## NUMBER 13

- 1 9

- 00196

- CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRIST I

– EDINBURG

AHTNA SUPPORT & TRAINING

SERVICES, LLC

, A ppellant,

v.

ASSET PROTECTION & SECURITY

SERVICES, LP

, Appellee.

On appeal from th e 357th District Court

of Cameron County, Texas.



## MEMORANDUM OPINION

Before Justices Benavides, Perkes

, and Tijerina

Memorandum Opinion by Justice Perkes

Appellant

, Ahtna Support & Training Services, LLC ( Ahtna )

, bring s this

interlocutory appeal from the trial court ’ s temporary injunction order in favor of appellee

,

Asset Protection & Security Services, L P (Asset)

. See T EX

. C IV

. P RAC

. & R EM

. C ODE2

§ 51.014(a)(4) (allowing interlocutory appeal from an order granting a temporary

injunction)

. By two issues, Ahtna argue s that the trial court erred (1) “in not taking

evidence at the temporary injunction hearing ” and (2) by granting a temporary injunction

“ when the evidence in the record does not reasonably support the findings in the

temporary injunction order of probable injury or probable right of recovery. ” We affirm.

I. B ACKGROUND

This matter concerns a contract dispute between Asset and Ahtna. In early 2015,

the Department of Homeland Security (DHS) awarded Ahtna a prime contract to provide

guard and transportation services at a government detention center located in Los

Fresnos, Texas. On March 30, 2015, Ahtna subcontracted with Asset for a seven

- year

term to provide staff for services required under Ahtna ’ s prime contract

. T he two

companies operated without issue until late 2018.

In October 2018, Ahtna contacted Asset to communicate an inquiry submitted by

DHS concerning a payroll discrepancy involving a single Asset employee

. Neither party

disputes that upon notice, Asset rectified the payroll “clerical error

. ” Ahtna claims it then

“ became concerned that Asset was improperly paying its employees under other

Government contracts for similar services to those it was providing at the [subcontracted

facility]

, ” and a ny financial impropriety by Asset “exposed [Ahtna] to u nfavorable

consequences under the Prime Contract with the Government and potentially under the

False Claims Act .”

On December 20, 2018, Ahtna sent Asset a written request

, titled “ N otice to C ure, ”

demanding “ documentation and proof that all health and welfare monies owed to all Asset

probationary employees for any government contract that Asset has performed on for the

last 10 years have been paid. ” Asset responded on December 21st

, asking that Ahtna3

(1) “ specify the contractual provision or regulation that authorized its request ” ; and

(2) “ tailor its request consistent with the

. . . S ubcontract. ” Asset also invoked the

subcontract ’ s “ Disputes ” clause in an attempt to resolve the matter. 1

O n January 11, 2019, Ahtna issued a notice of subcontract termination

, effective

January 26, 2019

. 2 A s just cause for termination

, Ahtna cited “ Asset ’ s conscious choice

to ignore [ Ahtna ’ s] request and avoid verification of proper payroll practices

. ”

On January 22, 2019

, Asset filed suit against Ahtna, assert ing two causes of

action: a breach

- of

- contract claim and a request for a declaratory judgment under the

Texas Civil Practices and Remedies Code. 3 Asset sought to enjoin Ahtna from

“wrongfully attempting to terminate its subcontract” with Asset

, submitt ing its request for

a temporary restraining order and application for a temporary injunction. 4 On M arch 21,

2019, Ahtna filed its original answer and counterclaim for breach of contract against

Asset

.

1 Asset ’ s written response to Ahtna reads, in part, as follows:

Asset hereby invokes the “ Disputes Clause ” (paragraph 7 of the Subcontract) as our

position on this matter is that [ Ahtna ] does not have either contractual authority or statutory

authority to make these demands beyond the confines of the Subcontrac t period []

. Per

paragraph 7 of the Subcontract, we propose that the appropriate forum for resolution of

this dispute be a discussion between your legal representatives and our lega l

representatives. Per the Disputes Clause, should this forum either be rejected or fail to

resolve the issue, then any further action to resolve the issue of your authority would be a

matter for the Courts of Texas.

2 There is nothing in the record indicat ing that , apart from its “Notice to Cure” letter, Ahtna sought

mediation of the matter

, pursuant to Asset’s request

, prior to issuing the notice to terminate. In d e position

testimony read into the record at a later held temporary injunction hearing, Ahtna President Victoria Dunlap

could not “ recall ” whether Ahtna tried to negotiate alternatives to termination prior to issuing the notice

.

3 Asset alleges Ahtna’s notification of termination and subsequent termination defies the

subcontract terms and was executed in retaliation after Asset , acting as the prime contractor in a separate

out

- of

- state contract, notified its subcontractor, an Ahtna affiliate

, that it would not be renewing its

subcontract.

4 The lawsuit was removed to federal court on January 28, 2019. On March 8, 2019, the fede ral

court remanded the lawsuit for want of jurisdiction

.4

On April 11, 2019, the trial court conducted an evidentiary hearing on Asset ’ s

application for a temporary injunction. After hearing arguments from counsel and without

receiving any evidence on the record, the trial court issued a temporary injunction order

in favor of Asset

. The order prohibited Ahtna from: “[c]laiming to [federal agents], Asset’s

employees, or any third party that Asset has been removed or terminated from the

Subcontract on any of the grounds stated in [Ahtna’s] January 11, 2019 termination

notice

. . . ”; a nd “ [t]erminating or attempting to terminate the Subcontract between Asset

and [ Ahtna ] on the grounds stated in [ Ahtna ’ s ] January 11 , 2019 termination notice

. . . .”

Ahtna timely perfected its interlocutory appeal of the trial court ’ s temporary

injunction order. While the appellate case remained pending, Asset filed a “ Motion to

Reopen Hearing on Application for Temporary Injunction and Modify Temporary

Injunction. ”

On May 16, 2019

, the trial court granted Asset ’ s motion and conducted a

supplemental hearing, wherein Asset admitted several exhibits, including the parties ’

subcontract agreement and emails, letters, and faxes sent between the two parties

,

detailing the deterioration of the parties ’ professional relationship. A dditionally, A sset put

forth one witness, its president and chief executive officer, Charles Scott Mandel.

Mandel testified that Asset currently employs 200 individuals at the facility under

the subc on tract

. Mandel stated that Asset “ gave [Ahtna] everything they asked [for] ”

pertain ing to the facility to address Ahtna’s complained

- of concerns

. Asset did not deliver,

however, information which predated its contract with A htna or information pertaining to

other governmental contracts. According to Mandel, Ahtna ’ s request and termination

notice contravened the subcontract ’s terms

, and Ahtna’s unsubstantiated allegations “that

Asset was ‘likely not conducting its business in accordance with local, state, and federal5

laws’ ” has affected Asset’s reputation and diminished its likelihood of receiving future bids

from the federal government

. At the conclusion of the evidentiary hearing, t he trial court

issued its “ Amended Order Granting Temporary Injunction

. ” 5

II. T EMPORARY I NJUNCTION

Ahtna ’ s two arguments on appeal relate to the trial court ’ s undisputed erroneous

issuance of the initial temporary injunction order. Asset counters that following the trial

court ’ s subsequent hearing and amended order, any complained

- of errors have been

cured and Ahtna’s arguments are now moot.

A. Standard of Review

A temporary injunction hearing allows the trial court to determine whether the party

seeking temporary injunctive relief is entitled 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). To obtain temporary injunctive relief, “ the applicant must plead and

prove three specific elements: (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. Should a trial court grant an injunction

, Rule 683 of the Texas Rules of Civil

Procedure dictates that the order “ shall set forth the reasons for its issuance; shall be

specific in terms; shall describe in reasonable detail and not by reference to the complaint

or other document, the act or acts sought to be restrained[.] ” T EX

. R. C IV

. P

. 683.

We review a trial court ’ s decision to grant or deny an application for temporary

injunction for abuse of discretion. Butnaru

, 84 S.W.3d at 2 11 ; Super Starr Int ’ l, LLC v.

5 Although Ahtna submitted an amended brief on May 20, 2019, four days after the trial court’s

amended temporary injunction order , Ahtna’s brief makes no mention of the trial court’s amended order or

second temporary injunction hearing.6

Fresh Tex Produce, LLC

, 531 S.W.3d 829, 838 (Tex. App.

— Corpus Christi

– Edinburg

2017, no pet.). It is an abuse of discretion when the trial court acts “ arbitrarily and

unreasonably, without reference to guiding rules or principles, or misappl[ies] the law to

the established facts of the case. ” Bay Fin. Savs. Bank, FSB v. Brown

, 142 S.W.3d 586,

589 (Tex. App.

— Texarkana 2004, no pet.) (citing Downer v. Aquamarine Operators, Inc.

,

701 S.W.2d 238, 241

– 42 (Tex. 1985)). It is not an abuse of discretion “ if some evidence

reasonably supports the trial court ’ s decision. ” Butnaru , 84 S.W.3d at 211.

B

. Modification

If

, after an appeal has been perfected, a trial court modifies the appealed

- of order,

the reviewing court “ must treat the appeal as from the subsequent order or judgment and

may treat actions relating to the appeal of the first order or judgment as relating to the

appeal of the subsequent order or judgment. ” T EX

. R. A PP

. P. 27.3; see also Flamingo

Permian Oil & Gas, L.L.C. v. Star Expl., L.L.C.

, 569 S.W.3d 329, 332 (Tex. App.

— El Paso

2019, no pet.) ; Parker v. Schlumberger Tech. Corp.

, 475 S.W.3d 914, 926 (Tex. App.

—

Houston [1st Dist.] 2015, no pet.) ; Tex. Health & Human Servs. Comm ’ n v. Advocates for

Patient Access, Inc.

, 399 S.W.3d 615, 625 (Tex. App.

— Austin 2013, no pet.). Where the

complained

- of defects of an initial order are remedied in the issuance of a subsequent

order, the initial complaints become moot. Flamingo

, 569 S.W.3d at 331 ( dismissing as

moot three issues rectified by the issuance of a subsequent order executed while the

appeal was pending); see also Smith v. Smith, 681 S.W.2d 793, 797 (Tex. App.

— Houston

[14th Dist.] 1984, no writ).

The appellate record here indicates that the April temporary injunction order was

superseded by the amended o rder

. Moreover, prior to the issuance of the amended order

in May

, the trial court held a proper evidentiary hearing

. Therefore, Ahtna ’ s complained

-7

of first issue

— that the trial court failed to hear any evidence prior to issuing its ruling 6

—

has since been corrected

. See Flamingo

, 569 S.W.3d at 332; Advocates for Patient

Access, Inc.

, 399 S.W.3d at 625; see also Compass Bank, N.A. v. SanJeck, LLP

, No. 05

-

11

- 00913

- CV, 2012 WL 601191, at *2 (Tex. App.

— Dallas Feb. 23, 2012, no pet.) (mem.

op.). Ahtna ’ s first issue is overruled

.

Ahtna ’ s second issue similarly argues that the trial court improperly relied on

Asset ’ s pleadings as evidence in its issuance of the temporary injunction :

Since no testimony or documentary evidence was presented at the

temporary injunction hearing, there was no basis for the trial court to make

the findings and conclusions set out in its temporary injunction order. This

is an abuse of discretion that warrants the temporary injunction being

declared void and dissolved.

However, at the subsequent hearing, Asset brought forth evidence in support of its

application via multiple exhibits and a live witness

, 7 the trial court considered said

evidence

, Ahtna does not challenge this evidence, and only “some evidence” is required

to “support[] the trial court’s decision

. ” S ee Butnaru , 84 S.W.3d at 211. Accordingly, the

trial court did not abuse its discretion by granting Asset’s application for a temporary

injunction. 8 See id. Ahtna’s second argument is overruled.

6 No temporary injunction may issue unless the applicant offers competent evidence in support of

his application at the temporary injunction hearing

. Millwrights Local Union No. 2484 v. Rust Eng ’ g Co.

, 433

S.W.2d 683, 686

– 87 (Tex. 1968) ; see also In re Tex. Na t. Res. Conservation Comm ’ n

, 85 S.W.3d 201 , 204

(Tex. 2002) (noting temporary injunctions require more stringent proof requirements than temporary

restraining orders that can issue on sworn pleadings) ; Shamoun & Norman, LLP v. Yarto Intern. Group, LP

, 398 S.W.3d 272, 282 (Tex. App.

— Corpus Christi

– Edinburg 2012, pet. dism ’ d); Bay Fin. Sav. Bank, FSB v.

Brown , 142 S.W.3d 586, 589

– 90 (Tex. App.

— Texarkana 2004, no pet.).

7 Mandel specifically testified to Asset’s two causes of action, its right to relief sought, and the

irreparable injury the company would face should an injunction not issue. See Butnaru v. Ford Motor Co.

, 84 S.W.3d 198, 204 (Tex. 2002).

8 We additionally note that an unchallenged independent basis supports the trial court’s

complained of order, and “we must accept the validity of that unchallenged independent ground, and thus

any error in the grounds challenged on appeal is harmless because the unchallenged independent ground

fully supports the complained

- of ruling or judgment.” Hartwell v. Lone Star, PCA , 528 S.W.3d 750, 7638 III. C ONCLUSION

The trial court ’ s judgment is affirmed

.

GREGORY T. PERKES

J u stice

Delivered and filed the

9th day of April , 2020.

(Tex. App.

— Texarkana 2017, pet. dism’d) (quoting Oliphant Fin. LLC v. Angiano , 295 S.W.3d 422, 424

(Tex. App.

— Dallas 2009, no pet.)). The trial court’s written findings in the temporar y injunction support a

conclusion that Asset had s hown a cause of action for breach of c ontract and a declaratory judgment action,

and Asset has shown a probable right of recovery on those claims. Since this ground has not been

challenged and fully supports the trial court’s order, Ahtna has not shown harmful error related to these

elements. See id

.