Conditionally granted and Opinion Filed February 16, 2018




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00135-CV

                IN RE ELEVACITY, LLC AND ROBERT OBLON, Relator

                 Original Proceeding from the 296th Judicial District Court
                                   Collin County, Texas
                           Trial Court Cause No. 296-00472-2018

                             MEMORANDUM OPINION
                            Before Justices Lang, Myers, and Schenck
                                     Opinion by Justice Lang
       In this original proceeding, relators seek relief from an ex parte temporary restraining order

issued on February 1, 2018. We stayed the temporary restraining order and all underlying

proceedings on February 8, 2018 and requested a response to the petition for writ of mandamus.

Real party in interest Pruvit Ventures, Inc. (“Pruvit”) filed a response. Because we conclude the

temporary restraining order is void, we conditionally grant the writ.

                                           Background

       The underlying case is between competing direct sales companies that market and sell

nutraceutical products through their respective networks of independent distributors. In its first

amended petition, Pruvit described itself as “a worldwide leader in ketone technology and a

pioneer in selling ketone products.” Relator Elevacity, LLC is a competing multi-level marketing

company. Pruvit filed the underlying lawsuit against Elevacity and its founder, Robert Oblon, on

January 31, 2018 and amended its petition on February 1, 2018. Pruvit alleged that Elevacity had
recently begun actively marketing and selling a keto-coffee creamer product that directly competes

with Pruvit’s keto products.      Pruvit also alleged that Elevacity is cross-recruiting Pruvit’s

promoters/sellers and “on information and belief” is misappropriating Pruvit’s trade secrets and

confidential and proprietary information. In support, Pruvit attached the declaration of one of its

promoters who was purportedly contacted to join Elevacity.

       On February 1, 2018, Pruvit obtained an ex parte temporary restraining order prohibiting

relators from taking certain actions with regard to Pruvit’s unidentified proprietary information,

trade secrets, and confidential information. The temporary restraining also order prohibits relators

from soliciting unidentified “existing promoters” of Pruvit and from “inducing” violations of

unspecified “Agreements” between Pruvit and those promoters. The order further requires relators

to turn over all of their “electronic devices” to Pruvit for inspection.

                                        Standard of Review

       Mandamus will issue if the relator establishes a clear abuse of discretion for which there is

no adequate remedy by appeal. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010)

(orig. proceeding); In re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009) (orig. proceeding); In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court

abuses its discretion when it issues a void order. Decker v. Lindsay, 824 S.W.2d 247, 249 (Tex.

App.—Houston [1st Dist.] 1992, no writ) (“Mandamus relief may be afforded where the trial

court’s order is void.”). Because temporary restraining orders are not appealable, there is no

remedy by appeal. In re Office of Attorney Gen., 257 S.W.3d 695, 697–98 (Tex. 2008) (citing In

re Tex. Natural Res. Conservation Comm’n, 85 S.W.3d 201, 205 (Tex. 2002); In re Newton, 146

S.W.3d 648, 652–53 (Tex. 2004)).




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                                              Mootness

       In its response brief, Pruvit argued that the temporary restraining order would expire on its

own terms on February 15, 2018 and leave this Court with no choice but deny the petition as moot.

That is incorrect. This Court stayed the temporary restraining order and all trial court proceedings

on February 8, 2018, which was seven days after the order was issued. As a result, the temporary

restraining order’s expiration date is also stayed, and this Court may consider the merits of the

petition for writ of mandamus. See In re Office of Attorney Gen., 257 S.W.3d 695, 697 (Tex. 2008)

(staying temporary restraining order before its expiration date but conditionally granting

mandamus relief and directing trial court to vacate the temporary restraining order four months

after staying the order and, thus, months after original expiration date); see also In re MetroPCS

Commc’ns, Inc., 391 S.W.3d 329, 341 (Tex. App.—Dallas 2013, orig. proceeding) (conditionally

granting writ and vacating temporary restraining order and vacating setting for temporary

injunction hearing in opinion issued five weeks after original expiration date of temporary

restraining order).

                                             Discussion

       Texas Rules of Civil Procedure 680 and 684 require a trial court issuing a temporary

restraining order to: (1) state why the order was granted without notice if it is granted ex parte; (2)

state the reasons for the issuance of the order by defining the injury and describing why it is

irreparable; (3) state the date the order expires and set a hearing on a temporary injunction; and (4)

set a bond. TEX. R. CIV. P. 680, 684. Rule 683 requires “every order granting an injunction and

every restraining order” to state the reasons for its issuance and to be specific in its terms. TEX. R.

CIV. P. 683. Rule 683 also requires a restraining order to “describe in reasonable detail and not by

reference to the complaint or other document, the act or acts sought to be restrained.” Id. Orders

that fail to fulfill these requirements are void. In re Office of Attorney Gen., 257 S.W.3d at 697–


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98 (citing InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986);

Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956)); see El Tacaso, Inc. v. Jireh

Star, Inc., 356 S.W.3d 740, 747 (Tex. App.—Dallas 2011, no pet.) (injunction order void for

failure to satisfy specificity requirement of Rule 683). The temporary restraining order issued by

the trial court is void because it violates those rules.

        First, the temporary restraining order is void because it does not include an explanation of

why it was issued without notice to relators. See In re Office of Attorney Gen., 257 S.W.3d at 697–

98 (mandamus granted because temporary restraining order was void due to failure to explain why

the order was granted without notice and did not define the injury designed to prevent or explain

why such injury would be irreparable).

        Second, the temporary restraining order is void because it does not define the injury it is

designed to prevent, does not explain why such injury would be irreparable, and is not specific in

its terms. The order refers generally to Pruvit’s “injuries” and states without explanation that the

injury is “irreparable.” Those statements are insufficient to meet the requirements of Rules 680

and 683 and render the order void. See In re Office of the Attorney Gen., 257 S.W.3d at 697–98

(temporary restraining order void for failing to define the injury designed to prevent or explain

why such injury would be irreparable as required by Rule 680); see also El Tacaso, Inc., 356

S.W.3d at 747 (conclusory statement in injunction order that party will suffer an irreparable injury

for which it has no other adequate legal remedy does not satisfy specificity requirement of Rule

683); AutoNation, Inc. v. Hatfield, 186 S.W.3d 576, 581 (Tex. App.—Houston [14th Dist.] 2005,

no pet.) (merely stating that a party “will suffer irreparable harm” or “has no adequate remedy at

law” does not meet the rule 683 requirement of specificity).

        Finally, the order enjoins relators from taking certain actions related to Pruvit’s “trade

secrets, confidential and/or proprietary information,” and Pruvit’s existing promoters. However,

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the order does not describe what constitutes a trade secret, confidential information, and/or

proprietary information or who is an “existing promoter.” The order, therefore, fails to comply

with Rule 683’s requirements of specific terms and reasonably detailed descriptions of the act or

acts sought to be restrained. TEX. R. CIV. P. 683. The order also violates Rule 683 by referencing

only Pruvit’s pleadings as support for the order. Id. (order must describe the act or acts to be

restrained in reasonable detail “and not by reference to the complaint or other document”).

                                           Conclusion

        Because we conclude relators have shown the trial court abused its discretion and they have

no adequate remedy by appeal, we conditionally grant relators’ petition for writ of mandamus. We

direct the trial court to issue written rulings vacating the February 1, 2018 temporary restraining

order, including the setting for the temporary injunction hearing, within five (5) days of the date

of this opinion. We are confident that the trial court will comply, and the writ will issue only if

the trial court fails to do so.




                                                  /Douglas S. Lang/
                                                  DOUGLAS S. LANG
                                                  JUSTICE


180135F.P05




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