Reverse and Remand and Opinion Filed August 26, 2013




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

                                      No. 05-12-01024-CV

          CARLOS RAMIREZ, MIXSY RAMIREZ, THE RAMIREZ ENERGY
            GROUP, INC., DESIREE MCKELLAR, MILES MCKELLAR,
                      AND HISENERGY, LLC, Appellants
                                   V.
           IGNITE HOLDINGS, LTD. AND STREAM SPE, LTD, Appellees

                       On Appeal from the 14th Judicial District Court
                                   Dallas County, Texas
                             Trial Court Cause No. 12-06049

                                MEMORANDUM OPINION

                      Before Justices O’Neill, FitzGerald, and Lang-Miers
                                 Opinion by Justice FitzGerald

       This is an interlocutory appeal from a temporary injunction. Appellants complain that the

injunction is not detailed enough, is not supported by sufficient pleadings or evidence, and is

self-contradictory. We reverse the injunction in part.

                                       I. BACKGROUND

A.     Facts

       Except as otherwise noted, we take these facts from the trial judge’s findings in support

of the temporary injunction. Stream Gas & Electric, Ltd. is a retail provider of electricity and

natural gas to consumers in several states including Texas. Appellees Ignite Holdings, Ltd.

(Ignite) and Stream SPE, Ltd. (Stream) are both wholly owned subsidiaries of Stream Gas &
Electric. Ignite is a marketing subsidiary, and Stream is the entity to which Stream Gas &

Electric’s Texas electricity customers pay their bills.

       Ignite uses a sales force of independent associates to sell Stream Gas & Electric’s

electricity and natural gas products. Independent associates can recruit other people to become

Ignite independent associates. These recruits are known as the “downline” of the independent

associate who recruited them. An independent associate earns commissions based on his or her

own sales and on the sales of his or her downline. Every independent associate enters into a

written agreement with Ignite that defines the associate’s compensation and entitles the associate

to support from Ignite in the form of training materials, seminars, and access to other

confidential information. In return, each independent associate agrees not to participate in other

business opportunities involving products or services that are related to the sale of natural gas or

electricity in any geographic area where Ignite or its parent offers such products or services.

Each independent associate also agrees not to be involved in soliciting products or services for

any other energy company, in cross-recruiting other Ignite independent associates, or in

attempting to buy or sell any customers of Stream Gas & Electric. These clauses apply during

the independent-associate relationship and for one year thereafter.

       Appellants were Ignite independent associates and agreed to the foregoing terms.

Nevertheless, no later than early 2012, appellants began competing with Ignite and Stream.

Appellants violated their non-competition clauses by working for one of appellees’ competitors

and violated their non-solicitation clauses by soliciting independent associates in their downlines

to do the same.

       Evidence showed that Ignite terminated Miles and Desiree McKellar’s status as

independent associates on May 3, 2012. Other evidence indicated that Ignite terminated Carlos

and Mixsy Ramirez’s status as independent associates on May 22, 2012.

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B.      Procedural history

        On June 1, 2012, appellees Ignite and Stream sued appellants on several theories of

liability, including breach of contract and misappropriation of trade secrets. Appellees sought

not only damages but also a temporary restraining order, a temporary injunction, and a

permanent injunction. The trial judge granted appellees a temporary restraining order. On June

4, the trial judge heard a motion to dissolve the TRO by appellants, and he denied that motion.

        The trial judge later conducted a hearing on appellees’ request for a temporary injunction.

The hearing extended over two days, and several witnesses testified. The trial judge then granted

appellees’ application for a temporary injunction. He signed the temporary injunction on July 3,

2012, and appellants timely filed a notice of interlocutory appeal. See TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(a)(4) (West Supp. 2012) (authorizing interlocutory appeal from order

granting temporary injunction).

C.      The provisions of the temporary injunction

        As discussed above, the trial judge made findings of fact that appellants had engaged in

conduct that violated their non-competition and non-solicitation agreements with Ignite, such as

working for a competitor of Ignite and Stream and encouraging independent associates in their

downlines to do the same. After making these findings, the judge ordered in paragraph 7 of the

injunction that appellants and any persons “in active concert with any of them” in connection

with the conduct previously found by the judge were restrained and enjoined from the following

acts:

        a)     participating in any business opportunity (other than operating an Ignite
               IA position) involving products or services that are related to the sale of
               natural gas or electricity in any geographic area in which Ignite or Stream
               Energy offers such products or services;

        b)     soliciting other IAs who are currently sponsored by another individual
               under the Ignite program to participate in any other network marketing
               program;

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        c)      sponsoring, or directly or indirectly helping others to sponsor, into any
                other competing or non-competing sales organization or program any IA
                not personally sponsored by such defendant (regardless of whether such
                network marketing company offers energy services);

        d)      being involved directly or indirectly in the solicitation of products or
                services for any other energy company;

        e)      marketing the services of, or operating or contributing to a website
                regarding, North American Power or any of its related entities;

        f)      possessing, disclosing to any third party, or using for their own benefit or
                to the detriment of Ignite and Stream Energy any of Ignite’s or Stream
                Energy’s Proprietary Information/Trade Secrets (including but not limited
                to proprietary information, confidential information, training materials,
                templates, or sales or customer lists);

        g)      destroying, discarding, altering, or deleting any documents, emails, or text
                messages relating in any way to this lawsuit or the subject matter of this
                Order.

As to the McKellars and HisEnergy, LLC, paragraphs “a” through “e” of the injunction expired

on May 3, 2013, or upon the entry of final judgment, whichever came first. As to the Ramirezes

and The Ramirez Energy Group, Inc., paragraphs 7(a) through 7(e) expired on May 22, 2013, or

upon the entry of final judgment, whichever came first. Paragraphs 7(f) and 7(g) remain in effect

as to all appellants until the entry of final judgment.

                                           II. ANALYSIS

A.      Standard of review

        We review a temporary injunction for abuse of discretion. Allied Capital Partners, LP v.

Proceed Technical Res., Inc., 313 S.W.3d 460, 464 (Tex. App.—Dallas 2010, no pet.). The

applicant must show a cause of action against the other party, a probable right to the relief

sought, and a probable, imminent, and irreparable injury if the injunction does not issue. Id. We

do not reach the merits of the dispute in an interlocutory appeal, and we will not assume that the

evidence at the temporary-injunction hearing will be the same as the evidence developed at the

trial on the merits. Id.

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B.     Moot issues

       Appellants raise six issues on appeal, the first four of which concern only paragraphs 7(a)

through 7(e) of the temporary injunction. Each of those paragraphs has expired by its own terms.

When a temporary injunction becomes inoperative due to the passage of time, the issue of its

validity becomes moot, and we cannot address it. Nat’l Collegiate Athletic Ass’n v. Jones, 1

S.W.3d 83, 86 (Tex. 1999). Accordingly, appellants’ first four issues on appeal are moot, and

we do not address them.

C.     Paragraph 7(f) of the injunction

       In their fifth issue, appellants complain that paragraphs 7(a), 7(b), 7(c), and 7(f) of the

temporary injunction are improper because they are not specific and detailed enough to satisfy

Texas Rule of Civil Procedure 683. The issue is moot except as to paragraph 7(f), so we limit

our discussion to paragraph 7(f) of the injunction.

       Rule 683 provides that an injunction shall “describe in reasonable detail and not by

reference to the complaint or other document, the act or acts sought to be restrained.” TEX. R.

CIV. P. 683. The rule’s purpose is to ensure the enjoined parties are given adequate notice of the

acts they are enjoined from doing. Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 552

(Tex. App.—Dallas 1993, no writ). “An injunction 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 . . . .” Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 220–21

(Tex. App.—Dallas 2005, no pet.).         Paragraph 7(f) of the temporary injunction restrains

appellants from “possessing, disclosing to any third party, or using for their own benefit or to the

detriment of Ignite and Stream Energy any of Ignite’s or Stream Energy’s Proprietary

Information/Trade Secrets (including but not limited to proprietary information, confidential


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information, training materials, templates, or sales or customer lists).” Appellants argue that the

phrase “Ignite’s or Stream Energy’s Proprietary Information/Trade Secrets” is so vague as to

violate Rule 683. Appellees respond that this phrase is defined in the injunction in reasonably

specific detail.

        We review the injunction as a whole to ascertain how it defines the phrase “Ignite’s or

Stream Energy’s Proprietary Information/Trade Secrets.” In paragraph 7(f) itself, the phrase is

said to include without limitation “confidential information” and “proprietary information,”

which are broad, general terms. Earlier, in paragraph 5 of the injunction, the trial judge defines

the phrase “Proprietary Information/Trade Secrets” as “valuable business, training, and sales

techniques, methods, forms, materials, guides, lists, downline associate and customer lists,

including personal identifying information, and other confidential and proprietary information as

discussed above.” Again, the phrase is defined with broad, general words such as “techniques,”

“materials,” and “other confidential and proprietary information as discussed above.” This

definition does not effectively narrow or limit the meaning of “Proprietary Information/Trade

Secrets.” The phrase “other confidential and proprietary information as discussed above” in

paragraph 5 seems to refer to paragraph 2, in which the judge found that Ignite gave appellants

access to “proprietary marketing materials, training materials, the right to attend innumerable

live training seminars, [and] organizational reports (which are considered proprietary and

confidential).” Thus, reading the injunction as a whole, we conclude that paragraph 7(f)’s phrase

“Ignite’s and Stream Energy’s Proprietary Information/Trade Secrets” encompasses many

categories of materials. Some categories are fairly specific, such as “downline associate and

customer lists” and “organizational reports,” but others are broad and general, such as

“techniques,” “materials,” “proprietary information,” and “confidential information.”




                                               –6–
       We have not found any precedent cases precisely on point. In one case, the Fort Worth

Court of Appeals upheld a temporary injunction that forbade the appellants from using “Bell

trade secrets and confidential information” because the injunction as a whole made it clear that

this phrase meant “information pertaining to Bell’s 206B and OH–58 helicopter blades.” IAC,

Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 201–02 (Tex. App.—Fort Worth 2005, no

pet.). Thus, that injunction was considerably more specific and detailed than the injunction in

the instant case, which encompasses without limitation all of appellees’ “proprietary

information” and “confidential information.” We have considered a couple of cases involving

secret customer lists. An injunction that prohibits a party from soliciting customers on lists that

are exhibits to the injunction is sufficiently detailed and specific. Rugen, 864 S.W.2d at 553.

But an injunction that prohibits a defendant from contacting any of the plaintiff’s clients that do

not appear on a particular list is not specific enough because it does not specifically identify “the

off-limits clients, without inferences or conclusions.” Computek, 156 S.W.3d at 222–23.

       We conclude that paragraph 7(f) is not specific and detailed enough to pass muster under

Rule 683 and must therefore be reversed. That provision of the injunction does not define

“Proprietary Information/Trade Secrets” with enough specificity to give appellants adequate

notice of the acts they are restrained from doing. Instead, they must infer whether any particular

information or item in their possession constitutes “proprietary information” or “confidential

information” subject to the injunction. This is impermissible. See id.

       The last question is what relief we should grant in light of our holding. In Computek, we

reversed part of a permanent injunction because it was not specific enough, and we reversed a

different part because it was too broad and forbade some lawful conduct. Id. at 222–23, 224.

We reformed the part of the injunction that was overly broad by modifying and narrowing it, but

we reversed the insufficiently specific part of the injunction outright and remanded the case for

                                                –7–
further proceedings on that issue. Id. at 224. Following that approach, we will reverse paragraph

7(f) of the temporary injunction and remand for further proceedings.

D.     Paragraph 7(g) of the injunction

       In their sixth and last issue, appellants complain that paragraph 7(g) of the temporary

injunction is improper because it is not supported by pleadings or evidence, because it is not

sufficiently specific and detailed to satisfy Rule 683, and because it conflicts with paragraph 7(f).

Paragraph 7(g) forbids appellants from “destroying, discarding, altering, or deleting any

documents, emails, or text messages relating in any way to this lawsuit or the subject matter of

this Order.” Appellees argue that paragraph 7(g) was sufficiently specific and was not an abuse

of discretion in light of the trial judge’s determination that appellants’ testimony was not

credible.

       We agree with appellants. We have already concluded that paragraph 7(f) was too vague

to satisfy Rule 683. Paragraph 7(g) incorporates similarly nonspecific terms. In paragraph 7(g),

the trial judge forbids appellants from destroying materials relating in any way to “the subject

matter of this Order,” which would include the nonspecific terms “confidential information” and

“proprietary information.” Thus, in order to determine whether a particular document relates

“confidential information” or “proprietary information,” and thus may not be destroyed,

appellants would have to infer what those terms encompass. Because paragraph 7(g) forces

appellants to infer what conduct is forbidden, that paragraph violates Rule 683 and must be

reversed.

       As appellees themselves note, litigants owe a duty to preserve evidence once they know

or reasonably should know that a claim will be filed and that the evidence in their possession or

control is potentially relevant to that claim. See Wal–Mart Stores, Inc. v. Johnson, 106 S.W.3d

718, 722 (Tex. 2003); Adobe Land Corp. v. Griffin, L.L.C., 236 S.W.3d 351, 357–58 (Tex.


                                                –8–
App.—Fort Worth 2007, pet. denied). Thus, by the time of the temporary-injunction hearing,

appellants already owed appellees a legal duty not to destroy any potentially relevant evidence.

                                       III. CONCLUSION

       For the foregoing reasons, we reverse paragraph 7(f) and paragraph 7(g) of the temporary

injunction, and we remand the case for further proceedings consistent with this opinion.




121024F.P05                                          /Kerry P. FitzGerald/
                                                     KERRY P. FITZGERALD
                                                     JUSTICE




                                               –9–
                                      S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

CARLOS RAMIREZ, MIXSY RAMIREZ,                    On Appeal from the 14th Judicial District
THE RAMIREZ ENERGY GROUP, INC.,                   Court, Dallas County, Texas
DESIREE MCKELLAR, MILES                           Trial Court Cause No. 12-06049.
MCKELLAR, AND HISENERGY, LLC,                     Opinion delivered by Justice FitzGerald.
Appellants                                        Justices O'Neill and Lang-Miers
                                                  participating.
No. 05-12-01024-CV        V.

IGNITE HOLDINGS, LTD. AND STREAM
SPE, LTD, Appellees


       In accordance with this Court’s opinion of this date, we REVERSE paragraph 7(f) and
paragraph 7(g) of the Temporary Injunction signed on July 3, 2012, and we REMAND this
cause to the trial court for further proceedings consistent with this opinion.

      It is ORDERED that appellants CARLOS RAMIREZ, MIXSY RAMIREZ, THE
RAMIREZ ENERGY GROUP, INC., DESIREE MCKELLAR, MILES MCKELLAR, and
HISENERGY, LLC, recover their costs of this appeal from appellees IGNITE HOLDINGS,
LTD. and STREAM SPE, LTD.


Judgment entered August 26, 2013




                                                /Kerry P. FitzGerald/
                                                KERRY P. FITZGERALD
                                                JUSTICE




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