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rejecting standing challenge to temporary injunction that protected non-party's confidential information when non-party was "managed company" of party and party's confidential information included non-party's confidential information
Summary of this case from Reagan Nat'l Advert. of Austin v. LearyOpinion
04-20-00494-CV
03-30-2022
AMERICAN MEDICAL HOME HEALTH SERVICES, LLC, Hub City Home Health, Inc. d/b/a American Medical Home Health Services, American Medical Home Health Services San Antonio, LLC, American Medical Hospice Care, LLC, American Medical Palliative Support, LLC, Magdalena (Maggie) Clemente, Rene Estrada, and Gina Trevino, Appellants v. LEGACY HOME HEALTH AGENCY, INC. and Legacy Home Care Services, Inc. d/b/a All Seasons Home Care, Inc., Appellees
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2020-CI-09053 Honorable Monique Diaz, Judge Presiding
This case arises out of Cause No. 2020-CI-09053, pending in the 150th Judicial District Court, Bexar County, Texas, the Honorable Monique Diaz presiding. Appellants complain about several orders that Judge Monique Diaz signed, but also complain about various orders signed by the following judges: the Honorable David Canales, presiding judge of the 73rd Judicial District Court, Bexar County, Texas; the Honorable Laura Salinas, presiding judge of the 166th Judicial District Court, Bexar County, Texas; and the Honorable Cynthia Chapa, presiding judge of the 288th Judicial District Court, Bexar County, Texas.
Sitting: Rebeca C. Martinez, Chief Justice Beth Watkins, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
REBECA C. MARTINEZ, CHIEF JUSTICE
American Medical Home Health Services, LLC ("American"), Hub City Home Health, Inc. d/b/a American Medical Home Health Services, American Medical Home Health Services San Antonio, LLC, American Medical Hospice Care, LLC, American Medical Palliative Support, LLC, Magdalena (Maggie) Clemente, Rene Estrada, and Gina Trevino appeal the trial court's orders granting several temporary injunctions, orders denying their motions to dissolve the injunctions, sanctions orders, and orders extending the injunctions in favor of Appellees Legacy Home Health Agency, Inc. and Legacy Home Care Services, Inc. d/b/a All Seasons Home Care (collectively, "Legacy"). We dismiss the appeal in part for lack of jurisdiction and affirm the trial court's orders that fall within our jurisdiction to review.
Background
Legacy is a home health care provider covering South Texas counties. Appellants Magdalena Clemente, Rene Estrada, and Gina Trevino were Legacy employees who worked on the marketing team ("the Marketers"). The Marketers signed non-disclosure agreements and one-year noncompete covenants with Legacy. In February and May 2020, the Marketers resigned from Legacy and subsequently began working for American, another home health care provider covering counties in South Texas.
Clemente signed the agreements with Legacy in December 2012, Estrada in March 2010, and Trevino in April 2014.
In May 2020, Legacy sued American and the Marketers (collectively, "Appellants") and filed an application for a temporary restraining order and permanent injunction. Legacy alleged that the Marketers were using highly confidential information and trade secrets belonging to Legacy for their benefit. Legacy also alleged that the Marketers breached their non-disclosure and covenant not to compete agreements with Legacy and were refusing to stop their breaching conduct when asked to do so. The trial court held a hearing and entered a temporary restraining order enjoining Appellants from using Legacy's confidential information or attempting to solicit Legacy's patients. The court found "that by virtue of [Appellants'] unauthorized and illegal possession and use of [Legacy's] confidential, proprietary and trade secret information, and the potential solicitation of [Legacy's] clients/patients and employees, the harm to [Legacy] is imminent, irreparable, and impossible to reasonably measure by money damages." The trial court also set Legacy's request for injunctive relief hearing for June 2, 2020.
A. First Injunction
On June 4, the trial court entered an "Agreed Temporary Injunction," replacing the temporary restraining order, made the same findings, and enjoined Appellants from "attempting to directly or indirectly call on, solicit, persuade, induce or attempt to take away any clients/patients" or employees of Legacy. The injunction also defined "Confidential Information" and enjoined Appellants from "directly or indirectly disclosing, transmitting, publishing, relying upon or otherwise using Confidential Information for any purpose whatsoever." On June 5, the trial court entered a Corrected Agreed Temporary Injunction (the "First Injunction"), to include a May 17, 2021 trial setting.
The parties entered into a Rule 11 Agreement regarding the paragraph of the First Injunction which stated: "by virtue of [Appellants'] unauthorized and illegal possession and use of [Legacy's] confidential, proprietary and trade secret information, and the potential solicitation of [Legacy's] clients/patients and employees, the harm to [Legacy] is imminent, irreparable, and impossible to reasonably measure by money damages." The parties agreed, in relevant part, that nothing in the paragraph 1) "shall be construed as a judicial admission of any wrongdoing, nor shall it be used against the Parties in any Court proceeding in attempt to allege admission of any wrongdoing(, )" and 2) "shall not be used to challenge the validity of the Order and said paragraph will not be used in any Court proceeding to challenge the validity of the Order."
B. Second Injunction
In August 2020, Legacy filed an Application for Temporary Restraining Order and Request for Injunction and a Motion for Contempt and to Enforce the Temporary Injunction. Legacy alleged that Appellants were violating the First Injunction by possessing, using and disclosing Legacy's client lists; soliciting Legacy's clients; and disclosing Legacy's confidential information and trade secrets to American and its employees. On September 25, 2020, the trial court entered a new injunction (the "Second Injunction") which enjoined much of the same conduct as the First Injunction and further ordered or restrained the Marketers
• from "working in Bexar county, or a surrounding five mile radius thereof, on behalf of any competitor of [Legacy] . . . or their affiliated companies (including managed company, Coastal [Homes Health Agency]), such competitors shall include but not be limited to Defendant American" for a one year period following the entry of the order;
• from "directly or indirectly employing, engaging, retaining, or otherwise utilizing [the Marketers] in Bexar County, or a surrounding five mile radius thereof[;]"
• to "cease and desist from assisting, encouraging, motivating, directing or influencing [the Marketers] . . . to violate/breach the Non-Compete Agreements and/or the Non-Disclosure Agreements[;]" and
• from "employing or attempting to employ any individual employed or formerly employed by [Legacy] . . . and/or their affiliated companies (including managed company, Coastal) when such employee or former employee entered into a nondisclosure agreement and/or covenant not to compete agreement with [Legacy] . . . and/or their affiliated companies (including managed company, Coastal) and such agreement is still in effect."
In October 2020, Appellants appealed the Second Injunction and subsequently moved to dissolve the First and Second Injunctions. On November 24, the trial court denied their Motion to Dissolve the First Injunction.
The relevant notice of appeal provides that Appellants appeal the Second Injunction signed on September 25, 2020 and the Corrected Temporary Injunction signed on September 30, 2020.
On November 30, the trial court granted in part and denied in part Appellants' Motion to Dissolve the Second Injunction and entered a Modified Temporary Injunction ("Second Modified Injunction"), which substituted for the Second Injunction and incorporated most of its provisions but removed the directive to Appellants to cease and desist from marketing to facilities that the Marketers became acquainted with when employed by Legacy. It further explained that it "does not intend to prohibit, prevent, limit, or inhibit a client or patient of [Legacy] . . . and/or the managed company Coastal": 1) "from seeking home health care services or similar services from [Appellants] provided that the client or patient initiates the contact or communication" and 2) "whom [one of the Marketers] knew or became acquainted with prior to their employment with [Legacy] . . . and/or the managed company Coastal."
On December 7, 2020, Appellants filed an amended notice of appeal, seeking to add review of 1) the Second Modified Injunction and 2) an order denying Appellants' oral motion to dissolve the First Injunction. Appellants subsequently filed several additional notices of appeal and motions to review further orders pursuant to Texas Rule of Appellate Procedure 29.5. We first consider the appeals from injunction orders that have now been superseded. Then we consider the parties' arguments as to Legacy's standing to seek injunctive relief and arguments on the merits of the First and Second Modified Injunctions as well as on the motions to dissolve those injunctions. Last, we consider the additional orders appealed from, which include sanctions orders and orders extending the injunctions.
Moot Appeals
The record before us includes a total of fourteen orders for review. We determine initially several of the trial court's orders which amend or modify a previous order.
"While an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and unless prohibited by statute may make further orders, including one dissolving the order complained of on appeal." Tex.R.App.P. 29.5. "Once an amended order is entered, it supersedes the original order." Nexus Fuels, Inc. v. Hall, No. 05-98-02147-CV, 1999 WL 993929, at *2 (Tex. App.-Dallas Nov. 1, 1999, no pet.) (not designated for publication).
The trial court entered the Second Injunction and an order correcting clerical/typographical errors in the Second Injunction. The Correcting Temporary Injunction provides: "This Corrected Temporary Injunction shall replace the original Temporary Injunction entered on September 25, 2020 in its entirety as if such order were entered on September 25, 2020." The trial court then entered the Second Modified Injunction signed on November 30, 2020. The order states: "This Modified Temporary Injunction replaces the Temporary Injunction [September 25, 2020]."
Appellants complain on appeal from all three orders above-1) the Second Injunction; 2) the Corrected Temporary Injunction; and 3) the Second Modified Injunction. We hold that the Second Modified Injunction, signed on November 30, superseded the prior two injunctions-the Second Injunction, signed on September 25, and the Corrected Temporary Injunction, signed on September 30. Cf. Ahmed v. Shimi Ventures, L.P., 99 S.W.3d 682, 687-88 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (modified temporary injunction that did not expressly dissolve or vacate previous temporary injunction "implicitly" superseded prior injunction and could be considered on its merits in pending appeal from superseded injunction). Appellants "agree that the Modified Injunction vacated the Second Injunction," but argue that this Court should nevertheless address the propriety of the Second Injunction because Legacy has pursued and obtained relief in the form of sanctions for alleged violations of the Second Injunction. As explained below, we do not have jurisdiction to review the interlocutory sanctions orders. An appeal from the two injunctions signed on September 25 and 30 is moot. See Reeves v. City of Dallas, 68 S.W.3d 58, 60 (Tex. App.-Dallas 2001, pet. denied) (amended temporary injunction order that vacated original temporary injunction order rendered appeal from first order moot).
Standing
Appellants argue that Legacy does not have standing to obtain a temporary injunction that protects Coastal, that the injunctive relief granted is partially based on purported employment agreements between Coastal and its employees, and that Legacy cannot litigate Coastal's rights. Appellants essentially complain that Legacy does not have standing to obtain a temporary injunction to protect a non-party, Coastal.
Standing is a component of subject-matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. Lance v. Robinson, No. 04-12-00754-CV, 2013 WL 820590, at *3 (Tex. App.-San Antonio Mar. 6, 2013, no pet.) (mem. op). "In Texas, the standing doctrine requires a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court." L.D. Brinkman Inv. Corp. v. Brinkman, No. 04-16-00651-CV, 2017 WL 1684836, at *2 (Tex. App.-San Antonio Apr. 26, 2017, no pet.) (mem. op.) (quoting Heckman v. Williamson Cty., 369 S.W.3d 137, 154-55 (Tex. 2012)). "The plaintiff must be personally injured-he must plead facts demonstrating that he, himself (rather than a third party or the public at large) suffered the injury." Id. (citation omitted). In addition, "the plaintiff's alleged injury [must] be likely to be redressed by the requested relief." Id. (citation omitted).
Legacy is the plaintiff in the underlying lawsuit, yet information as to Coastal is implicated in the injunctive relief granted in favor of Legacy. In the Second Modified Injunction, the trial court ordered Appellants to cease and desist certain actions relating to Legacy's confidential information, which implicated Coastal's confidential information. While not a party, Coastal is a managed company of Legacy. Legacy's "confidential information" includes Coastal's "confidential information," as defined in the Second Modified Injunction. The trial court heard evidence that Trevino was provided confidential information that pertained to Legacy when she began working for Coastal in April 2015. The injunctive relief was not improper merely because it implicated Coastal, and Appellants fail to direct us to any authority which holds that injunctive relief cannot implicate a non-party. See Hsin-Chi-Su v. Vantage Drilling Co., 474 S.W.3d 284, 296 (Tex. App.-Houston [14th Dist.] 2015, pet. denied) (temporary injunction that affected property of a non-party that held shares of the party was proper because trial court did not render "judgment" against non-party and non-party was in active concert or participated with party).Appellants' standing complaint is overruled.
Appellants' reliance on Alliance Royalties, LLC v. Boothe, 313 S.W.3d 493, 496 (Tex. App.-Dallas 2010, no pet.). is misplaced. There, the trial court abused its discretion by granting injunctive relief which imposed a contractual relationship upon parties that was contrary to the specific contractual provisions and effectively "rewrote the contract." Id. Here, Appellants do not similarly complain.
Merits of Temporary Injunctive Relief
We now examine Appellants' complaints on the merits about the Second Modified Injunction signed on November 30, 2020. A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993) (per curiam). A temporary injunction serves to preserve the status quo of the litigation's subject matter pending trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The status quo is "the last actual, peaceable, non-contested status which preceded the pending controversy." In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding) (quoting Janus Films, Inc. v. City of Fort Worth, 358 S.W.2d 589, 589 (1962) (per curiam)). Accordingly, the only question before the trial court is whether the applicant is entitled to preservation of the status quo pending trial on the merits. Walling, 863 S.W.2d at 58; Blackthorne v. Bellush, 61 S.W.3d 439, 442 (Tex. App.-San Antonio 2001, no pet.). At the hearing for a temporary injunction, the applicant is not required to establish that it will prevail on final trial. Walling, 863 S.W.2d at 58. A temporary injunction should only issue if the applicant establishes (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 if the injunction is not granted. Butnaru, 84 S.W.3d at 204.
The decision to grant a temporary injunction lies in the sound discretion of the trial court and is subject to reversal only for a clear abuse of that discretion. Walling, 683 S.W.2d at 58. The trial court abuses its discretion when it misapplies the law to the "established facts, or when the evidence does not reasonably support the conclusion that the applicant has a probable right of recovery." State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975). All legitimate inferences from the evidence are drawn in favor of the trial court's judgment. City of San Antonio v. Rankin, 905 S.W.2d 427, 430 (Tex. App.-San Antonio 1995, no writ). An abuse of discretion does not exist when the trial court bases its decision on conflicting evidence, and the evidence reasonably supports its conclusion. Butnaru, 84 S.W.3d at 211; see Khaledi v. H.K. Glob. Trading, Ltd., 126 S.W.3d 273, 280 (Tex. App.-San Antonio 2003, no pet.)
Appellants argue that Legacy failed to establish a probable right to the relief sought on all of their respective claims in the underlying lawsuit, and a probable, imminent, and irreparable injury.
A. Probable Right to Relief
To establish a probable right to recover, a movant must plead a cause of action and present some evidence that tends to sustain it. Intercontinental Terminals Co., LLC v. Vopak N. Am., Inc., 354 S.W.3d 887, 897 (Tex. App.-Houston [1st Dist.] 2011, no pet.). One of Legacy's causes of actions against Appellants was for misappropriation of trade secrets under the Texas Uniform Trade Secrets Act (TUTSA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 134A.001-.008. To bring a successful TUTSA claim, the claimant must first show that it owns a trade secret in the information it seeks to protect. Tex. Civ. Prac. & Rem. Code Ann. § 134A.002(3-a), (6); Title Source, Inc. v. HouseCanary, Inc., 612 S.W.3d 517, 527 (Tex. App.-San Antonio 2020, pet. filed). "Trade secret" is defined as:
all forms and types of information, including business, scientific, technical, economic, or engineering information, and any formula, design, prototype, pattern, plan, compilation, program device, program, code, device, method, technique, process, procedure, financial data, or list of actual or potential customers or suppliers, whether tangible or intangible and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if:
(A) the owner of the trade secret has taken reasonable measures under the circumstances to keep the information secret; and
(B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.
Tex. Civ. Prac. & Rem. Code Ann. § 134A.002(6).
"In the temporary injunction context, a trial court does not decide whether the information sought to be protected is a trade secret; rather it determines whether the applicant has established the information is entitled to trade secret protection until a trial on the merits." Hughes v. Age Indus., Ltd., No. 04-16-00693-CV, 2017 WL 943423, at *4 (Tex. App.-San Antonio Mar. 8, 2017, no pet.) (citations omitted). "Pricing information and customer lists have been shown to be trade secrets." Id. (citations omitted).
At the temporary injunction hearing in September 2020, Yvonne Guerrero, a prior American employee, testified that Estrada, who previously worked for Legacy, is now performing the same services as a marketer for American. She testified that marketers like Estrada have access to client information, including the clients' phone numbers and addresses, and that marketers could run reports on the Vesta Software that home health agencies utilize, including a report which would extract a "client master list" from Legacy. Clemente testified that she took pictures of intake forms of Legacy's clients and that she had over 2, 000 pages of Legacy's clients' information on her phone. We hold the foregoing is some evidence of Legacy's trade secrets. See Tex. Civ. Prac. & Rem. Code Ann. § 134.002(6); see also Hughes, 2017 WL 943423, at *4 (evidence from temporary injunction hearing about customer lists and vendor lists constituted some evidence of trade secrets).
If a TUTSA claimant demonstrates that the information it seeks to protect meets the statutory definition of "trade secret," it must then show that the defendant misappropriated the trade secret. Tex. Civ. Prac. & Rem. Code Ann. § 134A.002(3); Title Source, Inc., 612 S.W.3d at 527. TUTSA defines "misappropriation" to include the use of a trade secret by a person whose knowledge of the trade secret was "acquired under circumstances giving rise to a duty to maintain the secrecy of or limit the use of the trade secret." Tex. Civ. Prac. & Rem. Code Ann. § 134A.002(3)(B)(ii)(b). "Generally, employees owe a fiduciary duty to maintain the confidentiality of their employer's information." Daniels v. Radley Staffing, LLC, No. 14-19-00054-CV, 2021 WL 282630, at *2 (Tex. App.-Houston [14th Dist.] Jan. 28, 2021, no pet.) (mem. op.) (citing Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 202 (Tex. 2002)); see also T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 21-22 (Tex. App.- Houston [1st Dist.] 1998, pet. dism'd) ("Certain duties, apart from any written contract, arise upon the formation of an employment relationship. One of those duties forbids an employee from using confidential or proprietary information acquired during the relationship in a manner adverse to the employer." (citation omitted)). This duty survives termination of the employment. Daniels, 2021 WL 282630, at *2.
Here, the testimony established the Marketers' knowledge of Legacy's client lists was acquired as a result of their employment with Legacy. The Marketers had a fiduciary duty arising from their employment relationship with Legacy to maintain the confidentiality of the information. See Hughes, 2017 WL 943423, at *4. Clemente testified that she took pictures of intake forms of Legacy's clients and that she had over 2, 000 pages of Legacy's clients' information on her phone. We hold the foregoing is some evidence that the Marketers' knowledge of Legacy's trade secrets was "acquired under circumstances giving rise to a duty to maintain its secrecy." Tex. Civ. Prac. & Rem. Code Ann. § 134A.002(3)(B)(ii)(b); see Hughes, 2017 WL 943423, at *4 (testimony about former employee's knowledge of customer lists, sales journals, and price lists was acquired as a result of his employment with claimant, which employee knew to be confidential, constituted some evidence of misappropriation). Therefore, Legacy has met its burden to plead and present evidence to support its trade secret misappropriation cause of action. See Hughes, 2017 WL 943423, at *4.
Legacy has asserted other claims, including breach of contract, breach of fiduciary duty, other violations of the TUTSA, civil conspiracy, conversion, aiding and abetting, tortious interference with existing client/patient relationships and prospective business relationships, unfair competition, and unjust enrichment. Because an applicant is required only to plead and present evidence to support one cause of action to establish a probable right of recovery, we need not reach whether Legacy has presented evidence to support these additional causes of action. See Washington v. Associated Builders & Contractors of S. Tex. Inc., 621 S.W.3d 305, 319 (Tex. App.-San Antonio 2021, no pet.) (declining consideration of applicant's additional independent causes of action after holding trial court did not abuse its discretion in granting the temporary injunction on applicant's preemption claim).
B. Probable, Imminent, Irreparable Injury
Appellants next contend Legacy did not produce any evidence of a probable, imminent, and irreparable injury. They argue that any damages suffered by Legacy are compensable through money damages, and, therefore, Legacy has not demonstrated there exists no adequate remedy at law.
"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. Because the very purpose of an injunction is to prevent disclosure of trade secrets pending trial, an applicant is not required to show the defendant is using the information. Hughes, 2017 WL 943423, at *5. Instead, the applicant must show the defendant possesses the trade secrets and is in a position to use them. Id.; HMS Holdings Corp. v. Pub. Consulting Grp., Inc., No. 05-15- 00925-CV, 2016 WL 1179436, at *4 (Tex. App.-Dallas Mar. 28, 2016, no pet.) (mem. op.). Similarly, with regard to whether damages provide a sufficient remedy, "[i]njunctive relief is proper to prevent a party, which has appropriated another's trade secrets, from gaining an unfair market advantage." Hughes, 2017 WL 943423, at *5. Irreparable harm may also be established by evidence that disclosure of trade secret information could enable competitors to misuse the marketing plans and strategies of the applicant and avoid the less successful strategies as well as the risk and expense of developing the strategies. Sharma v. Vinmar Intern., Ltd., 231 S.W.3d 405, 427 (Tex. App.-Houston [14th Dist.] 2007, no pet.). The misuse of trade secrets leading to the loss of an existing business is another example of irreparable harm entitling an applicant to injunctive relief. Id. In those circumstances, "[t]he only effective relief available to [the applicant] is to restrain [the defendant's] use of its trade secrets and confidential information pending trial." Hughes, 2017 WL 943423, at *5 (quoting T-N-T Motorsports, Inc., 965 S.W.2d at 24). This is true because, if the defendant uses the trade secrets and confidential information prior to trial, the potential damage to the applicant's business could not be easily calculated. Id.
In the Second Modified Injunction, the trial court specified that "by virtue of [Appellants'] unauthorized possession and use of [Legacy's] confidential, proprietary and trade secret information, [the Marketers'] . . . employment with [Legacy]'s direct competitor, and the ongoing solicitation (and/or taking away) of [Legacy's] clients/patients and employees will result in harm to [Legacy]." The order stated the harm was imminent because, unless Appellants were restrained and enjoined as provided in the injunction, they would continue to: unlawfully possess and disclose Legacy's trade secrets including its client lists and information; use Legacy's business operations, marketing plans, employee lists, and vendor lists; solicit Legacy's clients; transfer Legacy's property; and make misrepresentations about Legacy. The order further stated the harm was irreparable because "damages in this cause, including but not limited to the loss, demise, and disruption of existing business, loss of future business, loss of reputation, loss of business goodwill, loss of confidential and proprietary information, and loss of trade secrets are difficult and impossible to reasonably calculate."
The record includes evidence that one of the Marketers took intake forms of Legacy's clients and had pages of Legacy's clients' information. Clemente admits she had over 2, 000 pages of Legacy's clients' information on her phone. Based on the foregoing evidence, the trial court did not abuse its discretion in implicitly finding that Appellants are in possession of Legacy's trade secrets. See HMS Holdings Corp., 2016 WL 1179436, at *4 ("Evidence that a former employee possesses confidential information and is in a position to use it against the employer supports the issuance of an injunction" . . . "regardless of whether the information is contained in the documents or in the employee's brain."); see also Hughes, 2017 WL 943423, at *5 (trial court did not abuse its discretion in concluding claimant established a probable, imminent, irreparable injury because the record contained some evidence that appellant was in a position to use appellee's trade secrets to gain an unfair market advantage). Because the potential damage to Legacy cannot be easily calculated, a legal remedy is inadequate. See Sharma, 231 S.W.3d at 427 (potential damage, even if not complete, could not be easily calculated when appellant had disclosed trade secret information which could give appellant an unfair market advantage). Therefore, the trial court did not abuse its discretion in concluding Legacy established a probable, imminent, irreparable injury. Accordingly, the trial court did not abuse its discretion in granting the Second Modified Injunction.
Procedural Deficiencies
Appellants also argue the Second Modified Injunction is void because it failed to meet several procedural requirements under the Texas Rules of Civil Procedure.
A. Rule 683
First, Appellants contend the Second Modified Injunction failed to specify the reasons for its issuance in violation of Rule 683. See Tex. R. Civ. P. 683. In relevant part, Rule 683 requires that an "order granting an injunction ... shall set forth the reasons for its issuance[.]" Id. The Texas Supreme Court "interpret[s] the Rule to require in this respect only that the order set forth the reasons why the court deems it proper to issue the writ to prevent injury to the applicant in the interim; that is, the reasons why the court believes the applicant's probable right will be endangered if the writ does not issue." Kotz v. Imperial Capital Bank, 319 S.W.3d 54, 56 (Tex. App.-San Antonio 2010, no pet.) (quoting Transp. Co. of Tex. v. Robertson Transports, Inc., 261 S.W.2d 549, 553 (Tex. 1953)).
Here, the trial court set forth specific reasons for issuing the injunction in its Second Modified Injunction. It stated:
[t]he Court finds that, by virtue of [Appellants'] unauthorized possession and use of [Legacy's] confidential proprietary, and trade secret information, [the Marketers'] employment with [Legacy's] direct competitor, and the ongoing solicitation . . . of [Legacy's] clients/patients and employees will result in harm to [Legacy] that is:
a. Imminent because the Court finds that, unless [Appellants] are restrained and enjoined as provided herein, they will continue to:
i. [u]nlawfully possess, disclose, transmit, publish, rely upon, and use [Legacy's] . . . and their affiliates' or managed company, Coastal's confidential information, trade secrets and proprietary information, including but not limited to [Legacy's] . . . and/or managed company, Coastal's client/patient lists, client/patient contact information, client/patient medical information, or client/patient Personal Health Information ("PHI"), including their names and addresses, in documentary, electronic, or other format,
ii. use [Legacy's] . . . and their affiliates' or managed company, Coastal's business operations, formulas, patterns, compilations, programs, devices, methods or techniques of the business operations, marketing plans, referral/payor source, employee lists, employee wages, other wages, supplier and vendor lists,
iii. call on, make contact with, solicit, persuade, induce, take away, and attempt, directly or indirectly, to call on, make contact with, solicit, persuade, induce, take away clients, patients, and employees of [Legacy] . . . and/or managed company Coastal;
iv. transfer property or jeopardize the value of any tangible asset of [Legacy] . . . and/or the managed company Coastal; and
v. disparage, malign, or make misrepresentations, whether oral or written, about [Legacy's] . . . and/or managed company Coastal's affiliates, agents, representatives or employees to [Legacy's] . . . and/or managed company, Coastal's clients/patients, or any other third-party, and
b. Irreparable because damages in this cause, including but not limited to the loss, demise, and disruption of existing business, loss of future business, loss of reputation, loss of business goodwill, loss of confidential and proprietary information, and loss of trade secrets are difficult and impossible to reasonably calculate[.]
Appellants argue these reasons did not provide how and why irreparable injury will result absent an injunction. However, they fail to specify how the trial court could have been more specific, and the case they rely on to make this assertion, Kotz, 319 S.W.3d at 56, is distinguishable. In Kotz, the trial court failed to provide any specificity as to why it was granting the injunction and stated generally that the applicant would "suffer irreparable injury in their possession and use of the Subject Property in the event that the requested injunctive relief is not granted, that [applicants] have no adequate remedy at law, and that the requested injunctive relief is necessary to preserve the status quo pending final trial." Id. Conversely, here, the trial court provided numerous specific reasons as to why irreparable injury would result in the absence of a temporary injunction and did not merely recite the elements of a temporary injunction, as the trial court did in Kotz. Id.
Appellants broadly assert that "the trial court's findings in paragraph 11 are not supported by legally sufficient evidence," but fail to provide any analysis as to why; therefore, we do not consider this argument. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.").
B. Rule 687-689
Next, Appellants argue the Second Modified Injunction violates Rules 687-689 of the Texas Rules of Civil Procedure because a writ of injunction was not issued. Rule 688 provides:
When the petition, order of the judge and bond have been filed, the clerk shall issue the temporary restraining order or temporary injunction, as the case may be, in conformity with the terms of the order, and deliver the same to the sheriff or any constable of the county of the residence of the person enjoined, or to the applicant, as the latter shall direct. If several persons are enjoined, residing in different counties, the clerk shall issue such additional copies of the writ as shall be requested by the applicant. The clerk must retain a copy of the temporary restraining order or temporary injunction in the court's file.
Rule 687 provides the requisites of a writ of injunction and Rule 689 provides the requirements for service and return. Id. R. 687, 689. Appellants contend that a writ was never issued in this case. Legacy responds that the requirements in Rule 687-689 were inapplicable to the subject injunctions because notice of the injunctions was provided electronically. See id. R. 21a(a) (permitting electronic service as a sufficient method of notice "other than [when] the citation [is being] served upon the filing of a cause of action"). Appellants do not dispute that citation was issued; the record reflects they were served with the clerk's writ for the petition and temporary restraining order against them when Legacy initiated suit. Appellants, who are represented by counsel, filed their answers and participated in the injunction hearing prior to the entry of injunctive relief. The purpose of the requirements in 687-689 were achieved, and Appellants fail to show how such a procedural defect "probably caused the rendition of an improper judgment" or "probably prevented [A]ppellant[s] from properly presenting the case" on appeal warranting reversal. See Tex. R. App. P. 44.1.
C. Rule 684
Finally, Appellants argue that the Second Modified Injunction violated Rule 684 because Legacy failed to execute and file a proper cash deposit in lieu of a bond. See Tex. R. Civ. P. 684. Rule 684 of the Texas Rules of Civil Procedure requires a bond before the issuance of a temporary injunction. Id. The applicant must post the bond, and it is payable to the adverse party if the temporary injunction is dissolved at trial. Goodin v. Jolliff, 257 S.W.3d 341, 353 (Tex. App.- Fort Worth 2008, no pet.). The purpose of the bond is to provide protection to the enjoined party for any possible damages occurring as a result of the injunction. Id.
Here, in the relevant non-disclosure agreements, the Marketers agreed that "in the event of breach or threated breach or intended breach of the Agreement, Employer . . . may seek injunctive or equitable relief without the necessity of posting bond." Legacy was not required to post bond, yet it submitted cash in lieu of the bond. We hold that Legacy's cash in lieu of the bond was sufficient. See Khaledi, 126 S.W.3d at 286 ("The determination of the adequacy of the bond set by the trial court is to be made on a case-by-case basis based upon the record before the reviewing court.").
Having overruled all of Appellants' procedural complaints, we hold that the trial court did not abuse its discretion in granting the Second Modified Injunction. Further, because the arguments in the Motion to Dissolve the Second Modified Injunction raise the same issues raised on appeal concerning the propriety of the grant of the Second Modified Injunction, we overrule the issues relating to the Motion to Dissolve to Second Modified Injunction. See Tex. R. App. P. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.").
The Second Modified Injunction imposes the same restrictions as the First Injunction and more; however, the appeal from the First Injunction is not moot because the Second Modified Injunction does not explicitly or implicitly supersede the First Injunction. See Reeves, 68 S.W.3d at 60. Nevertheless, we need not examine the First Injunction and motion to dissolve it because, having upheld the Second Modified Injunction, any alleged error relating to the narrower First Injunction is harmless. See Tex. R. App. P. 44.1.
Sanctions and Orders Extending Injunctions
Appellants further appeal several orders imposing sanctions and extending the First and Second Modified Injunctions. We do not have jurisdiction to review these orders.
A. Sanctions
Appellants ask this court to consider the following orders on appeal: 1) "Order Granting Plaintiff's Motion and Sanctions" signed on January 27, 2021; 2) "Order Regarding Attorneys' Fees as Sanctions" signed on January 28, 2021; 3) "Amended Order Granting Plaintiff's Motion for Enforcement of Agreed Temporary Injunction and Sanctions" signed on January 28, 2021; and 4) "Order Granting, In Part, Denying, In Part, Plaintiffs' Motion for Enforcement and Motion for Sanctions" signed on February 25, 2021.
As a general rule, the jurisdiction of this Court is limited to the review of final judgments and certain interlocutory orders authorized by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Section 51.014(a)(4) of the Texas Civil Practice and Remedies Code permits an appeal from an interlocutory order granting or refusing a temporary injunction or granting or overruling a motion to dissolve a temporary injunction as provided by Chapter 65. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4); see id. §§ 65.001-.045.
In this case, the sanctions orders are not final judgments, and Appellants have not directed us to authority permitting an interlocutory appeal from a sanctions order. Cf. TransAmerica Nat. Gas Co. v. Powell, 811 S.W.2d 913, 919 (Tex. 1991) (orig. proceeding) (interlocutory order that does not result in appealable judgment may be challenged by a petition for writ of mandamus or in appeal following final judgment); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if statute explicitly provides such jurisdiction). Therefore, we dismiss the appeals from these orders for want of jurisdiction. See Markel v. World Flight, Inc., 938 S.W.2d 74, 78 (Tex. App.-San Antonio 1996, no writ) (appellate court had jurisdiction to hear an appeal from a trial judge's "Order Imposing Sanctions Including the Granting of a Temporary Injunction" only insofar as the order grants injunctive relief, but not over the part of the order addressing the imposition of sanctions or the denial of appellants' motion to transfer venue); DeLitta v. Schaefer, No. 03-14-00426-CV, 2014 WL 5802025, at *2 (Tex. App.-Austin Nov. 6, 2014, no pet.) (mem. op.) (dismissing appeal of order granting appellee's motion to enforce temporary injunction because court did "not have jurisdiction to review a trial court's decision to enforce a temporary injunction.").
We also deny Appellants' alternative request that this Court consider the appeal of the sanctions orders as a petition for writ of mandamus because they did not raise this argument until their reply briefs. See Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex. App.-San Antonio 2003, pet. denied) ("A reply brief is not intended to allow an appellant to raise new issues."); Howell v. Tex. Workers' Comp. Comm'n, 143 S.W.3d 416, 439 (Tex. App.-Austin 2004, pet. denied) ("The rules of appellate procedure do not allow an appellant to include in a reply brief a new issue in response to some matter pointed out in the appellee's brief but not raised by appellant's original brief.").
B. Orders Extending Injunctions
Appellants also seek review of orders extending the First and Second Modified Injunctions. As stated above, a party may appeal from an interlocutory order of the trial court that "grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction." Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4). Texas courts have construed this provision to allow interlocutory review of an order making a substantive modification to a temporary injunction. See, e.g., Currie v. Int'l Telecharge, Inc., 722 S.W.2d 471, 472 (Tex. App.-Dallas 1986, no writ) (temporary injunction modified by restricting area affected by non-competition provision). In this case, however, the trial court's orders extending the injunctions referred back to all of the substantive findings in the First and Second Modified Injunctions. The only change made was to extend the injunctions' duration until the new trial setting.
We conclude the trial court's orders extending the injunctions made no substantive modification of the previous injunctions. See City of Lancaster v. Tex. Motor Transp. Ass'n, Inc., No. 05-05-00169-CV, 2005 WL 2303415, at *1 (Tex. App.-Dallas Sept. 22, 2005, no pet.) (order extending temporary injunction did not make any substantive changes when the only change was to extend injunction's duration until new trial setting). Accordingly, the orders fall outside the ambit of Section 51.014(a)(4), and we have no jurisdiction to review them. Id.; Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4). We dismiss Appellants' appeal of the orders extending the injunctions.
Conclusion
We dismiss the appeal in part for lack of jurisdiction and affirm the trial court's orders that fall within our jurisdiction to review.
AFFIRMED IN PART; DISMISSED IN PART