David Henric, Cecilia Walters, and Wilton Cox v. Branden Glover and Cavalry Solar Solutions, LLC D/B/A Apollo Energy ( 2023 )


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  •        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-22-00724-CV
    David Henric, Cecilia Walters, and Wilton Cox, Appellants
    v.
    Branden Glover and Cavalry Solar Solutions, LLC d/b/a Apollo Energy, Appellees
    FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
    NO. D–1–GN–22–005581, THE HONORABLE JESSICA MANGRUM, JUDGE PRESIDING
    MEMORANDUM OPINION
    This is an accelerated interlocutory appeal from the granting of a temporary
    injunction against David Henric, Cecilia Walters, and Wilton Cox (collectively, Appellants) in
    favor of Branden Glover (Glover) and Cavalry Solar Solutions, LLC d/b/a Apollo (Cavalry). See
    Tex. Civ. Prac. & Rem. Code § 51.014(a)(4). After conducting an evidentiary hearing, the trial
    court entered a temporary injunction that prohibits Appellants from (1) holding themselves out as
    employees, officers, members, managers, or agents of Cavalry; (2) taking any action purported to
    be on Cavalry’s behalf; (3) excluding or limiting Glover’s access to or participation in Cavalry
    meetings, documents, or data; (4) taking any action inconsistent with Glover’s management
    authority over Cavalry; (5) distributing, removing, spending, relocating, or moving any Cavalry
    cash or property; and (6) selling, conveying, disposing, encumbering or otherwise alienating
    any Cavalry assets. The temporary injunction also prohibits Henric and Walters from assisting
    any individuals or entities that compete with Cavalry’s business; disclosing Cavalry’s financial
    information, customer lists, sales strategies or business plans; interfering with Cavalry’s
    relationships with its employees, contractors, customers or suppliers; using the name “Apollo,”
    “Apollo NRG,” or similar trade names, trademarks, or website domain names that are likely to
    cause confusion or mistake as to an affiliation with Cavalry, which does business as Apollo
    Energy; and taking action likely to injure Cavalry’s reputation or its trade name, Apollo Energy.
    In three issues, Appellants contend that the trial court abused its discretion by granting a
    temporary injunction because (1) the trial court did not provide Appellants with an adequate
    opportunity to present evidence at the hearing, (2) the temporary injunction does not comply
    with the requirements of Texas Rules of Civil Procedure 682, 683, and 684, and (3) the
    temporary injunction exceeds the relief requested by Glover and Cavalry. We will dissolve the
    temporary injunction and remand the case to the trial court for further proceedings.
    BACKGROUND1
    Cavalry was formed in 2017 as a single-member, manager-managed limited
    liability company. Henric served as Cavalry’s sole member and owned 100% of the membership
    interests. Henric and Walters were designated in Cavalry’s Certificate of Formation as its
    managers. In February 2022, Henric and Glover entered into a Business Acquisition Agreement
    (the BAA) whereby Glover purchased 100% of the membership interest in Cavalry.               The
    BAA identifies Walters as a “Key Officer” and was executed by Glover individually, Henric
    individually and in his capacity as Cavalry’s sole member and manager, and by Walters
    individually. The BAA provided that Henric and Walters both resigned as managers of Cavalry
    1
    The factual recitation is stated in the light favoring the trial court’s ruling, with
    conflicts in the parties’ evidence resolved in support of the ruling. See T-N-T Motorsports, Inc.
    v. Hennessey Motorsports, Inc., 
    965 S.W.2d 18
    , 21 (Tex. App.—Houston [1st Dist.] 1998,
    pet. dism’d).
    2
    and that Henric withdrew as the sole member. As of the effective date of the BAA, Glover
    became Cavalry’s sole member and manager.
    The BAA contains both covenants against competition and confidentiality
    provisions. The covenants against competition prohibit Henric and Walters for a period of five
    years from “directly or indirectly provid[ing] services as an employee or contractor, or assist[ing]
    in any other capacity whatsoever, including as an owner, investor, lender, partner, director,
    consultant, or agent, to any individual or entity engaged or contemplating becoming engaged in a
    business competitive with the Business in any geographic region where Cavalry currently or later
    operates.” They also prohibit Henric and Walters from “caus[ing] or encourag[ing] any actual or
    prospective employee, independent contractor, customer, or supplier of Cavalry [] to terminate
    that relationship or take any action that may adversely impact it, including hiring or attempting
    to hire any actual or prospective employee of Cavalry.” The confidentiality provision provides
    that Henric and Walter “shall hold in confidence and carefully protect all information, whether
    written or oral, concerning Cavalry [] that should reasonably be considered confidential or
    proprietary, including Cavalry’s financial condition and results and the identities of independent
    contractors and customers.”
    After acquiring Cavalry, Glover executed a Company Operating Agreement (the
    Company Agreement) that designated Glover as Cavalry’s sole member and manager. As
    Cavalry’s manager, Glover appointed himself as Cavalry’s Chief Executive Officer. Since the
    effective date of the BAA, no other individuals or entities have been appointed as Cavalry’s
    managers, no other individuals or entities have invested additional capital into Cavalry, no new
    members have been admitted to the company, and no board of directors, board of managers, or
    3
    officers have been appointed. There have been no meetings of the managers, meetings of the
    members, or written consents in lieu of meetings.
    Since its effective date and in accordance with the BAA’s terms, Henric and
    Walters performed consulting services for Cavalry as independent contractors. Additionally,
    Cox worked for Cavalry as an independent contractor. In connection with his work for Cavalry,
    Cox signed a Non-Compete Agreement that included a covenant against competition, a non-
    solicitation agreement, and a confidentiality agreement.       The covenant against competition
    prohibited Cox from “provid[ing] services or engag[ing] in any aspects of business that would be
    deemed similar in nature to the business of Cavalry Solar Solutions and Apollo” for the duration
    of the agreement and for a period of 18 months following termination of the agreement. The
    non-solicitation provision prohibited Cox from “attempt[ing] [] to induce [Cavalry’s] employees
    to leave [Cavalry’s] workforce” and from “interfering with [Calvary’s] relationship with its
    employees.” The confidentiality provision prohibited Cox from disclosing “any and all technical
    and non-technical information provided by [Cavalry], including but not limited to, any data,
    files, reports, accounts, or any proprietary information in any way related to products, services,
    processes, database, plans, methods, research, development, programs, software, authorship,
    customer lists, vendor lists, suppliers, marketing or advertising plans, methods, reports, analysis,
    financial or statistical information, and any other material related or pertaining to” any of
    Cavalry’s business.
    In October 2022, Henric, Walters, and Cox, purporting to act as Cavalry’s board,
    claimed to terminate Glover as Cavalry’s Chief Executive Officer.           Walters instructed her
    assistant to cut off Glover’s access to his Cavalry company email account. Henric applied for a
    new Tax Identification Number for Cavalry, listing himself as the sole member of the company,
    4
    and payments to Cavalry were directed to a bank account to which Glover did not have access.
    In response to these actions, Glover terminated Henric’s, Walters’, and Cox’s employment with
    Cavalry. On October 11, 2022, Glover sued Appellants seeking declaratory and injunctive relief
    and asserting a cause of action for breach of contract. On October 14th, the trial court signed
    a temporary restraining order, prohibiting Appellants from, among other things, holding
    themselves out as Cavalry’s employees or agents; taking any action on Cavalry’s behalf; or
    removing, spending or relocating Cavalry’s cash or property. The trial court also ordered
    Henric and Walters to return all Cavalry funds to an account to which Glover had access and to
    restore Glover’s email account. The trial court set the hearing on the temporary injunction for
    October 24th.
    The trial court held the temporary injunction hearing on October 24th from 9:00
    a.m. until 11:45 a.m., taking a fifteen-minute recess. During the hearing, Glover’s counsel
    called two witnesses, Glover and Phil Garcia, Cavalry’s sales director/manager. Counsel for
    Appellants had cross-examined Garcia and was cross-examining Glover when, at 11:34 a.m. the
    trial court informed him that he needed to “wrap it up in the next few questions” because “11:30
    is the time I really need to stop.” At 11:40 the following colloquy took place:
    The Court:      Okay. It’s 11:40, Mr. Cartwright.2
    Mr. Cartwright:         Judge, I would like to continue this and I would also like
    to—I would also like the opportunity to have my witnesses, the defendants in this
    particular matter, direct and cross-examined. We’ve been given no opportunity to
    do that.
    The Court:      Mr. Rosenthal, any response?3
    2
    Mr. Cartwright was representing Henric, Walters, and Cox at the hearing.
    3
    Mr. Rosenthal was representing Glover at the hearing.
    5
    Mr. Rosenthal:         Well, we set this for three hours because [the court
    administrator] told me that we wouldn’t get reached on a nine-hour docket today,
    so we had to get this done before the TRO expired. He knew it. He didn’t—that
    notice was sent last week so he knew how long we had and he didn’t ask for more
    time.
    Mr. Cartwright:       Your honor, respectfully, what I didn’t know, and the Court
    has the most accurate record of the time—what I didn’t know is exactly how long
    Mr. Glover would be directed. That was a factor that was not considered in this.
    The Court:      Okay. So the Court has broad discretion to limit the time as
    appropriate for hearings such as this. And I made it very clear up front that we
    had a time limitation and now you-all have gone past my limitations, which I feel
    is fairly disrespectful. And in any case, the applicant has already met the burden
    of proof necessary for the Court to grant the temporary injunction, so that is what
    I will do.
    The trial court then asked the parties to confer about the form of the proposed injunction
    submitted to the court and advised the parties that, if no agreement could be reached about the
    form, the trial court would “make a decision on” the form of the injunction. The trial court
    then adjourned the hearing. The court signed the temporary injunction on October 25th. Henric,
    Walters, and Cox filed a motion to dissolve the temporary injunction asserting, in part, that the
    injunction was issued without allowing them to call witnesses in violation of their right, pursuant
    to Texas Rule of Civil Procedure 681, to present their defense. See Tex. Rule Civ. P. 681.
    Henric, Walters, and Cox also brought this interlocutory appeal seeking to set aside the
    temporary injunction.
    DISCUSSION
    In their first issue, Appellants contend that the trial court abused its discretion by
    refusing to hear their case in chief and, instead, ending the hearing and granting injunctive relief
    without allowing Appellants to fully cross-examine Glover or present any of their witnesses and
    evidence. Rule 681 provides that “[n]o temporary injunction shall be issued without notice to the
    6
    adverse party.” Id.. The notice requirement of Rule 681 “implicitly requires that a party must
    be afforded an adequate opportunity to be heard.” Amalgamated Acme Affiliates, Inc. v. Minton,
    
    33 S.W.3d 387
    , 396 (Tex. App.—Austin 2000, no pet.) (citing City of Austin v. Texas Pub.
    Emps. Ass’n, 
    528 S.W.2d 637
    , 640 (Tex. App.—Austin 1975, no writ)). “A party must be given
    an opportunity to fully litigate the issue before the court grants the injunction.” 
    Id.
     (citing
    Tober v. Turner of Tex., Inc., 
    668 S.W.2d 831
    , 836 (Tex. App.—Austin 1984, no writ)). The
    opportunity to be heard and present evidence must amount to more than the mere opportunity to
    cross-examine the other party’s witnesses. See RRE VIP Borrower, LLC v. Leisure Life Senior
    Apartment Hous., Ltd., No 14-09-00923-CV, 
    2011 WL 1643275
    , at *2 (Tex. App.—Houston
    [14th Dist.] May 3, 2011 no pet.) (mem. op.); Elliott v. Lewis, 
    792 S.W.2d 853
    , 855 (Tex.
    App.—Dallas 1990, no writ); Reading & Bates Constr. Co. v. O’Donnell, 
    627 S.W.2d 239
    , 244
    (Tex. App.—Corpus Christi-Edinburg 1982, writ ref’d n.r.e.).
    In a temporary injunction hearing, the trial court is entitled to reasonably limit the
    proceedings. See Elliott, 
    792 S.W.2d at 855
    ; Reading & Bates Constr. Co., 
    627 S.W.2d at 244
    ;
    City of Houston v. Houston Lighting & Power Co., 
    530 S.W. 2d 866
    , 869 (Tex. App.—Houston
    [14th Dist.] 1975, writ ref’d n.r.e.). However, the trial court may not deprive a party of its right
    to offer any evidence at all. See RRE VIP Borrower, 
    2011 WL 1643275
    , at *2 (citing Elliott,
    
    792 S.W.2d at 855
    ; City of Houston, 530 S.W.2d at 869). “The trial court is not authorized to
    enter an order of temporary injunction against a party before that party has had an opportunity
    to present its defenses and has rested its case.” See City of Austin, 
    528 S.W.2d at 640
     (setting
    aside order granting temporary injunction when court did not permit defendants to complete
    examination of witness or to present any evidence in their defense); see also RRE VIP Borrower,
    
    2011 WL 1643275
    , at *2 (“[T]he trial court may not deprive a party of its right to offer any
    7
    evidence.”); Elliott, 
    792 S.W.2d at 855
     (holding that terminating temporary injunction hearing
    and entering temporary injunction against party before that party has had opportunity to present
    its defenses is abuse of discretion).
    The hearing on the temporary injunction lasted for two hours and forty-five
    minutes, which included a fifteen minute recess. During that time counsel for Glover called
    Glover and Garcia. At 11:20 a.m., when it became clear to Appellants’ counsel that there was
    insufficient time remaining for him to present his case, he stated:
    Your Honor, before I begin, just a quick—just a quick request. We’ve got 40
    minutes to go before everybody said they have an obligation here. We’ve been
    going for over two hours with this witness [Glover]. I’ll absolutely cross-examine
    this witness if that’s the Court’s wish. However, I’m also going to have—I’m
    obligated to request a continuance here because we have five defendants that
    were sued, five defendants that the injunction was requested against; and so far,
    we’ve got 39 minutes left. So I can’t in good conscience put on five witnesses in
    30 minutes.
    Appellants’ counsel then requested that the trial court reconvene the hearing as was earlier
    suggested, stating “earlier the Court stated that it was possible that we might need to come back,
    and that while that may be an inconvenience, that was a possibility.” The trial court responded:
    Okay. So you can continue to argue about it or you can cross-examine the
    witness. The only way we could come back is we could come back at 1:30 for 30
    minutes because I have another three hours of hearings starting at 2:00 pm. So
    you need to use this time that you have right now, and its within my discretion to
    decide whether we come back, or if the burden of proof has been met, if I want to
    go ahead and make a ruling on the application for the temporary injunction.
    Appellants’ counsel then began to cross-examine Glover when, after eleven minutes of cross-
    examination, the court advised him to “wrap it up.” Appellants’ counsel asked to be permitted
    to continue the cross-examination and to present his witnesses, which he had not had an
    8
    opportunity to do. The trial court responded that it had “broad discretion to limit the time as
    appropriate for hearings like this” and that “the applicant has already met the burden of proof
    necessary for the Court to grant the temporary injunction, so that is what I will do.”
    Thus, the trial court ended the temporary injunction hearing and granted Glover’s
    application for a temporary injunction without allowing Appellants to complete their cross-
    examination of Glover or present their case-in-chief, witnesses, and evidence. This Court, along
    with several other courts of appeals, has found the granting of a temporary injunction under
    similar circumstances to be an abuse of discretion. See RRE VIP Borrower, 
    2011 WL 1643275
    ,
    at *2 (holding that trial court abused its discretion by granting application for temporary
    injunction without allowing defendant opportunity to cross-examine expert witness and present
    its own witnesses and evidence); Elliott, 
    792 S.W.2d at 855
     (holding that trial court abused its
    discretion by granting temporary injunction when trial court terminated hearing while applicant
    was cross-examining appellees’ first witness—before appellees had rested and appellant had
    presented his defense); Kramer Trading Corp. of Tex. v. Lyons, 
    740 S.W. 2d 522
    , 523 (Tex.
    App.—Houston [1st Dist.] 1987, no writ) (holding that trial court abused its discretion by
    granting temporary injunction when trial court terminated hearing before appellee had rested his
    case and appellant had presented its defense); City of Austin, 
    528 S.W.2d at 640
     (setting aside
    order granting temporary injunction when trial court terminated hearing during appellant’s
    cross-examination of first witness without allowing appellant to present evidence of its defense);
    Oertel v. Gulf States Abrasive Mfg., 
    429 S.W.2d 623
    , 623 (Tex. App.—Houston [1st Dist.] 1968,
    no writ) (reversing order granting temporary injunction when trial court did not permit appellants
    9
    to call witnesses and present their defense, even though they were permitted to cross-examine
    appellees’ witnesses).4
    Glover asserts that he presented evidence during the hearing sufficient to support
    the trial court’s order granting a temporary injunction and, consequently, the trial court did not
    err in doing so. But the issue here is not whether Glover presented evidence sufficient to support
    the issuance of a temporary injunction. Rather, the issue is whether the trial court’s doing so
    without permitting Appellants an opportunity to complete cross-examination of Glover’s witness
    or to present any of their own witnesses or evidence constituted an abuse of discretion. As
    already discussed, this Court and many other courts of appeals have determined that it is.
    Relatedly, although Glover is correct that the trial court has broad discretion to
    limit the time for a hearing on a temporary injunction, that discretion does not extend to denying
    the defendant an opportunity to put on its case-in-chief, including its witnesses and its evidence.
    Nor were Appellants required to file a written motion for continuance to preserve their right to
    present evidence at the hearing. A motion for continuance seeks to postpone or delay the trial
    of a case that has been set for trial, see Tex. R. Civ. P. 253, whereas in this case Appellants
    were seeking to go forward and present their evidence. We also reject Glover’s contention that
    Appellants did not adequately preserve their complaint that the trial court could not issue a
    temporary injunction without permitting them to present any witnesses or evidence. The record
    4
    In instances in which the parties are not making efficient use of their time or are
    monopolizing the time in a hearing with a limited time frame, the trial court may impose
    reasonable limitations on the presentation of evidence. See O.C.T.G., L.L.P. v. Laguna Tubular
    Prods. Corp., No 14-13-00981-CV, 
    2014 WL 3512863
    , at *4 (Tex. App.—Houston [14th Dist.]
    July 15, 2014, no pet.) (mem. op.). The trial court also “should exercise reasonable control over
    the mode and order of examining witnesses and presenting evidence so as to (1) make those
    procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses
    from harassment or undue embarrassment.” Tex. R. Evid. 611(a).
    10
    reflects that Appellants’ counsel requested additional time when it became apparent that, rather
    than reconvene the hearing as suggested, the trial court was going to rule on the application
    for a temporary injunction without hearing any of Appellants’ evidence. The trial court denied
    Appellants’ request for additional time and concluded the hearing after advising the parties that
    the temporary injunction would issue.
    We hold that the trial court abused its discretion by granting Glover’s application
    for a temporary injunction without allowing Appellants the opportunity to complete their cross-
    examination of Glover’s witness and present their own defense case-in-chief, witnesses, and
    evidence.5 Accordingly, we sustain Appellants’ first issue. Having sustained Appellants’ first
    issue, we need not address their remaining two issues raising complaints about the form and
    scope of the trial court’s temporary injunction.
    CONCLUSION
    Having determined that the trial court abused its discretion by granting Glover’s
    application for a temporary injunction, we vacate the temporary injunction, reverse the trial
    court’s order, and remand the case to the trial court for further proceedings.
    5
    In light of our ruling on the trial court’s abuse of discretion, we need not consider
    whether Appellants made an offer of proof of the evidence they would have presented at the
    hearing. Under these circumstances, it is not necessary for the record to reflect what Appellant’s
    evidence would have been. See Oertel, 
    429 S.W.2d at 624
     (holding that when trial court refused
    to allow appellants to present any evidence at temporary injunction hearing and appellants duly
    objected to this action, there is no necessity for bill of exception and judgment must be reversed);
    see also RRE VIP Borrower, 
    2011 WL 1643275
    , at *3 n.6 (holding that when trial court failed to
    hear any evidence from defendant at temporary injunction hearing “it is not necessary for the
    record to reflect what [defendant’s] evidence may have been”).
    11
    __________________________________________
    Thomas J. Baker, Justice
    Before Justices Baker, Kelly, and Smith
    Reversed and Remanded
    Filed: March 15, 2023
    12