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

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