MEMORANDUM OPINION

No. 04-07-00405-CV

Rodman Excavation, Inc. d/b/a RODMAN COMPANIES, San Antonio Division,

Rodman Utilities, L.P., Rodman Power & Communications, LLC,

Rodman Natural Resources, Inc., Rodman Paving, Inc. and Zach Hall,

Appellants v.

YC Partners, Ltd., d/b/a YANTIS COMPANY, Appellee

From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2007-CI-03027 Honorable Larry Noll, Judge Presiding ⁽¹⁾

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

Delivered and Filed: November 21, 2007

DISMISSED FOR LACK OF JURISDICTION

This is an accelerated appeal from a temporary injunction. The issue before this court is whether this appeal should be dismissed because the controversy upon which the appeal is based has been rendered moot. We hold that the appeal is moot, and grant YC Partners, Ltd. d/b/a Yantis Company's ("Yantis") motion to dismiss the appeal.

Factual and Procedural History

Yantis and Rodman Excavations, Inc. d/b/a Rodman Companies, San Antonio Division, Rodman Utilities, L.P., Rodman Power & Communications, LLC, Rodman Natural Resources, Inc., Rodman Paving, Inc. ("Rodman") are site developers that compete in the San Antonio market. Zach Hall ("Hall") was employed by Yantis in September 2005. On October 31, 2006, Hall signed an Employee Agreement prohibiting him from working for Rodman in any capacity for two years. Three weeks later, Yantis fired Hall. A month after his termination, Hall applied for a position with Rodman and was hired shortly after when a position became available. Hall did not disclose to Rodman that he had an employment contract with Yantis.

Yantis sued Rodman and Hall, alleging various causes of action including: breach of contract; unfair competition; tortious interference; and misappropriation of confidential information and trade secrets. Yantis also filed an application for temporary restraining order and request for injunctive relief, seeking to enjoin Rodman and Hall from taking any action inconsistent with the duties and other obligations allegedly owed to Yantis. After a six day hearing, the trial court entered an injunction that prohibited Rodman and Hall from using, directly or indirectly, any confidential information that Hall may have obtained or had access to while employed by Yantis. Additionally, the trial court enjoined Rodman from soliciting or hiring any Yantis employee who signed a new non-competition agreement with Yantis after May 18, 2007, the last day of the hearing.

Rodman appealed the trial court's order granting the temporary injunction, and filed its brief on July 26, 2007. On August 15, 2007, Yantis filed a Notice of Partial Nonsuit in the trial court, wherein it nonsuited a number of its claims, including all requested injunctive relief. Subsequently, Yantis filed a second notice of partial nonsuit in the trial court, nonsuiting the same claims as before, including all requested injunctive relief, only this time with prejudice. The remaining issues that were not nonsuited are currently set for trial on December 10, 2007.

Standard of Review

An appellate court is prohibited from reviewing a temporary injunction that is moot because such a review would constitute an impermissible advisory opinion. Nat'l Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999); Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988). A temporary injunction becomes moot when a change in the status of the parties or the passage of time makes the injunction inoperative or when the objective of the injunction is accomplished. See Jones, 1 S.W.3d at 86; see also Reagan Nat'l Adver. v. Vanderhoof Family Trust, 82 S.W.3d 366, 371 (Tex. App.-- Austin 2002, no pet.). An appellate court must set aside all orders pertaining to the temporary injunction and dismiss the case once it becomes moot on appeal. Isuani v. Manske-Sheffield Radiology Group, 802 S.W.2d 235, 236 (Tex. 1991). The test for mootness is whether the court's action on the merits would affect the rights of the parties. VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex.1993).

Discussion

Rodman maintains that the trial court abused its discretion in granting the injunction because Yantis failed to prove a probable right to recover on its claims. And although Yantis dismissed with prejudice all requested injunctive relief, including the injunction order Rodman is appealing, after this appeal was filed, Rodman maintains that this court should nevertheless review the trial court's order to preclude Yantis from thereafter asserting that it should prevail at trial because it has already demonstrated "a probable right to the relief sought."

However, as a consequence of Yantis taking a nonsuit in the underlying case, the temporary injunction at issue in this appeal dissolved automatically without need for a separate order and the appeal became moot. See Gen. Land Office of State of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990) (citing Int'l Ass'n of Machinists v. Federated Ass'n of Accessory Workers, 133 Tex. 624, 130 S.W.2d 283 (Tex. Comm'n App.1939, opin. adopted)). Therefore, any opinion regarding whether the trial court erred in granting the injunction, which has since been dissolved, would clearly be advisory and without any practical legal effect. See Jones, 1 S.W.3d at 86; Camarena, 754 S.W.2d at 151. Rodman's issue is denied.

Rodman further makes a vague argument that it is entitled to Yantis's $100,000.00 injunction bond. Specifically, Rodman states that "[i]f the Court decides to dismiss this appeal, the Court should reiterate that Yantis' non-suit 'makes out a prima facie case of the right to recover damages' for wrongful injunction," citing to Futerfas v. Park Towers, 707 S.W.2d 149, 159 (Tex. App.-- Dallas 1986, writ ref'd n.r.e.) and Payne v. Nichols, 176 S.W.2d 961, 964 (Tex. Civ. App.-- Galveston 1943, writ ref'd w.o.m.). However, as this argument is not properly before this Court, we decline to address the merits of this argument, if any. See Tex. R. App. P. 33.1, 43.2.

Conclusion

Accordingly, we grant Yantis's Motion to Dismiss Appeal and dismiss this appeal for lack of jurisdiction.

Karen Angelini, Justice

1. The Honorable Michael Peden is the presiding judge of the 285th Judicial District Court, Bexar County, Texas; however, the challenged order was signed by the Honorable Larry Noll, presiding judge of the 408th Judicial District Court, Bexar County, Texas.