                      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
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.
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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. 3

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.

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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.

                                                      5
       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-


                                            7
of-the-case doctrine further seeks to promote efficiency and uniformity in the decision-

making 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. 5

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.
                                                     8
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,


                                              9
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,


                                              11
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.).


                                           13
          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.




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