Bryce Carpenter v. Daspit Law Firm, PLLC ( 2023 )

Opinion issued June 13, 2023
In The
Court of Appeals
For The
First District of Texas
———————————
NO. 01-22-00282-CV
———————————
BRYCE CARPENTER, Appellant
V.
DASPIT LAW FIRM, PLLC, Appellee
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2022-13046
MEMORANDUM OPINION
In this interlocutory appeal,1 appellant, Bryce Carpenter, challenges the trial
court’s order granting appellee, Daspit Law Firm, PLLC (“DLF”), a temporary
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4).
injunction in DLF’s suit against Carpenter for tortious interference with existing
contracts, conversion and theft under the Texas Theft Liability Act,2 breach of
fiduciary duty, and breach of contract. In three issues, Carpenter contends that the
trial court erred in granting DLF temporary injunctive relief.3
We affirm.
Background
In its second amended petition and application for injunctive relief, DLF
alleged that it was a law firm that specialized in representing “individuals who ha[d]
been harmed in motor vehicle accidents,” as well as cases involving “premises
liability . . . , plant explosions, workplace injuries, and other negligent acts.”
According to DLF, it “relie[d] heavily on [its] advertising efforts” and in developing
trusted referral sources to gain clients. DLF “d[id] not make its referral sources or
its client list public”; it allowed only its own attorneys to have access to that
information.
In representing its clients against major corporations, DLF “acquired
specialized knowledge” for its sole use and created “pleadings and motions” tailored
“to each type of case” that it prosecuted. DLF stored the forms it created in its
2
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 134.001–.005.
3
In his reply brief, Carpenter withdrew his second issue. Thus, we consider only his
first, third, and fourth issues raised in his appellant’s brief.
2
“online server, various inter- and intra-net networks, [its] computer hard drives,” and
other “data centers.” Further, DLF “developed proprietary software and other
technological resources to service its clients.” Only DLF’s “trusted employees and
associates ha[d] access” to those resources.
Carpenter, who was licensed to practice law in June 2021, began working for
DLF in the fall of 2021 as “an associate in an at-will capacity.” Through his
employment with DLF, Carpenter had access to DLF’s in-house forms, “current list
of clients and their contact information,” client referral sources, proprietary
software, and other resources. While employed with DLF, Carpenter “had no
significant or substantial responsibilities” as to DLF’s “administrative day-to-day
business,” “no strategic discretion” as to “the progression of litigation matters,” “no
first chair trial duties,” and no “independent contractual relationship with any client
on whose case” he “worked during the time he worked for [DLF].” (Internal
quotations omitted.)
DLF terminated Carpenter’s employment on February 23, 2022. On March
22, 2022, DLF learned that Carpenter had targeted certain clients of DLF “whose
cases were identified as having . . . significant value” and Carpenter had “induced”
four of them “to terminate [DLF’s] representation and hire Carpenter.” Carpenter
“did not have any independent contractual relationship with any client on whose case
[he] worked during the time he worked for [DLF].” Further, Carpenter “did not
3
originate or source” business with any of DLF’s clients whom he contacted after the
termination of his employment “such that any . . . had a prior business dealing with
Carpenter.”
According to DLF, “Carpenter’s efforts to court business away from [DLF]
constitute[d] tortious interference” with its existing contracts, and “[t]he prospect”
of DLF’s existing clients “signing new contracts” with Carpenter “pose[d] a
significant risk of irreparable harm to DLF.” DLF acknowledged that it would still
“retain its interest in” the cases of the clients whom Carpenter had induced to fire
DLF, but “the prospect” of an inexperienced attorney, like Carpenter, “assuming
duties as an unsupervised lead counsel” would likely reduce the ultimate value of
those “cases and DLF’s interests in those matters.” As a result, DLF’s “interest in”
those former “clients’ cases [would] significantly depreciate in value” and cause
“pecuniary damage to DLF in a manner that [was] not susceptible to precise
measurement and which c[ould not] be readily repaired.”
DLF alleged that Carpenter’s actions also showed that he was misusing “a
proprietary list” of DLF’s “confidential client data.” On DLF’s “information and
belief, Carpenter [was] in possession of proprietary and confidential files belonging
to DLF,” including a list of its clients, “their contact information,” and possibly their
“highly sensitive personal information such as social security numbers” and “other
identification materials,” including “health information” protected under the federal
4
Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).4 All of
that information, according to DLF, was “subject to turnover to DLF by Carpenter”
and “justifie[d] emergency intervention.”
Further, DLF alleged that Carpenter had “engaged in a public-facing
communications campaign seeking to harm [DLF’s] professional reputation by
posting defamatory per se and untrue posts to social media about [DLF].”
DLF brought claims against Carpenter for tortious interference with existing
contracts, conversion and theft under the Texas Theft Liability Act, breach of
fiduciary duty, and breach of contract.
In its application for temporary and permanent injunctive relief, DLF
requested that the trial court order that Carpenter: (1) either “return to [DLF] all
documents, forms, pleadings, electronic media . . . and technical information taken
from [DLF]” or “destroy all such material and provide proof of such destruction”;
(2) “cease representation of any clients” who hired him “as a result of” his “breach
of [the] fiduciary duty” he owed DLF or include DLF “on any such referral obtained
therefrom”; and (3) “submit all” computers, servers, “flash drives, or other hardware
for inspection by [DLF’s] computer forensic examiner.” DLF noted that the trial
court had already entered a temporary restraining order to prevent Carpenter from
4
See 42 U.S.C. §§ 1320d–1320d–9.
5
(1) “continuing contact with DLF clients and attempting to solicit his business to
them in tortious interference with DLF’s existing contractual relationships”;
(2) “continuing to access DLF’s proprietary, confidential, highly sensitive,
attorney-client privileged, and protected health information”; and (3) “committing
ongoing conversion or theft” of DLF’s personal property and “client information
protected under HIPAA.”
DLF argued that it had a probable right to relief because since the termination
of his employment, Carpenter had “committed wrongful acts against DLF such as
interfering” with DLF’s client contracts and retaining control over attorney-client
privileged information and protected health information belonging to DLF’s clients
as well as confidential and proprietary information belonging to DLF.
According to DLF, the “balancing of harms favor[ed] the issuance of the
injunctive relief” it requested. Without injunctive relief, DLF would suffer
irreparable harm because its clients could sue DLF “for failure to adequately protect
their confidential and protected information.” Also, “[i]f Carpenter succeed[ed] at
convincing existing DLF clients to sign new contracts, DLF’s retained interest” in
those cases would “significantly depreciate in value” due to Carpenter’s lack of
experience and supervision and DLF’s inability “to exercise managerial control”
over the cases. As a result, DLF alleged, it would suffer pecuniary damage “in a
6
manner that [was] not susceptible to precise measurement and which c[ould not] be
readily repaired.”
“On the other hand,” DLF maintained that Carpenter was “not likely to be
prejudiced by . . . an injunction because he [would] be free to pursue new client
relationships and new business which [would] not prejudice [DLF’s] existing
contractual relationships.” DLF also argued that the injunctive relief requested “did
not impose an undue hardship on Carpenter” because “[n]o client [whom] Carpenter
originated or for whom Carpenter had significant or substantial responsibility
[would] be affected” by the injunctive relief requested. And, according to DLF, the
requested temporary injunction would maintain the status quo until the trial court
determined whether a permanent injunction was appropriate.
Carpenter answered, generally denying the allegations in DLF’s petition and
specifically denying that DLF had suffered “any actual damages as a result of” the
“acts and/or omissions” alleged in its petition. Alternatively, Carpenter asserted that
“any losses or damages” that DLF had sustained were “de minimis, speculative,
and/or transient in nature” and thus not legally cognizable. Carpenter also “denie[d]
that he [had] failed to perform any contractual obligations under any contract” with
DLF and alleged that “to the extent he [was] a party to any contract with [DLF], he
satisfied all contractual obligations.” Further, Carpenter raised the affirmative
7
defenses of waiver, estoppel, failure to mitigate damages, and unclean hands, and he
maintained that his conduct was justified.
In response to DLF’s application for temporary injunction, Carpenter asserted
that DLF “failed to make a showing adequate to support a temporary injunction”
under “any of its theories of recovery.” Carpenter argued that “[b]ecause clients
have the right” to make an informed choice about the attorney they wish to hire, “a
departing attorney may not be prohibited from soliciting any of the firm’s current
clients or accepting employment from any of the firm’s current clients.” According
to Carpenter, as DLF could “claim no property right” in its client contracts, it had
“no right to relief under its claim” for “tortious interference with existing contracts.”
Further, Carpenter argued that DLF’s claims for conversion and theft failed because
DLF had no property right in “clients, client files” and “client information.”
As to DLF’s claim for breach of fiduciary duty, Carpenter observed that DLF
did not allege “how [Carpenter] may have taken any action adverse to its interest.”
And as to DLF’s breach-of-contract claim, Carpenter noted that DLF had not shown
any written agreement with DLF that he had allegedly breached or any “imminent,
irreparable injury in the interim” as would be required to justify injunctive relief if
DLF were “able to prove the existence” and “breach of” any written agreement.
Further, according to Carpenter, DLF’s allegation that he had accused DLF of
“attempting to deprive clients of their right to choose representative counsel” was
8
not actionable because it was “an accurate description” of DLF’s claim for tortious
interference with existing contracts.
Carpenter argued that DLF was not entitled to temporary injunctive relief
because it had “failed to show any probability of a right to relief on the merits of any
of its claims,” that it was “likely to suffer irreparable harm in the interim,” or that it
“was without adequate remedy at law.”
In its reply to Carpenter’s response, DLF asserted that its
tortious-interference-with-existing-contracts claim was straightforward: DLF “had a
contingency fee contract with several clients,” Carpenter, who was either “a stranger
to the contracts” or an agent of DLF, “acting willfully and intentionally to serve his
own personal interests at [DLF’s] expense,” “induced those clients to breach their
contracts with [DLF], and the breach proximately caused damage to [DLF].” DLF
argued that Carpenter was wrong in asserting that DLF had no property rights to
protect because, unlike hourly attorney’s-fee contracts, contingency-fee contracts
contain assignments of interest that convey property rights in the clients’ suits to the
law firm. DLF also argued that it would prove a probable right to recover on its
breach-of-fiduciary-duty claim because Carpenter’s referral of DLF’s clients, who
had “contacted Carpenter in his capacity as an associate” of DLF, to his new law
firm constituted self-dealing and thus a breach of his fiduciary duty to DLF.
9
At the hearing on DLF’s application for temporary injunction, Robert Morse,
a DLF partner, testified that DLF had 4,261 active cases and used a database that
“allow[ed] [DLF] to run a number of reports.” Creation of DLF’s database took
“probably . . . hundreds of thousands of hours” of work by software engineers and
untold hours “on the attorney side.” DLF paid “about half a million dollars just to
get [the software] set up.”
Morse stated that during Carpenter’s employment at DLF, Carpenter had
access to the “training materials” that DLF produced in-house, including “training
videos” made by DLF partners and “senior attorneys” on “a variety of topics.”
According to Morse, much of the information contained in those training materials
was confidential and proprietary.
Morse explained that DLF protected the confidentiality of its training
materials and other proprietary information by having “every employee” sign an
employee handbook and a “Confidentiality & Nondisclosure Agreement” (the
“nondisclosure agreement”). A copy of DLF’s employee handbook signed by
Carpenter in acknowledgment of its receipt was admitted into evidence at the
hearing, as was a copy of the nondisclosure agreement signed by Carpenter.
In signing the employee handbook, Carpenter agreed that none of DLF’s
confidential and proprietary information “should be divulged to persons outside [of
DLF] either during or after employment, except disclosures required by legal process
10
and information specifically authorized for release by written approval from clients.”
The employee handbook warned Carpenter that his “obligation to maintain” the
confidentiality of DLF’s information “extend[ed] beyond employment” with DLF.
And the handbook warned Carpenter that he should “not assume that information or
work product [was] no longer confidential or owned by [DLF] because” he was “no
longer a [DLF] employee.” The employee handbook also contained a “return of
property clause upon termination.” DLF property Carpenter would have had
included keys and a “parking pass” for DLF’s San Antonio office and “software”
that had been downloaded on his computer.
By signing the nondisclosure agreement, Carpenter agreed to “maintain strict
confidentiality” of all “confidential, proprietary, private, personal, financial, legal,
operational or business information related in any manner” to DLF and its clients.
Morse explained that the nondisclosure agreement provided “some financial
penalties” for its violation. It contained a liquidated damages clause providing that
the employee “underst[ood] and agree[d] that” “the assessment of damages for any
breach of the [n]ondisclosure [a]greement may be difficult or impossible to ascertain
or quantify,” and obligated the employee to pay DLF $10,000.00 “as liquidated
damages for such breach.” The nondisclosure agreement also put the employee on
notice that it “in no way limit[ed] [DLF] from pursuing . . . other legal or equitable
remedies,” including, “attorney’s fees, damages and/or injunctive relief.”
11
Morse identified certain individuals who had signed contingent-fee contracts
with DLF, fired DLF, and hired Carpenter. Morse also noted that DLF’s client,
Jontavia Williams, sent an email to DLF notifying the firm that Carpenter had called
her and asked her “to come with him to his new firm.” Morse understood from
Williams that Carpenter had told her that “he left [DLF]” and “that it made sense”
for Williams to hire him as her attorney because “he knew [her] case.” But Williams
“refused” to hire Carpenter because Carpenter did not have “the resources or staff”
necessary to follow “through with [her] case.” A declaration describing that
interaction and signed by Williams under penalty of perjury was admitted into
evidence at the hearing.
Morse also explained that all of DLF’s client contracts included an assignment
of interest in the client’s causes of action. Carpenter would have known of the
existence of DLF’s contingent-fee contracts with those clients because, as “his
primary job responsibility,” he would have been “sent out” to “sign up clients[,] so
he would [have been] responsible for showing them the contract, answering any
questions about the contract, explaining the contract to them, and getting their
signature[s] on it.”
Morse opined that Carpenter breached his fiduciary duty to DLF by “actively
solicit[ing] clients” whom he “no longer represented,” even though “he knew they
had counsel.” He did not simply tell them who their “new lawyer” at DLF was.
12
Carpenter had “reason to know” that DLF would “fully inform[]” the clients whom
he had represented that he had left the firm and would give them “their new lawyer’s
information.”
As to damages, Morse noted that because of his own experience in trying and
settling high-value cases, his working relationships with other attorneys, and the size
of DLF’s support staff, he was able to “take significantly larger settlements and
verdicts” than Carpenter, who had “never been in a courtroom.” Carpenter did not
have an office or support staff, and in an email sent to DLF during his employment,
which was admitted into evidence, Carpenter stated that he “barely kn[e]w how to
do discovery.” Morse also testified that while at DLF, Carpenter was not “do[ing]
the minimum” required to maintain the “small docket” that had been assigned to
him. Carpenter “wasn’t noticing depositions, wasn’t sending discovery,” and
“wasn’t filing lawsuits.” Those performance problems, according to Morse,
contributed to DLF’s decision to terminate Carpenter’s employment.
Because of Carpenter’s lack of experience and resources, Morse opined that
Carpenter would not be able to “get the same results” in most cases that DLF would
have gotten. DLF was harmed by having Carpenter take clients from DLF because
doing so lowered the value of their cases, and DLF had “a piece of every one” of
those clients’ cases.
13
Carpenter responded at the hearing by proffering two declarations that he had
signed. In one, Carpenter focused on his work for DLF in Austin and summarized
a conversation he had with the Texas Bar Association’s Office of Disciplinary
Counsel. In the other, Carpenter denied having worked in Harris County, Texas and
stated that the “clients [who] fired [DLF] and hired [him] live[d] in the Austin area
and their cases” were filed in Travis County, Texas.
In its amended order granting DLF a temporary injunction, the trial court
found that DLF “demonstrated a probable right of recovery” and that Carpenter’s
actions, if not enjoined, would
create imminent and irreparable injury to [DLF] with no adequate
remedy at law by tortiously interfering with [DLF’s] attorney/client
contracts and improperly using confidential/proprietary information to
which Carpenter gained general access unrelated to his function of
attorney representing DLF clients.
Further, because “DLF owe[d] itself and its clients a duty to take reasonable steps to
protect its confidential/proprietary information which [Carpenter] may have
improperly taken and should return and/or preserve in the course of th[e] litigation
to prevent spoliation,” the trial court prohibited Carpenter from disclos[ing],
duplicat[ing], or disseminat[ing]” any of DLF’s confidential data or documents that
he may have taken from DLF and were still in his possession or control “except at
the direction of a [DLF] client or former client.” The trial court also required
Carpenter to “provide a list of clients who originated from [DLF] that he ha[d]
14
contacted and/or currently represent[ed] since his termination from [DLF].” And
the trial court prohibited Carpenter “from destroying or altering or
duplicating . . . data obtained from [DLF] located on any . . . computer hardware in
[his] possession, custody, or control” and required him to hold it for “inspection by
[DLF’s] computer forensic examiner with an eye . . . [for] making a forensic copy
for potential later inspection” by DLF if permitted by further order of the trial court.
As to DLF’s clients, the trial court enjoined Carpenter “from making any
contact” with anyone on “the list of DLF clients to which [he] had general access
solely as a result of his employment” with DLF unless he had “formed an
attorney/client relationship with” the DLF client before the termination of his
employment. The trial court declared that “[n]othing” in its order was to “be
construed to prevent [Carpenter] from fulfilling his professional duties to his
clients.”
The trial court also entered findings of fact and conclusions of law, including
that Carpenter “ha[d] a right to properly contact former DLF clients he represented
or formed an attorney/client relationship with while employed by [DLF],” “retain”
the work-product that he created while employed by DLF, and “receive client files
that the client direct[ed]” DLF to send to him. But Carpenter was not entitled to
“possess [DLF] client lists that include[d] clients with whom” he had “never formed
an attorney/client relationship” or “use [DLF] client lists to solicit new business”
15
from DLF clients “with whom [Carpenter] never formed an attorney/client
relationship.” The trial court concluded that “[t]o the extent” that Carpenter had
“engaged in” such conduct, he would be liable to DLF “for taking the [DLF] client
list he was not authorized to take and breaching his agreement to not take and to
keep confidential general information he gained access to outside of [an]
attorney/client relationship.”
The trial court found that DLF was entitled to temporary injunctive relief
based on its claim against Carpenter for tortious interference with existing contracts.
As to that claim, the trial court found that
• DLF “had at least four attorney/client contracts which were subject to
being interfered with by Carpenter after Carpenter’s termination of
employment”;
• Carpenter “engaged in willful and intentional conduct designed to
wrongfully interfere with [DLF’s] attorney/client contracts”;
• Carpenter “likely failed to disclose to four prospective clients . . . the
inherent problems clients would experience if they terminated the [DLF]
attorney/client contract and formed a new attorney/client contract with
Carpenter”;
• DLF “would likely retain its attorney fee and expense liens which would
make it more difficult to get the case[s] resolved”;
• Carpenter “lacked the skill and resources necessary to properly prosecute
the client’s case such that the client’s case would likely be of less value”
if handled by Carpenter rather than DLF; and
• The value of DLF’s loss was “difficult to measure” and, while “the law
[could] attempt to measure the loss,” the better practice would be to “stop
the wrongful behavior to avoid the termination of future attorney/client
contracts,” and “[w]ithout enjoining” Carpenter, he was “likely to continue
16
in his wrongful practice of engaging DLF clients without making proper
disclosures resulting in more and more termination of [DLF]
attorney/client contracts.”
As to DLF’s remaining claims against Carpenter, which required DLF to show
that Carpenter “ha[d] in fact taken confidential/proprietary information and
disclosed it to third parties or used it or threatened to use it for his own gain or
otherwise do harm to DLF,” the trial court concluded that DLF had not made the
requisite showing. The trial court found that Carpenter had “returned to DLF the
computers [that] DLF [had] provided for him to do DLF work.” But the trial court
observed that the “forensic record of other electronic devices may prove otherwise,”
so it “consider[ed] the injunctive relief justified under the remaining causes of action
to prevent spoliation of evidence,” observing that DLF had “an obligation to verify
whether” Carpenter had “taken confidential/proprietary information and if so, to
enjoin [him] from using or continuing to possess such data.”
Jurisdiction
In his first issue, Carpenter argues that the trial court lacked jurisdiction to
consider DLF’s application for temporary injunction “because venue [was] not
proper in Harris County.” In making this argument, Carpenter relies on Texas Civil
Practice and Remedies Code section 65.023, which is a venue statute. See TEX. CIV.
PRAC. & REM. CODE ANN. § 65.023; In re Fox River Real Estate Holdings, Inc., 596
S.W.3d 759, 765 (Tex. 2020).
17
Jurisdiction is not the same thing as venue. Jurisdiction refers to the authority
of a court to decide a case. Radenovic v. Eric D. Fein, P.C. & Assocs., 198 S.W.3d
858, 860 (Tex. App.—Dallas 2006, no pet.). Venue, on the other hand, has to do
with the place or county where a case may be tried. In re Parr, 199 S.W.3d 457,
461 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see Radenovic, 198 S.W.3d at
860.
A court must have both subject-matter jurisdiction over a case and personal
jurisdiction over a party to issue a binding order or judgment. CSR Ltd. v. Link, 925
S.W.2d 581, 594 (Tex. 1996); Mass. Bay Ins. Co. v. Adkins, 615 S.W.3d 580, 610
(Tex. App.—Houston [1st Dist.] 2020, no pet.). Carpenter did not challenge the trial
court’s subject-matter jurisdiction below or specifically raise that issue here, but
subject-matter jurisdiction cannot be waived and can be raised at any time while the
suit is pending, either by the parties or by the court. Univ. of Tex. Sw. Med. Ctr. at
Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004); Harris Cnty. Fresh Water
Supply Dist. No. 61 v. Magellan Pipeline Co., L.P., 649 S.W.3d 630, 646 (Tex.
App.—Houston [1st Dist.] 2022, pet. filed). The determination as to whether
jurisdiction exists is a question of law which we review de novo. Mayhew v. Town
of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
The Texas Constitution and legislative enactments confer subject-matter
jurisdiction, combined with the existence of the facts necessary for a court to
18
exercise jurisdiction. French v. Moore, 169 S.W.3d 1, 5 (Tex. App.—Houston [1st
Dist.] 2004, no pet.). The allegations in the plaintiff’s petition ordinarily establish
the amount in controversy for a jurisdictional analysis. Cont’l Coffee Prods. Co. v.
Cazarez, 937 S.W.2d 444, 449 (Tex. 1996); see also Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 555 (Tex. 2000) (jurisdictional challenges based upon amount in
controversy “must ordinarily be decided solely on the pleadings”). We presume that
a trial court has jurisdiction unless the absence of jurisdiction affirmatively appears
on the face of the petition. French, 169 S.W.3d at 5.
In its second amended petition, DLF alleged that “[j]urisdiction [was] proper
because the amount in controversy [wa]s within the jurisdictional limits” of the trial
court, and nothing in the record refutes that allegation. Carpenter does not identify
any other reason as to why the trial court might lack subject-matter jurisdiction in
this case. Thus, there is no basis for concluding that the trial court lacked
subject-matter jurisdiction over DLF’s suit against Carpenter. See French, 169
S.W.3d at 5.
As to whether the trial court had personal jurisdiction over Carpenter, we note
that in his motion to continue the hearing on DLF’s application for temporary
injunction, Carpenter alluded to filing a special appearance to challenge personal
jurisdiction. See TEX. R. CIV. P. 120a. But Carpenter never filed a special
appearance, and he made a general appearance when he filed his answer to DLF’s
19
suit. See Baker v. Monsanto Co., 111 S.W.3d 158, 160 (Tex. 2003); Radenovic, 198
S.W.3d at 860. Because Carpenter made a general appearance, he waived any
challenge to personal jurisdiction. See TEX. R. CIV. P. 120a(1); Adkins, 615 S.W.3d
at 597. Thus, there is no basis for concluding that the trial court lacked personal
jurisdiction over Carpenter.
To the extent Carpenter still complains about whether Harris County is a
proper venue for DLF’s suit, the record shows that after he filed this appeal, the trial
court granted Carpenter’s motion to transfer venue to Travis County. As a result,
any complaint about whether Harris County constituted a proper venue is moot. See
Heckman v. Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012); In re Freestanding
Emergency Room Managers of Am., L.L.C., No. 14-19-00074-CV, 2019 WL
4071958, at *1 (Tex. App.—Houston [14th Dist.] Aug. 29, 2019, orig. proceeding)
(mem. op.) (dismissing as moot petition for writ of mandamus to compel trial court
to vacate order transferring venue to Austin County, Texas after trial court
reconsidered ruling and issued order denying motion to transfer venue).
Based on the foregoing, we hold that the trial court did not lack jurisdiction to
consider DLF’s application for temporary injunction.
We overrule Carpenter’s first issue.
20
Temporary Injunction
In his third and fourth issues, Carpenter argues that the trial court erred in
granting DLF temporary injunctive relief because “[t]he temporary injunction
[order] issued . . . [was] not adequately specific about the harm that would occur
absent its issuance” and DLF “fail[ed] to show a probable right of recovery as to any
of its claims or . . . imminent, irreparable injury in the interim prior to trial.”
The purpose of a temporary injunction is “to preserve the status quo of the
litigation’s subject matter pending a trial on the merits.” Clint Indep. Sch. Dist. v.
Marquez, 487 S.W.3d 538, 555 (Tex. 2016) (internal quotations omitted); Green
Acquisitions, Inc. v. Everlasting Green, LLC, No. 01-21-00257-CV, 2022 WL
2919936, at *3 (Tex. App.—Houston [1st Dist.] July 26, 2022, no pet.) (mem. op.).
The “status quo” is the “last, actual, peaceable, non-contested status which preceded
the pending controversy.” Marquez, 487 S.W.3d at 555 (internal quotations
omitted).
A “temporary injunction is an extraordinary remedy and does not issue as a
matter of right.” Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993); Patel v. St.
Luke’s Sugar Land P’ship, L.L.P., 445 S.W.3d 413, 419 (Tex. App.—Houston [1st
Dist.] 2013, pet. denied). To obtain a temporary injunction, an applicant must
establish: (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. Butnaru
21
v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Patel, 445 S.W.3d at 419. “An
injury is irreparable if the injured party cannot be adequately compensated in
damages or if the damages cannot be measured by any certain pecuniary standard.”
Butnaru, 84 S.W.3d at 204. The applicant need not establish that it will prevail at
trial; rather, “the only question before the trial court is whether the applicant is
entitled to preservation of the status quo of the subject matter of the suit pending trial
on the merits.” Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); see also Patel,
445 S.W.3d at 419.
Appellate courts review a trial court’s ruling on an application for a temporary
injunction for a clear abuse of discretion. Henry v. Cox, 520 S.W.3d 28, 33 (Tex.
2017); Patel, 445 S.W.3d at 419. Our review is limited to the validity of the trial
court’s temporary injunction order; we do not consider or determine the merits of
the underlying case. Henry, 520 S.W.3d at 33–34; Patel, 445 S.W.3d at 420. We
review the evidence before the trial court in the light most favorable to its ruling,
drawing all legitimate inferences from the evidence, and deferring to the trial court’s
resolution of conflicting evidence. Patel, 445 S.W.3d at 419–20. We will only
overturn a temporary injunction order if it is “so arbitrary that it exceed[s] the bounds
of reasonable discretion.” Henry, 520 S.W.3d at 34 (alteration in original) (internal
quotations omitted). There is no abuse of discretion if the trial court’s ruling is
reasonably supported by some evidence, even if the evidence is disputed. Patel, 445
22
S.W.3d at 419; see also Henry, 520 S.W.3d at 34. As fact finder, the trial court is
the sole judge of the credibility of the witnesses and evidence. Daniels v. Battie, No.
05-21-00335-CV, 2023 WL 1462848, at *1 (Tex. App.—Dallas Feb. 2, 2023, no
pet.) (mem. op.); see also Regal Ent. Grp. v. iPic Gold Class Ent., LLC, 507 S.W.3d
337, 352 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
A. Compliance with Texas Rule of Civil Procedure 683
In his third issue, Carpenter argues that the trial court erred in granting DLF
temporary injunctive relief because it did not set forth specific reasons as to why an
injunction was necessary to prevent injury to DLF’s rights during the pendency of
the case.
Texas Rule of Civil Procedure 683 requires that a temporary injunction order
state the reasons for its issuance. TEX. R. CIV. P. 683. The order must also set forth
the reasons why the trial court believes irreparable injury will result if an injunction
preserving the status quo pending a trial on the merits is not granted. Id. And the
temporary injunction order must “describe in reasonable detail and not by reference
to the complaint or other document, the act or acts sought to be restrained.” Id.These requirements are mandatory, and an order that does not comply with rule 683
“is subject to being declared void and dissolved.” Qwest Commc’ns Corp. v. AT & T
Corp., 24 S.W.3d 334, 337 (Tex. 2000); Clark v. Hastings Equity Partners, LLC,
651 S.W.3d 359, 370 (Tex. App.—Houston [1st Dist.] 2022, no pet.).
23
As to the need for the temporary injunction, the trial court found that without
injunctive relief, Carpenter would “create imminent and irreparable injury to [DLF]
with no adequate remedy at law by tort[i]ously interfering with [DLF’s]
attorney/client contracts and improperly using confidential/proprietary information
to which [Carpenter had] gained general access unrelated to his function of attorney
representing DLF clients.” Further, the trial court found that “[w]ithout enjoining
[Carpenter], he [was] likely to continue in his wrongful practice of engaging DLF
clients without making proper disclosures . . . .”
For purposes of obtaining a temporary injunction, DLF was not required to
conclusively show that Carpenter actually had its confidential information. The
likelihood that a defendant possesses, has disclosed, or will disclose confidential
information is sufficient to support injunctive relief barring its disclosure. See
Sandberg v. STMicroelecs., Inc., 600 S.W.3d 511, 537 (Tex. App.—Dallas 2020,
pet. denied); Q’Max Am., Inc. v. Screen Logix, LLC, No. 01-15-00319-CV, 2016
WL 796838, at *8 (Tex. App.—Houston [1st Dist.] Mar. 1, 2016, no pet.) (mem.
op.); see generally Butnaru, 84 S.W.3d at 204 (applicant for temporary injunction
has burden to show “probable, imminent, and irreparable injury” absent relief).
Carpenter appears to argue that the trial court’s findings are insufficient to
support the temporary injunctive relief because the trial court found that DLF had
not shown that Carpenter had “taken confidential proprietary information and
24
disclosed it to third parties or used it or threatened to use it for his own gain or
otherwise to do harm to DLF.” But the finding relied on by Carpenter does not
encompass DLF’s confidential client information, which the trial court found
Carpenter was misusing. And the trial court acknowledged that even without
definite proof that Carpenter had taken other confidential information from DLF,
DLF still had a professional “obligation to verify whether” Carpenter had taken such
information, “and if so, to enjoin [him] from using or continuing to possess” it.
Courts have consistently concluded that injunctive relief is an appropriate
remedy to prevent the disclosure or misuse of confidential information. See, e.g.,
Sandberg, 600 S.W.3d at 537 (holding trial court did not err in granting permanent
injunction to prevent defendant, who was a certified public accountant and tax
attorney, from certain actions where evidence showed he had “likely retained” and
“used or disclosed” former employer’s confidential information); Q’Max Am., 2016
WL 796838, at *6, 8 (affirming temporary injunction barring defendants, who were
plaintiff’s former employees, from performing consulting agreement where
evidence supported trial court’s finding that performance of consulting agreement
likely would result in disclosure of plaintiff’s trade secrets and confidential
information); T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d
18, 24 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d) (where evidence indicated
that defendants, who were plaintiff’s former employees, possessed plaintiff’s
25
confidential information and were in position to use it to compete directly with
plaintiff, it was likely that defendants would use information to plaintiff’s detriment,
and only effective relief available to plaintiff was to restrain defendants’ use of its
trade secrets and confidential information pending trial).
Here, the trial court enjoined Carpenter from misusing DLF’s confidential
client information to interfere with DLF’s existing client relationships. The trial
court also enabled DLF to protect its professional responsibilities by ascertaining
whether Carpenter had other confidential information belonging to the firm and
prohibited its disclosure if he did. We hold that the trial court complied with Texas
Rule of Civil Procedure 683’s requirement to state specific reasons as to why the
temporary injunction was necessary.
We overrule Carpenter’s third issue.
B. Evidentiary Support for Temporary Injunction Order
In his fourth issue, Carpenter argues that the trial court erred in granting DLF
temporary injunctive relief because DLF “fail[ed] to show a probable right of
recovery as to any of its claims or to show imminent, irreparable injury in the interim
prior to trial.”
A probable right of success on the merits is shown by alleging a cause of
action and presenting evidence that tends to sustain it. Intercont’l Terminals Co.,
LLC v. Vopak N. Am., Inc., 354 S.W.3d 887, 897 (Tex. App.—Houston [1st Dist.]
26
2011, no pet.); T-N-T Motorsports, Inc., 965 S.W.2d at 23–24. Here, the trial court
concluded that DLF was entitled to a temporary injunction because it showed a
probable right to recovery on its claim against Carpenter for tortious interference
with existing contracts.
“A claim for tortious interference with a contract consists of four elements:
(1) the existence of a contract subject to interference; (2) willful and intentional
interference; (3) the willful and intentional interference caused damage; and
(4) actual damage or loss occurred.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d
572, 588 (Tex. 2017); Vertex Servs., LLC v. Oceanwide Houston, Inc., 583 S.W.3d
841, 853 (Tex. App.—Houston [1st Dist.] 2019, no pet.).
Carpenter argues that the trial court erred in concluding that there was
evidence tending to show that Carpenter willfully and intentionally interfered with
DLF clients’ contracts because it could not have properly relied on the declaration
of DLF’s client Williams that Carpenter had “tried to convince” her to “come to his
new firm as his client” but did not inform her that if she did so, DLF would retain
its fee and expense interest in her case.5 Carpenter reiterates the hearsay objection
5
Carpenter relies on statements of professional ethics to assert that he had the
“obligation to inform his clients” when he left DLF and the clients had “the right to
make an informed choice about their counsel.” But nothing in the trial court’s
temporary injunction order prohibited Carpenter from fulfilling his professional
responsibilities to his clients. On the contrary, the trial court expressly found that
Carpenter “had a right to properly contact former DLF clients he [had] represented
or formed an attorney/client relationship with” during his employment with DLF,
27
to Williams’s declaration that he made unsuccessfully in the trial court, but this
evidentiary complaint does not correspond to any of the “issues presented” in his
appellant’s brief. See Wilson v. Empire Towing LLC, No. 01-18-01145-CV, 2019
WL 3484216, at *2 n.3 (Tex. App.—Houston [1st Dist.] Aug. 1, 2019, no pet.);
Hooks v. Brenham Hous. Auth., No. 01-17-00602-CV, 2018 WL 6061307, at *3
(Tex. App.—Houston [1st Dist.] Nov. 20, 2018, no pet.) (mem. op.) (holding
appellant waived complaints on appeal where assertions in “Argument” section of
appellant’s brief “d[id] not correspond to the two questions that he ha[d] designated
as his issues on appeal” (internal quotations omitted)).
Further, in his appellant’s brief, Carpenter does not cite to any legal authority
applicable to the analysis of his evidentiary complaint beyond the general hearsay
rule. See TEX. R. EVID. 801; TEX. R. APP. P. 38.1(i); Wilson, 2019 WL 3484216, at
*2. And Carpenter does not provide any substantive analysis, with citation to legal
authority, to support his assertion that the evidence before the trial court otherwise
failed to support its finding that DLF presented evidence tending to show that
Carpenter willfully and intentionally interfered with DLF’s existing contractual
relationship with its clients. See TEX. R. APP. P. 38.1(i).
and the temporary injunction order was not to “be construed to prevent” Carpenter
“from fulfilling his professional responsibilities to his clients.”
28
The failure to provide substantive analysis of an issue or cite appropriate
authority waives a complaint on appeal. Marin Real Estate Ptrs. v. Vogt, 373 S.W.3d
57, 75 (Tex. App.—San Antonio 2011, no pet.); Huey v. Huey, 200 S.W.3d 851, 854
(Tex. App.—Dallas 2006, no pet.); Cervantes-Peterson v. Tex. Dep’t of Family &
Protective Servs., 221 S.W.3d 244, 255 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). Thus, Carpenter waived his challenge to the trial court’s finding that he had
“engaged in willful and intentional conduct designed to wrongfully interfere with
[DLF’s] attorney/client contracts.”
Finally, Carpenter argues that the trial court erred in granting DLF temporary
injunctive relief because DLF had no evidence of actual damages or that the damages
were “impossible to calculate.”
As evidence of damages, Morse testified that DLF’s client contracts included
an assignment of interest in the clients’ claims and that the ultimate value of DLF’s
interest in those cases would be substantially less if they were prosecuted by
Carpenter, a first-year attorney without an office or support staff, than if the cases
had remained with DLF, a firm with experienced attorneys and support staff. Morse
also testified that while at DLF, Carpenter was not “do[ing] the minimum” required
to maintain the “small docket” assigned to him. Carpenter “wasn’t noticing
depositions, wasn’t sending discovery,” and “wasn’t filing lawsuits.” And Carpenter
conceded in an email sent to DLF that he “barely kn[e]w how to do discovery.” This
29
evidence, which was undisputed, constitutes some evidence in support of the trial
court’s finding that Carpenter’s interference with DLF’s client contracts caused
actual damage or loss to DLF. See Rincones, 520 S.W.3d at 588; Vertex Servs., 583
S.W.3d at 853.
As to Carpenter’s complaint that the trial court erred in finding that DLF
showed that it would suffer irreparable harm without temporary injunctive relief, the
trial court was not required to find, as Carpenter suggests, that DLF’s damages were
“impossible to calculate,” only that they were difficult to calculate. See Butnaru, 84
S.W.3d at 204 (“An injury is irreparable . . . if the damages cannot be measured by
any certain pecuniary standard”); Rollins v. Univ. Coin & Bullion, Ltd., No.
09-06-150-CV, 2006 WL 2883122, at *4 (Tex. App.—Beaumont Oct.12, 2006, no
pet.) (mem. op); see also Martin v. Linen Sys. For Hosps., Inc., 671 S.W.2d 706,
710 (Tex. App.—Houston [1st Dist.] 1984, no writ) (observing it is not easy to assign
dollar amount to intangibles such as company’s loss of clientele, goodwill,
marketing techniques, and office stability).
We hold that the trial court did not err in finding that DLF satisfied its burden
to show that it had a probable right to recovery on its
tortious-interference-with-existing-contracts claim and that it would suffer
imminent, irreparable injury without a temporary injunction.
We overrule Carpenter’s fourth issue.
30
Conclusion
We affirm the order of the trial court.
Julie Countiss
Justice
Panel consists of Justices Landau, Countiss, and Guerra.
31