DISMISS and Opinion Filed February 10, 2023 

S 

In the 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00324-CV 

LEO BIENATI, THERESA PHAM, CARLOS LACAYO, AND ANDRES 

RUZO, Appellants 

V. 

CLOISTER HOLDINGS, LLC, Appellee 

On Appeal from the 134th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-21-17448 

MEMORANDUM OPINION 

Before Justices Carlyle, Goldstein, and Kennedy 

Opinion by Justice Carlyle 

 This is an accelerated interlocutory appeal from a temporary injunction. 

Because the trial of the merits of the case below has been stayed in an effort to seek 

an advisory opinion from this Court, we dismiss the appeal. 

 Appellants Leo Bienati and Theresa Pham formed Holy Kombucha, Inc. 

(HKI) in 2014. In January 2021, HKI entered into a loan and security agreement 

with an affiliate of Montgomery Capital Advisors, LLC (MCA) to refinance HKI’s 

existing debt. Several months later, in April 2021, appellee Cloister Holdings, LLC 

acquired a shareholder interest of 45% in HKI. 
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 HKI’s April 20, 2021 “Amended and Restated Shareholders Agreement” 

provided, “No meeting of the Board may proceed to business or transact any 

business unless a Quorum is present throughout the meeting. For that purpose, a 

quorum of the Board requires the presence of . . . at least one Cloister Nominee . . . .” 

Additionally, the Shareholders Agreement stated (1) “[t]his Agreement may not be 

amended, terminated, modified or supplemented and no waivers of or consents to 

departures from the provisions hereof may be given unless consented to in writing 

by Super-Majority Vote” and (2) “‘Super-Majority Vote’ means (i) if MCA holds 

MCA Interest, the affirmative vote of a simple majority of the Board, and (ii) if MCA 

does not hold MCA interest, the affirmative vote (by written consent or at a duly 

authorized meeting of the Shareholders of the Company) of the holders of more than 

85% of the Voting Shares authorized to vote on the question at issue.” In November 

2021, three members of HKI’s five-person Board—Mr. Bienati, Ms. Pham, and 

appellant Andres Ruzo—voted by written consent to amend the Shareholders 

Agreement to, among to other things, eliminate the requirement that a “Quorum” 

must include a “Cloister Nominee” (the Amendment). 

 Cloister filed this lawsuit against appellants on December 9, 2021, contending 

the Amendment “fraudulently ‘eliminated’ Cloister, its 45% ownership and its votes 

on HKI’s board.” Cloister asserted, among other claims, breach of fiduciary duty, 

conversion, theft, embezzlement, misappropriation, fraud in the inducement, 

negligent misrepresentation, breach of contract, and unjust enrichment. Cloister also 
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sought a temporary injunction, which the trial court granted on March 24, 2022. The 

temporary injunction enjoined appellants from “changing, altering, or limiting 

Cloister’s ‘Quorum’ rights” “through the ‘WRITTEN CONSENT IN LIEU OF A 

SPECIAL MEETING OF THE BOARD OF DIRECTORS’” and set “full trial on 

the merits” for January 23, 2023. Appellants timely filed this interlocutory appeal on 

April 11, 2022. 

 While this appeal was pending, the trial court signed an August 31, 2022 

“Amended Temporary Injunction,” which was the same as the original except for the 

following provision: 

 Due to a clerical error, the court’s TEMPORARY INJUNCTION, 

dated March 25, 2022, erroneously stated that “bond had already been 

paid”, THEREFORE, the court is making this amended TEMPORARY 

INJUNCTION order to correct this error, as follows: 

 IT IS FURTHER ORDERED, by the Court, that a bond in the 

 amount of $7,500.00 is hereby set and shall be paid into the 

 registry of the court, within three (3) days of the date of this 

 order. 

 Though this appeal was originally set for October 12, 2022 submission in this 

Court, we granted appellants’ unopposed September 28, 2022 motion to allow 

supplemental briefing and to reset the submission date “for after the supplemental 

briefing is complete.” Meanwhile, the trial court held an October 12, 2022 hearing 

on a motion by Cloister to “extend deadlines in scheduling order” and a motion by 

defendants “for continuance and to extend deadlines.” Following that hearing, the 

trial court signed an October 17, 2022 order extending several deadlines and stating, 
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“After the arguments of and discussions with counsel, it is ORDERED: . . . In all 

respects the underlying case is abated until either the 5th Court of Appeals rules on 

defendants’ Interlocutory Appeal or Thursday, January 5, 202[3], when a hearing 

shall be held, whichever occurs first.” In December 2022, this Court reset this appeal 

for submission on January 31, 2023. 

 Appellants challenge both the original and amended temporary injunctions, 

asserting, among other things, (1) Cloister failed to show a probable right to recovery 

because the Amendment to the Shareholders Agreement was proper; (2) Cloister has 

not shown it would suffer probable, imminent, and irreparable injury without the 

injunctive relief; and (3) the bond amount set by the trial court is insufficient to 

protect appellants’ interests because due to the temporary injunction and Cloister’s 

“refusal to participate in any Board meetings” until this litigation is resolved, HKI 

is experiencing a “financial crisis” and “could face foreclosure at any time.” 

 During oral submission on January 31, 2023, this Court noted that the trial 

date set in the temporary injunction had passed and asked counsel about the status 

of a trial setting. Appellants’ counsel stated that the case is currently “abated” in the 

trial court because of this pending appeal. Counsel was not aware of any set trial 

date. Counsel stated that because the probable right to recovery issue could impact 

the merits of the entire case, the trial court “abated it until this Court weighed in on 

the merits of the temporary injunction and whether there’s a probable right to 

recovery.” 
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 The appeal of a temporary injunction “shall constitute no cause for delay of 

the trial.” TEX. R. CIV. P. 683. We have repeatedly disapproved the practice of 

postponing the trial on the merits of a case to obtain a ruling on the appeal of a 

temporary injunction. See Torres v. Brookins, No. 05-18-00028-CV, 2018 WL 

2382112, at *2 (Tex. App.—Dallas May 25, 2018, no pet.) (mem. op.); DK8, LLC v. 

HBT JV, LLC, No. 05-16-00320-CV, 2016 WL 6094308, at *2 (Tex. App.—Dallas 

Oct. 19, 2016, no pet.) (mem. op.); Senter Invs., L.L.C. v. Veerjee, 358 S.W.3d 841, 

846 (Tex. App.—Dallas 2012, no pet.); Brar v. Sedey, 307 S.W.3d 916, 920 (Tex. 

App.—Dallas 2010, no pet.); Hiss v. Great N. Am. Cos., Inc., 871 S.W.2d 218, 220 

(Tex. App.—Dallas 1993, no writ); Reeder v. Intercontinental Plastics Mfg. Co., Inc., 

581 S.W.2d 497, 499 (Tex. App.—Dallas 1979, no writ). This practice not only 

delays the ultimate resolution of the merits of the parties’ dispute but wastes judicial 

resources. Torres, 2018 WL 2382112, at *2; DK8, LLC, 2016 WL 6094308, at *2; 

see also Arch Resorts, L.L.C. v. City of McKinney, No. 05-15-01108-CV, 2016 WL 

3196767, at *1 (Tex. App.—Dallas May 26, 2016, no pet.) (mem. op.); Barnett v. 

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

pet.). 

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

to try the case on the merits.” Torres, 2018 WL 2382112, at *2 (citing Hiss, 871 

S.W.2d at 219); see also DK8, LLC, 2016 WL 6094308, at *2; Arch Resorts, 2016 

WL 3196767, at *1. The trial court should “proceed expeditiously from the grant or 
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denial of temporary injunctive relief to full consideration of the merits to reduce the 

need for interlocutory appeals.” Arch Resorts, 2016 WL 3196767, at *1. 

 Here, the proceedings in the trial court have been stayed in an effort to obtain 

an advisory opinion from this Court. See Torres, 2018 WL 2382112, at *2; Barnett, 

337 S.W.3d at 387. Judicial economy dictates that we not reward this behavior. See 

Torres, 2018 WL 2382112, at *2; DK8, LLC, 2016 WL 6094308, at *2; see also 

Dallas/Fort Worth Int’l Airport Bd. v. Ass’n of Taxicab Operators, USA, 335 S.W.3d 

361, 364 (Tex. App.—Dallas 2010, no pet.) (stating court of appeals has no 

jurisdiction to issue advisory opinions). Thus, we decline to address appellants’ 

arguments and we dismiss this appeal.1 See Torres, 2018 WL 2382112, at *2; DK8, 

LLC, 2016 WL 6094308, at *2; Hiss, 871 S.W.2d at 220. 

 

220324F.P05 

 

1

 Appellants’ post-argument filing sought to dilute the position taken at oral argument, where counsel 

described the trial court abatement as waiting for an opinion from this Court because the questions at issue 

were inextricably tied to the case’s merits. Though the filing provides additional detail, the fact remains 

that the trial court and appellants at least have sought an advisory opinion from this Court. 

/Cory L. Carlyle/

CORY L. CARLYLE 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

LEO BIENATI, THERESA PHAM, 

CARLOS LACAYO, AND 

ANDRES RUZO, Appellants 

No. 05-22-00324-CV V. 

CLOISTER HOLDINGS, LLC, 

Appellee 

 On Appeal from the 134th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-21-17448. 

Opinion delivered by Justice Carlyle. 

Justices Goldstein and Kennedy 

participating. 

 In accordance with this Court’s opinion of this date, the appeal is 

DISMISSED. 

 It is ORDERED that appellee CLOISTER HOLDINGS, LLC recover its 

costs of this appeal from appellants LEO BIENATI, THERESA PHAM, CARLOS 

LACAYO, AND ANDRES RUZO. 

Judgment entered February 10, 2023