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In re Elevacity, LLC

Court of Appeals of Texas, Fifth District, Dallas

February 16, 2018

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

          Before Justices Lang, Myers, and Schenck

          MEMORANDUM OPINION

          DOUGLAS S. LANG JUSTICE

         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)).

          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- 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 ...


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