Opinion filed May 31, 2019

In The

Eleventh Court of Appeals 

__________

No. 11-17-00331-CV

__________

PRODUCTION LIFT COMPANIES, INC. AND WIRELINE 

SERVICES, INC., Appellants

V.

RAFAEL VALDEZ AND KENNY ORTIZ, Appellees

On Appeal from the County Court at Law No. 2

Midland County, Texas

Cause No. CC19833

M E M O R A N D U M O P I N I O N

This is an interlocutory appeal from the denial of a temporary injunction. We 

conclude that this appeal seeks an impermissible advisory opinion from this court in 

the form of an advance ruling on the merits. We dismiss the appeal.

In August 2017, Appellees, Rafael Valdez and Kenny Ortiz, resigned their 

employment with Appellants, Production Lift Companies, Inc. and Wireline 
2

Services, Inc. (collectively, Production Lift1), and immediately began working for 

one of Production Lift’s competitors. Production Lift sued Valdez and Ortiz, 

alleging they breached covenants not to compete that they signed while employed 

by Production Lift. Production Lift requested the trial court to issue a temporary 

injunction prohibiting Valdez and Ortiz from working for their new employer or for 

any other competitor of Production Lift within the Permian Basin during the 

pendency of the suit. The trial court denied the requested temporary injunction, and 

Production Lift filed this interlocutory appeal from that denial.

To obtain a temporary injunction, the applicant must plead and prove the 

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

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

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The only issue before 

the trial court in a temporary injunction hearing is whether the applicant is entitled 

to preserve the status quo pending trial on the merits. Walling v. Metcalfe, 863 

S.W.2d 56, 58 (Tex. 1993) (per curiam).

A party may not use an appeal of a temporary injunction ruling to get an 

advance ruling on the merits of an issue. Iranian Muslim Org. v. City of San Antonio, 

615 S.W.2d 202, 208 (Tex. 1981); Babu v. Zeeck, 478 S.W.3d 852, 855 (Tex. App.—

Eastland 2015, no pet.). Therefore, in an interlocutory appeal from the trial court’s 

ruling on a request for a temporary injunction, an appellate court should decline to 

reach arguments as to the merits of the case. Henry v. Cox, 520 S.W.3d 28, 33–34 

(Tex. 2017) (“We limit the scope of our review to the validity of the [temporary 

injunction] order, without reviewing or deciding the underlying merits . . . .”); 

Fuentes v. Union de Pasteurizadores de Juarez Sociedad Anonima de Capital 

Variable, 527 S.W.3d 492, 499 (Tex. App.—El Paso 2017, no pet.). Appellate 

 

1Appellants are affiliated companies.
3

review is limited to determining whether the trial court abused its discretion by 

granting or denying the requested relief. Butnaru, 84 S.W.3d at 204.

In its brief, Production Lift focuses its arguments on the merits of the ultimate 

issues to be decided in this case. Production Lift argues that the covenants not to 

compete were ancillary to an otherwise enforceable agreement, supported by 

adequate consideration, and enforceable against Valdez and Ortiz. Production Lift 

specifically prays that this court “reverse the trial court’s order and . . . enforce the 

Agreement,” the same relief Production Lift would seek in a trial on the merits. 

Production Lift does not explain in its brief how the trial court erred by failing to 

find that Production Lift established a likelihood of prevailing on the merits and that 

it had suffered a probable irreparable injury. In fact, Production makes no argument 

concerning irreparable injury in its original brief.

After Valdez and Ortiz pointed out in their brief that Production Lift had 

improperly requested this court to review the merits of the enforceability of the 

covenants not to compete, Production Lift filed a reply brief in which it argued that 

the trial court abused its discretion by conducting an improper review of the merits 

at the temporary injunction hearing. Production Lift also addressed the irreparable 

injury element for the first time in its reply brief. We decline to address issues raised

for the first time in a reply brief. See Baker v. Hertel, No. 11-13-00152-CV, 2015 

WL 1469527, at *2 (Tex. App.—Eastland Mar. 26, 2015, no pet.) (mem. op.); 

McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex. App.—Houston 

[1st Dist.] 2007, pet. denied) (“An issue raised for the first time in a reply brief is 

ordinarily waived and need not be considered by this Court.”).

Any determination we might make on the arguments presented by Production 

Lift would constitute an impermissible advisory opinion on the merits of its claims. 

See Babu, 478 S.W.3d at 855; Dallas/Fort Worth Int’l Airport Bd. v. Ass’n of 

Taxicab Operators, USA, 335 S.W.3d 361, 365–66 (Tex. App.—Dallas 2010, no 
4

pet.). We have no jurisdiction to issue advisory opinions. Valley Baptist Med. 

Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam). Resolution of issues 

on their merits must await an appeal from a final judgment in the underlying suit. 

Hiss v. Great N. Am. Cos., 871 S.W.2d 218, 220 (Tex. App.—Dallas 1993, no writ). 

Thus, in resolving this appeal, we expressly decline to reach the ultimate issue of 

whether the covenants not to compete are enforceable. See Tom James of Dallas, 

Inc. v. Cobb, 109 S.W.3d 877, 885 (Tex. App.—Dallas 2003, no pet.).

Further, the appeal of a trial court’s decision on an application for a temporary 

injunction “shall constitute no cause for delay of the trial.” TEX. R. CIV. P. 683. 

Appeals from temporary injunction proceedings are expressly excluded from the 

automatic stay provisions of Section 51.014 of the Civil Practice and Remedies 

Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (West Supp. 2018); 

Brar v. Sedey, 307 S.W.3d 916, 920 (Tex. App.—Dallas 2010, no pet.). At the outset 

of this appeal, we requested that the parties advise us of the trial court’s setting of 

the trial on the merits in this case. The parties have not advised the court that the 

case has been set for trial on the merits, and we have confirmed with the clerk of the 

trial court that the case has not been set for trial on the merits.

The fastest way to cure the hardship of an unfavorable preliminary order is to 

try the case on the merits. Babu, 478 S.W.3d at 855; see also Sw. Weather Research, 

Inc. v. Jones, 327 S.W.2d 417, 422 (Tex. 1959). In order to reduce the need for 

interlocutory appeals, a trial court should proceed expeditiously from the grant or 

denial of temporary injunctive relief to full consideration of the merits of the dispute. 

Babu, 478 S.W.3d at 855–56; Dallas/Fort Worth Int’l Airport Bd., 335 S.W.3d at 

366 n.7. We cannot condone the failure to pursue the trial on the merits of the 

underlying case in an effort to obtain an opinion from this court regarding whether 

the covenants not to compete are enforceable against Valdez and Ortiz. See 

Dallas/Fort Worth Int’l Airport Bd., 335 S.W.3d at 367; see also Babu, 478 S.W.3d 
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at 855–56. “[J]udicial economy dictates that we not reward such efforts.” Barnett v. 

Manuel Griego, Jr., D.O., P.A., 337 S.W.3d 384, 387 (Tex. App.—Dallas 2011, no 

pet.). Moreover, the trial court’s refusal to grant a temporary injunction was based 

on the record presented at the temporary injunction hearing. We will not assume 

that the evidence taken at a preliminary hearing will be the same as the evidence 

developed at a full trial on the merits. See Cobb, 109 S.W.3d at 885.

Because Production Lift seeks an advisory ruling on the merits of the 

enforceability of the covenants not to compete and because the parties have not 

proceeded expeditiously to try the merits of Production Lift’s claims, we decline to 

address Production Lift’s complaints on appeal.

This Court’s Ruling

We dismiss this interlocutory appeal.

JOHN M. BAILEY 

CHIEF JUSTICE

May 31, 2019

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.

 

2

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.