Opinion issued December 31, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00790-CV
                            ———————————
            THANG BUI AND BACH HAC NGUYEN, Appellants
                                        V.
                         MAYA DANGELAS, Appellee


                   On Appeal from the 152nd District Court
                            Harris County, Texas
                      Trial Court Case No. 2018-55787


                          MEMORANDUM OPINION

      This is the second interlocutory appeal Thang Bui and Monique Nguyen

have brought to challenge rulings made by the trial court in a defamation suit

brought against them by Maya Dangelas. Their first interlocutory appeal

challenged the trial court’s denial of their motion to dismiss Dangelas’s suit under
the Texas Citizens Participation Act.1 After concluding that Dangelas met her

burden to make a prima facie showing that Bui and Nguyen’s Facebook posts

about her were defamatory and made with malice, we affirmed the denial of their

TCPA motion. 2

      This second interlocutory appeal challenges the temporary injunction issued

against Bui and Nguyen that required them to delete existing Facebook posts if

they either (1) “encourag[ed] that violence be inflicted on [Dangelas] or her

family” or (2) provided Dangelas’s “address or the addresses of her family

members.” The temporary injunction states that it issued “to preserve the status

quo between the parties pending a trial on the merits” and to protect Dangelas’s

right to, among other things, “physical safety.”

      In four issues, Bui and Nguyen contend the trial court abused its discretion

in issuing the temporary injunction. The thrust of their complaint is expressed in

the following statement from their appellate brief: “Damages, and not prospective

injunctive relief, serve as the constitutionally permitted deterrent in defamation

actions.” Here, though, the trial court’s injunctive order did not grant prospective

injunctive relief. And there was evidence of concerns about physical harm in

1
      See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011.
2
      For additional background information concerning the Facebook posting by Bui
      and Nguyen as well as responsive postings by others in the Vietnamese-American
      refugee community, see Bui v. Dangelas, No. 01-18-01146-CV, 2019 WL
      5151410 (Tex. App.—Houston [1st Dist.] Oct. 15, 2019, no pet. h.) (mem. op.).
                                          2
response to the Facebook posts that supported returning the parties to the status

quo until the defamatory nature of the posts could be litigated.

      Because the trial court did not abuse its discretion in granting the temporary

injunction, we affirm.

                                Standard of Review

      A temporary injunction preserves the status quo of litigation’s subject matter

pending trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.

2002); Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). A temporary

injunction is an extraordinary remedy and does not issue as a matter of right.

Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at 57. To obtain a temporary

injunction, 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. Butnaru, 84 S.W.3d at

204; Walling, 863 S.W.2d at 57. An injury is 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. Whether to grant or

deny a temporary injunction is within a trial court’s sound discretion. Id. A

reviewing court will reverse an order granting injunctive relief if the trial court

abused its discretion. Id.; Walling, 863 S.W.2d at 58.




                                          3
                         Whether the Status Quo was
            Before or After Bui and Nguyen’s Posts were Published

      A temporary injunction does not determine the rights of the parties or the

merits of their claims but, instead, merely preserves the status quo until those rights

may be determined upon final trial on the merits. Butnaru, 84 S.W.3d at 204; City

of San Antonio v. Hamilton, 180 S.W. 160, 162 (Tex. Civ. App.—San Antonio

1915, no writ). The status quo is defined as the last actual, peaceable, noncontested

status that preceded the pending controversy. In re Newton, 146 S.W.3d 648, 651

(Tex. 2004). “If an act of one party alters the relationship between that party and

another, and the latter contests the action, the status quo cannot be the relationship

as it exists after the action.” Benavides Indep. Sch. Dist. v. Guerra, 681 S.W.2d

246, 249 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.); Layton v. Ball, 396

S.W.3d 747, 753 (Tex. App.—Tyler 2013, no pet.).

      Bui and Nguyen argue that the moment in time that should be considered the

status quo is after they published their Facebook posts, meaning that a temporary

injunction could not require the parties to return to positions that pre-dated

publication of posts about Dangelas on Facebook. This is similar to the argument

rejected in Layton.

      In Layton, the owners of a shooting range challenged an injunction order that

restricted their operation of the shooting range, arguing that the status quo was the

ongoing operation of the business because it was already in operation when nearby

                                          4
homeowners filed suit to close it. 396 S.W.3d at 754. The shooting range owners’

argument erroneously “presupposes that the activity conducted on the date suit was

filed necessarily controls the status quo determination.” Id. Instead, “the status quo

is the last actual, peaceable, noncontested status that preceded the controversy.” Id.

Just because it may have taken time “before the danger became apparent” and suit

was brought, the delay does “not necessarily fix the status quo on the date suit was

filed.” Id. On appeal, the reviewing court held that the trial court did not abuse its

discretion in determining that “the last actual, peaceable, noncontested status that

preceded the controversy was prior to the property’s use as a shooting range.” Id.

Similarly, here, the last actual, peaceable, noncontested status that preceded the

controversy between Bui and Nguyen on the one hand and Dangelas on the other

was before Bui and Nguyen posted inflammatory accusations about Dangelas on

Facebook that evoked responsive posts threatening violence against Dangelas.

      Bui and Nguyen admit they have never met Dangelas. Their connection to

her is limited to their having researched her on the internet, developed theories

about her political and ideological beliefs and family dynamics, and then espoused

those theories online, accusing her of being a Viet Cong operative funneling

communist money into the United States to bribe locals, support communist

causes, and harm the local Vietnamese-American refugee population. There was

peace—in fact, zero connection—between the parties before Bui and Nguyen


                                          5
published their accusations online. And it was their posts that prompted the safety

concerns for Dangelas and her children as threats of bodily harm filled their

replies. Here, the status quo was the period before Bui and Nguyen’s posts were

uploaded onto Facebook alleging Dangelas was an international spy who would

harm the Vietnamese-American refugee community, eliciting threats of violence

against her, and providing her home address to those provoked to violence.

      We reject Bui and Nguyen’s contention that the status quo to which the

temporary injunction would return the parties could not pre-date the publication of

their Facebook posts. This argument provides no basis for overturning the

injunction order.

               Whether the Temporary Injunction Impermissibly
                   Grants “Prospective Injunctive Relief”

      Bui and Nguyen rely on Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014), to

argue that injunctive relief cannot issue in a suit for defamation. Kinney is an

expansive Texas Supreme Court opinion that grapples with the intersection of

judicial determinations of defamation and prospective injunctions seeking to

prevent future speech. Id. at 98–101. That is not the situation here. The trial court’s

injunction is not a prohibitive injunction that restrains future speech. It is, instead,

a mandatory injunction that required an act—specifically, the deletion of two

specific categories of Facebook posts already published. See id. at 99 (discussing

“cogent division” between mandatory injunctions calling for removal of speech

                                           6
and prohibitive injunctions disallowing future speech). The holding in Kinney

regarding the remedy of prospective injunctions to restraint future speech is

inapplicable to these facts. See id.; Landry’s, Inc. v. Animal Legal Def. Fund, 566

S.W.3d 41, 66–67 (Tex. App.—Houston [14th Dist.] 2018, pet. granted) (likewise

noting distinction between prospective injunctions and mandatory injunctions in

context of defamation suit); Cummins v. Bat World Sanctuary, No. 02-12-00285-

CV, 2015 WL 1641144, at *26 (Tex. App.—Fort Worth Apr. 9, 2015, pet. denied)

(same).

      This suit does not involve prospective injunctions. There is no basis to

overturn the injunctive order on this basis.

          Whether a Justiciable Controversy Exists with regard to the
            Deletion of Facebook Posts that Encourage Violence

      Bui and Nguyen present various arguments why the First Amendment

prevents the issuance of a temporary injunction requiring them to delete posts that

encourage violence against Dangelas. One might infer from their arguments that

Bui and Nguyen are challenging this restriction because they seek to resurrect

deleted posts that might call for violence. But their pleadings negate that inference.

      In pleadings to this Court, Bui and Nguyen have asserted that their Facebook

posts did not threaten Dangelas or encourage violence against her in any way;

instead, other people replied to Bui and Nguyen’s posts with perceived calls for

violence that Bui and Nguyen claim not to have endorsed. Bui and Nguyen do not

                                          7
point to any particular posts of theirs that they have removed as responsive to the

description of “encouraging that violence by inflicted on [Dangelas] or her

family.” Further, in their brief, they confirm that they do not intend to publish posts

in the future to encourage violence against Dangelas or her family regardless of the

outcome of this appeal.

      Bui and Nguyen may have removed some of their own posts in the process

of removing potentially threatening replies they received, but their argument has

always been that their own posts were not threatening and did not encourage

violence.3 Thus, on this record, it is unclear that the temporary injunction actually

required the deletion of any past speech by Bui and Nguyen. Bui and Nguyen point

to none.

      To the extent Bui and Nguyen deleted their own posts because those posts

received replies that were threatening to Dangelas, we see two insurmountable

3
      Bui and Nguyen agree that true threats are not protected by the First Amendment.
      See Virginia v. Black, 538 U.S. 343, 359 (2003) (stating that First Amendment
      leaves states free to ban speech amounting to a “true threat”). True threats include
      statements in which the speaker communicates an intent to commit an act of
      unlawful violence to a particular individual or group of individuals, regardless of
      whether the speaker actually intends to carry out the threat. Id. at 359–60. Even if
      the threat of violence is a subjectively false, it is not worthy of constitutional
      protection. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)
      (discussing defamation and First Amendment); Schenck v. United States, 249 U.S.
      47, 52 (1919) (no First Amendment right to falsely yell “fire” in a crowded
      theater); Garcia v. State, 583 S.W.3d 170, 175 (Tex. App.—Dallas 2018, pet.
      ref’d) (concluding that Facebook post that pondered shooting police officers was
      unprotected true threat and that First Amendment did not insulate against
      prosecution under Texas Penal Code section 22.07(a)(1) for making a terroristic
      threat).
                                           8
problems with Bui and Nguyen seeking to overturn the temporary injunction as to

that narrow category of posts. First, Bui and Nguyen have made no legal argument

supported by citation to legal authority regarding how the First Amendment

protects against deletion of someone else’s threatening post made in reply to one’s

own post. See TEX. R. APP. P. 38.1(i). Second, their argument fails to account for

the ability, within Facebook, to delete another’s reply without also deleting one’s

own post.4 Bui and Nguyen had the technical ability to delete others’ threatening

replies without also deleting their own non-offending posts, and they do not argue

that their own First Amendment rights protect against such deletions.

      We conclude that Bui and Nguyen have not presented a justiciable

controversy related to the portion of the temporary injunction that required the

deletion of posts “encouraging that violence by inflicted on [Dangelas] or her

family.” The scope of the temporary injunction was precise, requiring deletion of

only those posts that “encourage[ed] . . . violence” against Dangelas and her

family. Bui and Nguyen’s position is that their own past posts did not encourage

violence. They fail to identify any of their own past posts that they deleted to

comply with the temporary injunction order. They further fail to articulate a legal

argument or cite to legal authority for First Amendment protections for others’

4
      See, e.g., Harry Guinness, How to Remove Other People’s Comments from Your
      Facebook Posts, https://www.howtogeek.com/311121/how-to-remove-other-
      people%E2%80%99s-comments-from-your-facebook-posts/ (How-To Geek, July
      12, 2017).
                                         9
posts made in reply to their own posts, to the extent they deleted others’

threatening posts. In sum, Bui and Nguyen have not shown that the injunction

against posts that encourage violence affected them or required deletion of

particular posts they published. Without any showing that the backward-looking-

only injunction impacted them, and having acknowledged that the injunction does

not restrict their future actions or speech, Bui and Nguyen have not presented any

basis to challenge this portion of the injunction. See Russell v. Metro. Transit Auth.

of Harris Cty., 343 S.W.3d 825, 833 (Tex. App.—Houston [14th Dist.] 2011, no

pet.) (“For a justiciable controversy to exist, there must be a real and substantial

controversy involving a genuine conflict of tangible interests and not merely a

theoretical dispute.”).

Whether the Trial Court Erred in Including within the Temporary Injunction
           a Provision Requiring the Deletion of Facebook Posts
                   that Announced Dangelas’s Addresses

      The only other category of Facebook posts the temporary injunction required

to be deleted were those “mentioning [Dangelas]’s address or the addresses of her

family members.” Bui and Nguyen argue that the publication of a person’s address

is not a threat, is not defamatory, and is not subject to mandated deletion because it

enjoys First Amendment protections. Their argument ignores the connection

established by Dangelas at the temporary injunction hearing and accepted by the




                                         10
trial court through its injunctive order between the challenged posts and Dangelas’s

recognized safety concerns.

      To obtain injunctive relief, one must establish a probable imminent and

irreparable injury before trial on the merits can be completed. Butnaru, 84 S.W.3d

at 204. This requirement includes elements of imminent harm, irreparable injury,

and no adequate remedy at law. Shor v. Pelican Oil & Gas Mgmt., LLC, 405

S.W.3d 737, 750 (Tex. App.–Houston [1st Dist.] 2013, no pet.). An injury is

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; Savering v. City of Mansfield, 505 S.W.3d 33, 49 (Tex. App.—Fort

Worth 2016, pet. denied).

      Dangelas’s cause of action is defamation. She presented evidence of posts

published by Bui and Nguyen indicating that Dangelas is a Viet Cong spy living

among the Vietnamese-American refugee population intending to further

communist objectives and undermine the community. She presented evidence that

these accusations alarmed some in the Vietnamese-American community and

resulted in reply posts that called for violence against Dangelas and her children. In

that context, with threatening posts abounding, Bui and Nguyen continued to post

about Dangelas, making additional accusations of communist sympathies and also




                                         11
publishing the home address for Dangelas and her youngest daughter as well as the

home address for each of her older daughters.

      The potential irreparable injury that Dangelas sought to avoid through the

issuance of an injunction was not merely the damage to her reputation that might

occur because Bui and Nguyen’s posts were defamatory. The predominate

potential injury was the danger that irreparable physical harm might result.

      If Bui and Nguyen’s posts are later determined to be defamatory at the trial

on the merits, they will be devoid of First Amendment protections and subject to

removal. See Kinney, 443 S.W.3d at 93; Landry’s, 566 S.W.3d at 66–67. With their

removal, those who would promote violence against accused Viet Cong spies

would have to actively search elsewhere for targets for their ire instead of passively

relying on the fortuitous public listing of a home address where this particular

alleged Viet Cong spy could be found. We cannot agree that Dangelas must wait

until the defamatory nature of Bui and Nguyen’s posts is determined to obtain

judicial relief from the possibility of violence against her should someone use the

provided address to cause harm.

      The posts at issue in this suit are distinguishable from those discussed in

Kinney and Landry’s in that these parties concede Bui and Nguyen’s posts were

met with calls for violence against Dangelas. It was in that context that Bui and

Nguyen provided Dangelas’s home addresses, relieving any would-be violent


                                         12
perpetrator of the need to investigate and obtain such information on their own,

should they resolve to act on their violent threats. This is dangerous. And it was

within the trial court’s equitable powers to address the probable risk of irreparable

injury—in the form of physical violence—through issuance of a narrow temporary

injunction to remove posts identifying Dangelas’s home address in the context of

active threats against her by others. See Rhodia, Inc. v. Harris Cty., 470 S.W.2d

415, 419–20 (Tex. Civ. App.—Houston [1st Dist.] 1971, no writ) (discussing

equitable injunction powers available to courts to issue temporary mandatory

injunctions addressed to safety and health). Further, this aspect of the temporary

injunction assisted in returning the parties to the status quo before inflammatory

accusations were made about Dangelas by Bui and Nguyen, others replied with

threats of violence against Dangelas and her family, and Bui and Nguyen supplied

the location where the Dangelas family could be found.

      The injury the temporary order addressed by requiring the deletion of posts

announcing Dangelas home addresses went beyond reputational damages to

include irreparable physical harm from violence, and it issued in response to

articulated, documented threats made in reply-posts to allegedly defamatory

speech. In that context, the trial court’s equitable powers permit the return of the

parties to the status quo through a narrow mandatory injunction requiring the

removal of posts identifying Dangelas’s home addresses to those who have


                                         13
announced threats of violence against her and her family. An injunction can issue

to return the parties to the status quo and protect against the danger of violence as

the parties await determination of the merit of the claims. See id.; Int’l Ladies’

Garment Workers’ Local Union No. 123 v. Dorothy Frocks Co., 95 S.W.2d 1346,

1349 (Tex. Civ. App.—San Antonio 1936, no writ) (concluding that trial court did

not abuse its discretion in granting temporary injunction that temporarily limited

free speech picketing after receiving evidence of potential for violence, and noting

that “courts of equity are vested with power and authority to act promptly and

effectively in emergencies to protect” those involved and that “the rights of all

parties can be tried out on the merits in due course”).

      Here, the trial court received evidence of the real possibility of physical

harm to Dangelas and her children because some portion of the Vietnamese-

American refugee population had read Bui and Nguyen’s unsubstantiated

accusations, expressed their belief that violence was an appropriate response, and

had been given the address to engage in violent acts against Dangelas and her

children. Dangelas met her burden of demonstrating a probable, irreparable

physical injury if the posts identifying her home addresses were not removed

through injunctive relief.

      Trial courts have broad discretion to grant temporary injunctions to provide

for the safety of parties involved and to maintain the status quo until rights may be


                                          14
judicially determined. See Rhodia, Inc., 470 S.W.2d at 419. The trial court did not

abuse its discretion in issuing a narrow mandatory injunction requiring the removal

of posts identifying Dangelas’s home address and that of her daughters in the

context of active statements of threats of violence against Dangelas in the

accompanying posts and surrounding online conversations.

                                     Conclusion

      Having concluded that the trial court did not abuse its discretion in granting

a temporary mandatory injunction that requires the deletion of already-published

Facebook posts if they meet either of two discrete criteria for the purpose of

addressing a concern of physical safety, we affirm.

      This is an interlocutory appeal. The resolution of the underlying merits of

the defamation suit are not before this Court at this time.5 The suit is remanded to

the trial court for additional proceedings.




                                               Sarah Beth Landau
                                               Justice

Panel consists of Chief Justice Radack and Justices Landau and Hightower.

5
      The final issue raised in Bui and Nguyen’s interlocutory appeal is whether there
      was evidence of their actual malice to meet the standard for a probable right to
      relief in support of a temporary injunction. Because we have already determined
      that Dangelas made a prima facie showing of actual malice in the related case, Bui,
      2019 WL 5151410, at *10, we do not reach Bui and Nguyen’s final issue.
                                          15
