PRODUCTION LIFT COMPANIES, INC. AND WIRELINE SERVICES, INC., Appellants
RAFAEL VALDEZ AND KENNY ORTIZ, Appellees
Appeal from the County Court at Law No. 2 Midland County,
Texas Cause No. CC19833
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
M. BAILEY CHIEF JUSTICE.
an interlocutory appeal from the denial of a temporary
injunction. We conclude that this appeal seeks an
impermissible advisory opinion from this court in the form of
an advance ruling on the merits. We dismiss the appeal.
August 2017, Appellees, Rafael Valdez and Kenny Ortiz,
resigned their employment with Appellants, Production Lift
Companies, Inc. and Wireline Services, Inc. (collectively,
Production Lift), and immediately began working for one of
Production Lift's competitors. Production Lift sued
Valdez and Ortiz, alleging they breached covenants not to
compete that they signed while employed by Production Lift.
Production Lift requested the trial court to issue a
temporary injunction prohibiting Valdez and Ortiz from
working for their new employer or for any other competitor of
Production Lift within the Permian Basin during the pendency
of the suit. The trial court denied the requested temporary
injunction, and Production Lift filed this interlocutory
appeal from that denial.
obtain a temporary injunction, the applicant must plead and
prove the following: (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). The only issue before the trial court in a temporary
injunction hearing is whether the applicant is entitled to
preserve the status quo pending trial on the merits.
Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993)
may not use an appeal of a temporary injunction ruling to get
an advance ruling on the merits of an issue. Iranian
Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208
(Tex. 1981); Babu v. Zeeck, 478 S.W.3d 852, 855
(Tex. App.- Eastland 2015, no pet.). Therefore, in an
interlocutory appeal from the trial court's ruling on a
request for a temporary injunction, an appellate court should
decline to reach arguments as to the merits of the case.
Henry v. Cox, 520 S.W.3d 28, 33-34 (Tex. 2017)
("We limit the scope of our review to the validity of
the [temporary injunction] order, without reviewing or
deciding the underlying merits . . . ."); Fuentes v.
Union de Pasteurizadores de Juarez Sociedad Anonima de
Capital Variable, 527 S.W.3d 492, 499 (Tex. App.-El Paso
2017, no pet.). Appellate review is limited to determining
whether the trial court abused its discretion by granting or
denying the requested relief. Butnaru, 84 S.W.3d at
brief, Production Lift focuses its arguments on the merits of
the ultimate issues to be decided in this case. Production
Lift argues that the covenants not to compete were ancillary
to an otherwise enforceable agreement, supported by adequate
consideration, and enforceable against Valdez and Ortiz.
Production Lift specifically prays that this court
"reverse the trial court's order and . . . enforce
the Agreement," the same relief Production Lift would
seek in a trial on the merits. Production Lift does not
explain in its brief how the trial court erred by failing to
find that Production Lift established a likelihood of
prevailing on the merits and that it had suffered a probable
irreparable injury. In fact, Production makes no argument
concerning irreparable injury in its original brief.
Valdez and Ortiz pointed out in their brief that Production
Lift had improperly requested this court to review the merits
of the enforceability of the covenants not to compete,
Production Lift filed a reply brief in which it argued that
the trial court abused its discretion by conducting an
improper review of the merits at the temporary injunction
hearing. Production Lift also addressed the irreparable
injury element for the first time in its reply brief. We
decline to address issues raised for the first time in a
reply brief. See Baker v. Hertel, No.
11-13-00152-CV, 2015 WL 1469527, at *2 (Tex. App.-Eastland
Mar. 26, 2015, no pet.) (mem. op.); McAlester Fuel Co. v.
Smith Int'l, Inc., 257 S.W.3d 732, 737 (Tex.
App.-Houston [1st Dist.] 2007, pet. denied) ("An issue
raised for the first time in a reply brief is ordinarily
waived and need not be considered by this Court.").
determination we might make on the arguments presented by
Production Lift would constitute an impermissible advisory
opinion on the merits of its claims. See Babu, 478
S.W.3d at 855; Dallas/Fort Worth Int'l Airport Bd. v.
Ass'n of Taxicab Operators, USA, 335 S.W.3d 361,
365-66 (Tex. App.-Dallas 2010, no pet.). We have no
jurisdiction to issue advisory opinions. Valley Baptist
Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000)
(per curiam). Resolution of issues on their merits must await
an appeal from a final judgment in the underlying suit.
Hiss v. Great N. Am. Cos., 871 S.W.2d 218, 220 (Tex.
App.-Dallas 1993, no writ). Thus, in resolving this appeal,
we expressly decline to reach the ultimate issue of whether
the covenants not to compete are enforceable. See Tom
James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 885 (Tex.
App.-Dallas 2003, no pet.).
the appeal of a trial court's decision on an application
for a temporary injunction "shall constitute no cause
for delay of the trial." Tex.R.Civ.P. 683. Appeals from
temporary injunction proceedings are expressly excluded from
the automatic stay provisions of Section 51.014 of the Civil
Practice and Remedies Code. See Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(b) (West Supp. 2018);
Brar v. Sedey, 307 S.W.3d 916, 920 (Tex. App.-Dallas
2010, no pet.). At the outset of this appeal, we requested
that the parties advise us of the trial court's setting
of the trial on the merits in this case. The parties have not
advised the court that the case has been set for trial on the
merits, and we have confirmed with the clerk of the trial
court that the case has not been set for trial on the merits.
fastest way to cure the hardship of an unfavorable
preliminary order is to try the case on the merits.
Babu, 478 S.W.3d at 855; see also Sw. Weather
Research, Inc. v. Jones, 327 S.W.2d 417, 422 (Tex.
1959). In order to reduce the need for interlocutory appeals,
a trial court should proceed expeditiously from the grant or
denial of temporary injunctive relief to full consideration
of the merits of the dispute. Babu, 478 S.W.3d at
855-56; Dallas/Fort Worth Int'l Airport Bd., 335
S.W.3d at 366 n.7. We cannot condone the failure to pursue
the trial on the merits of the underlying case in an effort
to obtain an opinion from this court regarding whether the
covenants not to compete are enforceable against Valdez and
Ortiz. See Dallas/Fort Worth Int'l Airport Bd.,
335 S.W.3d at 367; see also Babu, 478 S.W.3d at
855-56. "[J]udicial economy dictates that we not reward
such efforts." Barnett v. Manuel Griego, Jr., D.O.,
P.A., 337 S.W.3d 384, 387 (Tex. App.-Dallas 2011, no
pet.). Moreover, the trial court's refusal to grant a
temporary injunction was based on the record presented at the
temporary injunction hearing. We will not assume that the
evidence taken at a preliminary hearing will be the same as
the evidence developed at a full trial on the merits. See
Cobb, 109 S.W.3d at 885.
Production Lift seeks an advisory ruling on the merits of the
enforceability of the covenants not to compete and because
the parties have not proceeded expeditiously to try the
merits of Production Lift's claims, we decline to address
Production Lift's complaints on appeal.