Unio Global Trade LLC, Michael Vogel, and Marcela Vogel v. Zinc Point Manufacturing, Inc. ( 2024 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-23-00026-CV
__________________
UNIO GLOBAL TRADE LLC, MICHAEL VOGEL, AND MARCELA
VOGEL, Appellants
V.
ZINC POINT MANUFACTURING, INC., Appellee
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 22-12-17043-CV (after appeal
consolidated with Trial Cause No. 22-10-14637-CV)
__________________________________________________________________
MEMORANDUM OPINION
Plaintiff Zinc Point Manufacturing, Inc. (“Appellee” or “Zinc Point”) filed an
Original Verified Petition, Application for Temporary Restraining Order,
Temporary Injunction, Permanent Injunction, an Appointment of Receiver and
Motion For Expedited Recovery in its suit against Defendants Unio Global Trade
LLC (“Unio Global”), Michael Vogel, and Marcela Vogel (collectively
“Appellants” or “Defendants”) for tortious interference with prospective relations
1
and civil conspiracy.1 After a hearing on the application for temporary injunction,
the trial court granted the motion for temporary injunction in part and denied it in
part. 2 In four issues, Appellants argue the trial court abused its discretion in granting
Appellee’s request for temporary injunction. We affirm.
Background
According to Zinc Point’s petition, Zinc Point is a company headquartered in
Huntsville, Texas, that stores and ships ammunition and primers for firearms on
behalf of its customers, and Zinc Point’s primary supplier for primers is Servicios &
Aventuras (“Servicios”). Originally Zinc Point handled sales, distribution,
warehousing, and fulfillment. But, as of May 1, 2021, Baron Global, Zinc Point’s
affiliate, assumed responsibility for sales, distribution, and marketing for Zinc Point.
Zinc Point alleges that it was formed in 2015, that in 2018 Adolfo Rafael
Vivas’s company, Still American, LLC (“Still American”), acquired 10% of Zinc
Point and Vivas became a director of Zinc Point, and Vivas’s son was a manager of
Zinc Point. Zinc Point alleges in its petition that Vivas became Chief Operating
Officer in 2022 and handled Zinc Point’s daily business operations.
1
Zinc Point also sued Defendants Adolfo Rafael Vivas and his son, Adolfo
Pedro Vivas, but they are not parties to this appeal. In this opinion, references to
“Vivas” are references to Adolfo Rafael Vivas, unless otherwise specified.
2
Because Zinc Point has not filed a cross-appeal from the partial denial of its
motion for temporary injunction, we do not address that portion of the order in this
appeal.
2
According to the petition, in late 2021 and early 2022 Vivas told another Zinc
Point employee that Vivas intended to “destroy[,]” “tank[,]” and “force Zinc Point
to fail[,]” because he was unhappy with Zinc Point’s CEO. In September of 2022
Vivas indicated he was resigning as COO, and in October 2022 Vivas indicated he
wanted to sell his interest in Zinc Point and Vivas intended to sell products from
Servicios to competitors or customers of Zinc Point. Zinc Point alleged in its petition
that in November 2022 it obtained information that “Vivas, while a Director and
COO [of Zinc Point], devoted substantial time and resources, including Zinc Point
resources, to establish Unio Global Trade, LLC, a competitor of Zinc Point[]” and
that Vivas had “conducted dealings contrary to the interests of Zinc Point and for the
benefit of himself, Unio Global, and Still American.” That same month, Zinc Point’s
shareholders voted to remove Vivas as a director of Zinc Point. According to Zinc
Point’s petition, one of its representatives learned in December 2022 from Unio
Global’s registered agent that Unio Global had become the exclusive dealer of
products from Servicios. Zinc Point alleged that, while Vivas was still COO of Zinc
Point, he “was using Zinc Point[’s] resources to launch and bolster business for Unio
Global[,]” as evidenced by a FedEx document that listed Zinc Point’s warehouse
address for shipment, but the document was addressed to Unio Global. According to
Zinc Point’s petition, 15 million primers were shipped to Zinc Point but Vivas told
Zinc Point only 10 million were received, and then Vivas diverted 5 million primers
3
from Zinc Point to his own clients for Unio Global. Zinc Point alleged that Unio
Global, Michael Vogel, and his wife Marcela, are assisting Vivas by working with
him to sell primers to Zinc Point’s customers and vendors and that the Defendants
were using Zinc Point’s warehouse address to ship primers it intended to use for
Unio Global’s business. According to the petition, Vivas, on behalf of his new
company Still American, contracted with Steel Components to provide primers,
which ultimately caused Steel Components to end its relationship with Zinc Point,
and Vivas did so when Vivas was still a director and COO of Zinc Point. Zinc Point
also alleged that Vivas requested funds and misled Zinc Point to believe that the
funds were for paying an Amut North America invoice on behalf of Servicios for the
benefit of Zinc Point, but Zinc Point later learned that the funds were used for
products or services between Amut North America and Still American.
Zinc Point alleged in its petition that Vivas stole money from Zinc Point to
fund his own competing business ventures by loaning Servicios $500,000 in March
2022 and Vivas then lied to Zinc Point by representing that Zinc Point had owed
Servicios the $500,000. According to the petition, Vivas is in possession of 11.5
million primers purchased by Unio Global that “will presumably be sold to Zinc
Point customers[,]” and Unio Global obtained possession of these primers through
the use of the business relationship Vivas established with Servicios while Vivas
“was a director of Zinc Point and/or using the $400,000 he took from Zinc Point as
4
part of an intended buyout with Zinc Point where [] Vivas never fully performed his
obligations under the agreement.”
Zinc Point sued Vivas for breach of fiduciary duty and for violations of the
Texas Theft Liability Act, and Zinc Point sued all Defendants for tortious
interference with prospective relations and civil conspiracy. Zinc Point sought
damages, attorney’s fees, and pre- and post-judgment interest.
Zinc Point also sought a temporary restraining order, temporary injunction,
and permanent injunction prohibiting Defendants from accessing Zinc Point’s funds
and resources. According to Zinc Point, Defendants’ conduct has caused and
continues to cause Zinc Point irreparable and imminent injury that cannot be
quantified and for which there is no adequate remedy at law; Zinc Point’s business
will be destroyed, its continued ability to remain in business would be threatened,
and the status quo will be destroyed before a resolution to the dispute can be obtained
if injunctive relief is not granted; money damages are not sufficient as relief; and
based on the evidence in the record there is a substantial likelihood that Zinc Point
will prevail on the merits as to its causes of action against Defendants. Zinc Point
alleged that the harm faced by Zinc Point if the injunction is not granted outweighs
the harm that would be sustained by Defendants if the injunctive relief is granted,
the requested injunctive relief is narrow in scope, and granting injunctive relief
5
would not adversely affect public policy or public interest. Zinc Point requested
entry of a restraining order and temporary and permanent injunction:
a. Appointing an adequate receiver to take possession and control of
Unio Global;
b. Granting Zinc Point’s request for expedited discovery and
preservation;
c. Prohibiting Defendants from contacting any of Zinc Point’s
customers, vendors, employees, or affiliates; and
d. Prohibiting Defendants from importing from any of Zinc Point’s
vendors[];
e. Prohibiting Defendants from selling 11.5 million primers in
Defendants’ possession that rightfully belong to Zinc Point;
f. Prohibiting Defendants from selling, shipping, or moving any
products that belong to Zinc Point to any party other than Zinc Point.
Attached as exhibits to Zinc Point’s petition were Unio Global’s filings with the
Texas Secretary of State’s Office, correspondence and invoices from FedEx Freight
addressed to “Uni Global[,]” a temporary injunction in a related case3, and a sworn
verification of Walter Baronowski stating he had personal knowledge of certain
portions of the petition.
The trial court, after examination of Zinc Point’s pleadings, issued a
Temporary Restraining Order and set a temporary injunction hearing to determine
whether the trial court should issue a temporary injunction to prevent the Defendants
during the lawsuit from:
3
Prior to the filing of this appeal, a temporary injunction for a related case,
trial cause number 22-10-14637-CV, was granted and that case has been
consolidated with this case. According to Appellants, the consolidation of the related
district court actions has no effect on this appeal.
6
1. Selling primers to Zinc Point[]’s customers and vendors []; and/or
2. Using Zinc Point[]’s warehouse address and/or Federal Express
account to ship primers not for the benefit of Zinc Point []; and/or
3. Importing from any of Zinc Point[]’s vendors []; and/or
4. Selling any or all of the 11.5 million of Zinc Point[]’s primers in
their possession.
Evidence at the Temporary Injunction Hearing
Testimony of Michael Vogel
Michael Vogel (hereinafter “Vogel”) testified that he is a founder and the
registered agent of Unio Global, and he also operates and owns Vogel Digital
Marketing, a marketing agency. Vogel testified that he and others formed Unio
Global. According to Vogel, Unio Global was “purely a trading company” that did
not produce anything, and that the entity was “formed for the sole purpose of acting
as an import/export agent for a multitude of products[]” and to find products in high
demand “and match them against procuring [foreign or domestic] products[.]” Prior
to forming Unio Global, Vogel was not involved in selling, importing, or purchasing
primers. Vogel testified that he had never worked with Zinc Point, Walter
Baronowski, or Vivas (Vogel’s uncle4), and that Vivas’s son (Vogel’s cousin) was
a member and manager for Unio Global who provided the company with
“procurement[,] logistic support[,] and some sales[.]” Vogel’s wife, Marcela, was
one of Unio Global’s members and she worked in a clerical capacity for Unio Global.
4
Vogel later clarified that although he refers to Vivas as his “uncle,” Vivas is
Vogel’s father’s first cousin.
7
According to Vogel, Unio Global brought in Gerardo Krautmann, an employee of
Servicios, as a manager consultant for Unio Global because Unio Global and
Servicios had a relationship where Servicios would purchase and then supply Unio
Global with products and Unio Global would help pay for equipment and products
for Servicios. According to Vogel, at the time that Vivas was working with Zinc
Point, Vogel discussed with Vivas that Vogel was forming Unio Global. Vogel
testified that although he never worked with Zinc Point, he had prepared a proposal
for marketing for Zinc Point that never materialized, his only contact with Zinc Point
was Vivas (his uncle), and his basic understanding of Zinc Point was that it was a
company owned by Vivas that manufactured ammunition. According to Vogel,
Vivas introduced Vogel to Servicios for the sale of primers, and after that
introduction and a few months before the hearing, Unio Global obtained a license
through ATF to import ammunition and ammunition components. Vogel testified
that Vivas also referred Unio Global to FAMAE, the Chilean government’s
manufacturing company for weapons and ammunition, around March of 2022 and
that at the time Vogel understood from Vivas that Zinc Point was a purchaser of
FAMAE products, but Vogel said he was not aware that Zinc Point was a supplier
to FAMAE. Shortly after Unio Global was formed, Vogel prepared bids as part of
“a competitive bidding process” to supply FAMAE with primers and other products,
and FAMAE selected Unio Global for a small purchase around August of 2022.
8
Vogel testified that he was introduced to Jones Securities through Servicios, and he
did not know Jones Securities LLC was a customer of Zinc Point. Vogel testified
that he was not aware that Unio Global was working with Zinc Point customers and
suppliers, and that he only recently learned that Servicios was a supplier of primers
to Zinc Point. According to Vogel, Unio Global would purchase primers from
Servicios that were imported by Still American. Vogel testified that he initially
communicated to others that Unio Global had an exclusive relationship with
Servicios, but after he received official confirmation otherwise in October of 2022,
Unio Global desisted in making those representations. Vogel testified that he was
aware that Vivas had an ATF license as well and that at some point Vivas had a
dispute with the other owners of Zinc Point, but Vogel was not aware at the time he
formed Unio Global that Vivas had signed a non-competition agreement with Zinc
Point or that Vivas had a dispute at that time with any of Zinc Point’s owners. Vogel
testified that Unio Global sold primers up until the trial court entered the temporary
restraining order against Unio Global. According to Vogel, to his knowledge Unio
Global never used Zinc Point’s address (500 Highway 19 in Huntsville, Texas) as
Unio Global’s address and never had items sent there, and Unio Global did not have
a FedEx account.
Vogel testified that in September of 2022, Unio Global had two transactions
to purchase small pistol primers from RUAG, who was introduced to Unio Global
9
through Vivas. According to Vogel, each transaction was for a purchase of 5 million
primers manufactured by Servicios and that the shipments were made from Zinc
Point’s warehouse. Vogel explained that the “shipments” were actually pallets that
the client, RUAG, arranged to pick up at Unio Global and that RUAG would provide
the bill of lading. Vogel testified that the only person from Zinc Point that he
involved in the transaction was Vivas, whom Vogel believed was the owner of Zinc
Point. According to Vogel, it was his understanding that for the first 5 million
primers, Servicios made the connection for the primers to be brought in and
Servicios negotiated the sale to RUAG who was going to pick up the product, but
that Unio Global was to serve as the commercial entity that would actually sell the
5 million primers at the previously arranged price of $40 per thousand and “realize
the sale.” For the second 5 million primers, the transaction was different than the
first in that Unio Global was able to set a higher price and negotiate with RUAG to
accept a slightly higher price, $43.25 per thousand. According to Vogel, Unio
Global’s relationship with Servicios is predicated on the services they provide to
Servicios by Unio Global purchasing the primers from Servicios for $23 per
thousand, Servicios invoices Unio Global for $15 per thousand, the balance is held
by Unio Global to procure product for Servicios to send to Servicios. Vogel testified
that through referrals from Servicios, Unio Global was able to build a list of potential
customers and on a few instances when Vogel followed up on those leads, he learned
10
that the potential customers had been customers of Zinc Point. According to Vogel
when he entered into transactions on behalf of Unio Global to sell Servicios primers
to customers he did not do so with any desire to interfere with any relationship
between Zinc Point and any customer.
Vogel testified that at the time of trial, Unio Global had in its inventory 6.5
million primers that it had paid for and acquired from Servicios at a price of $23 per
thousand. Upon the entry of the temporary restraining order and in order to comply
with the order, Unio Global cancelled the sale of a pallet of 1.5 million of primers to
Jones Securities that had been paid for but not picked up yet, and Unio Global
refunded that sale. Another transaction for 1.5 million primers sold to Southern
Specialties, a company not referred by Vivas to Unio Global, was also cancelled due
to the temporary restraining order. Unio Global also had a shipment of 15 million
primers that were coming from Servicios at the time of the entry of the temporary
restraining order.
Vogel denied that he told Sonny Hildreth that Unio Global was the sole
supplier for Servicios, and Vogel testified that he knew through discussions with
Servicios that Unio Global was not an exclusive distributor. According to Vogel,
Hildreth seemed suspicious when he presented himself as the person picking up the
primers on behalf of Jones Securities, and he was evasive and not very
knowledgeable about bills of lading or Jones Securities. Vogel denied that he had
11
ever told Unio Global’s customers not to buy products from Zinc Point or Baron
Global and that no one has asked him to do so.
Testimony of Claude “Sonny” Hildreth
Sonny Hildreth, a private investigator and retired FBI agent, testified that he
was hired by Zinc Point’s counsel to pick up a load of primers in Magnolia, and Zinc
Point’s counsel provided Hildreth with Michael Vogel’s name and an address and
phone number. Hildreth contacted Vogel using an alias and arranged a time and date
for Hildreth to pick up 1.5 million small caliber primers under the guise of picking
them up on behalf of Jones Securities, and Hildreth confirmed the address for the
facility where he was to pick them up. According to Hildreth, he arrived at the
address, a gated warehouse, on December 12, 2022, and Vogel arrived and unlocked
the gate. Hildreth testified that he provided Vogel with a bill of lading that Vogel
had asked him to bring, but that Hildreth was unaware of who created the bill of
lading that he brought to Vogel. Hildreth testified that he asked Vogel if he had the
remainder of the 14 million primers that had at one time been discussed with Charles
Jones (of Jones Securities), and Vogel told Hildreth that after that pickup of the 1.5
million primers there would only be 11 million left. According to Hildreth, he was
told the 1.5 million primers he was picking up were manufactured by Servicios and
Hildreth told Vogel that Charles Jones was surprised by this because when he had
attempted to buy directly from Servicios he was told that he would have to go
12
through Zinc Point and Vivas because Zinc Point was the sole company that handled
the product. Hildreth testified that Vogel told Hildreth that Vogel’s company, Unio
Global Trading, was now the exclusive distributor for the product in the United
States. Hildreth testified that as for the remaining 11 million primers, Vogel told him
that Vogel was the exclusive dealer, that he was moving his facility from that
location to another location, and that Unio Global planned on getting a shipment
every three weeks from Servicios. According to Hildreth, the 1.5 million primers he
picked up he understood had been purchased by Jones Securities, and he took them
to Zinc Point in Huntsville, Texas. Hildreth testified that he did not know what the
arrangement was between Jones Securities and Zinc Point regarding the 1.5 million
primers he picked up, he did not know how Jones had paid for the primers, and he
believed that he was legally picking up product and delivering it.
Testimony of Jeff Vincent
Jeff Vincent testified that he is an employee of Zinc Point at 500 State
Highway 19 in Huntsville, and that Vivas and Baronowski own an interest in Zinc
Point. According to Vincent, Vivas hired him about three years earlier when Vincent
had been previously unemployed, and he worked for Zinc Point in Mineral Wells,
and Vincent continued to work for Zinc Point when the company moved to Cleburne
and then Huntsville. Vincent testified he worked closely with Vivas because it was
just the two of them when the company started out and that Vivas treated him well.
13
According to Vincent, he only interacted with Baronowski two or three times a year
because Baronowski lived in Miami. Vincent testified that on Vivas’s last day at the
facility in Huntsville, he told Vincent and a couple of other employees that he was
going to “basically just kind of retire,” and he told Vincent to “just stick in there and,
you know, see what happens[]” regarding Vincent’s future. Vincent testified that he
has never met Vogel or Vogel’s wife, and that he has only met Vivas’s son twice in
a social context.
Vincent testified that he recognized the document admitted as Exhibit 3 as a
FedEx document that was kept in Zinc Point’s files that he had signed, and that the
document was for the shipment of 5 million primers. The first page of Exhibit 3 was
a “Past Due Statement” from FedEx for a freight bill # 9634711240 owed by “Uni
Global” at the address 500 Highway 19 in Huntsville, Texas for shipment on
September 12, 2022 and listed the shipper as “Uni Global” and the consignee of the
shipment as “RUAG Ammotec USA” at an address in Savannah, Georgia. The third
page of Exhibit 3 was a “Past Due Invoice” for the same shipment and the invoice
listed primers as the items shipped. The fifth page of Exhibit 3 is a FedEx “Weight
Validation Certificate” for the same shipment and lists the shipper as “Uni Global”
with the same Huntsville address but lists the consignee as “Norma Precision” in
Savannah, Georgia. The sixth page of Exhibit 3 is a FedEx “Bill of Lading” for the
FedEx shipment of two pallets of primers; it lists the shipper as “Unio Global” and
14
the name “Michael” in the “Attn to” line; it lists the consignee as “Norma Precision,
Inc.” in Savannah, Georgia; and lists the freight charges to be paid by Norma
Precision. At the bottom of the Bill of Lading is a shipper certification signed by
“Jeff Vincent” on 09/12/22. The seventh page of Exhibit 3 is a Fed Ex “Bill of
Lading” for the same shipment but is marked in handwriting as “Corrected BOL”
and lists similar information as the prior Bill of Lading but instead lists the freight
charges to be paid by RUAG, and it lists under the freight “2 Pallets 5,000,000
pieces[.]” The eighth and ninth pages of Exhibit 3 are the FedEx “Delivery Receipt”
for the shipment and that was signed as received on September 14, 2022.
Vincent testified that typically either Baronowski, Vivas, or a man named
Tarek would inform Vincent of a shipment, one of them would provide Vincent with
a bill of lading so he could prepare the shipment to go out, and the customer hired a
freight provider to come pick up the primers from the warehouse. Vincent testified
that Exhibit 3 listed Unio Global as the shipper and that Vivas had directed Vincent
to ship the products. Vincent testified that Vivas had not explained Vivas’s
connection with Unio Global, that Vincent trusted Vivas to only direct him to ship a
shipment for Zinc Point, and that Vincent has since discovered that this shipment
was not a Zinc Point shipment but was instead a shipment from Unio Global to
Norma Precision, Inc., who was one of Zinc Point’s previous customers. According
to Vincent, this was the only shipment with Unio Global’s name on it that Vivas
15
asked Vincent to ship. Vincent testified that his role was to gather the primers that
were to leave the Zinc Point warehouse and make them available for pick-up by
FedEx Freight, but that he was not involved in contacting FedEx Freight to arrange
for pick-up or arrange for Zinc Point to pay for FedEx to pick up the freight. He
testified he had not seen the corrected Bill of Lading for the shipment, and he also
had no knowledge of whether Zinc Point funds were used to deliver the primers to
Zinc Point’s warehouse. According to Vincent, he had no idea who arranged for
FedEx Freight to pick up the primers and that typically the customer, and not Zinc
Point, would arrange for that. Vincent testified that, to his knowledge, he has never
been involved with another transaction with Unio Global and he was not familiar
with Michael Vogel. Vincent testified that in the summer of 2022, Vivas discussed
with him another business Vivas was forming, and Vivas mentioned the possibility
of Vincent coming to work for Vivas.
Testimony of Ben Sessions
Ben Sessions testified that he is the vice president of operations for Zinc Point,
that he started out as an independent consultant for the company in 2021 and became
an employee of the company in April of 2022. According to Sessions, he is the only
employee of the twenty-or-so employees that does not have a non-disclosure
agreement with Zinc Point. Sessions testified that he has known Vivas since the
inception of Zinc Point in Florida six years ago, when Sessions was introduced to
16
the company through his friend, Baronowski. According to Sessions, Vivas was in
charge of the manufacturing and the ATF side of the business. Sessions testified that
once he started working full-time at the Huntsville factory in May of 2022, he would
not see Vivas on a consistent daily basis, but Vivas had full access to the warehouse.
Sessions testified that in September of 2022 he met with Vivas for a lunch
meeting at a restaurant in The Woodlands, Texas, to try to broker a separation
agreement between Baronowski and Vivas because Vivas was leaving Zinc Point.
Sessions testified that Vivas suggested that Zinc Point would not last longer than six
to eight months because Baronowski was mismanaging the business and as a result
the company would be basically decimated. Sessions testified that Vivas told him
that he did not want to be hindered by the non-compete agreement he had with Zinc
Point, that he wanted to do business anywhere and sell anything he wanted, and he
suggested that he would give Sessions his shares of the company if Sessions could
broker a deal that would release Vivas from the non-compete agreement. According
to Sessions, he told Vivas how the separation of Zinc Point’s two partners would be
extremely detrimental to the company, the two partners, and others. Sessions
testified that Vivas responded that Vivas did not have any assets to go after, he had
transferred money to other people, and that Baronowski would be the only person to
bear the full weight of the separation. Sessions testified that after the lunch when he
was on his way to drop off Vivas at home, Vivas told him about a business that was
17
going to be substantial and make a lot of money and that if Sessions would agree to
join the business, then Vivas would tell him who the other business partners were
and what the other business was. According to Sessions, he did not agree to join the
new business, so Vivas never told him about the new business or its partners.
Sessions testified that Vivas’s access to the warehouse ended on September
9, 2022, when Vivas handed Sessions his car, keys, and a cut up credit card a week
before Sessions’s last interaction with Vivas at the factory. According to Sessions,
this was around the same time as when Vivas was taken off Zinc Point’s payroll and
when Vivas separated from Zinc Point.
Sessions testified that at some point he received Zinc Point’s checkbook back
from Vivas, and checks 1809 through 1815 and their corresponding check stubs were
missing. The only missing check that Zinc Point recovered was a check to
Intermodal, admitted as Exhibit 7, that Sessions testified was written in Vivas’s
handwriting, and Vivas had noted on the reference line of the check that the payment
was for “Lost two shipments from Servicios, Invoice # 304556” and then something
illegible. Sessions testified that the check appeared to be a payment for shipments
from Servicios, that the only “Servicios” that he was aware of Zinc Point doing
business with was Servicios & Aventuras, and that Zinc Point was able to stop
payment on that check. According to Sessions, to his knowledge Zinc Point was
unable to recover or stop payment on the other missing checks. According to
18
Sessions, Servicios has not done any business with Zinc Point in the past few weeks
before the hearing, but prior to that Servicios had provided primers to Zinc Point.
Testimony of Walter Baronowski
Walter Baronowski testified that his background is in finance and banking,
and he became involved in the ammunition business in 2015. According to
Baronowski, he was convicted of a felony for not informing the FBI of a rebate
between an agent and a client and, although the felony had nothing to do with the
ammunition business, his felony record impeded his ammunition business because
he could not obtain an ATF license and financing and he had to focus on activities
for the business that did not require a license through the ATF. Baronowski testified
that he had to rely on third parties to stand in as a registered party because of his
felony record. Baronowski testified that he owns ninety percent of Zinc Point and
one hundred percent of Baron Global, and that KPMG advised the creation of Baron
Global. Baronowski testified that Zinc Point is a “warehouse and fulfillment
business[]” that “stores and ships goods,” and Baron Global “handles the marketing,
the distribution, and the procurement, from a sales standpoint, but utilizes Still
American to actually do all licensed activities.” Still American obtained primers
primarily from Servicios, but also from Steel Components, FAMAE, and other
companies, and then Still American provided those primers to Zinc Point.
Baronowski testified that Zinc Point also bought products from Norma Precision and
19
bought from and sold products to Jones Securities. According to Baronowski, Zinc
Point’s relationships with the companies supplying the primers, especially Servicios,
were invaluable.
Baronowski testified that when he partnered with Vivas in 2016 to form Zinc
Point, Vivas was someone he had thought of like a father for a long time and trusted
and Vivas was Chief Operating Officer and in charge of manufacturing at Zinc
Point’s warehouse. At one point, Vivas brought Vogel to Zinc Point’s attention and
Vivas thought that Zinc Point should use Vogel’s marketing company to provide
marketing services for Zinc Point and later Baron Global, and Vivas never told
Baronowski that Vogel was a relative of Vivas’s. Baronowski testified that Vivas
agreed to sign “a non-compete, a non-circumvent, a non-solicitation.” A copy of the
non-compete agreement executed by Vivas and Baronowski was admitted at the
injunction hearing, and Baronowski testified that the agreement protected Zinc
Point’s confidential data such as customers and vendors, the way in which the
product is manufactured and sourced, pricing and contact information, and its
employees from being induced to leave the company.
Baronowski testified that in March of 2022, he discussed with Vivas buying
him out of the business. According to Baronowski, the terms of the agreement were
that he would pay Vivas $1.5 million the first year and $2 million over the next two
years in exchange for Vivas helping to transition his position to a third party while
20
Vivas would maintain his license and continue to import product. Baronowski paid
Vivas $400,000 as part of the negotiation and the agreement was that Vivas would
retire but would assist Zinc Point for two years. A copy of the last version of the
separation agreement between Baronowski and Vivas was admitted into evidence,
and Baronowski testified that Vivas did not do what he agreed to.
According to Baronowski, Vivas never mentioned Unio Global during the
negotiation, and Baronowski first heard of Unio Global when Baronowski’s
associate, Tarek, was informed by one of Zinc Point’s vendors that another company
was selling Servicios primers. When Tarek inquired into the other company, he
determined that the company “was [Vivas’s son] and Michael Vogel.” Baronowski
testified that he and Tarek looked at Vivas’s emails and they discovered Vivas had
contacted Vogel previously on behalf of Zinc Point and Baron Global for marketing,
and Baronowski and Tarek “put two and two together.” According to Baronowski,
he was shocked when he saw the document at the injunction hearing that indicated
Unio Global was created in February of 2022. Baronowski testified that Vivas
stopped being paid from Zinc Point’s payroll at Vivas’s request on September 9,
2022.
Baronowski testified that in the months prior to the injunction hearing, the
relationship between Zinc Point and Servicios was “severely crippled[]” because
Zinc Point’s clients have moved to Unio Global. Baronowski testified that Zinc
21
Point’s relationship with FAMAE had been damaged, but not to the extent of the
damage to Zinc Point’s relationship with Servicios, and Baronowski had learned that
FAMAE was holding product that Zinc Point had paid for until Zinc Point’s counsel,
Vivas, or Still American directed it to be delivered.
According to Baronowski, in late August and early September of 2022, Zinc
Point was in “extremely short supply[]” of primers and were expecting shipments to
come in. Baronowski testified that when the shipments came in, Vivas told them that
only 10 million had come in, which was an insufficient amount to fill the orders.
Baronowski testified that “[o]riginally we were told that 15 were, and we were not
informed of this other shipment that was mentioned earlier. I was under the
assumption previous to today that only 5 million primers had been moved, not 10.”
Baronowski testified that in his petition he alleged the specific quantity of Servicios
primers that were diverted from the Zinc Point factory by Unio Global to a vendor
which resulted in a loss to Zinc Point because Baron Global would have been able
to sell those primers, and Baronowski testified that Unio Global was still in
possession of 11.5 million primers when Hildreth went there. According to
Baronowski, during that time, Zinc Point was unable to meet its customer obligations
and was unable “to produce 9mm for a number of months because of what [Vivas]
did.” Baronowski testified that the last time Zinc Point received primers from
Servicios was the primers Hildreth purchased, and Servicios would now only sell to
22
Zinc Point if Vivas “signed off on it[]” which he has not. According to Baronowski,
his purchase price for primers from Servicios and the profit margin was known by
Vivas and was supposed to be confidential to Zinc Point, and knowledge of that
information would allow a competitor to undercut Zinc Point and did so to Zinc
Point’s detriment. Baronowski testified that the primers have been sold for as much
as $100 per thousand and were being sold for around $60 or $70 per thousand at the
time that Unio Global got involved, and that the lost sales were a result of Vogel
dropping the price in an effort to compete and take Zinc Point’s customers.
Baronowski testified that, although Zinc Point and Baron Global sold other
products, the majority of the profitability came from the sale of primers which was
the business with Servicios. Baronowski testified that as a result of the competition
by Unio Global, Zinc Point’s business has “been decimated[,]” Zinc Point’s online
traffic has dropped about sixty or seventy percent, Zinc Point had previously been
averaging $50,000 a day in revenue but currently was only averaging between
$5,000 and $10,000 a day, there have been layoffs, product quality has decreased,
complaints against the company have increased, orders have had to be canceled
(specifically having to do with the primers shipment that Vivas diverted from the
company in September of 2022), and the organization has suffered from a number
of issues.
23
The Temporary Injunction
After the hearing, the trial court issued the following temporary injunction
until a judgment rendered becomes final or until further order of the trial court:
It is ordered that Adolfo Rafael Vivas, Michael Vogel, Unio
Global Trade LLC, and Marcela Vogel, their assigns, and all persons or
entities acting in concert with or at the direction of them or any of them:
1. Shall not use Zinc Point[]’s warehouse, its warehouse
address, and/or its Federal Express account for any
purpose; and
2. Shall not sell, transfer, or convey any or all of the 11.5
million primers in their possession located possibly in
Magnolia, Texas.
In its order, the trial court found the following, in pertinent part:
[] Elements for Temporary Injunction
The Court finds that Zinc Point [] has valid causes of action
against Adolfo Rafael Vivas, Michael Vogel, Unio Global [], and
Marcela Vogel, that it has a probable right of recovery on its causes of
action, and that it faces a probable, imminent and irreparable harm in
the absence of this Temporary Injunction insofar as it appears that:
• Adolfo Rafael Vivas, who is Zinc Point[]’s 10% minority owner,
Chief Operating Officer, and second highest ranking executive
began diverting business opportunities and inventory of Zinc
Point [].
• Adolfo Rafael Vivas was assisted by Michael Vogel and Marcela
Vogel in this endeavor in order to insulate himself from direct
responsibility.
• In furtherance of this campaign:
• Michael Vogel formed Unio Global [] to serve as the entity
through which the trades would be conducted and utilized
leads provided by Adolfo Rafael Vivas to create business
opportunities which would, otherwise, have belonged to
Zinc Point [];
• Adolfo Rafael Vivas provided not only customer contacts
to Michael Vogel, but also used Zinc Point[]’s inventory
24
its storage/warehouse space, and its address in order to
provide materials to customers of Zinc Point [] under Unio
Global [];
• Adolfo Rafael Vivas moved all of his assets in order to
make himself judgment proof, while predicting that Zinc
Point [] would go out of business in a matter of months as
a result of this scheme; and
• Michael Vogel acting for Unio Global [] took possession
of 14 million primers, 1.5 million of which were intended
to be delivered to Jones Security, LLC, but were actually
delivered to a private investigator in Magnolia, Texas who
then returned them to Zinc Point[]’s location in Huntsville,
Texas.[5]
• Adolfo Rafael Vivas began this campaign with Michael Vogel
and Marcela Vogel while he was acting Chief Operating Officer.
That is, Adolfo Rafael Vivas was using Zinc Point[]’s resources
for Unio Global Trade LLC’s benefit and to Zinc Point[]’s harm
all while still acting Chief Operating Officer of Zinc Point [].
The irreparable harm is that Zinc Point [] will be and has been divested
of its property and with the stated goal to end its existence, the current
path if not interrupted by this Temporary Injunction will lead to the
irreparable harm of Zinc Point [] ceasing operations. Indeed, layoffs
have begun in order to keep Zinc Point [] afloat. Further, even if
damages were available, Adolfo Rafael Vivas has been moving and
hiding his assets in order to avoid judgment collection.
Issues on Appeal
Appellant argues in four issues that the trial court abused its discretion in
granting the temporary injunction. The four issues as stated by Appellant are as
follows:
1. Did the trial court abuse its discretion in granting Zinc Point’s
request for a temporary injunction against Appellants where the
5
In the footnote in the original, the trial court explained that, “Mathematically,
12.5 million would be left, but when asked about the math, Zinc Point [] insisted that
the amount was actually 11.5 million.”
25
evidence proffered at the hearing demonstrates that Appellee has an
adequate remedy at law?
2. Did the trial court abuse its discretion in enjoining Appellants from
selling, transferring, or conveying certain products in their
possession where the injunction was based on a finding that the
products belonged to Zinc Point, which finds no support in the
evidence presented at the temporary injunction hearing?
3. Did the trial court abuse its discretion in enjoining Appellants from
selling, transferring, or conveying certain products in their
possession where there was no plausible connection between the
trial court’s prohibitory injunction and the stated irreparable harm,
Zinc Point’s ability to continue its business?
4. Did the trial court abuse its discretion in granting Zinc Point’s
request for a temporary injunction against Appellants where no
evidence was proffered at the temporary injunction hearing that
Appellants acted with a conscious desire to prevent a relationship
from occurring between Zinc Point and its customers or prospective
customers or that interference was certain or substantially certain to
occur as a result of Appellants’ conduct?
Standard of Review and Applicable Law
“A temporary injunction’s purpose is to preserve the status quo of the
litigation’s subject matter pending a trial on the merits.” Butnaru v. Ford Motor Co.,
84 S.W.3d 198, 204 (Tex. 2002) (citations omitted). To obtain a temporary
injunction, an applicant must show: (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. Id.; see also Abbott v. Anti-Defamation League Austin, Sw., &
Texoma Regions, 610 S.W.3d 911, 916 (Tex. 2020). The party seeking a temporary
injunction bears the burden of production to offer some evidence establishing a
26
probable right to relief. In re Tex. Nat. Res. Conservation Comm’n, 85 S.W.3d 201,
204 (Tex. 2002) (citing Camp v. Shannon, 348 S.W.2d 517, 519 (Tex. 1961)). The
party must show that it is entitled to preservation of the status quo pending trial on
the merits. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993).
The decision to grant or deny a temporary injunction rests within the trial
court’s sound discretion. Butnaru, 84 S.W.3d at 204; Se. Tex. Veterinary Clinics,
PLLC v. Wilcox, No. 09-21-00083-CV, 2022 Tex. App. LEXIS 5791, at **19-20
(Tex. App.—Beaumont Aug.11, 2022, no pet.) (mem. op.). We may not overrule a
trial court’s decision unless the trial court acted unreasonably, or in an arbitrary
manner, without reference to guiding rules or principles, and we cannot substitute
our judgment for that of the trial court. Butnaru, 84 S.W.3d at 211. In reviewing the
evidence from a temporary injunction hearing, and when a trial court has not been
requested to enter findings of fact or conclusions of law, we view the evidence
submitted to the trial court in the light most favorable to the trial court’s order
drawing all legitimate inferences from the evidence, and we indulge every
reasonable inference in favor of the trial court’s order. Se. Tex. Veterinary Clinics,
PLLC, 2022 Tex. App. LEXIS 5791, at **19-20 (citing Crosstex NGL Pipeline, L.P.
v. Reins Rd. Farms-1, Ltd., 404 S.W.3d 754, 757 (Tex. App.—Beaumont 2013, no
pet.)); see also CRC-Evans Pipeline Int’l, Inc. v. Myers, 927 S.W.2d 259, 262 (Tex.
App.—Houston [1st Dist.] 1996, no writ). Our review of the trial court’s decision is
27
limited to the validity of its temporary injunction order; otherwise, we do not
consider the merits of the underlying case. Davis v. Huey, 571 S.W.2d 859, 861-62
(Tex. 1978); see also Henry v. Cox, 520 S.W.3d 28, 33-34 (Tex. 2017). However, a
temporary injunction will be dissolved if it is based on an erroneous application of
the law to the facts. See Dall. Gen. Drivers, Warehousemen and Helpers v. Wamix,
Inc., of Dall., 295 S.W.2d 873, 879 (Tex. 1956). A trial court abuses its discretion
when it acts arbitrarily and unreasonably, without reference to guiding rules or
principles, or misapplies the law to the established facts of the case. Se. Tex.
Veterinary Clinics, PLLC, 2022 Tex. App. LEXIS 5791, at *20 (citing Pressley v.
Casar, 567 S.W.3d 327, 333 (Tex. 2019); Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985)). If some evidence reasonably supports the trial
court’s decision, the trial court does not abuse its discretion. Butnaru, 84 S.W.3d at
211; Se. Tex. Veterinary Clinics, PLLC, 2022 Tex. App. LEXIS 5791, at *20. “An
abuse of discretion does not exist where the trial court bases its decisions on
conflicting evidence.” Davis, 571 S.W.2d at 862.
Analysis
In Appellants’ first issue, they argue that the evidence at the hearing
established that Zinc Point has an adequate remedy at law. In Appellants’ second
issue, they argue that no evidence at the hearing supported the trial court’s finding
that the 11.5 million primers it prohibited Appellants from selling, transferring, or
28
conveying, belonged to Zinc Point and that Zinc Point “had been divested of its
property[.]” In Appellants’ third issue, they argue that there is “no plausible
connection” between the trial court’s temporary injunction enjoining Appellants
from selling, transferring, or conveying the 11.5 million primers and Zinc Point’s
stated irreparable harm.
In a temporary injunction proceeding, whether a party has suffered an
irreparable injury and whether the party has an adequate remedy at law are issues
that are intertwined. Rollins v. Universal Coin & Bullion, Ltd., No. 09-06-150-CV,
2006 Tex. App. LEXIS 8764, at *13 (Tex. App.—Beaumont Oct. 12, 2006, no pet.)
(mem. op.) (citing Wright v. Sport Supply Grp., Inc., 137 S.W.3d 289, 294 (Tex.
App.—Beaumont 2004, no pet.)). “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. Disruption of business
can be irreparable harm. Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d
215, 228 (Tex. App.—Fort Worth 2009, pet. denied) (also explaining that “assigning
a dollar amount to such intangibles as a company’s loss of clientele, goodwill,
marketing techniques, and office stability, among others, is not easy[]”); David v.
Bache Halsey Stuart Shields, Inc., 630 S.W.2d 754, 757 (Tex. App.—Houston [1st
Dist.] 1982, no writ) (“This harm would not only disrupt the organized business
dealings of Bache but would also threaten customer confidence in Bache’s handling
29
of their private affairs, and probably cause Bache to lose not only customers but
profits as well.”).
We conclude there is some evidence of irreparable harm and an inadequate
remedy at law in the record before us. For example, the trial court heard Baronowski
testify that in late August and early September of 2022, Zinc Point was in “extremely
short supply” of primers and were expecting shipments to come in. Baronowski
testified that when the shipments came in, Vivas told them that only 10 million had
come in, which was an insufficient amount to fill the orders. Baronowski testified
that “[o]riginally we were told that 15 were, and we were not informed of this other
shipment that was mentioned earlier. I was under the assumption previous to today
that only 5 million primers had been moved, not 10.”
Baronowski testified that in his petition he had alleged the specific quantity
of Servicios primers that were diverted from the Zinc Point factory by Unio Global
to a vendor which resulted in a loss to Zinc Point because Baron Global would have
been able to sell those primers, and Baronowski testified that Unio Global was still
in possession of 11.5 million primers when Hildreth went there. According to
Baronowski, during that time, Zinc Point was unable to meet its customer obligations
and was unable “to produce 9mm for a number of months because of what [Vivas]
did.” Baronowski testified that, although Zinc Point and Baron Global sold other
products, the “majority of the profitability” came from the sale of primers which was
30
the business Zinc Point had with Servicios. Baronowski testified that as a result of
the competition by Unio Global, Zinc Point’s business has “been decimated[,]” Zinc
Point’s online traffic has dropped about sixty or seventy percent, Zinc Point had
previously been averaging $50,000 a day in revenue but currently was only
averaging between $5,000 and $10,000 a day, there have been layoffs, product
quality has decreased, complaints against the company have increased, orders have
had to be canceled (specifically having to do with the primers shipment that Vivas
diverted from the company in September of 2022), and the organization has suffered
from a number of issues.
This testimony is some evidence to support the trial court’s conclusion that,
absent a temporary injunction, there will be irreparable harm, and Zinc Point will be
and has been divested of its property and that the current path would lead to Zinc
Point ceasing operations. Viewing the evidence in the light most favorable to the
trial court’s ruling, as we must, we cannot say it abused its discretion in determining
that Zinc Point met its burden of showing an imminent and irreparable injury in the
absence of a temporary injunction and that it had no adequate remedy at law. See
Henry, 520 S.W.3d at 34; Butnaru, 84 S.W.3d at 204; Davis, 571 S.W.2d at 862. We
overrule issues one, two, and three.
In Appellants’ fourth issue, they assert that the evidence does not support that
Zinc Point has a probable right to recover on its claims against Appellants.
31
Specifically, Appellants argue that (1) the evidence at the hearing establishes that
after May 2021 the sales with which Appellants allegedly interfered were sales of
Baron Global and not Zinc Point, and (2) there was no evidence presented at the
hearing supporting the trial court’s finding that Appellants consciously wanted to
prevent relationships between Zinc Point and its customers or potential customers or
that such interference was substantially certain to be caused by Appellants’ conduct.
To show a probable right to relief, an applicant need not show that it will
prevail at trial. Butnaru, 84 S.W.3d at 211 (citing Sun Oil Co. v. Whitaker, 424
S.W.2d 216, 218 (Tex. 1968)). Instead, to show a probable right of recovery, the
applicant must plead a cause of action and present some evidence that tends to
support it. Camp, 348 S.W.2d at 519; Rocklon, LLC v. Paris, No. 09-16-00070-CV,
2016 Tex. App. LEXIS 11393, at *6 (Tex. App.—Beaumont Oct. 20, 2016, no pet.)
(mem. op.) (citing Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 857 (Tex.
App.—Fort Worth 2003, no pet.)); T-N-T Motorsports, Inc. v. Hennessey
Motorsports, Inc., 965 S.W.2d 18, 23-24 (Tex. App.—Houston [1st Dist.] 1998, pet.
dism’d).
Here, Zinc Point brought claims against Appellants for tortious interference
with prospective relations and civil conspiracy. The trial court heard the testimony
of Baronowski as previously discussed above, it also heard testimony regarding
Vivas, his son, and others in forming Unio Global and in conducting business
32
directly in competition with Zinc Point despite entering into a non-compete
agreement with Zinc Point, it heard Vogel’s testimony regarding Unio Global’s
possession of primers that Baronowski testified belonged to Zinc Point, Vogel’s
testimony regarding contacting and transacting with Zinc Point’s customers, and
Hildreth’s testimony regarding him picking up primers from Vogel under the guise
of Jones Securities that Zinc Point alleged belonged to Zinc Point, and the trial court
was also presented with FedEx records related to Unio Global shipments of primers
for “Uni Global” using Zinc Point’s warehouse address. Viewing this evidence in
the light most favorable to the trial court’s injunction order, we conclude Zinc Point
put on some evidence tending to support at least one of its claims against Appellants.
Based on Zinc Point’s allegations and this evidence, the trial court could have
reasonably concluded that Zinc Point had a probable right to recovery. See Butnaru,
84 S.W.3d at 211. We overrule issue four.
To summarize, we conclude that there is some evidence to support the trial
court’s decision to issue the temporary injunction and we cannot say that the trial
court abused its discretion in granting the temporary injunction. See id. at 204, 211;
Se. Tex. Veterinary Clinics, PLLC, 2022 Tex. App. LEXIS 5791, at **19-20. Having
overruled Appellants’ issues, we affirm the trial court’s order.
33
AFFIRMED.
LEANNE JOHNSON
Justice
Submitted on March 13, 2024
Opinion Delivered April 18, 2024
Before Golemon, C.J., Johnson and Wright, JJ.
34