                  NUMBER 13-18-00215-CV

                    COURT OF APPEALS

             THIRTEENTH DISTRICT OF TEXAS

               CORPUS CHRISTI–EDINBURG


DENNIS W. BERRY; MARVIN G. BERRY;
BAY, INC.; BERRY GP, INC.,
D/B/A BERRY CONTRACTING;
AND BERRY CONTRACTING,
D/B/A BAY LTD.,                                     Appellants,

                               v.

KENNETH L. BERRY, INDIVIDUALLY;
AND KENNETH L. BERRY, IN A DERIVATIVE
CAPACITY FOR SKYEAGLE, INC.,                             Appellees.


          On appeal from the County Court at Law No. 3
                   of Nueces County, Texas.


                  MEMORANDUM OPINION

        Before Justices Benavides, Hinojosa, and Perkes
            Memorandum Opinion by Justice Perkes
        This interlocutory appeal concerns the trial court’s temporary injunction order in

favor of appellees, Kenneth L. Berry (Kenneth), individually and in a derivative capacity

for Skyeagle, Inc. (Skyeagle), enjoining appellants, Dennis W. Berry (Dennis); Marvin G.

Berry (Marty); Bay, Inc. (Bay); Berry GP, Inc., d/b/a Berry Contracting; and Berry

Contracting, d/b/a Bay Ltd. from dissolving Skyeagle, obligating Skyeagle to pay debts of

or transfer funds to any Defendant-owned entities, and indemnifying Skyeagle in an

unrelated suit out of the 214th District Court. By two issues, appellants contend that the

trial court abused its discretion by granting the temporary injunction because appellees

failed to establish a right of relief under Texas Civil Practice and Remedies Code § 65.011

and alternatively, under Texas Business Organizations Code § 2.104. TEX. CIV. PRAC. &

REM. CODE § 65.011; TEX. BUS. ORGS. CODE § 2.104. We reverse.

                                            I. BACKGROUND

        In 1979, Kenneth and his brothers, Dennis and Marty (Defendant Directors),

formed Skyeagle. The three brothers are the sole shareholders, each owning one-third of

the company’s shares. Kenneth previously held the position as Skyeagle’s president, 1

while Dennis and Marty served as vice-president and secretary, respectively. Defendant

Directors also own controlling interests in other companies, including Berry Contracting

and Bay; although Kenneth never owned any interest in either company, Kenneth was

the former vice-president for Bay.

        In March 1994, Skyeagle purchased a railway easement (the Easement) in Nueces

County, Texas from the United States for $175,000. This Easement is Skyeagle’s sole



        1 The parties dispute whether Kenneth resigned, was fired in 1997, or was voted out of his position
by his brothers at a shareholder’s meeting on February 20, 2018.



                                                    2
asset. In May 1995, Bay and the Texas Mexican Railway Company (TM) entered into a

transportation contract in which TM agreed to transport aggregate products for Bay. Three

months later, Bay and TM entered into an extension of the transportation contract, during

which Bay agreed to a “transfer or conveyance of the [Easement]” to TM, upon the

satisfaction of certain conditions laid out in the contract. The contract was signed by

Kenneth in his capacity as Bay’s vice-president. Skyeagle was not a party to the contract.

Kenneth’s relationship with Defendant Directors deteriorated over time, and in October

2015, TM filed suit in the 214th District Court against Bay and Skyeagle, alleging breach

of contract. 2

       On February 12, 2018, Kenneth received a “Notice of Special Meeting of the

Shareholders of Skyeagle, Inc.” (Shareholder’s notice). The Shareholder’s notice

included items that “shall be discussed” by the shareholders and upon which “the

shareholders of the Company may vote.” These items consisted of:

       1. The existence and repayment of indebtedness owed by [Skyeagle] to
          Berry Contracting, Inc., [Bay], Lone Star Equipment, Inc., Basic
          Equipment Company, and/or any related or affiliated company.

       2. Payment of interest on any of the debts determined under 1 above to
          exist.

       3. The existence and substance of existing litigation involving [TM, Bay,
          and Skyeagle].

       4. The possibility of resolution of the litigation referenced in 3 above and
          the granting of authority to accomplish same.

       5. The source of funds for the company to pay attorney’s fees or to repay
          Bay, Inc. or related entities for the payment of attorney’s fees on behalf
          of [Skyeagle] with regards to the litigation.


       2  TM alleges that Bay failed to transfer the Easement pursuant to the contract’s terms and seeks
specific performance against Bay and Skyeagle.



                                                   3
        6. Confirmation of the existence and terms of defense and indemnity
           obligations of [Skyeagle] towards its directors and officers.

        7. The appointment of officers.

        8. The possibility of dissolution of [Skyeagle].

        Kenneth claims that he first learned of the TM lawsuit against Bay and Skyeagle

upon receiving the Shareholder’s notice. On February 20, the day the shareholder

meeting was scheduled to take place, Kenneth filed an application for a temporary

restraining order (TRO) and temporary injunction against the Defendant Directors,

alleging 3 that the Defendant Directors breached their fiduciary duty to Skyeagle and to

Kenneth as a shareholder. On February 22, the TRO was granted.

A.      Temporary Injunction Hearing

        On March 5, the morning of the temporary injunction hearing, Defendant Directors

filed a “Plea in Abatement and Objection to the Court’s Jurisdiction.” In part, Defendant

Directors argued that the 214th District Court retains “dominant jurisdiction over the

easement issue and the transferring thereof;” therefore, Kenneth is barred from any

attempt at enjoining Defendant Directors from the use of the Easement and any mandated

enjoinment must not include the Easement.

        The trial court thereafter held a joint hearing on the temporary injunction and plea

in abatement. The hearing was recessed, and the court resumed on April 3. At the start

of the April 3rd hearing, the court orally granted Defendant Director’s plea in abatement 4




        3 Appellees also allege corporate usurpation; however, usurpation is not raised in the application
for temporary injunction nor in the injunction order, so it is not before this Court.

        The trial court issued its written order on April 5, declaring “that all issues regarding the rail
        4

easement are abated and should be addressed in the 214th District Court.”



                                                    4
before accepting additional testimony regarding the temporary injunction.

       1.     Kenneth’s Testimony

       Kenneth maintained that the Shareholder’s Notice was evidence that Defendant

Directors intended to (1) dissolve Skyeagle and (2) make Skyeagle liable as a guarantor

of the debts and obligations of Bay and Berry Contracting. See TEX. BUS. ORGS. CODE

ANN. § 2.104(b)(2) (providing that a domestic entity may make a guaranty of the

indebtedness of another if the guaranty may reasonably be expected to benefit the entity);

id. § 2.104(c)(2) (providing that a shareholder may request to enjoin a proposed guaranty

on the ground that the guaranty cannot reasonably be expected to benefit the entity).

       According to Kenneth, Skyeagle purchased an easement directly linked to what is

now the Kansas City Southern Railroad, and Bay should “have to come to Skyeagle and

make a deal for that asset” if Defendant Directors wished to use Skyeagle’s Easement to

fulfill its obligation to TM. Kenneth argued Defendant Directors “want to give Skyeagle’s

assets to [TM]” for the sole benefit of Bay, a company Kenneth has no ownership in, and

to the detriment of Skyeagle, which would lose its only asset.

       Kenneth also took issue with Skyeagle potentially paying Bay’s attorney’s fees in

its suit against TM because both companies are represented by the same firm although

their interests are averse. Kenneth argues, in relevant part:

       [Bay] is a party to a contract with [TM] that Skyeagle is not. Skyeagle got
       sued because of a contract that it’s not a party to. Therefore, they’re
       adverse. The contract between [Bay] and [TM] allegedly talks about assets
       that are owned by Skyeagle, and Skyeagle should have it’s [sic] own
       separate independent lawyer to defend its position against allegation[s]
       from either [Bay] or [TM] in this case.




                                            5
      Kenneth complained that losing the Easement or dissolving the company would

result in “worthless” shares and “no company to conduct business.” Kenneth conceded

that although Skyeagle is not bonded and lacks a prime contract, Skyeagle could become

insured for business: “[Skyeagle] has a perfect safety record today. So there’s nobody in

the planet that has a better safety record than Skyeagle.” Kenneth suggested Skyeagle

could perform subcontracting services for Bay:

      There’s dozens of ways Skyeagle can go to work. But certainly given the
      ten-year and time that my two brothers have had running it as officers and
      directors, it should have insurance, it should have bonding capacity, it
      should have the work, it should have profits. But there’s absolutely no
      reason that Skyeagle can’t do work.

      2.     Defendant Directors Testimony

      Defendant Directors countered that Kenneth was President of Skyeagle for a

substantial duration of the company’s existence, and apart from incurring a $176,000 debt

in the form of the Easement, Kenneth is the reason the company did not prosper.

      [Counsel:]    How many notices of meetings in the 35 years that Kenneth
                    Berry was president of Skyeagle did you receive from
                    Kenneth Berry?

      [Marty:]      Zero.

      [Counsel:]    How many meetings of Skyeagle did Kenneth Berry call while
                    he was president of Skyeagle?

      [Marty:]      Zero.

                    ....

      [Counsel:]    In the years that Kenneth Berry was president of Skyeagle,
                    how many times did he bid on work to your knowledge for
                    Skyeagle?

      [Marty:]      Never.




                                           6
      [Counsel:]   In the years that Kenneth Berry was president of Skyeagle,
                   how many times did he hire employees for Skyeagle?

      [Marty:]     Never.

      [Counsel:]   Do these tax returns that are now admitted . . . do they show
                   whatever income Skyeagle would have occurred over the
                   years?

      [Marty:]     Yes, sir.

      [Counsel:]   And is it nothing or next to nothing?

      [Marty:]     It’s zero. That’s pretty close to nothing.

      [Counsel:]   And during the years that Kenneth Berry was president of
                   Skyeagle, how many years did Kenneth Berry make at
                   Skyeagle money?

      [Marty:]     Well, 35 years[:] zero.

      Marty testified that Skyeagle existed on “corporate welfare” for thirty-five years,

relying on funds from Bay and Berry to remain operative. The purpose of the

Shareholder’s notice was for the Defendant Directors to review their “options” and “do

business that hadn’t been done in 35 years with the company.” Marty denied engaging in

any discussions regarding corporate dissolution, apart from placing the item on the

agenda for the shareholder’s meeting.

      Marty was then pressed regarding Defendant Directors’ intent to dissolve the

company:

      [Counsel:]   Okay. Do you have the intention of shutting down Skyeagle?

      [Marty:]     Do I have—no, not at all. Never said that.

      [Counsel:]   Do you have any idea whether Dennis has any intention of
                   shutting down Skyeagle?

      [Marty:]     I do not.




                                             7
      [Counsel:]    Can you explain to the Court why you won’t agree to be
                    restrained from not shutting down Skyeagle?

      [Marty:]      I would tell the Court that I would like the opportunity to run
                    the business with our directors and our shareholders without
                    any restraints, just like the bylaws had from the very
                    beginning. Absolutely nothing has been done with this
                    business for 35 years. We[‘]re in a lawsuit in another
                    courtroom. If there’s a way to settle it, get money for Skyeagle
                    to pay our bills and have some money leftover, I’ll benefit more
                    from doing that. I don’t want any restraints whatsoever put on
                    me as a business person, especially at this time when it’s so
                    critical.

                    If we do get these restraints put on us[,] it’s going to kill this
                    business. And you can think about it yourself, Judge, and all
                    you have to think about is, if you shut us down from doing
                    anything with the only asset we have and we can bring zero
                    money in and they get an adverse ruling in another Court,
                    we’re done. We’re done. We can’t do anything with it. The
                    judge over there can take it, but we [would] like to just be able
                    to run the business like it needs to be run. We’re trying to
                    make those steps. I tried to have a meeting to do so. I don’t
                    want any restraints on anything. I won’t agree to anything. If
                    the other—

      [Counsel:]    Let me ask you this, sir: Will you promise not to shut Skyeagle
                    down?

      [Marty:]      I’m not going to promise you anything.

      3.     Trial Court’s Findings

      Following the hearing, the court took the matter under advisement. On April 5,

pursuant to § 65.011 of the Texas Civil Practice and Remedies Code and § 2.104 of the

Texas Business Organizations Code, the trial court issued a written order granting

appellees’ temporary injunction, enjoining the Defendant Directors from:

      a. taking any action, directly or indirectly, to obligate Skyeagle to pay debts
         or transfer funds to any entity in which the Defendants directly or
         indirectly own an interest;




                                            8
       b. taking any action, directly or indirectly, to obligate Skyeagle to defend or
          indemnify the Defendants in any matter;

       c. taking any action, directly or indirectly, to dissolve Skyeagle.

See TEX. CIV. PRAC. & REM. CODE § 65.011; TEX. BUS. ORGS. CODE § 2.104.

       The trial court determined the applicants had met their burden for relief under both

statutes and found that the Defendant Directors were likely to “complete the plan they

proposed in the [Shareholder] Meeting Notices and, as a result of these actions, that

[Kenneth] and Skyeagle would suffer probable harm, and that [Kenneth] would likely

succeed on the claims for breach of fiduciary duty.” This appeal followed.

                                  II. STANDARD OF REVIEW

       We review a trial court’s decision to grant a temporary injunction for an abuse of

discretion. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citations

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

App.—Corpus Christi–Edinburg 2017, no pet.). The test for abuse of discretion is whether

the trial court ruled arbitrarily, unreasonably, without regard to guiding legal principles, or

without supporting evidence. See Super Starr, 531 S.W.3d at 838. If evidence reasonably

supports the trial court’s decision, the trial court did not abuse its discretion. See Butnaru,

84 S.W.3d at 211.

       We must consider the evidence submitted in the light most favorable to the trial

court’s ruling and draw all legitimate inferences from the evidence that support the ruling.

See Sargeant v. Al Saleh, 512 S.W.3d 399, 410 (Tex. App.—Corpus Christi–Edinburg

2016, no pet.) (citing Butnaru, 84 S.W.3d at 204). Our review of the trial court’s decision

is limited to the validity of its temporary injunction order; we do not consider the merits of




                                              9
the underlying case. See id.

                III. RELIEF UNDER TEX. CIV. PRAC. & REM. CODE ANN. § 65.011

        A temporary injunction is considered an extraordinary remedy and does not issue

as a matter of right. Butnaru, 84 S.W.3d at 204 (citing Walling v. Metcalfe, 863 S.W.2d

56, 57 (Tex. 1993)). Its purpose is to preserve the status quo of the litigation’s subject

matter pending a trial on the merits. Id.; In re Newton, 146 S.W.3d 648, 651 (Tex. 2004)

(defining status quo as “the last, actual, peaceable, non-contested status that preceded

the pending controversy”).

        To obtain a temporary injunction under the Texas Civil Practice and Remedies

Code § 65.011, an applicant must plead and prove all three 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. Butnaru, 84 S.W.3d at 204; Burkholder v. Wilkins, 504

S.W.3d 485, 491 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.). An injury is proved

irreparable “if the injured party cannot be adequately compensated in damages or if the

damages cannot be measured by any certain pecuniary standard.” Butnaru, 84 S.W.3d

at 204; Burkholder, 504 S.W.3d at 491. Although an applicant for a temporary injunction

is not required to show that it will prevail on final trial, the applicant bears the burden of

producing evidence of every single element. See Walling, 863 S.W.2d at 58.

        Defendant Directors specifically argue that appellees failed to prove the second

and third elements. 5 See Butnaru, 84 S.W.3d at 204; Burkholder, 504 S.W.3d at 491. We

proceed on the dispositive third element of irreparable injury, where appellees contend


        5  Defendant Directors do not argue that the trial court abused its discretion because appellees
failed to plead a cause of action, therefore it is not addressed in this appeal.




                                                  10
that these enjoined acts, if allowed, “will cause [disruption] to Skyeagle’s present and

future business” and strip Kenneth of his shareholder rights—rendering damages

irreparable. 6 Appellees do not, however, argue that the Easement or loss thereof is the

basis for a finding of irreparable injury nor are we able to consider the Easement given

the trial court’s abatement order of “all issues regarding the rail easement” signed on the

same day as the injunction. 7 See Abatement, BLACK’S LAW DICTIONARY (11th ed. 2019)

(“The act of eliminating or nullifying.”). Removing consideration of the Easement in the

irreparable injury analysis, Defendant Directors argue that monetary damages would be

an adequate remedy at law, precluding the necessity of a temporary injunction. We agree.

A.      Present and Future Business

        During the hearing, Kenneth sought to elicit evidence that damages were

unquantifiable because Defendant Directors were threatening to disrupt Skyeagle’s

present and future business. However, the following facts remain undisputed by either

party: (1) Skyeagle has been inactive for the last twenty-five years; and (2) Skyeagle has

no current or former clients. While Kenneth cites Frequent Flyer Depot, Inc. v. American

Airlines, Inc. for the proposition that a disruption to an ongoing business may constitute

irreparable, unquantifiable damages, Frequent Flyer is distinguishable from the present



        6 Appellees also argue that Marty’s inability to testify to the specific amount of debts and fees owed
by Skyeagle—beyond his passing references to the company’s tax filings, which were admitted into
evidence at the injunction hearing—is proof of damage incalculability. However, in a temporary injunction
hearing, the burden is on the applicant to prove that potential damages cannot be calculated, not for the
opposing party to disprove or prove the notion. Wash. DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d
723, 742 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); see also Counsel Fin. Servs., L.L.C. v.
Leibowitz, No. 13-10-00200-CV, 2011 WL 2652158, at *8 n.5 (Tex. App.—Corpus Christi–Edinburg July 1,
2011, pet. denied) (mem. op.).

        7  Moreover, we note that based on the plain language of the injunction, the sale of the Easement—
absent subsequent transfer of funds or payment of debt from the sale’s proceeds—would not be in violation
of the injunction.



                                                     11
case. 281 S.W.3d 215, 228 (Tex. App.—Fort Worth 2009, pet. denied). In Frequent Flyer,

where American Airlines produced evidence of “intangible harm” to its business, including

loss of customer confidence, loss of goodwill with business partners, and diversion of

resources away from legitimate customers, the court held the evidence of intangible harm

was sufficient to establish that the airline would be without an adequate remedy in

damages. Id.

       Whereas here, apart from statements by Kenneth that Skyeagle could be

operational and that it was Defendant Directors’ fault that Skyeagle was not presently

operational, Kenneth proffered no evidence of existing business or related intangibles

requiring protection. Cf. id.; see, e.g., Intercont. Terminals Co. v. Vopa N. Am., Inc., 354

S.W.3d 887, 896 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (providing that testimony

evidencing “business disruption, loss of goodwill, loss of reputation in the marketplace,

customer uncertainty, delays in servicing dock/sea customers, backlog costs, [and]

demurrage fees” was sufficient to support the trial court’s conclusion that the harm could

not be remedied with a monetary recovery). Kenneth provides us with no case law, and

we have found none, in support of the premise that a disruptive threat of a corporation’s

hypothetical operations—where currently none exists nor ever existed—evokes

intangible protection principles.

B.     Shareholder Rights

       Kenneth alternatively argues that if the enjoined decisions are allowed, the value

of his 500 shares of stock, purchased for $500, would be affected, and he would

effectively lose his shareholder’s rights: “Obviously, if Skyeagle is shut down then that’s

going to cause an irreparable eminent injury . . . . [Kenneth] won’t have any more




                                            12
shareholder rights. The value of his stock goes to zero, and he can’t do anything about it.

So that’s irreparable injury, Judge.”

       By Kenneth’s own representation, Skyeagle “should have profits,” but it does not.

The record is replete with evidence that Skyeagle is a for-profit corporation, with zero

profits, subject to Texas Business Organization Code adherence. See TEX. BUS. ORGS.

CODE ANN. §§ 21.201–21.226 (shareholders rights). The business organization code also

includes a comprehensive statutory framework for winding up the affairs of a corporation

and protecting the rights of creditors and shareholders. See TEX. BUS. ORGS. CODE

§§ 21.502 (initiation of dissolution); 11.052 (winding up procedures); 11.053 (property

applied to discharge liabilities and obligations). Therefore, on the record presented, where

purported damages are premised on a shareholder status, calculated based on the

valuation of a company with nonexistent profits and a shareholder buy-in of $1 per share

of stock, Kenneth has not proven that money damages could not compensate him or that

such damages are incapable of calculation. Kenneth’s risk for loss, if actuated, could be

remedied by financial compensation. See id.; see also N. Cypress, 296 S.W.3d at 176

(providing where a shareholder’s ownership interest “gives him no voice in the control or

management,” a shareholder’s “desire to keep [his] shares does not, by itself, render

money damages an inadequate substitute.”).

       We need not partake in an analysis of the remaining elements for injunctive relief.

See Walling, 863 S.W.2d at 58; TEX. R. APP. P. 47.1. Absent evidence of an irreparable

harm, appellees were not entitled to injunctive relief. See Butnaru, 84 S.W.3d at 210;

Super Starr, 531 S.W.3d at 838. Therefore, the trial court exceeded the bounds of

reasonable discretion in holding otherwise. See Butnaru, 84 S.W.3d at 210; see also




                                            13
Henry v. Cox, 520 S.W.3d 28, 34 (Tex. 2017) (“No abuse of discretion exists if some

evidence reasonably supports the court’s ruling.”). We sustain appellants’ first issue.

                  IV. RELIEF UNDER TEX. BUS. ORGS. CODE ANN. § 2.104(b)(2)

           During the temporary injunction hearing and on appeal, appellee alternatively

argues that Kenneth, as a shareholder, had the independent statutory right to temporarily

enjoin Defendant Directors’ proposed actions under the business organizations code

§ 2.104(b)(2). TEX. BUS. ORGS. CODE ANN. § 2.104(b)(2) (providing that “a proposed

guaranty may be enjoined at the request of an owner of the domestic entity on the ground

that the guaranty cannot reasonably be expected to benefit the domestic entity”).

           A statute’s general authorization of enjoinment, however, is insufficient to abrogate

the common law irreparable injury requirement. See generally Town of Palm Valley v.

Johnson, 87 S.W.3d 110, 111 (Tex. 2001) (acknowledging statutes may abolish the

common law requirement of irreparable injury); see also TEX. CIV. PRAC. & REM. CODE

ANN. § 65.001 (“The principles governing courts of equity govern injunction proceedings

if not in conflict with this chapter or other law.”); but see Alpine Gulf, Inc. v. Valentino, 563

S.W.2d 358 (Tex. Civ. App.—Houston [14th Dist.] 1978, writ ref’d n.r.e.) (holding where

shareholder sought injunctive relief under the same title and chapter of the Business

Organizations Code, against the transfer of assets from a corporation to its subsidiaries,

the trial court erred in granting a temporary injunction absent evidence of irreparable

injury).

           Although no case specifically speaks to enjoinment on the basis of § 2.104(b)(2),

this case is distinguishable from cases which have held that the statutory language

eliminated the applicant’s burden of proving irreparable harm. Compare Butler v. Arrow




                                                14
Mirror & Glass, Inc., 51 S.W.3d 787, 795 (Tex. App.—Houston [1st Dist.] 2001, no pet.)

(holding where the statute explicitly provides that remedies of the code under which

injunctive relief is sought “are exclusive and preempt any other criteria for enforceability

of a covenant . . . and remedies in an action to enforce a covenant not to compete under

common law or otherwise,” unequivocally dictates that irreparable injury is not a

prerequisite for obtaining injunctive relief (citing TEX. BUS. ORGS. CODE ANN. § 152.211))

with Sonwalkar v. St. Luke’s Sugar Land P’ship, L.L.P., 394 S.W.3d 186, 197–99 (Tex.

App.—Houston [1st Dist.] 2012, no pet.) (holding that § 152.211(b) of the Texas Business

Organizations Code, in its general authorization of injunctions to “‘enforce a right under

the partnership agreement’ and the like,” for a breach of the agreement or “for the violation

of a duty to the partnership causing harm to the partnership,” does not define the requisite

injury entitling the applicant to injunctive relief” and therefore, applicants were required to

show irreparable injury in order to be entitled to temporary injunctive relief). Like

Sonwalker and unlike Butler, the statute here lacks a provision eliminating the irreparable

injury requirement. See Butler, 51 S.W.3d at 795; Sonwalkar, 394 S.W.3d at 197–99; see

also TEX. BUS. ORGS. CODE ANN. § 2.104(b)(2); TEX. CIV. PRAC. & REM. CODE ANN.

§ 65.001. Having already determined that applicants failed to provide evidence of

irreparable harm, we subsequently find the trial court was without evidentiary support to

alternatively grant relief under § 2.104(b)(2). See Henry, 520 S.W.3d at 34; Butnaru, 84

S.W.3d at 210. We sustain appellants’ second issue.




                                              15
                                  V.     CONCLUSION

      We reverse the trial court’s temporary injunction order, dissolve the temporary

injunction, and remand this case to the trial court for proceedings consistent with this

opinion.



                                                 GREGORY T. PERKES
                                                 Justice


Dissenting Memorandum Opinion by
Justice Benavides.

Delivered and filed the
5th day of December, 2019.




                                          16
