NUMBER 13-18-00233-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

SUPER STARR INTERNATIONAL, LLC,

LANCE PETERSON, RED STARR, 

SPR DE R.L. DE C.V., AND 

KEMAL MERT GUMUS, Appellants,

v.

FRESH TEXAS PRODUCE, LLC, 

INDIVIDUALLY AND DERIVATIVELY

ON BEHALF OF TEX STARR

DISTRIBUTING, LLC, Appellees.

 

On appeal from the 92nd District Court

of Hidalgo County, Texas.

 

MEMORANDUM OPINION ON REHEARING

Before Chief Justice Contreras and Justices Benavides and Hinojosa

Memorandum Opinion by Justice Hinojosa

On April 18, 2019, this Court issued a memorandum opinion affirming the trial 
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court’s judgment. Appellants Super Starr International, LLC, Lance Peterson, and Red 

Starr, SPR de R.L. de C.V. then filed a motion for rehearing.1 After due consideration, 

we grant appellants’ motion for rehearing, withdraw our prior memorandum opinion and 

judgment and substitute the following in its place. 

Appellants appeal from an order modifying a previously rendered temporary 

injunction. In nine issues, which we construe as three, appellants complain that the trial 

court abused its discretion by signing the modified temporary injunction on the grounds 

that: (1) there is legally insufficient evidence supporting various aspects of the modified

temporary injunction, thereby negating any right to continued injunctive relief; (2) the trial 

court abused its discretion by admitting an exhibit tendered by appellee Fresh Tex 

Produce, LLC, individually and derivatively on behalf of Tex Starr Distributing, LLC; and 

(3) the modified temporary injunction is overly broad and fails to comport with Texas Rule 

of Civil Procedure 683. We reverse and remand in part and affirm in part.

I. BACKGROUND

This is the third interlocutory appeal involving the same underlying business 

dispute.2 See Super Starr Int’l Produce, LLC v. Fresh Tex Produce, LLC, 531 S.W.3d 

829 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.) (Super Starr I); Super Starr Int’l 

Produce, LLC v. Fresh Tex Produce, LLC, No. 13-17-00184-CV, 2017 WL 4054395 (Tex. 

App.—Corpus Christi–Edinburg Sep. 14, 2017, no pet.) (mem. op.) (Super Starr II). We 

 1 Appellant Kemal Mert Gumus did not file a motion for rehearing.

2 Appellant Kemal Mert Gumus did not participate in the appeal in Super Starr I. See Super Starr 

Int’l Produce, LLC v. Fresh Tex Produce, LLC, 531 S.W.3d 829, 833 n.2 (Tex. App.—Corpus Christi–

Edinburg 2017, no pet.). Since then, Gumus has answered the suit filed by the Distributor and filed a 

notice of appeal from the modified temporary injunction.
3

will refer to the parties as we did in our previous opinions: Fresh Tex Produce, LLC (the 

Distributor); Tex Starr Distributing, LLC (the LLC); Super Starr International, LLC (the 

Importer); Lance Peterson, the current president of the Importer; Red Starr, SPR de R.L. 

de C.V. (the Grower); and Gumus, an employee of the Importer.

Generally, the Distributor and the Importer created the LLC for the purpose of 

importing, marketing, and distributing a hybrid papaya to customers in the United States. 

Super Starr I, 531 S.W.3d at 834. The LLC’s operating agreements included an 

exclusivity provision that expired at the end of 2015. Id. at 835. After the exclusivity 

period expired, the Importer ceased supplying the LLC with hybrid papayas and began 

importing, marketing, and distributing the hybrid papayas on its own. Id. at 835–36. 

The Distributor sued the Importer, the Grower, Peterson, and Gumus, asserting several 

claims and seeking injunctive relief. Id. at 836. The trial court signed a temporary 

injunction order that included three broad classes of provisions: (1) exclusivity 

provisions, (2) non-competition provisions, and (3) a preservation of electronic information 

provision. Id. at 837. 

The appellants in Super Starr I successfully challenged the legal sufficiency of the

evidence supporting the Distributor’s claims that served as a basis for the injunction’s 

exclusivity provisions. Id. at 841–42. They did not dispute that some evidence existed 

that would theoretically sustain the Distributor’s claim under the Texas Uniform Trade 

Secrets Act (TUTSA), which formed part of the basis for the non-competition restrictions. 

Id. at 843–44 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 134A.003(a)). We reversed 

and rendered a denial of the exclusivity and preservation of electronic information 
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provisions. Super Starr I, 531 S.W.3d at 852. We reversed the non-competition 

provisions and remanded those provisions with instructions to redefine “soliciting” so as 

to not prohibit mass advertising and to redraft the non-competition restrictions by defining 

“growers,” “customers,” accounts,” “trade secrets,” and “confidential information.” Id. 

At the time of remand, the non-competition provisions restricted appellants from:

[2.] Soliciting or conducting business with [the Distributor’s] customers or 

growers;

[3.] Soliciting, directly or indirectly, accounts of [the LLC] or [the 

Distributor]; [and]

. . . .

[7.] Using trade secrets and confidential information owned by [the LLC] 

or [the Distributor];

Id.

After remand and the issuance of our mandate in Super Starr I, the Grower, the 

Importer, and Lance Peterson filed a motion to enforce mandates with the trial court.

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This motion argued, in relevant part:

The three remanded restrictions should be denied for lack of evidence. No 

evidence exists in the record to support further definition of the remanded 

restrictions. As the court of appeals explained, these restrictions were void 

as written and thus had to be reversed. See, e.g., [Super Starr I, 531 

S.W.3d at 850] (“[The Super Starr Defendants] contend that [Restriction 7] 

is void for vagueness because ‘trade secrets’ is undefined. We agree.”). 

[The Distributor] has not offered further evidence to support these 

restrictions or requested that this Court comply with the instructions of the 

court of appeals. As a result, the Court should deny the remanded 

restrictions.

 3 This motion sought enforcement of our mandates in Super Starr I and Super Starr II. Only our 

mandate in Super Starr I is at issue in the instant appeal.
5

The trial court held a hearing on the motion to enforce mandates at which Kenneth 

Alford—the Distributor’s president, Gumus, and Peterson testified. It admitted sixteen 

exhibits, which generally consisted of the Distributor’s produce invoices and quote sheet 

and the Importer’s quote sheet, which the Distributor argued mimicked its own. 

Following the hearing, the trial court signed a modified temporary injunction, which 

provides in relevant part:

The Court hereby ORDERS that Defendants—along with their 

respective agents, servants, employees, and those acting in concert 

therewith—are hereby immediately enjoined from:

[2.4] Soliciting or conducting business with [the Distributor’s] 

customers or growers;

[3.] Soliciting, directly or indirectly, accounts of [the Distributor] or 

[the LLC]; and

[7.] Using trade secrets and confidential information owned by 

[the Distributor] or [the LLC];

“Soliciting” shall not be construed, for purposed [sic] of this temporary 

injunction, as prohibiting mass advertising. “Confidential information” 

means “membership agreements, membership lists, intellectual property, 

finances, methods of operation and competition, pricing, marketing plan and 

strategies, equipment and operational requirements, and information 

concerning personnel, clients, customers, independent contractors, 

suppliers and growers of [the LLC].” “Trade Secrets” includes “Confidential 

information” and also includes “lists of suppliers, growers and customers, 

method of operation of grading and classifying papayas and method of 

ripening and storing papayas.” “Customers” are defined as those entities 

listed on Exhibit “A” which is attached hereto and incorporated herein except 

that those entities which are listed on both Exhibit “B” which is attached 

hereto and incorporated herein and on Exhibit “A” may be contacted but 

only for the purpose of selling papaya. “Accounts” has the same definition 

as “Customers.” “Growers” are the entities and individuals identified on 

Exhibit “C” attached hereto and incorporated herein.

 4 For consistency, we will continue to refer to the restrictions as they were numbered in Super Starr 

I.
6

The Grower, the Importer, Peterson, and Gumus have appealed from the modified 

temporary injunction. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4); W. I-10 

Volunteer Fire Dep’t v. Harris Cty. Emergency Servs. Dist. No. 48, 507 S.W.3d 356, 358–

59 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (concluding that an appellate court has 

jurisdiction to review an interlocutory order modifying a temporary injunction because it 

effectively dissolves a temporary injunction and grants a new one); Cessna Aircraft Co. 

v. Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex. App.—Dallas 2011, no pet.) 

(explaining that parties retain the right to appeal a trial court’s determination of issues on

remand from the appellate court).

II. DISCUSSION

A. Waiver / Law of the Case

In what we construe as appellants’ first issue, they contend that there is legally 

insufficient evidence supporting various aspects of the modified temporary injunction, 

thereby negating any right to continued injunctive relief. In four sub-issues, appellants 

complain that the Distributor failed to present legally sufficient evidence regarding: (a) 

its TUTSA claim; (b) a probable, imminent, and irreparable injury regarding sales of the 

hybrid papayas; (c) a nexus between the information appellants allegedly acquired and 

the acts enjoined; (d) a probable right of recovery on any claim against the Grower; and 

(e) the definitions of “customers,” “accounts,” and “grower” included in the modified 

temporary injunction. The Distributor responds that appellants are barred from lodging 

their legal sufficiency challenge under the doctrines of law of the case “and/or” waiver. 

Where error exists at the time of an initial appeal, but it is not raised by the 
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appellant, the appellant waives the right to complain of the error in a subsequent appeal. 

See Deaton v. United Mobile Networks, L.P., 966 S.W.2d 113, 115 (Tex. App.—

Texarkana 1998, pet. denied); Koch Gathering Sys., Inc. v. Harms, 946 S.W.2d 453, 457–

58 (Tex. App.—Corpus Christi–Edinburg 1997, writ denied); Harris County v. Walsweer, 

930 S.W.2d 659, 665–66 (Tex. App.—Houston [1st Dist.] 1996, writ denied); Tex. Dep’t 

of Transp. v. Cotner, 877 S.W.2d 64, 66 (Tex. App.—Waco 1994, writ denied); see also

Women’s Clinic of S. Tex. v. Alonzo, No. 13-12-00537-CV, 2013 WL 2948413, at *2 (Tex. 

App.—Corpus Christi–Edinburg June 13, 2013, pet. denied) (mem. op.); Cessna, 345 

S.W.3d at 144 (“When an appellate court remands a case with specific instructions, the 

trial court is limited to complying with the instructions and cannot re-litigate issues 

controverted at the former trial.”).

In Super Starr I, the Grower and Importer lodged numerous legal sufficiency 

challenges. But, they did not challenge the legal sufficiency underlying the Distributor’s 

request for temporary injunctive relief premised on a TUTSA claim. Super Starr I, 531 

S.W.3d at 843 (“Appellants do not challenge that some evidence was presented that 

would theoretically sustain a claim under the Texas Uniform Trade Secrets Act 

(TUTSA)[.]”). Therefore, we conclude that appellants have waived their legal sufficiency 

challenges by not raising them in Super Starr I.

Further, to the extent appellants reassert legal sufficiency challenges already 

addressed in Super Starr I, we will not revisit our previous determinations which now 

constitute law of the case. See Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 

S.W.3d 177, 182 (Tex. 2012) (“By narrowing the issues in successive appeals, the law-
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of-the-case doctrine further seeks to promote efficiency and uniformity in the decisionmaking process.”); Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). 

As reframed, sub-issues 1a, 1b, and 1c are overruled. 

In sub-issue 1d, appellants rely on our holding in Super Starr I that there was no 

evidence in the record that could reasonably support the trial court’s decision to grant 

injunctive relief premised on aiding and abetting in the breach of fiduciary duty, which was 

the only claim asserted against the Grower. 531 S.W.3d at 847–48, n.7. In light of this 

holding, appellants argue that the trial court abused its discretion in enjoining the Grower. 

The Distributor “concedes that the modified injunction should not enjoin the Grower.” 

Recognizing that our previous determination is the law of the case, we conclude that the

Distributor presented no evidence demonstrating a probable right of recovery on any 

claim against the Grower. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 

2002) (identifying the elements required for an applicant to obtain a temporary injunction). 

Therefore, the trial court abused its discretion by including the Grower in the modified 

temporary injunction. 

As re-framed, sub-issue 1d is sustained.

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B. “Customers,” “Accounts,” and “Growers”

Sub-issue 1e and issue 2 both relate to the trial court’s actions in following our

previous remand instructions to define “customers,” “accounts,” and “growers.” Super 

Starr I, 531 S.W.3d at 852.

In what we construe as appellants’ second issue, they contend that the trial court 

 5 Sub-issue 1e, which challenges the legal sufficiency of the evidence supporting the trial court’s 

definitions of “customers,” “accounts,” and “growers,” implicates appellants’ second issue. 
9

abused its discretion by overruling their hearsay objection and admitting Exhibit 8 

tendered by the Distributor. Exhibit 8 contains documents related to the identification of 

“growers,” “customers,” and “accounts.” The exhibit’s cover page provides:

Trade secrets

- List of our suppliers and customers

- Method of operation of grading and classifying the papaya

- Method of ripening and storing the papaya

Confidential information

- We believe all the items above are covered under the 

operating agreement item 3.4 Confidentiality. (a) Each 

member shall keep confidential all, and shall not divulge to 

any other party any of the private, secret or confidential 

information of the Company including private, secret, and 

confidential information relating to such matters as 

membership agreements, membership lists, intellectual 

property, finances, methods of operation and competition,

pricing, marketing plans and strategies, equipment, and 

operational requirements and information concerning 

personnel, clients, independent contractors, and suppliers of 

the Company, unless the Member is required to disclose such 

information by law.

Relatedly, in appellants’ sub-issue 1e, they contend that there is legally insufficient 

evidence to support the trial court’s definitions of “customers”, “accounts”, and “growers” 

included in the modified temporary injunction. 

The Distributor responds that the trial court did not abuse its discretion in overruling 

appellants’ hearsay objection because Alford “established that he created those lists and 

attested to the lists’ accuracy.” The Distributor also contends that Exhibit 8 is admissible

as a summary to prove voluminous content. See TEX. R. EVID. 1006 (“The proponent 

may use a summary, chart, or calculation to prove the content of voluminous writings, 
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recordings, or photographs that cannot be conveniently examined in court.”). Lastly, the 

Distributor contends that appellants’ second issue is inadequately briefed because they 

fail to explain why the admitted exhibit was harmful.

1. Standard of Review

The admission or exclusion of evidence is within the trial court’s discretion. 

Owens–Corning Fiberglas Corp. v. Wasiak, 972 S.W.2d 35, 43 (Tex. 1998). To obtain 

reversal on appeal, an appellant must show that the trial court’s ruling was in error and 

that the error was calculated to cause and probably did cause the rendition of an improper 

judgment. Id.; see TEX. R. APP. P. 44.1(a).

2. Analysis

Assuming without deciding that appellants properly briefed their second issue, we 

conclude that the trial court did not abuse its discretion. At the hearing on appellants’

motion to enforce mandates, Alford was asked by the Distributor’s counsel and answered:

Q You were asking a list of growers to be confidential or proprietary, 

and they can’t be contacted or I’d say, [the Importer] cannot purchase

from them, let me ask you, are the growers that you have listed on 

that Exhibit 8, are those all growers that came from [the Distributor]?

A No, but they are growers that they had no knowledge of ‘til they 

obtained this information from [the Distributor], so they know exactly 

what they bring in, what quality, so I think it’s a huge advantage on 

their part that we already netted the growers in Mexico.

From the context, the trial court may have concluded that Alford possessed personal 

knowledge of the lists in Exhibit 8 and therefore, the exhibit was not hearsay. See TEX.

R. EVID. 801(d); Hugh Wood Ford, Inc. v. Galloway, 830 S.W.2d 296, 298 (Tex. App.—

Houston [14th Dist.] 1992, writ denied) (overruling a complaint that the trial court abused 
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its discretion in admitting a list where two witnesses testified as to the list’s content). 

In sub-issue 1e, appellants challenge the legal sufficiency of the evidence 

supporting the trial court’s definitions of “customers,” “accounts,” and “growers.” 

Appellants contend that “Alford’s testimony and [Exhibit 8] are nothing more than 

conclusory statements, which do not constitute evidence at all.” Cognizant that legal 

sufficiency is a relevant factor in assessing whether the trial court abused its discretion, 

Super Starr I, 531 S.W.3d at 838, we cannot say that the trial court abused its discretion 

in crafting the definitions as it did.

Lastly, the trial court carried out our mandate in Super Starr I by defining the terms 

we instructed it to define. See TEX. R. APP. P. 51.1(b); In re Castle Tex. Prod. L.P., 563 

S.W.3d 216, 219 (Tex. 2018) (per curiam); Tex. Parks & Wildlife Dep’t v. Dearing, 240 

S.W.3d 330, 347 (Tex. App.—Austin 2007, pet. denied) (“Upon receiving the appellate 

court’s mandate, the lower court has a mandatory, ministerial duty to enforce the 

appellate court’s judgment.”).

As reframed, appellants’ sub-issue 1e and issue 2 are overruled.

C. Overbreadth

In appellants’ third issue, they complain that the modified temporary injunction is 

overly broad. Appellants argue, as they did in their second issue, that there is no 

evidence underlying the definitions of “customers,” “accounts,” and “growers” in addition 

to the terms “trade secrets” and “confidential information.” The modified temporary 

injunction defined confidential information as “membership agreements, membership 

lists, intellectual property, finances, methods of operation and competition, pricing, 
12

marketing plan and strategies, equipment and operational requirements, and information 

concerning personnel, clients, customers, independent contractors, suppliers and 

growers of [the LLC].” Appellants contend that this definition represents a “string of 

categories which are equally opaque.” Appellants also contend that our disposition in 

Super Starr I necessarily allows them to sell any produce so long as they do not 

misappropriate the LLC’s confidential information and that the modified temporary 

injunction unnecessarily impedes their ability to do so. 

1. Applicable Law

We wrote in Super Starr I:

a. Overbreadth

We review the scope of an injunction for an abuse of the trial court’s 

discretion. A trial court abuses its discretion by entering an overly-broad 

injunction which grants more relief than a plaintiff is entitled to by enjoining 

a defendant from conducting lawful activities or from exercising legal rights. 

Where a party’s acts are divisible, and some acts are permissible and some 

are not, an injunction should not issue to restrain actions that are legal or 

about which there is no asserted complaint. But an injunction must be 

broad enough to prevent a repetition of the wrong sought to be corrected. 

b. Specificity

Rule 683 provides, among other things, that “every order granting an 

injunction” shall be specific in terms and shall describe in reasonable detail 

and not by reference to the complaint or other document, the acts sought to 

be restrained. An injunction decree must be as definite, clear, and precise 

as possible, and when practicable it should inform the defendant of the acts 

he is restrained from doing, without calling on him for inferences or 

conclusions about which persons might well differ. The rule’s purpose is 

to ensure that parties are adequately informed of the acts they are enjoined 

from doing and the reasons for the injunction. The requirements of the civil 

procedure rule on the form and scope of an injunction are mandatory and 

must be strictly followed. 

Super Starr I, 531 S.W.3d at 549 (citations and quotation marks omitted).
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2. Analysis

In Super Starr I, the Distributor’s brief quoted a passage from Miller v. Talley Dunn 

Gallery, LLC, which provides:

Miller finally argues paragraph 1 of the temporary injunction is 

overbroad and exceeds the scope of the pleadings and the evidence 

because it encompasses not only the General Ledger but other undefined 

“confidential information” and “trade secrets.” The temporary injunction 

does not specifically define every item comprising a trade secret or 

confidential information of the Gallery. However, this level of detail is not 

required. See Lockhart v. McCurley, No. 10-09-00240-CV, 2010 WL 

966029, at *4 (Tex. App.—Waco Mar. 10, 2010, no pet.) (mem. op.). To 

satisfy the requirement in rule 683 that an injunction order be “specific in 

terms,” the order “must be as definite, clear and precise as possible and 

when practicable it should inform the defendant of the acts he is restrained 

from doing . . . .” San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 

291 S.W.2d 697, 702 (Tex. 1956); see also TEX. R. CIV. P. 683. This is 

balanced with the practicality that an injunction “must be in broad enough 

terms to prevent repetition of the evil sought to be stopped.” San Antonio 

Bar Ass’n, 291 S.W.2d at 702.

Here, the temporary injunction states that “confidential information” 

of the Gallery includes client lists, clients’ purchase history and pricing 

information, and the Gallery’s general ledgers. The specific examples of 

the items comprising “trade secrets” and “confidential information,” when 

read in the context of the suit, provided Miller with adequate notice of the 

information that he is prohibited from using or disclosing. See Lockhart, 

2010 WL 966029, at *4; IAC, Ltd., 160 S.W.3d at 201–02 (concluding order 

which prohibited defendant from using “Bell trade secrets and confidential 

information” was sufficiently specific because injunction as a whole made it 

clear that this phrase meant “information pertaining to Bell’s 206B and OH–

58 helicopter blades”). The order leaves nothing to conjecture. See 

Lockhart, 2010 WL 966029, at *4 (concluding injunction adequately 

informed defendant of prohibited conducted even though terminology used 

in order was not defined). We conclude paragraph 1 of the temporary 

injunction is not overbroad by failing to inadequately describe the 

confidential information that Miller is prevented from disclosing.

No. 05-15-00444-CV, 2016 WL 836775, at *14 (Tex. App.—Dallas Mar. 3, 2016, no pet.) 

(mem. op.). 
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We find this passage from Miller instructive. The trial court’s definitions of “trade 

secrets” and “confidential information,” when read in the context of the suit, provides 

appellants with adequate notice of the information that they are prohibited from using. 

See id. Moreover, the definition of “confidential information” mirrors the definition

contained in the operating agreement, which was signed by a representative of the 

Importer. 

As reframed, appellants’ third issue is overruled.

III. CONCLUSION

We reverse the trial court’s modified temporary injunction to the extent that it 

enjoins Red Starr, SPR de R.L. de C.V. In all other respects, we affirm the trial court’s 

modified temporary injunction. We remand the case to the trial court for entry of a

temporary injunction in accordance with this memorandum opinion. 

LETICIA HINOJOSA

Justice

Delivered and filed the

6th day of June, 2019.