The Fifth Court granted mandamus relief as to a TRO requiring a law firm to make certain files available to a former firm attorney. It focused on this language in the TRO:

The Court further finds that Plaintiff has demonstrated she and the clients at issue will suffer imminent, irreparable, and extreme injury if the requested relief is not awarded by the Court. Specifically, Plaintiff has demonstrated that she – and the clients – will suffer imminent, irreparable harm for which there is no adequate remedy at law.

And the Court held:

The temporary restraining order … does not provide a nexus between the actions compelled (requiring PJD to give Cheek access to, and allow her to copy, all client files for clients she represented) and an irreparable injury to Cheek. The order merely recites the conclusory statement that Cheek would suffer immediate, irreparable harm for which there is no adequate remedy at law.

In re PJD Law Firm, PLLC, No. 05-23-00012-CV (April 11, 2023) (mem. op.) (applying, inter alia, El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740 (Tex. App.–Dallas 2011, no pet)).

This is a cross-post from 600Hemphill, which follows commercial litigation in the Texas Supreme Court. A high-profile 2020 dispute about the enforcement of a COVID-related TRO against a Dallas-area hairdresser was resolved in In re Luther by finding the TRO void. It said:

The Texas Supreme Court found that this order did not satisfy Tex. R. Civ. P. 683, as “it nowhere specifies any particular state, county, or city regulation that Luther has violated, is threatening to violate, or is being commanded to stop violating. Nor does it describe with specificity which ‘in-person services’ were restrained, such that performing them would cause Luther to violate the temporary restraining order.” No. 20-0363 (April 9, 2021). (NOTE–While the case was never before the Fifth Court, the supreme court opinion notes: “In light of the considerable uncertainty surrounding the multiplicity of orders and regulations issued by public officials throughout the State in the early months of the COVID-19 pandemic, we conclude there was a compelling reason for Luther to file her petition in this Court without first filing in the court of appeals.”)

Kaufman v. AmeriHealth Lab reviewed an important practical issue–does active participation in a TRO proceeding waive a potential special appearance? After reviewing the handful of Texas cases on the point, the Court concluded that a waiver occurred when, during the TRO hearing: “Kaufman’s counsel appeared without limiting his appearance and actively made arguments on Kaufman’s behalf, which included arguing he was not a signatory to the consulting agreement. AmeriHealth reminded the court that the parties retired to the jury room, at the court’s suggestion, to work out the expedited discovery requests. After their discussions, they proceeded on the record. The second half of the hearing in our appellate record is titled, ‘Rule 11
Agreement Proceeding.'” No. 05-20-00504-CV (Oct. 30, 2020) (mem. op.).

The Fifth Court gives some highly practical guidance about the enforcement of noncompetition agreements in Gehrke v. Merritt Hawkins & Assocs.

As to the scope of activity, the Court reminded: “Covenants not to compete prohibiting solicitation of clients with whom a former salesman had no dealings are unreasonable and unenforceable. . . . . However, when an employer seeks to protect its confidential business information in addition to its customer relations, broad non-solicitation restrictions are reasonable.” Here, “the record demonstrates [Defendant] was much more than a mere salesman–he was an executive and vice president with intimate knowledge of MHA’s confidential business information and trade secrets who also supervised other salesmen.”

As to geographic scope, the Court concluded that “the trial court abused its discretion by misapplying the law to the facts in failing to enforce a geographic restriction for all states where Gehrke had worked during his final year at MHA, including the entirety of the Contested States. Additionally, we conclude the trial court abused its discretion by imposing the arbitrary ten-mile radius restriction because neither party presented evidence supporting that restriction.”  No. 05-18-01160-CV (Jan. 23, 2020) (mem. op.) (citations omitted from all quotes, all emphasis added).

A useful reminder about the black-letter law governing appellate review of TROs – a statement that, while accurate, may be harder to satisfy than it appears – was given in In re Aludogbu: “A party has no remedy by appeal when a temporary restraining order is granted that is not in compliance with the rules, and a writ of mandamus is appropriate in such situations.” No. 05-19-00078-CV (Jan. 24, 2019) (mem. op.)

 

The Stantons obtained a temporary injunction against the removal of a “large elm tree” from along their property line. The Fifth Court reversed, finding that Tex. R. Civ. P. 683 was not satisfied as the order “does not state or explain the probable, imminent, and irreparable harm the Stantons will suffer absent an injunction. The trial court’s temporary injunction order simply recites the conclusory statement that the Stantons have shown that they will suffer an irreparable injury for which they have no other adequate legal remedy.” (citation omitted) The Court also questioned the Stantons’ right to sue about the tree at all, citing century-old Texas law establishing that “ownership is not shared with an adjacent property owner just because a tree grows across a boundary line. Instead, . . . this becomes an ‘invasion’ of the adjacent property owner’s right of possession.” Collins v. Mnuchin, No. 05-17-01363-CV (July 12, 2018) (mem. op.)

 

In some detail, the district court ordered Altesse Healthcare not to deplete the assets of a business, whereupon: “Altesses’s actions in failing to comply with the TRO resulted in destroying the value of the company over which the lawsuit was based. In essence, Altesse took over running the company and then failed to make the scheduled payments when due, leaving the Wilsons without the company or payment. After the trial court ordered Altesse to return the company to the Wilsons, Altesse delayed and by the time it returned the necessary assets to run the business, there was little left to run.” The Fifth Court affirmed the trial court’s detailed order awarding “death penalty” sanctions and other penalties, including contempt. Altesse Healthcare Solutions v. Wilson, No. 05-15-00906-CV (Aug. 23, 2016) (mem. op.)

In Freedom LHV, LLC v. IFC White Rock, Inc., the Dallas Court of Appeals reversed a temporary restraining order, reminding us yet again that under Rule 683, a trial court must state the specific reasons for issuing a temporary restraining order or temporary injunction, or the order is void. As the Dallas Court of Appeals wrote: “Even if a sound reason for granting relief appears elsewhere in the record, the Texas Supreme Court has stated in the strongest terms that rule of civil procedure 683 is mandatory.”

Practice pointers for those drafting a temporary restraining order or temporary injunction:

DO INCLUDE

• specific and legally sufficient reasons for granting the TRO or temporary injunction finding all three necessary elements:  (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim; and
• if it is a temporary injunction, a trial setting.

DO NOT INCLUDE

• conclusory statements, e.g. “plaintiff will be irreparably injured” without a description of that specific injury and why it is probable, imminent, and irreparable; or
• statements that merely reference the complaint or other document.

Freedom LHV, LLC v IFC White Rock, Inc.