’s communication with Hi-Pro during the effective date of the TRO. Bunnett &

Co. did not introduce any evidence about the substance of the call or ask Non-Party

Jackie Deiter (the recipient of the call and a witness at the hearing) anything about the

call. Instead, the trial court simply assumed that, during the seven-minute call, Natural

Soda “conducted business negotiations with Hi-Pro Feeds in an effort to convince

Hi-Pro Feeds to purchase sodium bicarbonate directly from Natural Soda” in the

restricted territory. Tab B. There is, however, no evidence to support that

assumption, much less evidence to prove it beyond a reasonable doubt.

In fact, an equally plausible assumption (and a more appropriate one) regarding

the substance of the call is that Natural Soda and Hi-Pro discussed their agreement

about the direct supply of product to Canada—a location and transaction well outside

both the scope of the TRO and the fifteen-state exclusivity area in the Agreement. See

R.R.2, p. 209:15-16 (Natural Soda was in discussions with Hi-Pro regarding an
15
agreement covering Canada, which is outside the exclusive territory covered by the

Agreement); R.R.3, Pls. Ex. 4 (listing fifteen-state area of exclusivity agreement).

Instead of making that plausible assumption, and contrary to the Texas Supreme

Court’s directive to presume innocence in the contempt context, the trial court

inappropriately assumed guilt. See Ex parte Elmore, 342 S.W.2d 558, 561 (Tex. 1961)

(orig. proceeding) (“A person is not presumed to be in contempt but, rather subject to

proof, is presumed not to be.”).

Bunnett & Co. did not introduce a single shred of evidence to support the trial

court’s assumption of guilt. Certainly the fact that Hi-Pro placed a phone call to

Natural Soda does not violate the TRO, since the TRO did not prevent all

communications with customers. Nor could it have done so.16 The TRO only

prevented direct sales to certain customers in the restricted area. Tab A ¶ 4.

Therefore, the trial court would have abused its discretion to hold Natural Soda in

contempt for a mere communication with Hi-Pro. See In re Choice! Energy, L.P., 325

S.W.3d 805, 809 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding) (“A

contempt order is void when it purports to punish the contemnor for conduct that is

beyond the scope of the trial court’s prior order or decree.”).

16
The Texas Supreme Court has recognized the inappropriateness of attempting to
impose prior restraint on speech through an injunction. Kinney v. Barnes, 443 S.W.3d 87, 89 (Tex.
2014) (holding that an injunction on future speech constitutes an inappropriate “prior restraint that
impermissibly risks chilling constitutionally protected speech”).

16
 But the trial court did not find contempt merely because there was a

communication between Hi-Pro and Natural Soda; it found contempt because

Natural Soda allegedly “conducted business negotiations with Hi-Pro Feeds in an

effort to convince Hi-Pro Feeds to purchase sodium bicarbonate directly from

Natural Soda” in the restricted territory. Tab B. However, since Bunnett & Co.

provided no evidence of the substance of the incoming call that formed the basis of the

trial court’s finding, a conclusion about the content of the conversation could not

have been proven beyond a reasonable doubt. See Urbano v. State, 837 S.W.2d 114,

116 (Tex. Crim. App. 1992) (“Proof beyond a reasonable doubt means proof to a high

degree of certainty. If the evidence at trial raises only a suspicion of guilt, even a

strong one, then that evidence is insufficient.”) (internal citations omitted). And, as

mentioned above, the trial court’s assumption that Natural Soda violated the TRO

during the call ignores that “contempt is not presumed to exist but rather is presumed

not to exist.” DORSANEO at § 133.04[1] (emphasis added) (citing Elmore, 342 S.W.2d at

561); see also In re Smith, 310 S.W.3d 908, 916-17 (Tex. App.—Eastland 2010, orig.

proceeding) (voiding contempt order because trial court “impermissibly presumed,

without evidentiary support,” that non-movant violated injunction).

17
 The Texas Supreme Court’s analysis in Ex parte Green, 603 S.W.2d 216 (Tex.

1980) (orig. proceeding), is instructive.17 In Green, the trial court enjoined Mr. Green

from conducting certain illegal activities on his premises. Id. at 217. After the

injunction issued, the plaintiff sought contempt against Mr. Green based on post-

injunction illegal activity at the premises. After a hearing, the trial court found Mr.

Green in contempt for violating the injunction. Mr. Green sought mandamus relief in

the court of appeals and subsequently at the Texas Supreme Court. The Supreme

Court voided the contempt order because the plaintiff failed to produce any evidence

that Mr. Green owned the property when the post-injunction illegal activity occurred.

Id. at 217-18. Instead, the trial court impermissibly assumed that Mr. Green owned the

property, despite evidence to the contrary. Id.

Similar to the trial court in Green, the trial court below assumed a violation of the

TRO, despite Bunnett & Co.’s failure to provide evidence supporting a contempt

finding. Indeed, just like the failure of the movant in Green to provide evidence that

17
Intermediate appellate court decisions also support mandamus relief when a movant
fails to provide evidence to support a contempt finding. See, e.g., In re Khaledi, 138 S.W.3d 77, 81
(Tex. App.—San Antonio 2004, orig. proceeding) (“Because no evidence supports a finding that
relator’s failure to sign the Merrill Lynch agreement constitutes a violation of the injunction order,
relator cannot be held in constructive contempt for failing to sign the Merrill Lynch agreement.”);
Ex parte Stephens, 734 S.W.2d 761, 764 (Tex. App.—Fort Worth 1987, orig. proceeding) (“[W]e
conclude that the evidence does not support the contempt judgment. No evidence was introduced
at trial to show that Stephens was in arrears. The only evidence introduced was that he failed to
timely pay.”); Ex parte Storlie, No. 07-98-0040-CV, 1998 Tex. App. LEXIS 1427, at *7 (Tex. App.—
Amarillo Mar. 9, 1998, orig. proceeding) (“Because there is no evidence that Sharon had not
remarried, the order finding Harris in contempt is unsupported by evidence essential to an order of
contempt.”).
18
Mr. Green owned the property when the alleged criminal activity occurred, Bunnett &

Co. failed to provide evidence that Natural Soda “conducted business negotiations

with Hi-Pro Feeds in an effort to convince Hi-Pro Feeds to purchase sodium

bicarbonate directly from Natural Soda” in the restricted territory during the seven-

minute call on December 18, 2015. Because that assumption is the sole basis for the

trial court’s contempt order, the order fails as a matter of law based on a lack of

supporting evidence. See Green, 603 S.W.2d at 217-18; Smith, 310 S.W.3d at 914 (“A

trial court abuses its discretion by entering a contempt judgment that is not supported

by evidence, and such a judgment is void.”).

****

In short, the trial court’s contempt finding, based on a single phone record,

that Natural Soda solicited business from Hi-Pro in the restricted area during the

seven-minute call lacks any evidentiary support. The trial court necessarily had to

assume the substance of the call since Bunnett & Co. failed to present any evidence

about the content of the call. And the trial court’s assumption of guilt is contrary to

the Texas Supreme Court’s repeated instruction that contempt is not presumed and

the movant must establish a violation beyond a reasonable doubt. Bunnett & Co.

undoubtedly failed to meet that standard; therefore, the trial court clearly abused its

discretion in holding Natural Soda in criminal contempt.

19
 2. Even assuming a violation of the TRO, there is no evidence
that Natural Soda acted with willful intent.

Assuming arguendo that there was a violation of the TRO—which there was

not—Bunnett & Co. still failed to prove beyond a reasonable doubt that Natural Soda

acted with willful intent to violate the TRO. This is fatal to the contempt order.

To succeed on its motion, Bunnett & Co. had to prove beyond a reasonable

doubt that Natural Soda acted with a willful intent to violate the TRO. See Chambers,

898 S.W.2d at 259. Texas courts have recognized that evidence of a non-movant’s

“good faith action” can negate the element of willful intent. See, e.g., Ex parte Sweeney,

628 S.W.2d 855, 858 (Tex. App.—Fort Worth 1982, orig. proceeding) (per curiam)

(discharging contempt order because, even though non-movant violated the

underlying order, he acted in good faith in attempting to comply with it); Rowe v.

Moore, 756 S.W.2d 117, 120 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding)

(recognizing that non-movant’s good faith, but erroneous, attempt to comply with

underlying order may preclude contempt finding).

Here, the record is completely devoid of any evidence regarding Natural Soda’s

willful intent to violate the TRO by answering a phone call placed by Hi-Pro on

December 18, 2015. Indeed, the December 18, 2015 call was incoming, meaning the

call itself was not even initiated by Natural Soda. Importantly, the only evidence of

Natural Soda’s intent is that it took significant steps in good faith to comply with the

20
TRO. See, e.g., R.R.2, pp. 81:4-23, 84:19-22, 85:12-25, 88:4-13.18 Further, since

Bunnett & Co. failed to offer any evidence, much less evidence beyond a reasonable

doubt, that Natural Soda solicited business from Hi-Pro in the restricted area during

the call on December 18, 2015, it could not have established beyond a reasonable

doubt that Natural Soda had a willful intent to violate the TRO by answering that

incoming call. Indeed, it would be impossible to discern Natural Soda’s intent,

especially beyond a reasonable doubt, merely from a black-and-white phone record

showing that Hi-Pro called Natural Soda.

For this independent reason, the trial court abused its discretion in finding

Natural Soda in criminal contempt.

B. Natural Soda Has No Adequate Remedy by Appeal.

The second showing necessary for mandamus relief is that Natural Soda lacks

an adequate remedy on appeal. Natural Soda can easily make this showing because, as

18
There can also be no willful intent to violate the TRO because Natural Soda
reasonably believed it had no restrictions in dealing with Hi-Pro. Specifically, Jackie Deiter testified
that Hi-Pro informed her, prior to December 15, 2015, that it refused to conduct business
domestically with Bunnett & Co. R.R.2, pp. 152:21-25, 153:1; 172:10-12. There was, however, some
ambiguous testimony from Hi-Pro that was read at the hearing on this point. Hi Pro’s
representative testified during deposition that he did not refuse to conduct business with William
Bunnett (who owns two separate companies, Bunnett & Co. and Energy Feeds International, LLC)
with respect to potassium carbonate (not sodium bicarbonate). R.R.2, p. 203:11-25; see also R.R.2, p.
154:7-19. But he did not testify in the testimony introduced at the hearing that he would continue to
purchase sodium bicarbonate from Bunnett & Co., which was the relevant question with respect to the
TRO. See id. at 203:11-25. Besides Hi-Pro, Ms. Deiter’s testimony regarding customer refusal was
corroborated by every other customer who testified at the hearing. R.R.2, pp. 140:22-25, 141:1-6.
Thus, even if reasonable minds could differ on the import of Hi-Pro’s testimony, the evidence does
not show that Natural Soda had a “willful intent to violate the TRO,” much less support such a
finding beyond a reasonable doubt.

21
courts have recognized, “[t]here is no adequate remedy by appeal if a trial court abuses

its discretion when holding someone in contempt.” In re D.A., No. 02-14-00198-CV,

2014 Tex. App. LEXIS 9018, at *8 (Tex. App.—Fort Worth Aug. 14, 2014, orig.

proceeding) (per curiam) (citing In re Office of Att’y Gen. of Tex., 215 S.W.3d 913, 916

(Tex. App.—Fort Worth 2007, orig. proceeding)). Because, as explained above,

Natural Soda has established that the trial court abused its discretion in finding

Natural Soda in contempt, Natural Soda has necessarily established a lack of an

adequate remedy by appeal. Id.

Moreover, the factual and procedural posture of this case establish the lack of

an adequate remedy on appeal. This case is schedule for jury trial on Monday, January

9, 2017. Tab H. Bunnett & Co. has informed the trial court and Natural Soda’s

counsel of its intent to inform the jury that Natural Soda was found in contempt for

violating the TRO. See R.R.2, pp. 41:22-25, 42:1-12. Bunnett & Co. has also

expressed an intent to seek a jury instruction explaining the contempt finding. Any

such instruction or disclosure to the jury would be highly inappropriate. Indeed, if

Bunnett & Co. is permitted to introduce this evidence, it would result in incurable

prejudice to Natural Soda that could not be remedied by a subsequent reversal of the

contempt order on appeal. The potential harm is particularly acute in this case, where

Bunnett & Co. is seeking millions of dollars in actual and punitive damages for

various tort claims, including intentional infliction of emotional distress. Thus, for

these additional reasons, there is no adequate remedy by appeal.
22
 PRAYER

Because the trial court abused its discretion by finding Natural Soda, LLC in

criminal contempt, and there is not an adequate remedy by appeal, Natural Soda

respectfully asks that this Court issue a writ of mandamus requiring the trial court to

vacate the contempt order. Relator further requests all other relief to which it may be

entitled.

Respectfully Submitted,

By: /s/ Matt Dow
Matt Dow
State Bar No. 06066500
mdow@jw.com
Joshua A. Romero
State Bar No. 24046754
jromero@jw.com
JACKSON WALKER L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
512.236.2230 – Telephone
512.391.2113 – Facsimile
and
William Withrow (pro hac vice)
william.withrow@troutmansanders.com
Michael Lacy (pro hac vice)
michael.lacy@troutmansanders.com>
David Gettings (pro hac vice)
david.gettings@troutmansanders.com
TROUTMAN SANDERS LLP
222 Central Park Ave, Suite 2000
Virginia Beach, VA 23462
757.687.7747 – Telephone
757.687.1545 – Facsimile

23
 RULE 52.3(j) CERTIFICATION

I certify that I have reviewed the petition and concluded that every factual

statement in the petition is supported by competent evidence included in the

appendix or record.

/s/Joshua A. Romero
Joshua A. Romero

RULE 9.4 CERTIFICATE OF COMPLIANCE

This document complies with the typeface retirements of TEX. R. APP. P. 9.4(e)

because it has been prepared in a conventional typeface (Garamond) no smaller than

14-point for text and 12-point for footnotes. This document also complies with the

word-count limitations of TEX. R. APP. P. 9.4(i), because it contains 5,529 words

excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).

/s/Joshua A. Romero
Joshua A. Romero

24
 CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was served on the following counsel for

Real Party in Interested via electronic service and on Respondent via certified mail,

return receipt requested, on this 23rd day of December 2016:

Respondent:

Hon. Gisela D. Triana
200TH CIVIL DISTRICT COURT
Heman Marion Sweatt
Travis County Courthouse
1000 Guadalupe, 5th Floor
Austin, Texas 78701

Counsel for Real Party in Interest, Energy Feeds International, LLC, and
William Bunnett:

Matthew F. Prewitt
Michael Molzberger
SCHIFF HARDIN LLP
233 S Wacker Drive, Suite 6600
Chicago, Illinois 60606

Michael J. Golden
BOULETTE GOLDEN & MARIN LLP
2801 Via Fortuna, Suite 530
Austin, Texas 78746

/s/Joshua A. Romero___
Joshua A. Romero

25
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