                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00615-CV

                                        Kelly Reid WALLS,
                                             Appellant

                                                   v.

                                           Daniel KLEIN,
                                             Appellee

                     From the 150th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2012-CI-11285
                        Honorable Victor Hugo Negron Jr., Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: March 13, 2013

AFFIRMED AS MODIFIED

           This is an accelerated, interlocutory appeal in which appellant, Kelly Walls, appeals a

temporary injunction granted in favor of appellee, Daniel Klein. Walls contends the temporary

injunction should be dissolved because (1) it constitutes a prior restraint on Walls’s

constitutional right of free speech, (2) the remedy of specific performance is not available for an

alleged breach of contract not to defame, and (3) the trial court abused its discretion in granting

the temporary injunction because Klein failed to show Walls posed an immediate threat of

irreparable harm. We modify the temporary injunction and we affirm as modified.
                                                                                    04-12-00615-CV


                                          BACKGROUND

       Walls and Klein were in a romantic relationship. After their relationship ended, disputes

arose between the parties. Walls’s attorney sent a letter to Klein’s attorney threatening to file a

suit for damages against Klein for claims including intentional infliction of emotional distress,

assault, fraud, and defamation. After receiving this letter, Klein and Walls entered into an

agreement and settled their disputes wherein Walls agreed, amongst other things, to release all

claims against Klein in exchange for a sum of $30,000. The Settlement Agreement and Full and

Final Release, signed on April 26, 2012, included a “Confidentiality and Non-disparagement”

clause which, in relevant part, stated:

               The Parties agree and acknowledge that they will not disparage one
       another. The Parties will have no further contact with each other in any form,
       their respective family members and close friends relating in any way to the
       Claims or the matters alleged in the Claims Letter.

In the Agreement, Walls affirmed “she has not previously made and will not make in the future

any claims, allegations or complaints against or relating to Klein with any agency, including . . .

the San Antonio Police Department (other than her prior verbal complaint on January 15, 2012),

. . . or any licensing or regulatory board regarding or in any way related to the Claims or the

matters alleged in the Claims Letter.”

       The agreement also included a provision entitled “Contractual Agreement” that provided:

               It is expressly understood and agreed that the terms of this Agreement are
       contractual and not merely recitals. In the event any dispute concerning a right or
       obligation specifically created under the terms of this Agreement arises, such right
       or obligation shall be enforceable in a court of equity by specific performance.
       This remedy shall be in addition to any other remedy available at law or equity.

Further, the agreement included a provision entitled “Voluntary Execution of Agreement” that

provided:

              The Parties expressly represent and warrant that they have participated in
       the negotiation and preparation of this Agreement, and that they are executing this
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           Agreement voluntarily, with the benefit and advice of counsel, without any
           duress, coercion, or undue influence.

           In July 2012, shortly after the Agreement was signed, Walls filed an original petition for

injunctive relief against Klein. Walls alleged Klein continued to “stalk, harass, and humiliate”

her in violation of the no-contact and non-disparagement clauses contained in the Agreement by

attempting to run her and her pets over with his vehicle and by following her in his vehicle and

calling her foul names. Walls reported both incidents to the San Antonio Police Department.

The trial court granted Walls an ex parte temporary restraining order against Klein and set a

hearing on a temporary injunction.

           Klein filed an answer to Walls’s suit as well as a counter-claim against Walls seeking his

own temporary injunction and asserting claims for defamation, breach of contract, and invasion

of privacy. Klein alleged Walls was needlessly walking in front of his residence, sending

threatening emails to his close friends, sending anonymous, disparaging emails to members of

the religious institution he attended, and making disparaging and derogatory remarks in an

attempt to injure him. Specifically, Klein alleged Walls posted on her Facebook page that she

intended to publically disparage Klein with the launch of a website containing photographs of

him that Walls had taken while they were still in a relationship.

           A hearing was held and the trial court denied Walls’s application for temporary

injunction and granted Klein’s application for temporary injunction. The trial court found Klein

will likely prevail on the trial of this cause, Walls intends to harm and injure Klein, and Walls

intends to violate her obligations under the Agreement previously entered into between the

parties.

           Walls objected to the language of the order granting Klein’s application for temporary

injunction. At the hearing on the motion to enter order, Walls argued the language was overly


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vague and imposed prior restraint on her, that Klein presented no evidence to support the

injunction, and that she had not violated the Agreement. The court modified sections of the

temporary injunction and signed the modified temporary injunction. Walls then filed a motion to

dissolve the temporary injunction, which the trial court denied.        This accelerated appeal

followed.

                                   STANDARD OF REVIEW

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

court. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). An appellate court may not

substitute its judgment for that of the trial court. Menna v. Romero, 48 S.W.3d 247, 252 (Tex.

App.—San Antonio 2001, pet. dism’d w.o.j.). “Rather, we limit our review to whether there has

been a clear abuse of discretion.” Id. (citing Davis v. Huey, 571 S.W.2d 859, 861 (Tex. 1978)).

       “At the hearing for a temporary injunction, the only question before the trial court is

whether the applicant was entitled to an order to preserve the status quo pending trial on the

merits.” Henderson v. KTRS, Inc., 822 S.W.2d 769, 773 (Tex. App.—Houston [1st Dist.] 1992,

no pet.).   The trial court must state the reasons why it deems the temporary injunction

appropriate to prevent injury to the applicant. Id.

                                      PRIOR RESTRAINT

       In her first issue, Walls contends the following paragraphs of the temporary injunction

impose a prior restraint on her protected speech by commanding her to desist and refrain from:

       (1) Communicating . . . with any person, entity, organization, agency or religious
           institution regarding or concerning Klein . . . concerning any allegation or
           matter set forth in the Agreement and any exhibits attached thereto, except as
           may be necessary to defend herself in this action, or to respond to an
           investigation by a governmental agency initiated by that agency; (2)
           Publishing or attempting to publish on any website, including but not limited
           to Facebook, any fictional narrative concerning or based, in whole or in part,
           on Klein, without his written consent or without leave of court; (3) Publishing
           to any third parties in any form or fashion any photographs or depictions of
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              Klein, without his written consent or without leave of court; (4) Interfering
              with Klein’s personal, familial, or business relationships or the relationship
              between Klein and [his religious institution] by intentionally, knowingly, or
              recklessly making anonymous false complaints and reports to governmental,
              private, and religious regulatory agencies; . . . and (7) Disparaging and/or
              defaming Klein in any mode, form, or fashion whatsoever.

         Walls cites and relies on Brammer v. KB Home Lone Star, L.P., 114 S.W.3d 101 (Tex.

App.—Austin 2003, no pet.) in which the Austin Court of Appeals held a temporary injunction

restraining defamatory speech was unconstitutional. Id. at 113–14. In concluding the Brammers

did not waive their free speech rights by signing an agreement not to disparage KB Home, the

court stated, “if free speech rights can be waived in Texas, a court must find clear and

convincing evidence that the waiver is knowing, voluntary and intelligent.” Id. at 110 (footnote

omitted). The court pointed out KB Home failed to present any evidence at the hearing on the

temporary injunction to show that when the Brammers signed the Agreement they “knowingly,

voluntarily, and intelligently agreed to waive the constitutional safeguards implicated by
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defamatory or disparaging speech.”                Id. The court took note that the Brammers themselves

never testified at the temporary injunction hearing.                     We believe the case before us is

distinguishable. Here, Walls testified at the hearing and indicated she had signed the Agreement:

         The Court: Is this your mediated settlement agreement?

         [Walls]: Yes, sir, it is.




1
  The court in KB Home also emphasized the impact of public concern on its decision not to limit the Brammer’s
disparaging speech. The court stated: “Regardless of the veracity of such disparagement, the criticism of the
business can be reasonably related to social views that are strongly held by the speakers. Here, the Brammers spoke
as members of a group advocating legislation to protect buyers of new homes from unscrupulous homebuilders,
which arguably is an issue of public concern.” Brammer, 114 S.W.3d at 108. The court further stated:
“Nonetheless, KB Home has not referred us to, nor have we located, a Texas case upholding a temporary injunction
to enforce a contract like the one at issue here: a contract not to defame or disparage on issues that, arguably, are of
social concern.” Id. at 109. There are no similar issues of social or public concern in the instant case. Here, the
parties are persons, not businesses, and the Agreement was not to disparage on issues relating personally to the
parties—issues that cannot be classified as those of social concern.


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        The Court: And in this agreement did you and Mr. Klein reach any agreement
        regarding him staying away from you or you staying away from him or don’t
        disparage each other —

        [Walls]: Not to disparage, yes, sir.

Walls also confirmed she received $30,000 in exchange for their agreement. This in-court

testimony, coupled with the language of the Agreement in which Walls agreed she was

“executing this Agreement voluntarily, with the benefit and advice of counsel, without any

duress, coercion, or undue influence,” leads us to conclude that Walls, unlike the Brammers in

KB Home, “knowingly, voluntarily, and intelligently agreed to waive the constitutional

safeguards implicated by defamatory or disparaging speech” against Klein when she signed the

Agreement. See id. at 110.

        Having determined Walls voluntarily and knowingly entered into the Agreement to not

use disparaging speech against Klein, we must now determine whether the specific paragraphs in

the temporary injunction against Walls are overly broad. In French v. Community Broadcasting

of Coastal Bend, Inc., 766 S.W.2d 330 (Tex. App.—Corpus Christi 1989, writ dism’d w.o.j.), the

court held an injunction seeking to enforce a covenant not to compete was overly broad and,

therefore, improper. The court held: “The non-competition agreement in this case prohibited

French from entering into direct or indirect competition with CBCB. The injunction prohibited

French from engaging in activities well beyond the express prohibitions of the covenant.” Id. at

335–36. The court discussed how, even though the underlying covenant not to compete was

valid, the temporary injunction must be careful to prohibit only activities within the scope of that

covenant and not those only “marginally covered by it;” especially “[w]hen those marginally

prohibited activities are also activities that have strong constitutional . . . protection . . . .” Id. at

335. Accordingly, if paragraphs (1), (2), (3), (4), or (7) of the temporary injunction prohibit



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activity beyond the scope of the provisions she agreed to in the underlying Agreement they are

overly broad and, thus, are improper.

       Walls agreed in the Settlement Agreement to “not disparage one another” and to “have no

further contact with each other in any form, their respective family members and close friends

. . . .” At the hearing, Klein entered into evidence a Facebook post created by Walls on May 30,

2012, after the Agreement was signed, that stated: “I am excited to begin a new art project

utilizing photographs and text. ‘Veracity of a Lush Life’ is a fictional narrative of a narcissistic,

passive-aggressive drug dealing prostitute named Samuel. Web site should be live soon.” Klein

testified at the hearing that he knew this referred to him and his friends knew it referred to him as

well. Klein has been the host of a radio show entitled “Lush Life” for eleven years and Klein

manages a Facebook page entitled “Lush Life” to promote his radio show.                Additionally,

“Samuel” is the name of Klein’s father. Klein further testified he knew the photographs Walls

intended to use in her “art project” were of the two of them that had been taken in private while

they were still in a romantic relationship.

       Clearly, posting a website with pictures of Klein in a “fictional narrative” about a

“narcissistic, passive-aggressive drug dealing prostitute” is disparaging to Klein.           Walls

specifically agreed, in exchange for a substantial amount of money, “not to disparage” Klein. At

the hearing, Walls asserted Klein gave his permission to use the photographs in a “fictional

narrative.” However, the only question before the trial court was whether Klein was entitled to

an order to preserve the status quo pending trial on the merits. See Henderson, 822 S.W.2d at

773. Whether Klein gave permission is a question of fact to be addressed at the trial on the

merits. Before its resolution, the trial court’s temporary injunction serves to maintain the status

quo and prevent Walls from posting such potentially disparaging material in violation of the

Agreement. We therefore conclude the trial court did not abuse its discretion in ordering Walls
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to desist and refrain from the activities in paragraphs (2), (3), and (7) of the temporary injunction

because these activities are within the scope of the non-disparagement/non-contact provisions of

the underlying Agreement.

       As to paragraph (4), Klein testified that Walls recently started attending the same

religious institution Klein had attended for the past fifteen years. After the Agreement was

signed, Walls continued to attend the same religious institution and, according to Klein, Walls

would attend every night Klein played in the band and stare at him in an uncomfortable fashion.

Klein testified this “was particularly unnerving and rattling” to him. Klein also testified Walls

urged the church leadership to prohibit Klein from working with the youth on any church trips by

filing complaints against Klein to the leadership, falsely accusing him of dealing drugs while his

child was in the house. Making accusations against Klein at his religious institution that he was

selling drugs with his child in the house, a crime for which Klein has not been charged, is an

attempt to disparage Klein to the leadership of his church. Accordingly, we conclude the

language in paragraph (4) of the temporary injunction prohibiting Walls from “[i]nterfering with

Klein’s personal, familial, or business relationships or the relationship between Klein and [his

religious institution] by intentionally, knowingly, or recklessly making anonymous false

complaints . . .” is within the scope of the Agreement and, therefore, was not overly broad.

       Walls claims paragraph (1), prohibiting her from “[c]ommunicating . . . with any person

. . . regarding or concerning Klein . . .,” is overly broad in that it bars her “from communicating

with medical providers regarding the permanent injuries she suffered as a result of Appellee’s

sexual assault of her.” According to the record, this is in reference to a sexually transmitted

disease she allegedly received from Klein. We find no merit to her argument that paragraph (1)

restricts her from obtaining medical treatment. The trial court stated at the hearing, “I think its

clear to everybody in this court that the injunction was never intended for you not to
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communicate with your medical healthcare entities of any kind your condition or for treatment.”

We agree with the trial court and conclude appellant’s argument that paragraph (1) is overly

broad by prohibiting her from communicating with medical providers about treatment is without

merit.

         Walls also claims paragraph (1) is “so overly broad and restrictive that it even forbids

[her] from communicating with law enforcement and governmental agencies regarding [Klein’s]

illegal activities.” Because the language of the injunction prohibits Walls from reporting any

illegal conduct by Klein that may be directed at her, we conclude this provision of the temporary

injunction is overly broad. It is within an appellate court’s discretion to modify an injunction

that is overbroad. Center for Econ. Justice v. Am. Ins. Ass’n, 39 S.W.3d 337, 347 (Tex. App.—

Austin 2001, no pet.).      We hereby modify paragraph (1) of the injunction by adding the

following italicized language. Walls must desist and refrain from:

         (1) Communicating, directly or indirectly, in any mode or fashion, with any
             person, entity, organization, agency or religious institution regarding or
             concerning Klein, including, without limitation, the use of anonymous email
             or other communications or communications through a third party,
             concerning any allegation or matter set forth in the Agreement and any
             exhibits attached thereto, except as may be necessary to defend herself in this
             action, or to respond to an investigation by a governmental agency initiated
             by that agency, or to report any truthful incidents of illegal conduct directed
             at her to law enforcement;

         We conclude all the activities the trial court prohibited Walls from engaging in were

within the express non-contact and non-disparagement prohibitions of the Agreement and were

proper, with the exception of paragraph (1), which we conclude was overly broad and we have

modified.

                                  SPECIFIC PERFORMANCE

         Next, Walls contends the remedy of specific performance is not available in a suit for

breach of contract not to defame and, therefore, the temporary injunction should be dissolved.
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Walls argues in her brief: “Specific performance, as a matter of law, is not an available remedy

in a defamation suit because there is an adequate remedy at law by way of an action for monetary

damages.”

       In the Agreement, Walls specifically agreed “not to disparage” Klein and the Agreement

clearly provided for specific performance as a means of enforcing the agreement: “In the event

any dispute concerning a right or obligation specifically created under the terms of this

Agreement arises, such right or obligation shall be enforceable in a court of equity by specific

performance.” We believe the temporary injunction was a proper means of maintaining the

status quo by enforcing the Agreement Walls and Klein agreed to pending a trial on the merits.

                                   ABUSE OF DISCRETION

       Finally, Walls argues the trial court abused its discretion in granting the temporary

injunction because Klein failed to show Walls posed an immediate threat of irreparable harm.

Walls contends the record shows “no evidence that [Klein] had lost any customers or was

physically harmed or threatened in any manner.”

       To obtain a temporary injunction, an applicant must prove (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 v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

It is an abuse of discretion when the trial court misapplies the law to the established facts or if it

concludes the applicant has demonstrated a probable injury when that conclusion is not

reasonably supported by the evidence. Brammer, 114 S.W.3d at 106. An appellate court must

not substitute its judgment for the trial court’s judgment unless the trial court’s action was so

arbitrary that it exceeded the bounds of reasonable discretion. Butnaru, 84 S.W.3d at 204.

       To enter a temporary injunction, the trial court must find a “probable, imminent, and

irreparable injury in the interim.” Id. (emphasis added). Walls’s argument that there was “no
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                                                                                      04-12-00615-CV


evidence that [Klein] had lost any customers or was physically harmed or threatened in any

manner” by her assumes the injury must have already occurred. However, the trial court only

need find a probable injury. A temporary injunction would serve no purpose if the injury must

have already occurred in order for it to be granted. See Henderson, 822 S.W.2d at 773 (citing

Transport Co. of Tex. v. Robertson Transp. Inc., 152 Tex. 551, 261 S.W.2d 549, 553 (1953))

(asserting purpose of temporary injunction is to maintain status quo and stating a trial court must

“state the reasons why the court deems it proper to issue the writ to prevent injury to the

applicant, including any reasons why the court believes the applicant’s probable rights will be

endangered if the writ is not issued”) (emphasis added).

        Klein testified that Walls continued to attend the same religious institution as he, and she

had made false “accusations and threats” to the leadership regarding Klein’s behavior, and that

Walls had been escorted out of the religious institution due to her disruptive behavior. Klein

testified this had interfered with his relationships there to the extent that he had discontinued

attending. Klein also testified at the hearing and entered into evidence Walls’s comments on her

Facebook wall indicating her intention to publish a website containing photographs of Klein,

portraying him in a disparaging light as a “narcissistic, passive-aggressive drug dealing

prostitute.”

        In the order granting a temporary injunction, the court found that without the temporary

injunction Walls would “thereby alter the status quo and tend to make ineffectual a judgment in

favor of Klein, in that the loss of his business, familial, and personal relationships, including the

religious institution of his choice . . . will damage Klein’s good will and existing and future

relationships with his clients, customers, son [sic] father, and other members of [his religious

institution], that such damage would be irreparable and inestimable, and that unless Walls is



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deterred from carrying out that intention, Klein will be without any adequate remedy at law for

his losses.”

       On review of the evidence presented at the hearing indicating the website Walls

threatened to publish and demonstrating Klein had already been forced to stop attending his

religious institution due to Walls’s interference with his relationships there, we conclude the trial

court did not abuse its discretion in finding Walls posed a threat of immediate and irreparable

harm to Klein in the form of further damage to his reputation and relationships and thereby

granting the temporary injunction in Klein’s favor.

                                         CONCLUSION

       Based on the foregoing, we conclude (1) the temporary injunction did not constitute a

prior restraint on Walls, (2) the temporary injunction was a proper means of maintaining the

status quo pending trial, and (3) the trial court did not abuse its discretion in granting the

temporary injunction. However, because we conclude paragraph (1) of the temporary injunction

is overly broad, we modify it accordingly. We affirm.



                                                         Sandee Bryan Marion, Justice




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