## NUMBER 13

- 18

- 002 91

- CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRIST I

– EDINBURG

CHRISTOPHER M. PROPST AND

STRIDE INVESTMENTS, LLC

, Appellant s

,

v.

GREGORY K. PROPST,

INDIVIDUALLY AND DERIVATIVELY

ON BEHALF OF RIOSTAR

SOLUTIONS, INC

. , Appellee s

.

On appeal from the 275th District Court

of Hidalgo County, Texas.



## MEMORANDUM OPINION ON REHEARING

Before Justices Benavides, Hinojosa

, and Perkes

Memorandum Opinion o n Rehearing by Justice Perkes

In September 2016, A ppellee s RioStar Solutions, Inc. (RioStar) and RioStar co

owner Gregory K. Propst ( Greg ) filed suit and application for injunctive relief against2

appellants RioStar co

- owner Christopher M. Propst (Chris) and his management and

consultant company Stride Investments, LLC (Stride), alleging breach of fiduciary duty,

civil conspiracy, violations of the Texas Civil Theft Act, and tortious interference with

contract

. In October 2016, the trial court entered a temporary injunction orde r (October

2016 order)

. In June 2018, the trial court signed an order (June 2018 order) extending

the October 2016 order following hearings on appellees ’ request for enforcement of the

October 2016 order and appellants ’ motion to dissolve the October 2016 order

.

Appellants timely appealed the trial court ’ s June 2018 order

, see T EX

. C IV

. P RAC

. & R EM

.

C ODE A NN

. § 51.014 , arguing that the trial court (1) entered an invalid temporary injunction

order, and (2) abused its discretion in denying appellants ’ motion to dissolve the

temporary injunction

.

On June 26, 2019, we issued a memorandum opinion dismissing appellants ’

appeal for want of subject

- matter jurisdiction. See Propst v. Propst

, No. 13

- 18

- 00291

-

CV, 2019 WL 2622337, at *1 (Tex. App.

— Corpus Christi

– Edinburg June 27, 2019, no

pet.) (mem. op.)

. Appellants and appellees thereafter filed motions for rehearing and for

en banc reconsideration

, and appellees requested to supplement the record with

evidence of a pending motion for contempt

. W e grant ed appellees ’ request to

supplement the record. We now grant appellee s ’ motion for rehearing, withdraw our

June 26, 2019 memorandum opinion, and substitute the following in its place. 1 We

reverse and remand

.

1 All other motions pending before the court are hereby denied.3 I. B ACKGROUND

On July 31, 2013, RioStar

, a Texas corporation, was created by relatives

, Chris

and Greg

. On August 23, 2013

, RioStar entered into a n “ Independent Contractor/Sales

Agent Agreement ” with Patterson Freight Systems, Inc. (Patterson)

. Under the contract,

Patterson provide d RioStar with sales and operational materials, including an email

domain and computer software that tracked RioStar ’ s business transaction s and

customer lists. On October 1, 2013, RioStar entered into a “ Management Services

Agreement ” with Stride

.

By mid

- 2016, t he relationship between Chris and Greg had deteriorated

, which

adversely affected RioStar

. On August 31, 2016, RioStar received a termination notice

from Patterson. Chris and Greg

, on behalf of RioStar

, requested a termination extension

date

, and Patterson agreed to extend the termination date until September 26, 2016. 2

On September 20, 2016, Greg filed suit and an application for temporary injunction

against Chris and his company, Stride

. 3 Meanwhile, o n behalf of Stride, Chris executed

a new contract with Patterson on September 27, 2016 ; Stride then subsumed use of

RioStar ’ s former software and email account.

On October 19, 2016, the trial court entered a temporary injunction order requiring

Chris to : (1) “ pay RioStar a royalty of 10% of the gross brokerage or $10,000, whichever

is greater, during the term of the Temporary Injunction ” ; (2) provide “ weekly reports to

2 Pursuant to the contract’s termination terms, RioStar was required to discontinue use of all of

Patterson’s materials, including software.

3 The suit also named individuals and companies associated with Patterson and Stride, whom are

not parties to this appeal : Sweet Life Logistics, Inc., Sweet Life Transportation, Inc., George Garcia (aka

Jorge Garcia, aka Roberto Vasquez), J Brokerage Corp, Daniel Diaz, Frank Diaz, Tim O’Bannon, S

Katzman Produce, Inc., Katzman Berry Corporation., Top Katz Brokers, LLC , JMS Top Katz Texas, LLC,

Stephen Katzman, Joseph Palumbo and Mario Andreani.4

RioStar of all brokerage activity ” ; (3) resign as RioStar ’ s director and officer; (4) terminate

Stride ’ s contract with RioStar; and (5) turn over electronics used by former RioStar

employees

, including his personal laptop and cell phone s

, to counsel for a forensic

sweep. The court additionally ordered that the October 2016 order would “ remain

effective until the trial on the merits set for 9:00 o ’ clock a.m., on the 1st day of May,

201 7

. . . unless dissolved or modified sooner by Order of this Court. ” (emphasis added

. )

Appellants did not appeal the October 2016 order, and t he case did not proceed

to trial on May 1, 201 7

. The parties dispute whether the October 2016 order expired by

its own prescribed terms on the May 1 st date. On May 24, 2017, appellees filed a motion

to hold appellants in contempt for failure to comply with the October 2016 order and to

extend and enforce the order

. Appellants responded by filing a motion to dissolve

, deny

removal, or modify the temporary injunction

, and alternatively

, appellants requested a

bond increase. Although the court held the evidentiary injunction hearing on May 30,

2017

, and multiple hearings thereafter on this matter

, the second temporary injunction

order was not signed until June 19, 2018

.

T he trial court took “ judicial notice of all prior proceedings, the pleadings, including

the evidence presented, the pleadings, responses and arguments of counsel, [and found]

that the Temporary Injunction issued on October 19, 2016 should be extended. ” The

June 2018 order contained multiple revisions to the October 2016 order, including

removing paragraph four altogether and changing the royalty requirement to “10% of the

gross brokerage or $7,500, whichever is greater,” with said payments ex piring upon its

stated “effective until” date

. T he trial court provided that the June 2018 order would5

“ remain effective until the trial on the merits set for 10:00 o ’ clock a.m., on the 24th day of

September, 2018

. ” This appeal followed. 4

II. J URISDICTION

A. Substantive Changes

On appeal, our review is generally limited to the narrow question of whether the

trial court abused its discretion in its issuance of a temporary injunction order, and the

trial court’s injunction o rders are strictly c onstrued to ensure compliance with the law.

See Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 204 (Tex. 2002) (“A reviewing court

should reverse an order granting injunctive relief only if the trial court abused that

discretion. ”) ; Super Starr Int’l, LLC v. Fresh Tex Produce, LLC , 531 S.W.3d 829, 838 (Tex.

App.

— Corpus Christi

– Edinburg 2017, no pet.).

However, a subsequent temporary injunction order which simply extends the initial

temporary injunction is not an appealable interlocu tory order. See T EX

. C IV

. P RAC

. &

R EM

. C ODE A NN . § 51.014(a)(4); see also Ludewig v. Houst. Pipeline Co. , 737 S.W.2d 15,

16 (Tex. App.

— Corpus Christi

– Edinburg 1987, no writ) (“ Appellants may not now ‘ tack ’ a

non

- appealable order to an otherwise appealable order in order to readjust the appellate

time table so as to secure our review of the case.” (citing City of Arlington v. Tex. Electric

Service Co.

, 540 S.W.2d 580 (Tex. Civ. App.

— Ft. Worth 1976, writ ref’d n.r.e.))). A

subsequently issued temporary inju nction order is an extension of the first order if it

(1) seeks only to extend the duration of the injunction, and (2) no substantive changes

were made. See In re Graybar Elec. Co., Inc. , No. 13

- 08

- 00073

- CV, 2008 WL 3970865,

4 We note that the aforementioned co

- defendants not parties to this appeal have a separate

accelerated interlocutory appeal pending out of this Court involving the trial court’s August 2018 order

denying the defendants’ special appearances. The trial court thereafter granted the defendants’ motion

for statutory stay of proceedings on September 18, 2018.6

at *11

- 12 (Tex. App.

— Corpus Christi

– Edinburg Aug. 26, 2008, no pet.) (mem. op.) (citing

examples of substantive modifications). Therefore, we only have jurisdiction to review

the appeal if we conclude that changes to the June 2018 order were substantive. See

T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 51.014(a)(4); see also In re Graybar

, 2008 WL

3970865, at *13 (holding that where an extension order made no substantive modification

to the original temporary injunction, the o rder fell “outside the ambit of section

51.014(a)(4) of the civil practice and remedies code,” and our court lacked jurisdiction to

review it); City of Lancaster v. Tex. Motor Transp. Ass’n, Inc. , No. 05

- 05

- 00169

- CV, 2005

WL 2303415, at *1 (Tex. App.

— Dalla s Sept. 22, 2005, no pet.) (mem. op.) (same).

Appellees concede that the June 2018 order “did contain a substantive change, ”

but nonetheless maintain that the June 2018 order was an “extension.” 5 We agree only

that the changes were substantive. The percentage of royalties and flat fee per month

owed by appellant have changed, and other directives, such as Chris’s entitlement to

ownership in RioStar, have been removed altogether. See Ahmed v. Shimi Ventures,

L.P. , 99 S.W.3d 682, 689 (Tex. App.

— Houston [1st Dist.] 2003, no pet.); cf. In re Graybar

,

2008 WL 3970865, at *11

- 12 ; City of Lancaster , 2005 WL 2303415, at *1. Having f ound

that the changes amounted to a substantive modification, we proceed to the second

jurisdictional hurdle that this case poses: is the June 2018 order moot?

5 Appellee s cite no support for its contention that a subsequent temporary injunction order

containing a substantive change is therefore merely an extension

— in name or effect

— and caselaw,

although sparse, indicates the contrary. See Ahmed v. Shimi Ventures, L.P. , 99 S.W.3d 682, 689 (Tex.

App.

— Houston [1st Dist.] 2003, no pet.); see also In re Graybar Elec. Co., Inc. , No. 13

- 08

- 00073

- CV, 2008

WL 3970865, at *11

- 12 (Tex. App.

— Corpus Christi

– Edinburg Aug. 26, 2008, no pet.) (mem. op.) ; City of

Lancaster v. Tex. Motor Tra nsp. Ass’n, Inc. , No. 05

- 05

- 00169

- CV, 2005 WL 2303415, at *1 (Tex. App.

— Dallas Sept. 22, 2005, no pet.) (mem. op.)

.7

B

. Mootness

W hen an injunction becomes inoperative because it has expired, its validity

becomes moot for appellate review

. 6 Parr v. Stockwell

, 322 S.W.2d 615, 616 (Tex.

1959). A temporary injunction order may expire (1) a t a fixed time

, or (2) contingent on

an event

, such as a final judgment

. See Isuani v. Manske

- Sheffield Radiology Gr p.

, P.A.

,

802 S.W.2d 235, 236 (Tex. 1991) (providing that, if not otherwise specified, a final

judgment acts as finality for a temporary injunction); see also Yardeni v. Torres

, 418

S.W.3d 914, 917 (Tex. App.

— El Paso 2013, no pet.) (providing that “ before [the appellate

court] had the opportunity to dismiss the appeal for mootness, [the applicant] moved to

amend and renew her initial temporary injunction order, ” extending the expiration date) ;

see generally 44 Tex. Jur. 3d Injunctions § 114

.

By its own prescribed terms, the J une 2018 order expired on the date it ceased

effect : “ [the] [t] emporary Injunction shall remain effective until the trial on the merits set

for 10:00 o ’ clock a.m., on the 24th day of September, 201 8

. ” T hough r ule 683 of the

Texas Rule s of Civil Procedure require s language setting the trial of the merits

, the r ule

does not dictate that the setting act as an injunction terminus date

. T EX

. R. C IV

. P. 683 ;

see, e.g.

, Electrolux Home Care Prods

. , Ltd. v. Int ’l Mfg. Sols. Corp.

, 247 S.W.3d 239,

241

– 42 (Tex. App.

— El Paso 2007, no pet.) (holding the order specified the end

- date of

6 Mootness is a threshold issue that implicates a reviewing court’s subject

- matter jurisdiction, and

a ppellate courts are prohibited from reviewing an injunction that has become moot. Nat’l Collegiate

Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) (“ This prohibition

. . . prohibits courts from rendering

advisory opinions.”) (citations omitted); see also Arroyo v. Garza , No. 13

- 17

- 00496

- CV, 2018 WL 3764236,

at *1 (Tex. App.

— Corpus Christi

– Edinburg Aug. 9, 2018, pet. denied) (mem. op.). Although mootness was

not raised by the parties, “[w]e are obligated to determine, sua sponte, our jurisdiction to hear and consider

an appeal.” Parks v. DeWitt Cty. Elec. Coop ., 112 S.W.3d 157, 161 (Tex. App.

— Corpus Christi

– Edinburg

2003, no pet.) (citing Underwriters Ins. Co. v. Sanchez , 799 S.W.2d 677, 678 (Tex. 1990) (per curiam)).8

enjoinment: “ 60 days from the date o f this order ” ); see also Trice v. State, 712 S.W.2d

842, 852 (Tex. App.

— Waco 1986, writ ref ’ d n.r.e.) ( same)

.

Although the June 2018 order was not amended to extend the duration of the

injunction

, 7 cf. Yardeni

, 418 S.W.3d at 917, appellees have since supplemented the

record with evidence of a pending motion for contempt. See Employers Mut. Cas. Co.

v. Coxsey

, 718 S.W.2d 426, 428 (Tex. App.

— Fort Worth 1986, writ dism ’ d) ( providing that

where an order “ imposing restraint on action for a certain period of time becomes moot

on expiration of the period fixed in the order, ” appellate courts may nonetheless “ find that

the pending contempt motion prevents us from concluding that the appeal before us has

become moot ” ) ; see also Cool World & Can, Inc. v. State

, No. 01

- 01

- 00966

- CV, 2002 WL

31319965, at *2 (Tex. App.

— Houston [1st Dist.] Oct. 17, 2002, no pet.) (mem. op.) ( “ [I] f

the injunction is valid, appellants are subject to being held in contempt of court.

Therefore, the appeal is not moot. ” ). The motion for contempt was filed against

appellants on October 24, 2018, alleging in part that appellant s failed to abide by the trial

court ’ s June 2018 order.

We find that the existence of the pending contempt motion forestalls a mootness

determination

, see Coxsey

, 718 S.W.2d at 428, and we review appellant ’ s first issue on

appeal

.

III. T EMPORARY I NJUNCTION

To be entitled to a temporary injunction, an applicant must plead and prove three

specific elements: (1) a cause of action against the defendant; (2) a probable right to the

7 We also note that because the unrelated appeal out of the same trial court case number resulted

in a stay of the proceedings below, appellee s were pr ecluded from seeking an extension of the injunction.9

relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru,

84 S.W.3d at 204; see T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 65.011. Should the trial court

decide to grant injunctive relief, the order itself must contain the reasons for its issuance,

be specific in terms, and describe in reasonable detail and not by reference to the

complaint or other document, the act or acts sought to be restrained. See T EX

. R. C IV

.

P

. 683 ; Transp. Co. of Tex. v. Robertson Transports, Inc.

, 261 S.W.2d 549, 553 ( Tex.

1953); Reliant Hosp. Partners, LLC v. Cornerstone Healthcare Group Holdings, Inc.

, 374

S.W.3d 488, 495 , 502 (Tex. App.

— Dallas 2012, pet. denied). The procedural

requirements of rule 683 are mandatory

, and a temporary injunction that fails to abide by

the requirements “ is subject to being declared void and dissolved. ” Qwest Commc ’ ns

Corp. v. AT&T Corp.

, 24 S.W.3d 334, 337 (Tex. 2000) ; see Sargeant v. Al Saleh

, 512

S.W.3d 399, 409 (Tex. App.

— Corpus Christi

– Edinburg 2016, no pet.)

.

Appellants argue that the June 2018 order ’ s written reference to the October 2016

order is insufficient to maintain a valid order. We agree. The pertinent parts of the June

2018 order reads as follows:

On this 28 day of September, 2016, came on for consideration Plaintiff ’ s

Application for Temporary Injunction. After notice and hearing, and based

upon the application and the evidence and arguments presented, the Court

granted a Temporary Injunction. Thereafter, the Court held an evidentiary

hearing on May 30, 2017 on Plaintiff ’ s Motion for Contempt and Defendant ’ s

Motion to Dissolve Temporary Injunction. Testimony and additional

exhibits were admitted into evidence. Further, on February 1, 2018, the

temporary injunction record was supplemented by agreed leave of court

with deposition testimony of Steve Howard and Roberto Vasquez (aka

Defendant George Garcia). The Court, having taken judicial notice of all

prior proceedings, including the ev idence presented, the pleadings,

responses and arguments of counsel, finds that the Temporary Injunction

issued on October 19, 2016 should be extended. Incorporating the Court ’ s

findings set forth in the Temporary Injunction, the Court hereby EXTENDS

the TEMPORARY INJUNCTION dated October 19, 2016.10

A subsequent order which only superficially states that material facts from a

previous temporary injunction order have been incorporated, although the subsequent

order has been substantially changed

, does not comply with the specificity requirement

of r ule 683. 8 T EX

. R. C IV

. P

. 683; s ee Arrechea v. Plantowsky

, 705 S.W.2d 186, 189

(Tex. App.

— Houston [14th Dist.] 1985, no writ) ( “ [T] he modified order cannot be read in

conjunction with the original order to supply the necessary facts. A temporary injunction

which merely states that a previous temporary restraining order is continued as a

temporary injunction does not comply with the requirement of Rule 683. ” ) ; Ahmed

, 99

S.W.3d at 689 (explaining that a modified temporary injunction acts as a replacement of

the original order); see also McDowell v. McDowell

, No. 02

- 16

- 00038

- CV, 2016 WL

4141029, at *1 (Tex. App.

— Fort Worth Aug. 4, 2016, no pet.) (mem. op.) ( “ An amended

or modified temporary injunction supersedes and implicitly vacates a prior temporary

injunction. ” )

.

We therefore conclude that the language of the June 2018 order does not comply

with rule 683 , and the order is therefore void

. See T EX

. R. C IV

. P . 683; Arrechea , 705

S.W.2d at 189 ; s ee, e.g.

, In re Chaumette

, 456 S.W.3d 299, 305 (Tex. App.

— Houston

[1st Dist.] 2014, no pet.) ( “[W] here the only part of the [ temporary

- injunction order ] that

can be construed as setting forth the reasons for its issuance reads as follows: ‘ The

Court finds

. . . Plaintiff will suffer irreparable injury for which he has no legal remedy if

this injunction is not granted. ’

. . . [ the order] does not comply with the specificity

requirements of Rule 683. ”). We sustain appellant ’ s first issue and need not address

8 Although the October 2016 order is not before the court and we make no finding regarding th e

order’s compliance with rule 683, we note that the portion of the October 2016 order which dictates several

reasons for its issuance spans five pages. See T EX

. R. C IV

. P . 683.11

appellant’s second issue

. See Qwest Commc ’ ns

, 24 S.W.3d at 337 ; see also T EX

. R.

A PP

. P. 47.1

.

I V

. C ONCLUSION

The order granting the temporary injunction is reversed, the temporary injunction

is dissolved

, and this cause is remanded to the trial court.

GREGORY T. PERKES

J u stice

Delivered and filed the

3 1st d ay of October

, 201 9

.