Affirm and Opinion Filed July 29, 2013




                                         S In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                      No. 05-12-01112-CV

                          DIBON SOLUTIONS, INC., Appellant
                                       V.
                     JAY NANDA AND BON DIGITAL, INC, Appellees

                      On Appeal from the 192nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-12-02163

                               MEMORANDUM OPINION
                            Before Justices Bridges, Lang, and Lewis
                                   Opinion by Justice Bridges
       Appellant Dibon Solutions, Inc. (“Dibon”) appeals from the trial court’s denial of a

temporary injunction against appellees Jay Nanda (“Jay”) and Bon Digital, Inc. (“BDI”). In a

single issue, Dibon argues the trial court erred in denying the temporary injunction where the law

holds such injunction is necessary and appropriate and does not implicate the First Amendment.

We affirm.

                                          Background

       Until November of 2011, Jay was a shareholder, director, and employee of Dibon. Jay

and his brother, Atul Nanda (“Atul”), participated in arbitration to settle disputes between them.

In November of 2011, an arbitrator awarded Atul ownership of Dibon and ordered Atul to pay

Jay $517,162. Following the arbitration award, Jay sent communications to several of Dibon’s
customers and Dibon’s bank, accusing Dibon of being subject to: (1) an IRS investigation; (2) an

ICE and FBI investigation for money laundering, visa fraud, human trafficking, and harboring

illegal aliens; (3) a DOL investigation for unpaid back wages; (4) multiple lawsuits; (5) making

bankruptcy threats; (6) diversion of assets; (6) multiple liens; (7) non-performance on bank

loans; and (8) forging documents.

       Dibon states these communications caused it to file the instant lawsuit against Jay and his

company, BDI, for defamation, business disparagement, breach of fiduciary duty, and tortious

interference with existing contract. Dibon further sought injunctive relief to bar “Defendants

from contacting those of [Dibon’s] customers who were customers while [Jay] was a director,

officer or employee of [Dibon] for the purpose of communicating disparaging information

regarding [Dibon] to such customers.”

       On July 24, 2012, the trial court issued a temporary restraining order against Jay and

BDI, enjoining them from initiating contact, directly or through a surrogate, with Dibon’s

customers and vendors for the purpose of communicating disparaging information (specifically

accusations of civil or criminal wrongdoing) regarding Dibon.

       Following the August 7, 2012 hearing, the trial court denied Dibon’s application for

temporary injunction.

                                            Analysis

       In a single issue, Dibon contends the trial court erred “in denying Dibon’s application for

a temporary injunction restraining Jay Nanda from targeting Dibon’s customers with anonymous

and disparaging e-mail communications aimed at destroying Dibon’s contractual relationships

with its customers, where the law holds that a temporary injunction is necessary and appropriate

in such circumstances, and does not implicate the First Amendment’s right of free speech.”




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         The decision to grant or deny a temporary injunction lies within the sound discretion of

the trial court, and we will not reverse that decision absent a clear abuse of discretion. Walling v.

Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). This Court may not substitute its judgment for that of

the trial court nor consider the merits of the lawsuit. Brammer v. KB Home Lone Star, L.P., 114

S.W.3d 101, 105 (Tex. App.—Austin 2003, no pet.). We review the evidence in the light most

favorable to the trial court’s order, indulging every reasonable inference in its favor and

determine whether the order was so arbitrary as to exceed the bounds of reasonable discretion.

Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 576 (Tex. App.—Austin 2000, no

pet.).

         The purpose of a temporary injunction is to preserve the status quo pending a trial on the

merits. Walling, 863 S.W.2d at 58. A temporary injunction is an extraordinary remedy and does

not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

Rather, an applicant must plead and prove: (1) a cause of action against the opposing party; (2) a

probable right on final trial to the relief sought; and (3) a probable, imminent, and irreparable

injury in the interim. Walling, 863 S.W.2d at 57.

         The United States and Texas Constitutions prohibit prior restraints on free speech. See

U.S. CONST. amend. I; TEX. CONST. art I, §8. A prior restraint is a judicial order forbidding

certain communications when issued in advance of the time that such communications are to

occur. See Alexander v. U.S., 509 U.S. 544, 550 (1993). Accordingly, a prior restraint of

expression bears “a heavy presumption against its constitutional validity.” See In re Newton, 146

S.W.3d 648, 653-54 (Tex. 2004).

         Here, Dibon argues the communications at issue fall within an exception to the

presumption against prior restraints. Specifically, Dibon contends appellees’ speech is false and

misleading commercial speech and is, therefore, not subject to protection. See Marketshare

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Telecom, LLC v. Ericsson, Inc., 198 S.W.3d 908, 918 (Tex. App.—Dallas 2006, no pet.); Owens

v. State, 820 S.W.2d 912, 914 (Tex. App.—Houston 1991, writ ref’d) (stating intentionally false

and misleading speech made in the commercial context is not protected by the first amendment).

We disagree.

           In its brief, and without citation to the record, Dibon contends the communications were

misleading and “blatantly false.” However, the record before us does not support Dibon’s

argument that the statements made by Jay were false and misleading. Instead, at the temporary

injunction hearing, Jay testified the statements made in the e-mail to Dibon’s bank (which were

substantially the same statements made to Dibon’s customers) were “true statements . . . not

allegations.”         Jay Skinner, the vice president of Dibon, affirmed there was “an ongoing

investigation of Dibon” by ICE. He admitted he was “not privy to everything that goes on in the

organization,” and later explained he had no information from Atul regarding a DOL

investigation. When asked whether he could testify to whether he had any “knowledge that there

[was] no Department of Labor investigation ongoing of Dibon,” Skinner replied he “cannot

testify to that.” No other representative of Dibon testified at the hearing to refute the truthfulness

of the statements and no documents were introduced by Dibon to demonstrate the falsity or

misleading nature of the communications. The record, therefore, does not support Dibon’s

contention that the speech was false and misleading.1

           Dibon further argues that, because it brings a claim for tortious interference, this case

falls into another exception to the proscription against prior restraints. In reviewing its argument,

we must consider whether Dibon presented sufficient evidence of a probable right to recover

under its tortious interference claim. See Walling, 863 S.W.2d at 57; Branch Banking & Trust


     1
      Because the record before us does not establish that the speech was either false or misleading, its classification as commercial speech or
noncommercial speech is not controlling. Tex. Mut. Ins. Co. v. Surety Bank, NA, 156 S.W.3d 125, 130 (Tex. App.—Fort Worth 2005, no pet.).



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Co. v. TCI Luna Ventures, LLC, No. 05-12-00653-CV, 2013 WL 1456651, *2 (Tex. App.—

Dallas Apr. 9, 2013, no pet.) (op. on reh’g). The following elements must be established in a

cause of action for tortious interference with contract: (1) the existence of a contract subject to

interference; (2) a willful and intentional act of interference; (3) the act was a proximate cause of

the plaintiff’s damages; and (4) actual damage or loss resulted. Friendswood Dev. Co. v.

McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996). Because it is dispositive, we focus on

appellees’ alleged willful and intentional act of interference. Texas courts have held that to

satisfy this element of the cause of action for tortious interference, a party must be more than a

willing participant; it must knowingly induce one of the contracting parties to breach its

obligations. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993).

       In its brief, Dibon contends Jay “intentionally interfered with Dibon’s contract with its

customer, Appirio, thus causing Dibon to lose millions of dollars and suffer non-monetary

harm.” However, a necessary element of the plaintiff's cause of action is a showing that the

defendant took an active part in persuading a party to a contract to breach it. See John Paul

Mitchell Sys. v. Randall’s Food Mkts., 17 S.W.3d 721, 731 (Tex. App.—Austin 2000, pet.

denied) (citing Davis v. HydPro, Inc., 839 S.W.2d 137, 139 (Tex. App.—Eastland 1992, writ

denied)). It is necessary that there be some act of interference or of persuading a party to breach,

for example by offering better terms or other incentives, for tort liability to arise. See id. The

record before us provides no such evidence.

       At the hearing on temporary injunction, Jay testified he sent the complained-of

communication to Appirio. Skinner testified that, after Appirio received Jay’s communication, it

decided not to do business with Dibon.         However, there is no evidence, documentary or

testimonial, showing appellees took an active part in persuading Appirio to breach its contract

with Dibon. See John Paul Mitchell., 17 S.W.3d at 731.

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       Thus, we conclude the issuance of a temporary injunction would have been an improper

prior restraint. See In re Newton, 146 S.W.3d at 653-54. After reviewing the evidence in the

light most favorable to the trial court’s order, we conclude the trial court did not abuse its

discretion. See Walling, 863 S.W.2d at 58; Universal Health, 24 S.W.3d at 576.

       We overrule appellant’s sole issue and affirm the judgment of the trial court.




                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE
121112F.P05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

DIBON SOLUTIONS, INC., Appellant                     On Appeal from the 192nd Judicial District
                                                     Court, Dallas County, Texas
No. 05-12-01112-CV          V.                       Trial Court Cause No. DC-12-02163.
                                                     Opinion delivered by Justice Bridges.
JAY NANDA AND BON DIGITAL, INC,                      Justices Lang and Lewis participating.
Appellees

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
        It is ORDERED that appellees JAY NANDA AND BON DIGITAL, INC recover their
costs of this appeal from appellant DIBON SOLUTIONS, INC..


Judgment entered July 29, 2013




                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE




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