# Michael J. DeLitta v. Nancy Schaefer > Texas Court of Appeals, 3rd District (Austin) · July 20, 2015 URL: https://www.frixlaw.com/law-library/cases/4070483 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** July 20, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4070483 ## How later opinions describe it (automated extraction) - noting that in determining whether a suit is pre-empted under the Act, the question is one of statutory intent, and we must “begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose” ## Opinion text ACCEPTED 03-15-00280-CV 6142048 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/20/2015 3:53:59 PM No. 03-15-00280-CV JEFFREY D. KYLE CLERK _______________________________________ FILED IN In the Third Court of Appeals 3rd COURT OF APPEALS AUSTIN, TEXAS Austin, Texas 7/20/2015 3:53:59 PM _______________________________________JEFFREY D. KYLE Clerk Michael J. DeLitta, Appellant, v. Nancy Schaefer, Appellee. _______________________________________ BRIEF OF APPELLEE _______________________________________ Donald R. Taylor Lisa Bowlin Hobbs State Bar No. 19688800 State Bar No. 24026905 dtaylor@taylordunham.com Lisa@KuhnHobbs.com Stacey Reese (Of Counsel) Kurt Kuhn State Bar No. 24056188 State Bar No. 24002433 stacey@reeselawpractice.com Kurt@KuhnHobbs.com TAYLOR DUNHAM & RODRIGUEZ LLP KUHN HOBBS PLLC 301 Congress Avenue, Suite 1050 3307 Northland Drive, Suite 310 Austin, Texas 78701 Austin, Texas 78731 (512) 473-2257 (512) 476-6003 (512) 478-4409 (fax) (512) 476-6002 (fax) Howard F. Carter, Jr., State Bar No. 03916500 sam@scarterlawfirm.com HOWARD F. CARTER, JR., P.C. 5600 Tennyson Parkway, Suite 160 Plano, Texas 75024 (972) 455-2001 (972) 455-2015 (fax) COUNSEL FOR APPELLEE July 20, 2015 IDENTITY OF PARTIES AND COUNSEL In addition to the parties and counsel listed by Appellant in his brief, pursuant to TRAP 38.1, Appellee lists the following: Trial Counsel for Appellant: Timothy J. Herman1 State Bar No. 09513700 HOWRY BREEN & HERMAN LLP 1900 Pearl Street Austin, Texas 78705 (512) 474-7300 (512) 474-8557 (fax) 1 Mr. Herman appeared at the hearing on the temporary injunction and remains trial counsel for DeLitta. Yet he did not appear as counsel in this interlocutory appeal. ii TABLE OF CONTENTS Identity of Parties and Counsel............................................................................................. ii Table of Contents .................................................................................................................. iii Index of Authorities ............................................................................................................... v Statement of the Case .......................................................................................................... vii Statement Regarding Oral Argument................................................................................ viii Issues Presented..................................................................................................................... ix Statement of Facts .................................................................................................................. 1 A. In this business dispute over the ownership of Axiom, Schaefer asserts claims against her co-owner DeLitta for breach of fiduciary duty for DeLitta’s repeated and ongoing self-dealing and usurpation of corporate assets. ...................................................................... 1 B. Schaefer has already successfully sought temporary relief enjoining DeLitta’s malfeasance, enforcing those prohibitions, and placing the company in a partial receivership............................................................ 2 C. Axiom is a medical consulting company that provides injury management and medical advice concerning work-related accidents. .......................................................................................................... 3 D. DeLitta, Axiom’s “Medical Director,” is not a medical doctor. ................ 3 E. Yet DeLitta unabashedly portrays himself, professionally and personally, as “Dr. DeLitta.”.......................................................................... 4 F. DeLitta’s fake persona is effective: clients and employees believe he is a medical doctor. .................................................................................... 7 G. DeLitta justifies the title because he obtained a “Ph.D.” in psychology from a diploma mill. ................................................................... 8 H. The trial court correctly determined that use of the title “Dr. DeLitta” is highly misleading when used by a “medical director” of a company in a medical-related industry and that enjoining DeLitta from doing so was necessary to protect Axiom’s corporate assets pending final resolution of this lawsuit......................................................... 8 iii Standard of Review .............................................................................................................. 10 Summary of Argument ........................................................................................................ 11 Argument ............................................................................................................................... 11 I. DeLitta misleads the Court by suggesting Schaefer asserts a statutory cause of action under the Occupation Code......................................................................... 11 A. The trial court’s injunction is based on Schaefer’s probable right to recover on her breach of fiduciary claims—a claim DeLitta does not even challenge. ........................................................................................ 12 B. Violations of the Occupations and Penal Codes are the conduct enjoined, not the cause of action asserted, and prohibiting that misconduct is necessary to preserve the status quo of Axiom as a reputable entity free from civil and criminal liability. ............................... 13 C. There is ample evidence to support the trial court’s determination that DeLitta was fraudulently holding himself out as a medical doctor. ............................................................................................................. 16 II. The trial court did not abuse its discretion in determining that DeLitta’s fraudulent conduct threatened Axiom with imminent harm............................... 19 Conclusion............................................................................................................................. 23 Certificate of Compliance .................................................................................................... 25 Certificate of Service ............................................................................................................ 25 iv INDEX OF AUTHORITIES Cases Butnaru v. Ford Moter Co., 84 S.W.3d 198 (Tex. 2002) ...........................................................................10, 19, 23 Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398 (Tex. App.—Dallas 1989, no writ) ............................................. 11 City of Houston v. Mem’l Bend Util. Co., 331 S.W.2d 418 (Tex. Civ. App.—Houston 1960, writ ref’d n.r.e.) ................... 20 Davis v. Huey, 571 S.W.2d 859 (Tex.1978) ................................................................................ 10, 23 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)..................................................................................... 10 Ebony Lake Healthcare Ctr. v. Texas Dep’t of Human Servs., 62 S.W.3d 867 (Tex. App.—Austin 2001, no pet.) ............................................... 22 ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867 (Tex. 2010)..................................................................................... 23 Featherstone v. Indep. Serv. Stations Ass’n, 10 S.W.2d 124 (Tex. App.—Dallas 1928, writ denied) ........................................ 13 Franklin Sav. Ass’n v. Reese, 756 S.W.2d 14 (Tex. App.—Austin 1988, no writ) .............................................. 12 Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215 (Tex. App.—Fort Worth 2009, pet. denied) ............................. 19 Jenkins v. Transdel Corp., No. 03-04-00033-CV, 2004 WL 1404364 (Tex. App.—Austin June 24, 2004, no pet.) ............................................................................................................. 18 Jim Rutherford Inv., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) ............... 20 Keightley v. Republic Ins. Co., 946 S.W.2d 124 (Tex. App.—Austin 1997, no writ) ............................................ 23 Operation Rescue Nat’l v. Planned Parenthood of Houston, 937 S.W.2d 60 (Tex. App.—Houston [14th Dist.] 1996, writ denied)............... 22 v Pydia, Inc. v. State, 212 S.W.3d 513 (Tex. App.—Austin 2006, no pet.) ............................................. 10 R & R Res. Corp. v. Echelon Oil & Gas, L.L.C., No. 03-05-00479-CV, 2006 WL 66458 (Tex. App.—Austin Jan. 10, 2006, no pet.) ............................................................................................................. 22 Rattikin Title Co. v. Grievance Committee, 272 S.W.2d 948 (Tex. Civ. App.—Fort Worth 1954, no writ)............................ 20 T&R Assocs., Inc. v. City of Amarillo, 601 S.W.2d 178 (Tex. Civ. App.—Amarillo 1980, no writ)................................. 21 T–N–T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d) .................. 11 Universal Health Servs. v. Thompson, 24 S.W.3d 570 (Tex. App.—Austin 2000, no pet.) ............................................... 13 Statutes TEX. OCC. CODE §101.201 .................................................................................................. 14 TEX. OCC. CODE §204.201 .................................................................................................... 4 TEX. OCC. CODE §204.202 .................................................................................................... 4 TEX. OCC. CODE §204.204 .................................................................................................... 4 TEX. OCC. CODE §204.302 .............................................................................................. 4, 14 TEX. PENAL CODE §32.52 ................................................................................................... 15 vi STATEMENT OF THE CASE Nature of the Case: The underlying suit is a business dispute between business partners Michael DeLitta and Nancy Schaefer over the ownership and management of Axiom Medical Consulting, LLC (“Axiom”). On December 12, 2014, Appellee filed a Verified Application for Temporary Injunction seeking to prohibit Appellant from representing himself as a medical doctor. 2 Trial Court: The Honorable Orlinda Naranjo, 201st District Court, Travis County, Texas. Trial Court Disposition: After an evidentiary hearing, Judge Naranjo entered a Temporary Injunction Order,3 which was amended by agreement (and without substantive change) on April 29, 2015. 4 2 CR323–59. 3 CR624–31. 4 CR632–38. vii STATEMENT REGARDING ORAL ARGUMENT Appellant has waived his right to oral argument in this appeal. Appellee agrees that oral argument is not necessary for the Court to fully understand and properly resolve this interlocutory appeal. viii ISSUES PRESENTED 1. In a business dispute about the ownership and mismanagement of a medical consulting company, does a trial court abuse its discretion by enjoining the CEO from misleading others into falsely believing he is a medical doctor to prevent harm to the company’s reputation and to protect the company from potential civil and criminal liability? ix STATEMENT OF FACTS A. In this business dispute over the ownership of Axiom, Schaefer asserts claims against her co-owner DeLitta for breach of fiduciary duty for DeLitta’s repeated and ongoing self-dealing and usurpation of corporate assets. This is a business dispute over the ownership and management of Axiom Medical Consulting, LLC. 5 DeLitta and Schaefer partnered to form the company in 1999. 6 Over a decade later, the relationship between the two owners deteriorated and, in September 2013, DeLitta started taking drastic measures to unilaterally push Schaefer out of the company and undermine her goodwill within the company.7 Schaefer sued.8 Schaefer claims, among other things, that DeLitta breached oral and written contracts, committed fraud, and breached his fiduciary duties to her and to the company.9 Her fiduciary claims include allegations that Delitta is depriving her of her 50% ownership in Axiom and her rights as a member and manager of Axiom, and that DeLitta is engaging in self-dealing to the detriment of Axiom, including unilaterally refusing to implement the resolutions of the Board and misusing corporate assets for his personal benefit.10 Schaefer also asserts a claim for negligent misrepresentation because DeLitta provided false information for the guidance of others.11 5 CR125–27. 6 CR400. 7 CR403–04. 8 CR3. 9 CR409–17. 10 CR413–14. 11 CR414. 1 B. Schaefer has already successfully sought temporary relief enjoining DeLitta’s malfeasance, enforcing those prohibitions, and placing the company in a partial receivership. Upon filing suit, Schaefer immediately sought and received a temporary restraining order enjoining DeLitta from interfering with her access to and position in the company.12 Eventually, the parties entered into an Agreed Temporary Injunction. The Agreed Injunction prohibited the parties from undertaking certain acts, similar to the TRO, and also obligated the parties to file a joint motion for appointment of a provisional member to break deadlock between Schaefer and DeLitta.13 Unfortunately, the Court is intimately familiar with this litigation from this point. This is the fifth appeal that DeLitta has filed. Four of those appeals were attempted interlocutory appeals.14 One was a mandamus proceeding. 15 None have been successful.16 And, in addition to this appeal, one other remains pending before the Court.17 DeLitta’s intentional, willful, and repeated self-dealing and violations of the injunction—which harm both Schaefer and Axiom—have gotten so bad that the trial 12 CR405. 13 Id. 14 See No. 03-15-00280-CV (this appeal); No. 03-14-000425-CV (appeal of order appointing receiver); No. 03-14-00426-CV (appeal of an order enforcing the terms of agreed temporary injunction); No. 03-15-00085-CV (appeal of order refusing to dissolve agreed temporary injunction). 15 No. 03-14-00423-CV (original proceeding seeking to declare agreed temporary injunction void). 16 No. 03-14-00423-CV (original proceeding seeking to declare injunction void, denied on July 11, 2014); No. 03-14-00426-CV (appeal of an order enforcing the terms of the injunction dismissed for lack of jurisdiction on November 6, 2014); No. 03-14-000425-CV (appeal of order appointing a receiver over Axiom dismissed for failure to prosecute on October 17, 2014). 17 No. 03-15-00085-CV (appeal of order refusing to dissolve agreed temporary injunction). 2 court was forced to appoint a receiver over Axiom’s finances and books and to disqualify DeLitta’s attorneys from jointly representing Axiom and DeLitta to adequately protect Axiom’s interests.18 The case is set for trial on October 26, 2015.19 C. Axiom is a medical consulting company that provides injury management and medical advice concerning work-related accidents. Axiom is a medical consulting company.20 The company provides injury management for work-related and personal injuries for oil and gas companies.21 Axiom advertises that it “employs Doctors, Physician Assistants, Registered Nurses, and a specially trained support staff to provide a full suite of medical management services, ranging from work-related injury case management to a multitude of customizable exam programs.”22 It allows employees and employers “immediate access to [a] medical professional 24/7 for [employment-related] injuries.”23 D. DeLitta, Axiom’s “Medical Director,” is not a medical doctor. DeLitta serves as both CEO and “Medical Director” of Axiom. DeLitta, however, is not a medical doctor. He is a physician’s assistant. As a condition to his licensure, DeLitta must be continuously supervised by a supervising physician and is 18 CR410. 19 CR635. 20 2RR56. 21 CR400. 22 CR324. 23 3RRPX2. 3 prohibited from providing any medical services unless his supervising physician delegates services for him to perform.24 A physician’s assistant is expressly prohibited from “falsely represent[ing] that the person is a physician” or from acting “in a unprofessional or dishonorable manner that is likely to deceive, defraud, or injure the public.”25 These prohibitions are stated in a section entitled “Conduct Related to Fraud or Misrepresentation.”26 E. Yet DeLitta unabashedly portrays himself, professionally and personally, as “Dr. DeLitta.” Despite these statutory prohibitions against a physician’s assistant misleading others into believing he is a medical doctor, until recently, Axiom’s marketing materials stated that it “is a privately owned company established in 1999 by its CEO Dr. Michael J. DeLitta” and whose “mission” is “to transform Occupational Medicine.”27 28 24 TEX. OCC. CODE §§204.201, 204.202, 204.204. 25 Id. §204.302(3), (4). 26 Id. 27 3RRPX3. 28 3RRPX2. 4 DeLitta maintains business cards that incorporate caduceus, the modern symbol of medicine, and refer to “Dr. Michael J. DeLitta.” 29 DeLitta has opened a credit card account as “Michael J. DeLitta MD.” 30 29 3RRPX5. 30 3RRPX1. 5 DeLitta has posed as a “doctor” for so long that he has become self-delusional. His vanity license plates say it all: 31 These plates are undoubtedly shorthand for “Occupational Doctor,”32 as the court found,33 since DeLitta has worked in the occupational medicine field for multiple decades. He maintains a similar email address: occdoc66@hotmail.com.34 31 3RRPX7. 32 2RR50, 56. 33 CR625. 34 2RR56, 58, 59-60 (occupational medicine field); 2RR50 (email). 6 F. DeLitta’s fake persona is effective: clients and employees believe he is a medical doctor. These public representations by DeLitta have left the impression to those in his work environment that DeLitta is a medical doctor. Schaefer alerted DeLitta of the false impression he was creating as early as 2010. 35 Since then, several former Axiom employees have also sounded warnings about DeLitta’s misleading conduct. Ashley Santoro, a registered nurse who was employed by Axiom for over two years, expressed concern about the issue in her resignation letter: I am also concerned over the fact we also are told to lie to our clients about Dr. Mike DeLitta. Although, he has a doctorate degree - it is not in medicine. He is not a medical physician but a Physician’s Assistant. I was told to never tell this to our clients and we are always to say “Dr. DeLitta” when speaking about him to keep up the image. Axiom does not want anyone to know he is not a medical physician as he solicits himself to our clients as. 36 Former Axiom employee Shane Enochs, also a registered nurse, offered similar testimony at the hearing on the temporary injunction. He testified that DeLitta used the title “Doctor” both orally and in writing in connection with his employment with Axiom. 37 Staff members regularly introduced him, both in staff meetings and in presentations to clients, as “Dr. Michael DeLitta.”38 He never corrected or clarified that his title as “doctor” referenced a psychology degree and not a medical degree.39 Mr. 35 3RRDX21. 36 CR351–52. 37 2RR29. 38 2RR29. 39 2RR30, 34. 7 Enochs was convinced, based on his observations of how people reacted to DeLitta, that using the title “doctor” was misleading people into falsely believing DeLitta was a medical doctor. 40 Even Enochs was misled. He testified that he himself thought DeLitta was a medical physician his first year at Axiom.41 G. DeLitta justifies the title because he obtained a “Ph.D.” in psychology from a diploma mill. Although he is not a medical doctor, DeLitta does have a “Ph.D.” from Newport University, a web-based “education institution.” 42 Now defunct, “Newport University was not accredited by any higher education accreditation organization by the United State Department of Education or the Council for Higher Education Accreditation.” 43 The Texas Higher Education Coordinating Board lists Newport University as an institution that issues “fraudulent or substandard degrees.”44 H. The trial court correctly determined that use of the title “Dr. DeLitta” is highly misleading when used by a “medical director” of a company in a medical-related industry and that enjoining DeLitta from doing so was necessary to protect Axiom’s corporate assets pending final resolution of this lawsuit. Deeply concerned that DeLitta was holding himself out as a medical doctor and misleading others as to his qualifications, Schaefer filed a verified application for a 40 2RR30. 41 2RR34. 42 3RRDX1. 43 3RRDX1. Newport University appears on numerous lists of institutions known informally as “diploma mills.” CR347–48. 44 CR349–50. DeLitta tried to convince the trial court that the “Newport University” listed here is not the same institution that issued his “Ph.D.,” but this Court must view the evidence most favorably in support of the judgment. 8 temporary injunction on December 12, 2014.45 The application was heard on April 15, 2015. 46 The Honorable Orlinda Naranjo presided over the evidentiary hearing.47 On April 22, 2015, the trial court signed a temporary injunction enjoining DeLitta from using the title “Doctor,” “Dr.,” or M.D. in any context and removing any reference to the term Dr. or M.D. from Axiom marketing materials.48 The trial court emphasized that “[b]ecause Axiom is a medical consulting company and provides medical advice, there is a substantial likelihood that DeLitta’s use of the ‘Dr.’ title could mislead others into believing that he is a medical doctor.” 49 As to harm, the trial court found that DeLitta’s fraudulent conduct “is causing immediate and irreparable harm to Axiom’s reputation and may subject Axiom to civil and criminal liability thereby diminishing its value and causing damages that are not quantifiable.”50 This harm, the trial court found, harms Axiom’s reputation, not only with its customers and employees but also within the medical industry, and makes Axiom a party to false advertising and complicit in DeLitta’s wrongful conduct.”51 The temporary injunction was later amended, by agreement, to correct the trial date.52 This appeal followed.53 45 CR323–59. 46 2RR1. 47 Id. 48 CR624–28. 49 CR625. 50 CR625. 51 CR626. 52 CR632. 53 CR642–45. 9 STANDARD OF REVIEW Whether to grant or deny an injunction is within a trial court’s discretion. Butnaru v. Ford Moter Co., 84 S.W.3d 198, 204 (Tex. 2002). The test for abuse of discretion is not whether, in the reviewing court’s opinion, the trial court’s action was appropriate. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). Instead, the reviewing court must determine whether the trial court acted without reference to any guiding rules and principles, or in an arbitrary or unreasonable manner. Id. That a trial judge decided the matter in a different manner than an appellate judge would does not demonstrate an abuse of discretion. Id. An abuse of discretion does not occur where the trial court bases its decision on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978). An appellate court must view the evidence in the manner most favorable to the trial court’s decision, indulging every reasonable inference in its favor. Pydia, Inc. v. State, 212 S.W.3d 513, 516–17 (Tex. App.—Austin 2006, no pet.). The trial court does not abuse its discretion if some evidence reasonably supports its decision. Butnaru, 84 S.W.3d at 211. To obtain a temporary injunction, the applicant must plead and prove three specific elements: (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. Id. at 204. A probable right of success on the merits is shown by alleging a cause of action and introducing evidence that tends to sustain it. T–N–T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 23–24 (Tex. App.—Houston [1st Dist.] 1998, pet. 10 dism’d). 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. Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex. App.—Dallas 1989, no writ). SUMMARY OF ARGUMENT DeLitta is not a medical doctor, but he uses the title “doctor” in a way that leads the employees and customers of his medical consulting company to falsely believe that he is. Materials that market the company’s occupational medical services refer to him as “Dr. Michael J. DeLitta.” So do his business cards. He opened a credit card as “Michael J. DeLitta, MD” and even owns a car with “OCC DOC” vanity plates. DeLitta’s conduct is not just misleading; it is against the law. The trial court was reasonable to conclude that DeLitta’s fraudulent conduct is causing irreparable harm to the Axiom Companies’ reputation and subjecting Axiom to civil and criminal liability, thereby diminishing the companies’ value and thus Schaefer’s financial interest. ARGUMENT I. DeLitta misleads the Court by suggesting Schaefer asserts a statutory cause of action under the Occupation Code. The entire premise of DeLitta’s appeal is a conjured issue with no basis in this record. All but two pages of DeLitta’s argument is spent attempting to convince the Court that Schaefer has “no standing” to seek an injunction because “no private civil cause of action exists” under the Occupations and Penal Code provisions that the trial 11 court found DeLitta was violating.54 As such, he argues, Schaefer cannot show two necessary elements for obtaining an injunction: (1) a cause of action against the defendant, and (2) a probable right to the relief sought.55 A. The trial court’s injunction is based on Schaefer’s probable right to recover on her breach of fiduciary claims—a claim DeLitta does not even challenge. Schaefer did not (and need not) plead and prove a statutory “cause of action” under the Occupations and Penal Codes. The cause of action on which Schaefer will probably obtain relief is her claims that DeLitta breached his fiduciary duties to Axiom, committed fraud, and provided false information for the guidance of others. This is the wrongful conduct that forms the basis of the trial court’s injunction. Franklin Sav. Ass’n v. Reese, 756 S.W.2d 14, 16 (Tex. App.—Austin 1988, no writ) (temporary injunction applicant need only establish probable recovery on one cause of action). Importantly, DeLitta never challenged the assertion that Schafer will probably recover on these claims. On appeal, too, his brief is silent as to these causes of action. DeLitta was forced to conjure up a cause of action because Schaefer so easily met her burden to show viable claims against him. In fact, Schaefer has already successfully sought temporary relief enjoining DeLitta’s malfeasance, enforcing those prohibitions, and placing the company in a partial receivership.56 The trial court was 54 Appellant’s Br. at 17. 55 Appellant’s Br at 16–18 (Section 1, no cause of action under Occupations Code), 18–21 (Section 2, no probable recovery under Occupations and Penal Codes). 56 See supra at 2 (Statement of Facts, Section B). 12 reasonable to conclude that Schaefer met her burden of showing a viable cause of action for breach of fiduciary duty. See Universal Health Servs. v. Thompson, 24 S.W.3d 570, 576 (Tex. App.—Austin 2000, no pet.) (applicant need not prove that she will ultimately prevail in the litigation, only that she has a cause of action for which relief may be granted). And a civil court maintains jurisdiction to enjoin a statutory offense incident to a proper injunction. See, e.g., Featherstone v. Indep. Serv. Stations Ass’n, 10 S.W.2d 124 (Tex. App.—Dallas 1928, writ denied). B. Violations of the Occupations and Penal Codes are the conduct enjoined, not the cause of action asserted, and prohibiting that misconduct is necessary to preserve the status quo of Axiom as a reputable entity free from civil and criminal liability. Although the injunction was not based on a statutory cause of action, the Occupations Code and Penal Code did play a role in the trial court’s decision to enter the injunction. Texas law does prohibit an individual from holding himself out as a medical doctor. As a PA, DeLitta also faces regulatory action, including forfeiture of his license. If DeLitta’s conduct continued, Axiom faced civil penalties and third-party liability. At the time the injunction was sought, Axiom had not been cited or sued for DeLitta’s egregious conduct. Thus, the injunction preserved the status quo by ensuring that Axiom would remain free from civil and criminal liability for DeLitta’s misconduct. DeLitta’s conduct threatened both him and Axiom of civil penalties. DeLitta is a Texas-licensed physician’s assistant (“PA”). As such, he is governed by the Texas Physician Assistant Board and Chapter 204 of the Texas Occupations Code. His license 13 imposes a specific obligation for him to avoid confusion over this training. A PA that commits any of the following acts can face civil and criminal liability: • falsely represents that the person is a physician; • acts in an unprofessional or dishonorable manner that is likely to deceive, defraud, or • injure the public; -unlawfully advertises in a false, misleading, or deceptive manner, as described by Section 101.201. TEX. OCC. CODE §§204.302(3), 302(4), and 302(8) (“Conduct Related to Fraud or Misrepresentation”). The Occupations Code also prohibits false, misleading, or deceptive advertising by certain professionals, including PAs: (a) A person may not use advertising that is false, misleading, deceptive, or not readily subject to verification. (b) False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that: (1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading; (5) causes confusion or misunderstanding as to the credentials, education, or licensing of a health care professional; or (9) represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional. TEX. OCC. CODE §101.201. 14 Finally, Texas makes it a crime for DeLitta to use his claimed Ph.D. (i.e., to refer to himself as a “doctor”) to promote a business or to obtain employment, compensation or other benefit in employment or in the practice of a trade. TEX. PENAL CODE §32.52. These statutes were clearly designed to prevent the type of confusion that DeLitta is causing by calling himself a “doctor” (based on a phony Ph.D. in psychology) while he is engaged in a medical consulting business where he allegedly supervises nurses. But, more to the point, DeLitta’s flagrant violations of these statutes has serious potential consequences to Axiom. The consequences range from revocation of DeLitta’s physician’s assistant license to civil penalties, enforcement actions by the Texas Attorney General, and remedies under Chapter 17 of the Texas Deceptive Trade Practices Act. Given DeLitta’s role as CEO and co-founder of Axiom, his conduct makes the company itself a party to false advertising and complicit in DeLitta’s crime. Enjoining DeLitta from continuing to violate these provisions was necessary to maintain the status quo and to protect the rights and interests of Schaefer in the business and the property of the Axiom Companies. The injunction prevents any dissipation or diminution of the business and the property of the Axiom Companies, which is the very heart of this lawsuit. It also protects the devastation to Axiom’s reputation should the industry learn that the company’s CEO and Medical Director was investigated, fined, or stripped of his PA license for fraud and false advertising. 15 C. There is ample evidence to support the trial court’s determination that DeLitta was fraudulently holding himself out as a medical doctor. DeLitta also implies that the trial court erred in finding that his conduct does not violate the Occupations and Penal Code provisions. 57 The trial court was not required to do so. In fact, the injunction does not even reference those statutes. And rightly so. Even if there was no statutory prohibition against an individual holding himself out to be a medical doctor when he is not one, a trial court would be reasonable in enjoining that misconduct as fraudulent and misleading and likely to subject a company to reputational harm and third-party liability. The fact that the Legislature has expressly labeled this misconduct as fraudulent and misleading simply amplifies the impropriety of DeLitta’s actions. And the evidence is overwhelming that DeLitta is misleading others into believing he is a medical doctor when he is not. The first sentence of the company’s online brochure refers to DeLitta as “Dr. Michael J. DeLitta.” The brochure does not include the initials “Ph.D.” DeLitta maintains business cards as “Dr. Michael J. DeLitta.” Again, the cards do not include the initials “Ph.D.” But they do incorporate caduceus, the modern symbol of medicine. Several former Axiom employees have sounded warnings about DeLitta’s misleading conduct. Ashley Santoro, a registered nurse who was employed by Axiom for over two years, cited DeLitta’s fraudulent conduct in a scathing resignation letter: 57 Appellant’s Br. at 17–18. 16 I am also concerned over the tact we also are told to lie to our clients about Dr. Mike DeLitta. Although, he has a doctorate degree - it is not in medicine. He is not a medical physician but a Physician’s Assistant. I was told to never tell this to our clients and we are always to say “Dr. DeLitta” when speaking about him to keep up the image. Axiom does not want anyone to know he [isl not a medical physician as he solicits himself to our clients as. 58 Former Axiom employee Shane Enochs, who is also a registered nurse, testified before the trial court that he witnessed similar conduct from DeLitta. He testified that DeLitta used the title “Doctor” both orally and in writing in connection with his employment with Axiom. 59 Staff members regularly introduced him, both in staff meetings and in presentations to clients, as “Dr. Michael DeLitta.”60 He never corrected or clarified that his title as “doctor” referenced a psychology degree and not a medical degree.61 Mr. Enochs was convinced, based on his observations of how people reacted to DeLitta, that using the title “doctor” was misleading people into falsely believing DeLitta was a medical doctor. 62 Enochs himself was misled. He testified that he worked at Axiom for over a year before he learned that DeLitta was not a medical physician. 63 Enochs’ testimony supports Schaefer’s belief that Axiom’s employees and customers are unaware that DeLitta is not a medical doctor.64 58 CR351–52. 59 2RR29. 60 2RR29. 61 2RR30, 34. 62 2RR30. 63 2RR34. 64 2RR86. 17 DeLitta has convinced himself that because he does not use the initials “M.D.” that he is not holding himself out as a medical doctor. 65 But the record evidence shows DeLitta opened a credit card account as “Michael J. DeLitta MD.” He claims now that this is a “personal” credit card, not a business card, issued by “mistake.”66 But the trial court was reasonable to dismiss this attempt to explain away damning evidence as not credible and to infer from these credit card records that DeLitta intended to falsely portray himself as a medical doctor. DeLitta’s “OCC DOC” vanity license plates make this inference all the more reasonable. In any event, DeLitta’s technical distinction between a Ph.D. and M.D. might be more persuasive if DeLitta worked in a non-medical field. But DeLitta is the CEO and “Medical Director” of medical consulting company that provides injury management for work-related injuries in the oilfield. The company provides direct access to medical professionals. In this context, it was reasonable for the trial court to determine that DeLitta’s use of the title “Dr.” could mislead others into believing that he is a medical doctor. 67 Jenkins v. Transdel Corp., No. 03-04-00033-CV, 2004 WL 1404364, at *5 (Tex. App.—Austin June 24, 2004, no pet.) (restraints must be viewed in broader context of the parties’ dispute). Because there is some evidence to support that finding, the trial 65 Appellant’s Br. at 19 (arguing that none of the misleading marketing materials “state that DeLitta is a medical doctor or M.D.”). 66 Appellant’s Br. at 21. 67 CR633 (injunction concluding that “[b]ecause Axiom is a medical consulting company and provides medical advice, there is a substantial likelihood that DeLitta’s use of the “Dr.” title could mislead others into believing that he is a medical doctor.”). 18 court did not abuse its discretion in making this factual determination. Butnaru, 84 S.W.3d at 211. II. The trial court did not abuse its discretion in determining that DeLitta’s fraudulent conduct threatened Axiom with imminent harm. DeLitta also challenges the trial court’s determination that DeLitta must be enjoined from falsely representing himself as a medical doctor to protect the Axiom Companies from imminent harm. Importantly, DeLitta does not dispute the fact that harm to an entity’s business reputation and goodwill is the type of harm that cannot be easily measured and thus is “irreparable” at law. See, e.g., Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215 (Tex. App.—Fort Worth 2009, pet. denied). He asserts only that the threat to the Axiom Companies was nothing more than “fear and apprehension of injury” that is too “speculative” to support a temporary injunction.68 The threat to Schaefer’s interest in the Axiom Companies is more than just “fear and apprehension of injury.” DeLitta himself testified that this kind of misconduct poses a real threat to a company like Axiom: Q. Okay. And by the way, you would agree that if the company is— and this is a hypothetical—if it’s using false or misleading designations and they are doing something false or misleading or against the law, that that can harm the company, correct? A. Let me see if I understand your question. If the company is doing something that’s illegal, would it harm the company? Q. Yes. 68 Appellant’s Br. at 22–23. 19 A. Of course, it would . 69 Yet DeLitta defiantly testified that he will not stop his fraudulent conduct: Q. Are you willing to just agree that you will not use the Doctor designation in front of your name anymore? A. No, I won’t agree with that.70 A trial court must be given broad discretion to find imminent harm sufficient when the evidence shows the party to be enjoined intends to do an act that is illegal and fraudulent. Cf. Jim Rutherford Inv., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (explaining that a movant seeking a temporary injunction to enforce a restrictive covenant need only prove that the defendant intends to do an act that would breach the restrictive covenant). In fact, Texas courts have held that a trial court has a duty to enjoin illegal conduct. City of Houston v. Mem’l Bend Util. Co., 331 S.W.2d 418, 422 (Tex. Civ. App.—Houston 1960, writ ref’d n.r.e.) (emphasizing that where “a party is violating the substantive law, it becomes the duty of the court to enjoin the violation. In such case there is no discretion to be exercised.”); Rattikin Title Co. v. Grievance Committee, 272 S.W.2d 948, 955 (Tex. Civ. App.—Fort Worth 1954, no writ) (“[W]hen it is determined that the law is being violated it is the province and the duty of the court to restrain it . . ., for no man may 69 2RR77 (emphasis added). 70 2RR78. 20 engage in actions in violation of the statutory law.”); T&R Assocs., Inc. v. City of Amarillo, 601 S.W.2d 178, 180 (Tex. Civ. App.—Amarillo 1980, no writ) (holding that if the law is being violated, it is the duty of the court to restrain it, and a temporary injunction is an appropriate remedy). In any event, the trial court was presented with evidence of imminent harm. Already, DeLitta’s flagrantly misleading conduct has harmed the Axiom Companies. The record evidence shows that a nurse resigned, in part, because DeLitta misleads others into believing he is a medical physician as a means of soliciting clients. 71 Moreover, former employee Enochs’ testimony painted a picture of DeLitta who flagrantly violated licensing rules and regulations.72 He testified that DeLitta encouraged him to violate the law by using his medical nursing training in states where he was not licensed.73 Enochs was terminated for refusing to violate the law in this way. 74 The trial court was reasonable to conclude that this evidence suggests a course of conduct that supports the likelihood of injury. “In making its determination of imminent harm, the trial court may determine that, when violations are shown up to or near the date of trial, the defendant has engaged in a course of conduct and the court may assume that it will continue, absent clear proof to the contrary.” See Operation Rescue 71 CR351–52. 72 2RR31 (testifying that DeLitta encouraged Enochs to practice nursing in states where he was not licensed). 73 2RR31. 74 2RR36. 21 Nat’l v. Planned Parenthood of Houston, 937 S.W.2d 60, 77 (Tex. App.—Houston [14th Dist.] 1996, writ denied). “The probability of the continuation of the prohibited practices is not subject to direct proof, and injunctive relief is proper when the trial court finds it justified under the rules of equity, notwithstanding a defendant’s cessation of the activity or promise to cease the activity.” Id. Moreover, a trial court may allow less stringent proof of harm when a party offers strong evidence of her probable right to relief. See Ebony Lake Healthcare Ctr. v. Texas Dep’t of Human Servs., 62 S.W.3d 867, 874 (Tex. App.—Austin 2001, no pet.) (“In weighing these two elements, we apply a ‘sliding scale’ under which clear evidence establishing one of the elements will result in a less stringent requirement of proof of the other element.”). DeLitta’s fraudulent conduct goes to the very core of Axiom’s reputation, competence and standing in the occupational medical field. The seriousness of these former employees’ allegations (criminal and illegal conduct) evidence an immediate threat to the Axiom Companies and its reputation within the medical community. The trial court did not abuse its discretion in ordering it stopped. See R & R Res. Corp. v. Echelon Oil & Gas, L.L.C., No. 03-05-00479-CV, 2006 WL 66458, at *7 (Tex. App.— Austin Jan. 10, 2006, no pet.) (evidence of exposure to liability supported trial court finding of harm). Nor did the trial court abuse its discretion in rejecting DeLitta’s argument that Schaefer’s alleged delay in seeking an injunction is evidence that there is no threat of 22 injury.75 Nurse Santoro’s scathing resignation letter, which was important evidence supporting Schaefer’s petition for injunction, was dated June 201476—a mere six months before this injunction was sought—and not immediately produced. 77 The trial court could weigh this evidence against DeLitta’s accusations of delay to decide that the injunction was timely sought and the harm imminent. It is not this Court’s role to reweigh the evidence presented below. Davis, 571 S.W.2d at 862. As long as some evidence supports the trial court’s decision, the Court must affirm. Butnaru, 84 S.W.3d at 211. CONCLUSION For these reasons, Appellee asks that the Court to affirm the trial court’s order. Appellee seeks any other relief to which she may be entitled. 75 Appellant’s Br. at 22. DeLitta suggests, in a single line with no authority, that Schaefer waived her right to seek injunctive relief. Id. at 23 (“The delay . . . shows acquiescence and works as a waiver.”). But DeLitta never raised this equitable defense below. See Keightley v. Republic Ins. Co., 946 S.W.2d 124, 126 (Tex. App.—Austin 1997, no writ) (waiver must be raised in trial court). And, in any event, this Court should reject the argument as not properly briefed. See ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010) (party waives points not adequately briefed). 76 CR351. 77 2RR91. 23 Dated: July 20, 2015 Respectfully submitted, /s/Lisa Bowlin Hobbs Donald R. Taylor Lisa Bowlin Hobbs State Bar No. 19688800 State Bar No. 24026905 dtaylor@taylordunham.com Lisa@KuhnHobbs.com Stacey Reese (Of Counsel) Kurt Kuhn State Bar No. 24056188 State Bar No. 24002433 stacey@reeselawpractice.com Kurt@KuhnHobbs.com TAYLOR DUNHAM & RODRIGUEZ LLP KUHN HOBBS PLLC 301 Congress Avenue, Suite 1050 3307 Northland Drive, Suite 310 Austin, Texas 78701 Austin, Texas 78731 (512) 473-2257 (512) 476-6003 (512) 478-4409 (fax) (512) 476-6002 (fax) Howard F. Carter, Jr., State Bar No. 03916500 sam@scarterlawfirm.com HOWARD F. CARTER, JR., P.C. 5600 Tennyson Parkway, Suite 160 Plano, Texas 75024 (972) 455-2001 (972) 455-2015 (fax) COUNSEL FOR APPELLEE 24 CERTIFICATE OF COMPLIANCE Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this brief contains 5,181 words. This is a computer-generated document created in Microsoft Word, using 14- point typeface for all text, except for footnotes which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document. /s/ Lisa Bowlin Hobbs Lisa Bowlin Hobbs CERTIFICATE OF SERVICE I hereby certify that on July 20, 2015, I served a copy of this Brief of Appellee on counsel of record electronically, in accordance with the Court’s rules on electronic filing, as listed below: Douglas R. Drucker via e-Service Kirby D. Hopkins DRUCKER | HOPKINS LLP 21 Watery Avenue, Suite 300 The Woodlands, TX 77380 Counsel for Appellant Michael J. DeLitta Eric J. Taube via e-Service HOHMANN, TAUBE & SUMMERS LLP 100 Congress Avenue, 18th Floor Austin, Texas 78701 Counsel for the Axiom entities and Receiver/Provisional Member Jeff Compton /s/ Lisa Bowlin Hobbs Lisa Bowlin Hobbs 25 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 84 S.W.3d 198 Supreme Court of Texas. Hanan BUTNARU and Gil Butnaru, Petitioners, v. FORD MOTOR COMPANY, Respondent. No. 00–0513. | Argued Feb. 14, 2001. | Decided June 27, 2002. Potential buyers of automobile dealership filed action asserting claims against dealership, its shareholder, and another potential buyer for breach of purchase and sale agreements and claims against manufacturer for tortious interference. The 63rd Judicial District Court, Val Verde County, George M. Thurmond, J., granted temporary injunction to prevent manufacturer from exercising right of first refusal to buy dealership. Manufacturer appealed. The Court of Appeals, 18 S.W.3d 762, dismissed appeal in part, dissolved temporary injunction, and remanded case. Potential buyers filed petition for review. The Supreme Court, James A. Baker, J., held that: (1) amended provision of Motor Vehicle Commission Code granting Motor Vehicle Board exclusive, original jurisdiction to regulate aspects of distribution, sale, and leasing of motor vehicles as governed by Code constitutionally applied retroactively; (2) potential buyers' tortious interference and declaratory judgment claims fell outside purview of Board's exclusive jurisdiction, but Board had primary jurisdiction over claims; and (3) trial court did not abuse its discretion in issuing a temporary injunction. Reversed and remanded. West Headnotes (21) [1] Injunction Preservation of status quo A temporary injunction's purpose is to preserve the status quo of the litigation's subject matter pending a trial on the merits. 144 Cases that cite this headnote [2] Injunction Extraordinary or unusual nature of remedy A temporary injunction is an extraordinary remedy and does not issue as a matter of right. 40 Cases that cite this headnote [3] Injunction Issues, proof, and variance To obtain a temporary injunction, the applicant must plead and prove three specific elements: (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. 265 Cases that cite this headnote [4] Injunction Irreparable injury Injunction Adequacy of remedy at law © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 Injunction Recovery of damages An injury is irreparable, for purposes of a temporary injunction, if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. 123 Cases that cite this headnote [5] Injunction Discretionary Nature of Remedy Whether to grant or deny a temporary injunction is within the trial court's sound discretion. 91 Cases that cite this headnote [6] Appeal and Error Injunction A reviewing court should reverse an order granting injunctive relief only if the trial court abused that discretion. 50 Cases that cite this headnote [7] Appeal and Error Abuse of discretion A reviewing 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. 42 Cases that cite this headnote [8] Antitrust and Trade Regulation Retroactive operation Statutes Administrative agencies and proceedings Statutes Trade or business Amended provision of Motor Vehicle Commission Code granting Motor Vehicle Board exclusive, original jurisdiction to regulate those aspects of the distribution, sale, and leasing of motor vehicles as governed by Code constitutionally applied retroactively in action brought by potential buyers of automobile dealership against dealership, its shareholder, and another potential buyer; amended provision was jurisdictional statute that did not alter parties' rights or obligations or remove any available remedies, and parties did not have vested right in choosing what tribunal would initially resolve all issues and claims governed by Code. Vernon's Ann.Texas Civ.St. art. 4413(36), § 3.01(a). 4 Cases that cite this headnote [9] Antitrust and Trade Regulation Exclusive and Concurrent Remedies or Laws Antitrust and Trade Regulation Exhaustion Although amended provision of Motor Vehicle Commission Code granted Motor Vehicle Board exclusive, original jurisdiction to regulate those aspects of the distribution, sale, and leasing of motor vehicles as governed by Code, tortious interference and declaratory judgment claims asserted by potential buyers of automobile dealership against dealership, its shareholder, and another potential buyer were not governed by Code and, thus, fell outside the purview of the Board's exclusive jurisdiction, such that potential buyers did not have to exhaust any administrative remedies before raising claims in trial court. Vernon's Ann.Texas Civ.St. art. 4413(36), § 3.01(a). 5 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 [10] Torts Contracts in general To establish their tortious interference claim, potential buyers of automobile dealership had to show: (1) a contract for sale of dealership existed between them and dealership, its sole shareholder, and property owners; (2) dealership willfully and intentionally interfered with that contract; (3) the interference proximately caused potential buyers damage; and (4) buyers suffered actual damage or loss. 50 Cases that cite this headnote [11] Torts Defense, justification or privilege in general Defendant could defeat liability for tortious interference claim by proving the affirmative defense that its conduct was privileged or justified, so long as that conduct was not illegal or tortious. 13 Cases that cite this headnote [12] Antitrust and Trade Regulation Judicial remedies prior to or pending administrative proceedings Motor Vehicle Board had primary jurisdiction over tortious interference and declaratory judgment claims asserted by potential buyers of automobile dealership against dealership, its shareholder, and another potential buyer, which claims raised Motor Vehicle Commission Code construction issue that was within Board's special competence and expertise; thus, trial court should abate lawsuit and suspend finally adjudicating tortious interference and declaratory judgment claims until Board had a reasonable opportunity to act on the matter. Vernon's Ann.Texas Civ.St. art. 4413(36), § 5.01B(d). 16 Cases that cite this headnote [13] Constitutional Law Abrogation, modification, or recognition of remedies State Constitution's open courts provision prohibits the Legislature from abrogating well-established, common-law claims unless the reason for doing so outweighs a litigant's constitutional right of redress. Vernon's Ann.Texas Const. Art. 1, § 13. 4 Cases that cite this headnote [14] Antitrust and Trade Regulation Exclusive and Concurrent Remedies or Laws Motor Vehicle Commission Code did not abrogate any previously existing common-law rights and, thus, trial court had immediate jurisdiction to adjudicate common-law claims for breach of the purchase and sale agreements asserted by potential buyers of automobile dealership against dealership, its shareholder, and another potential buyer. Vernon's Ann.Texas Civ.St. art. 4413(36). Cases that cite this headnote [15] Antitrust and Trade Regulation Particular cases Reliance by potential buyers of automobile dealership on general equitable principles did not relieve buyers of their burden to show an inadequate legal remedy, in seeking temporary injunction against manufacturer's exercising its right of first refusal to purchase dealership on the same terms and conditions as proposed buyers. 7 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 [16] Antitrust and Trade Regulation Particular cases Evidence that potential buyers of automobile dealership would lose not only their right to purchase real property, in addition to the dealership, if manufacturer exercised its right of first refusal was sufficient to establish that potential buyers had a probable right to recovery and that injunctive relief was necessary to preserve the status quo. 31 Cases that cite this headnote [17] Injunction Contracts Injunction Breaches in general Generally, a court will not enforce contractual rights by injunction, because a party can rarely establish an irreparable injury and an inadequate legal remedy when damages for breach of contract are available. 25 Cases that cite this headnote [18] Appeal and Error Injunction Under an abuse of discretion standard for reviewing an injunction, the court of appeals cannot overrule the trial court's decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. 91 Cases that cite this headnote [19] Appeal and Error Substituting reviewing court's judgment The court of appeals cannot substitute its judgment for the trial court's reasonable judgment even if it would have reached a contrary conclusion. 8 Cases that cite this headnote [20] Appeal and Error Reasonably supported findings A trial court does not abuse its discretion if some evidence reasonably supports the trial court's decision. 157 Cases that cite this headnote [21] Equity Property and rights therein in general A trial court may grant equitable relief when a dispute involves real property. 1 Cases that cite this headnote Attorneys and Law Firms *200 Jonathan Scott Miles, Andrew L. Kerr, Holland & Knight LLP, San Antonio, Byron W. Hodge, Lowry Foster & Hodge, Del Rio, Larry G. Berkman, Jenkens & Gilchrist, San Antonio, for Petitioner. Paul S. Francis, Jon David Ivey, Baker & Hostetler, Alfred V. Sumpter, Oritz & Sumpter, Del Rio, for Respondent. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 Opinion Justice BAKER delivered the opinion of the Court. On December 6, 2001, we granted Ford's motion for rehearing. We withdraw our opinion dated July 7, 2001, and substitute the following in its place. In this case, we determine whether the Texas Motor Vehicle Board has exclusive jurisdiction over a prospective car dealership transferees' claims that raise an issue about how to construe the Texas Motor Vehicle Commission Code. 1 We conclude the Board has exclusive jurisdiction to resolve only those claims and issues the Code governs. Moreover, we conclude that this exclusive jurisdiction does not extend to the prospective transferees' claims here, and thus, they do not have to exhaust administrative remedies before bringing their claims in the trial court. Instead, because of the Board's special expertise in interpreting the Code, the trial court should abate the prospective transferees' tortious interference and declaratory judgment claims so the Board may exercise its primary jurisdiction to *201 determine the Code construction issue raised with those claims. We further conclude that the trial court did not abuse its discretion by entering a temporary injunction. Accordingly, we reverse the court of appeals' judgment and remand the cause to the trial court for further proceedings consistent with this opinion. I. BACKGROUND Martin Graf is the sole shareholder of Graf Ford, Lincoln, Mercury, Inc., a dealership in Del Rio, Texas. The dealership's agreement with Ford provides that if Graf Ford proposes to transfer the dealership, Ford shall have a right of first refusal to purchase the dealership on the same terms and conditions that the proposed buyer agreed to, “regardless of whether the proposed buyer is qualified to be a dealer.” A Ford representative testified that this provision's purpose, and the purpose of similar provisions in other standard Ford dealership agreements, is “to be able to put into business dealers who [Ford feels] are qualified whenever [Ford has] the opportunity.” In 1999, Hanan and Gil Butnaru contracted with Graf to buy the Graf dealership. They also contracted separately to buy the real property upon which the dealership was located. Graf and J.M. Barton owned the property and executed that contract. Graf told the Butnarus about Ford's right of first refusal. Additionally, both agreements were “expressly conditioned upon approval by Ford of Hanan Butnaru as a[sic] authorized sales and service dealer” and warranted that neither agreement conflicted with any prior agreement to which Graf or Barton were parties. In September 1999, Graf told Ford that he intended to sell the dealership to the Butnarus. The Butnarus then filed a Prospective Dealer Application with Ford, seeking approval as an authorized dealer. A month later, Ford informed Graf that it intended to exercise its right of first refusal and offered to pay the Butnarus' reasonable expenses incurred in negotiating the purchase and sale agreements. On the same day, Ford assigned its right of first refusal to an existing Ford dealer. Ford and Graf agreed that Ford would indemnify Graf against damages arising from Ford's exercising its right of first refusal and that Graf would cooperate with Ford in defending any action challenging the right. Anticipating their breaching the purchase and sale agreements, the Butnarus sued Graf, Graf Ford, and Barton for breach of those agreements. The Butnarus also sued Ford for tortiously interfering with the agreements. They alleged Ford tortiously interfered because Ford's right of first refusal violates a Code provision that prohibits a manufacturer from denying or preventing a dealership transfer to a qualified applicant. See TEX.REV.CIV. STAT. art. 4413(36), §§ 5.01B(c), 5.02(b)(8). Thus, the Butnarus sought a declaration that Ford's right of first refusal was unenforceable and a declaration about the parties' rights and obligations under the agreements. Finally, the Butnarus requested a temporary injunction to prevent Ford or its assignees from exercising its right of first refusal during the suit. Ford opposed this request and filed a plea to the jurisdiction. Ford argued that the Board has exclusive jurisdiction to determine whether a manufacturer has violated the Code's provisions. The trial court denied Ford's plea and granted the injunction. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 Ford sought interlocutory review of the trial court's temporary injunction. See 18 S.W.3d at 762. The court of appeals first noted that the Legislature did not confer any rights on prospective transferees under *202 the Code to seek relief for the Code violation the Butnarus allege. Then, the court of appeals held that the trial court did not have jurisdiction over the Butnarus' claims, “to the extent their claims are based on violations of the [Code],” because the Code grants the Board exclusive jurisdiction over alleged Code violations. 18 S.W.3d at 767. The court also held that the Code does not violate the Texas Constitution's open courts provision, which prohibits the Legislature from unreasonably abrogating well-established common- law claims. The court explained that the Code merely confers new statutory rights on motor vehicle dealers and leaves “all others in the same position they previously occupied.” 18 S.W.3d at 768. Therefore, the court concluded that “the Butnarus can sue Ford ... for tortious interference with contract, breach of contract, and declaratory relief. They simply cannot base those causes of action on [Code] violations....” 18 S.W.3d at 768. The court of appeals then remanded the claims not based on Code violations and, holding that the Butnarus did not establish an inadequate legal remedy, dissolved the trial court's temporary injunction. 18 S.W.3d at 769–70. The Butnarus petitioned this Court to review the court of appeals' opinion. Typically, jurisdiction over an order granting or denying a temporary injunction is final in the courts of appeals. See TEX. GOV'T CODE § 22.225(b)(4). However, because the court of appeals' decision here conflicts with another court of appeals' decision, this Court has jurisdiction. See TEX. GOV'T CODE § 22.225(c). Specifically, the court of appeals' holding that the Code does not violate the Texas Constitution's open courts provision conflicts with David McDavid Nissan, Inc. v. Subaru, Inc., 10 S.W.3d 56, 68 (Tex.App.-Dallas 1999), affirmed in part, reversed in part, and remanded on rehearing, 84 S.W.3d 212 (Tex.2002). In David McDavid Nissan, the court of appeals held that the Code abrogated the plaintiff's common-law claims without reasonably substituting another remedy and thus contravened the open courts provision. 10 S.W.3d at 67–68. We granted the Butnarus' petition, as well as the petition in David McDavid Nissan, to resolve this conflict. At the time the trial courts and courts of appeals here and in David McDavid Nissan determined whether the Board had exclusive jurisdiction, section 3.01 of the Code provided: (a) The board has the general and original power and jurisdiction to regulate all aspects of the distribution, sale, and leasing of motor vehicles and to do all things, whether specifically designated in this Act or implied herein, or necessary or convenient to the exercise of this power and jurisdiction, including the original jurisdiction to determine questions of its own jurisdiction. In addition to the other duties placed on the board by this Act, the board shall enforce and administer the terms of Chapter 503, Transportation Code. (b) Unless otherwise specifically provided by Texas law not in conflict with the terms of this Act, all aspects of the distribution and sale of motor vehicles shall be governed exclusively by the provisions of this Act. TEX.REV.CIV. STAT. art. 4413(36), § 3.01 (Vernon Supp.1998), amended by Act of May 18, 2001, 77th Leg., R.S., ch. 155, § 5, 2001 Tex. Gen. Laws 313. In our original opinions in this case and in David McDavid Nissan, we concluded that this provision granted the Board primary —not exclusive—jurisdiction over Code issues and claims. Moreover, we concluded that section 3.01(b) does not grant the Board exclusive jurisdiction because, *203 by its plain language, that subsection only establishes that the Code governs this area of law and trumps other laws if they conflict with the Code. However, only weeks before we issued our opinions, the Legislature amended section 3.01(a) to provide: (a) The board has the exclusive, original jurisdiction to regulate those aspects of the distribution, sale, and leasing of motor vehicles as governed by this Act and to do all things, whether specifically designated in this Act or implied herein, or necessary or convenient to the exercise of this power and jurisdiction, including the original jurisdiction to determine questions of its own jurisdiction. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 TEX.REV.CIV. STAT. art. 4413(36), § 3.01(a) (emphasis added). The Legislature made this amendment “effective immediately” after receiving the necessary votes, which occurred on May 18, 2001. See Act of May 18, 2001, 77th Leg., R.S., ch. 155, § 5, 2001 Tex. Gen. Laws 313, 317. The Legislature's amendment did not change section 3.01(b). Today, we determine (1) whether section 3.01 's current or former version applies, (2) whether the applicable provision grants the Board exclusive jurisdiction and how this affects the trial court's jurisdiction here, and (3) whether the trial court abused its discretion by issuing a temporary injunction. II. APPLICABLE LAW A. DAVID MCDAVID NISSAN, INC. 1. Retroactive application of Section 3.01 Today, in David McDavid Nissan, we held that section 3.01 's current version constitutionally retroactively applied to the pending claims a licensed motor vehicle dealer had raised against a manufacturer. David McDavid Nissan, 84 S.W.3d at 218. We explained that this jurisdictional provision is procedural and remedial and did not affect a vested right. David McDavid Nissan, 84 S.W.3d at 219 (citing Landgraf v. USI Film Prods., 511 U.S. 244, 273, 114 S.Ct. 1483 (1994); Baker Hughes, Inc. v. Keco, R & D, Inc., 12 S.W.3d 1, 4 (Tex.1999); City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex.1997); Ex parte Abell, 613 S.W.2d 255, 260 (Tex.1981); McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898, 900 (1955); Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 560 (1916); Blonstein v. Blonstein, 831 S.W.2d 468, 472 (Tex.App.-Houston [14th Dist.] 1992, writ denied); Southwestern Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871, 874–75 (Tex.Civ.App.-Beaumont 1976, no writ)). 2. Exclusive Versus Primary Jurisdiction Furthermore, in David McDavid Nissan, we explained the significant differences between the primary and exclusive jurisdiction doctrines. David McDavid Nissan, 84 S.W.3d at 218. We held that, unlike its former version, section 3.01(a) 's current version expressly confers exclusive jurisdiction on the Board to initially determine issues or claims that the Code governs. David McDavid Nissan, 84 S.W.3d at 218. We based our decision on the provision's plain language, and the Legislature's intent when it amended the provision to include the express exclusive jurisdiction language. David McDavid Nissan, 84 S.W.3d at 218. (citing Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex.2000); Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 447 (Tex.1996); SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. H.B. 1665, 77th Leg., R.S. (2001)). *204 3. Open Courts Challenge In David McDavid Nissan, we also concluded that, as applied to the motor vehicle dealer in that case, the Code did not violate the Texas Constitution's open courts provision. David McDavid Nissan, 84 S.W.3d at 227; see also TEX. CONST. art. 1, § 13. We explained that the Board's exclusive jurisdiction over issues and claims the Code governs—all matters derived from the Code and not the common law—did not abrogate any of the motor vehicle dealer's common-law rights. David McDavid Nissan, 84 S.W.3d at 227 (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 448 (Tex.1993)). B. TEMPORARY INJUNCTIONS © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 [1] [2] [3] [4] A temporary injunction's purpose is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.1993); Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex.Civ.App.-Dallas 1974, no writ). A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Walling, 863 S.W.2d at 57. To obtain a temporary injunction, the applicant must plead and prove three specific elements: (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. Walling, 863 S.W.2d at 57; Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968). 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. Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex.App.-Dallas 1989, no writ). [5] [6] [7] Whether to grant or deny a temporary injunction is within the trial court's sound discretion. Walling, 863 S.W.2d at 58; State v. Walker, 679 S.W.2d 484, 485 (Tex.1984). A reviewing court should reverse an order granting injunctive relief only if the trial court abused that discretion. Walling, 863 S.W.2d at 58; Walker, 679 S.W.2d at 485. The reviewing 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. Johnson v. Fourth Ct. of Appeals, 700 S.W.2d 916, 918 (Tex.1985); Davis v. Huey, 571 S.W.2d 859, 861–62 (Tex.1978). III. ANALYSIS A. WHETHER AMENDED SECTION 3.01 RETROACTIVELY APPLIES [8] In David McDavid Nissan, we concluded that section 3.01(a), a jurisdictional provision, is a procedural and remedial statute that applied retroactively because it did not affect a vested right in that case. See David McDavid Nissan, 84 S.W.3d at 219 (citing Landgraf, 511 U.S. at 273, 114 S.Ct. 1483; Likes, 962 S.W.2d at 502; Abell, 613 S.W.2d at 260; Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905, 907 (1924); Middleton, 185 S.W. at 560; Blonstein, 831 S.W.2d at 472; City of Kountze, 543 S.W.2d at 874–75). However, section 3.01(a) still may not constitutionally retroactively apply in this case if it affects a vested right. See Baker Hughes, 12 S.W.3d at 4; Middleton, 185 S.W. at 560. The Butnarus do not allege that section 3.01(a) affects any vested right. Instead, they contend that the Legislature did not expressly make the amendment to section 3.01(a) retroactive, and therefore, we should apply the Code Construction Act to conclude section 3.01(a) 's current version does not retroactively apply. See TEX. GOV'T CODE §§ 311.022 (“A statute is presumed *205 to be prospective in its operation unless expressly made retrospective.”), 311.031 (“[T]he ... amendment ... of a statute does not affect ... the prior operation of the statute or any prior action taken under it.”). But the Butnarus misplace their reliance on the Code Construction Act. That statute applies only to “each code enacted by the 60th or subsequent legislature as part of the state's continuing statutory revision program.” TEX. GOV'T CODE § 311.002. When the Legislature recodifies a statute under Texas's continuing statutory revision program, the statute will indicate this. See, e.g., TEX. LOCAL GOV'T CODE § 1.001 (“This code is enacted as a part of the state's continuing statutory revision program....”). And, though we refer to the Motor Vehicle Code as “the Code,” nothing in the Code's language or legislative history shows that it is part of our State's “continuing statutory revision program.” TEX. GOV'T CODE § 311.002; Robbins Chevrolet Co. v. Motor Vehicle Bd., 989 S.W.2d 865, 867 (Tex.App.-Austin 1999, pet. denied); see also Knight v. Int'l Harvester Credit Corp., 627 S.W.2d 382, 385 (Tex.1982). Section 3.01(a) is a jurisdictional statute that, in this case, does not alter the parties' rights or obligations or remove any remedies already available. See David McDavid Nissan, 84 S.W.3d at 222; Likes, 962 S.W.2d at 502. This provision merely determines the tribunal that must initially resolve all issues and claims the Code governs. See Landgraf, 511 U.S. at 273, 114 S.Ct. 1483; David McDavid Nissan, 84 S.W.3d at 222; City of Kountze, 543 S.W.2d at 874–75. The parties do not have a vested right in choosing what tribunal will do this. See Landgraf, 511 U.S. at 273, 114 S.Ct. 1483; David McDavid Nissan, 84 S.W.3d at 222; © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 1898454; Middleton, 185 S.W. at 559; City of Kountze, 543 S.W.2d at 874–75. Accordingly, we conclude that amended section 3.01(a) constitutionally applies retroactively in this case. B. APPLYING SECTION 3.01'S CURRENT VERSION TO THE BUTNARUS' CLAIMS [9] Ford contends that section 3.01 's current version grants the Board exclusive jurisdiction, and thus, the Board has the sole authority to make the initial determination about the alleged Code violation here. The Butnarus, on the other hand, argue that section 3.01 does not oust the trial court's jurisdiction because the Board does not have authority to award damages for their well-established common-law claims. Therefore, the Butnarus assert that the Board only has primary jurisdiction to decide whether Ford's right of first refusal violates the Code. The Butnarus' pleadings currently reflect four claims, the first two of which are based on Ford's allegedly violating the Code. First, the Butnarus seek a judicial declaration that Ford's right of first refusal violates the Code. Second, the Butnarus allege that Ford tortiously interfered with the purchase and sale agreements by attempting to exercise its allegedly invalid right of first refusal. Third, the Butnarus seek a declaration about the parties' rights and obligations under the purchase and sale agreements. Fourth, the Butnarus claim that Graf and Barton have breached or are about to breach the purchase and sale agreements by permitting Ford to exercise its right of first refusal rather than requiring Ford to determine the Butnarus' eligibility under the Code for the dealership transfer. The court of appeals, after analyzing section 3.01 's former version, concluded that the Board has exclusive jurisdiction; *206 however, it held that the Butnarus do not have standing as prospective car dealership transferees to seek relief from the Board for the Code violation they allege. The court of appeals further determined that the Butnarus' lack of standing to obtain relief from the Board did not give them a right to seek damages for the alleged Code violation in the trial court. 18 S.W.3d at 767– 68. Accordingly, the court of appeals held that the Butnarus could maintain their breach of contract and tortious interference claims; however, the Butnarus could not “base those causes of action on [Code] violations.” 18 S.W.3d at 768. As discussed above, we disagree that section 3.01 's former version granted the Board exclusive jurisdiction. But we conclude that section 3.01(a) 's current version, which applies here, grants the Board exclusive jurisdiction over issues and claims the Code governs. Thus, we must determine if the Butnarus' claims fall within the Board's exclusive jurisdiction. Because motor vehicle distribution and sales affects our State's economy and citizens' welfare, the Code's primary purpose is “to insure a sound system of distributing and selling motor vehicles through licensing and regulating manufacturers ... and dealers of those vehicles.” See TEX.REV.CIV. STAT. art. 4413(36), § 1.02. To accomplish this, the Code strictly regulates conduct by or between franchise dealers and manufacturers. See TEX.REV.CIV. STAT. art. 4413(36), §§ 4.01–.07, 5.01–.05. For example, the Code establishes how a dealer must request a transfer, assignment, or sale of its franchise agreement. TEX.REV.CIV. STAT. art. 4413(36), § 5.01B. Under that process, the Code also determines the circumstances under which a manufacturer may withhold its consent to the dealer's request. See TEX.REV.CIV. STAT. art. 4413(36), § 5.01B(c). Specifically, to transfer a dealership the dealer must file a written application with the manufacturer to transfer the dealership. The application must identify the prospective transferee and any pertinent agreements about the proposed transfer. See TEX.REV.CIV. STAT. art. 4413(36), § 5.01B(a)(1)-(4). The manufacturer must timely advise the dealer in writing if the prospective transferee is qualified or if the transferee is not acceptable. TEX.REV.CIV. STAT. art. 4413(36), § 5.01B(b). The Code prohibits a manufacturer from “unreasonably” withholding its consent to a dealer's transfer application if the prospective transferee is “of good moral character” and otherwise meets the manufacturer's predetermined, written standards, if any, about a transferee's business experience and financial qualifications. TEX.REV.CIV. STAT. art. 4413(36), § 5.01B(c). Further, the Code makes it unlawful for a manufacturer to “fail to give effect to or attempt to prevent any sale or transfer” of a dealership “except as provided by Section 5.01B.” TEX.REV.CIV. STAT. art. 4413(36), § 5.02(b)(8). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 Additionally, the Code provides a dealer a remedy if the manufacturer “unreasonably” denies a dealer's application to transfer its franchise ownership. The Code's definition of “dealer” includes licensed dealers but not prospective transferees. See TEX.REV.CIV. STAT. art. 4413(36), § 1.03(7). The dealer may file a protest with the Board. TEX.REV.CIV. STAT. art. 4413(36), § 5.01B(d). The issue would be whether the prospective transferee is qualified, and the manufacturer must prove the prospective transferee's inadequacy. TEX.REV.CIV. STAT. art. 4413(36), §§ 5.01B(d)-(e). If the Board determines the prospective transferee is qualified, the Board shall enter an order reflecting this, and the manufacturer must accept the transfer. TEX.REV.CIV. STAT. art. 4413(36), § 5.01B(e). *207 [10] [11] Here, the court of appeals' analysis presumes that the Butnarus' trial court claims simply seek monetary damages based on their allegation that Ford's exercising its right of first refusal and denying the dealership transfer violated section 5.01B. But the Butnarus' trial court claims involve something different. The Butnarus seek relief for Ford's alleged tortious interference, and this claim, in turn, raises a Code construction issue. To establish their tortious interference claim, the Butnarus must show: (1) a contract exists between Graf, Graf Ford, Barton and the Butnarus; (2) Ford willfully and intentionally interfered with that contract; (3) the interference proximately caused the Butnarus damage; and (4) the Butnarus suffered actual damage or loss. See Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex.1996); Holloway v. Skinner, 898 S.W.2d 793, 795–96 (Tex.1995). But Ford may defeat liability by proving the affirmative defense that its conduct was privileged or justified —so long as that conduct was not illegal or tortious. See Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 80 (Tex.2000); ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 431 (Tex.1997); Texas Beef Cattle, 921 S.W.2d at 210. It is the Butnarus' position that Ford does not have a justification defense, because rights of first refusal contravene certain Code provisions and, accordingly, are void and unenforceable. See TEX.REV.CIV. STAT. art. 4413(36), § 5.01B(c) (prohibiting a manufacturer from unreasonably denying a dealership transfer); TEX.REV.CIV. STAT. art. 4413(36), § 1.04 (making an agreement to waive the Code's terms void and unenforceable). The Butnarus also request that the trial court enter a declaratory judgment that rights of first refusal violate the Code. We conclude that the Butnarus' tortious interference and declaratory judgment claims fall outside the purview of the Board's exclusive jurisdiction. In David McDavid Nissan, we held that the Board's exclusive jurisdiction under section 3.01(a) required the dealer in that case to exhaust its administrative remedies to obtain a final Board finding to support its Code-based DTPA, bad faith, and oral contract claims. David McDavid Nissan, 84 S.W.3d at 226. In concluding that the Board's exclusive jurisdiction applied to the dealer's Code-based DTPA and bad-faith claims, we explained that the Code provides a hybrid claims-resolution process by which a dealer or manufacturer may seek damages for certain Code violations. David McDavid Nissan, 84 S.W.3d at 226 (discussing TEX.REV.CIV. STAT. art. 4413(36), §§ 6.06(a), (e)). Based on this process, we held that the dealer had to exhaust its administrative remedies under the Code to obtain supporting Board findings before a trial court could finally adjudicate the dealer's damages request for its Code-based claims. See David McDavid Nissan, 84 S.W.3d at 227. Additionally, in requiring the dealer to obtain a Board finding before pursuing its oral contract claims, we relied on a Code provision mandating that a dealer obtain the Board's approval and a license before operating a franchise in a certain area. See David McDavid Nissan, 84 S.W.3d at 227 (discussing TEX.REV.CIV. STAT. art. 4413(36), §§ 4.02(c), 4.06(a)-(e)). Here, however, no Code provision extends the Board's exclusive jurisdiction to resolving the Butnarus' tortious interference and declaratory judgment claims so that they must exhaust any administrative remedies before seeking judicial relief. In fact, the Code's failing to establish any procedure through which the Board may resolve a prospective transferee's claim that a manufacturer unlawfully refused to *208 accept a dealer's transfer request—coupled with the Board's inability to award monetary damages—demonstrate the contrary. Thus, this case is analogous to Cash America, in which we held that the plaintiff did not have to exhaust administrative remedies under the Pawnshop Act because “nothing in the statutory scheme indicate[d] that the Legislature intended to replace a pledgor's common-law remedies with the like-kind replacement remedy” available under the statute. Cash Am., 35 S.W.3d at 18. Similarly, because the Code does not indicate the Legislature's intent to replace the prospective transferees' remedies here, the Butnarus do not have to exhaust any administrative remedies before suing Ford for tortious interference or declaratory relief. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 [12] But our inquiry does not end here. Though the Legislature did not confer exclusive jurisdiction on the Board to resolve the Butnarus' claims, we still must decide whether the Board has primary jurisdiction to resolve the Code construction issue that those claims raise. See, e.g, Cash Am., 35 S.W.3d at 18 (recognizing that, though an agency does not have exclusive jurisdiction, the policies underlying the primary jurisdiction doctrine may require the agency to initially decide an issue). In David McDavid Nissan, we explained that the primary jurisdiction doctrine requires trial courts to allow an administrative agency to initially decide an issue when: (1) an agency is typically staffed with experts trained in handling the complex problems in the agency's purview; and (2) great benefit is derived from an agency's uniformly interpreting its laws, rules, and regulations, whereas courts and juries may reach different results under similar fact situations. David McDavid Nissan, 84 S.W.3d at 221 (citing United States v. Western Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Cash Am., 35 S.W.3d at 18; Foree v. Crown Cent. Petroleum Corp., 431 S.W.2d 312, 316 (Tex.1968); Gregg v. Delhi–Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 413 (1961); Kavanaugh v. Underwriters Life Ins. Co., 231 S.W.2d 753, 755 (Tex.Civ.App.-Waco 1950, writ ref'd); Travis, Comment, Primary Jurisdiction: A General Theory and Its Application to the Securities Exchange Act, 63 CAL. L.REV. 926, 927 (1975)). We noted that, when the primary jurisdiction doctrine requires a trial court to defer to an agency to make an initial determination, the court should abate the lawsuit and suspend finally adjudicating the claim until the agency has an opportunity to act on the matter. David McDavid Nissan, 84 S.W.3d at 221 (citing Central Power & Light Co. v. Public Util. Comm'n, 17 S.W.3d 780, 787 (Tex.App.-Austin 2000, pet. denied); Roberts Express, Inc. v. Expert Transp., Inc., 842 S.W.2d 766, 771 (Tex.App.-Dallas 1992, no writ)). We conclude that the primary jurisdiction doctrine applies in this case. The Butnarus' tortious interference and declaratory judgment claims raise a Code construction issue that is within the Board's special competence and expertise. See Cash Am., 35 S.W.3d at 18. As discussed above, the Legislature has specifically authorized the Board to resolve disputes between a manufacturer and dealer when the dealer alleges that the manufacturer violated section 5.01B by unreasonably withholding consent to transfer a dealership. See TEX.REV.CIV. STAT. art. 4413(36), § 5.01B(d). The Board's expertise in construing section 5.01B in these disputes, and the State's interest in a uniform interpretation of the Code, requires the trial court to abate the lawsuit and suspend finally adjudicating the tortious interference and declaratory judgment claims until the Board has a reasonable opportunity to *209 act on the matter. See David McDavid Nissan, 84 S.W.3d at 228; Central Power & Light, 17 S.W.3d at 787; Roberts Express, 842 S.W.2d at 771. Accordingly, the trial court should abate the claims pending the Board having an opportunity to exercise its primary jurisdiction to determine, at least in the first instance, whether a right of first refusal violates the Code. In sum, we hold that section 3.01(a) confers exclusive jurisdiction on the Board but only over issues and claims the Code governs. Here, the Code does not govern the Butnarus'—as prospective transferees—tortious interference and declaratory judgment claims. Consequently, the Butnarus do not have to exhaust any administrative remedies before raising these claims in the trial court. However, because these claims raise a Code construction issue, the primary jurisdiction doctrine requires the trial court to abate the claims pending the Board having a reasonable opportunity to determine whether a right of first refusal violates the Code. C. OPEN COURTS CHALLENGE [13] The Butnarus contend that if the Board has exclusive jurisdiction over all Code issues and claims, this violates our Constitution's open courts provision. TEX. CONST. art. 1, § 13. This provision prohibits the Legislature from abrogating well- established, common-law claims unless the reason for doing so outweighs a litigant's constitutional right of redress. See Texas Ass'n of Bus., 852 S.W.2d at 448. [14] But we have already concluded that the Board's exclusive jurisdiction does not extend to the claims in this case. Accordingly, the Code does not abrogate any previously existing common-law rights here. The trial court has immediate jurisdiction to adjudicate the Butnaru's common-law claims for breach of the purchase and sale agreements. And, after deferring to the Board so it has an opportunity to decide the Code construction issue, the trial court may finally adjudicate the tortious interference and related declaratory judgment claim. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 D. TEMPORARY INJUNCTION The trial court temporarily enjoined Ford or its assignees from exercising its right of first refusal during the suit. The court of appeals dissolved the temporary injunction, agreeing with Ford's contention that the Butnarus did not establish an inadequate legal remedy. 18 S.W.3d at 769. In so concluding, the court of appeals noted that generally a court will not enforce contracts by injunction because a suit for damages is deemed to be an adequate remedy. 18 S.W.3d at 769. The Butnarus respond twofold. First, they argue that they were not required to show an inadequate legal remedy because an alleged statutory violation relieves a movant of that burden. See Furr v. Hall, 553 S.W.2d 666, 672 (Tex.Civ.App.-Amarillo 1977, writ ref'd n.r.e.). They assert that courts have a duty to enjoin statutory violations. See Priest v. Texas Animal Health Comm'n, 780 S.W.2d 874, 876 (Tex.App.- Dallas 1989, no writ). Second, the Butnarus argue that they have otherwise established the temporary-injunction elements. On the inadequate legal remedy element, they argue that Ford's exercising its right of first refusal would deprive them of the opportunity to purchase two unique assets: real property and the dealership located on the property. See, e.g., Home Sav. of Am. v. Van Cleave Dev. Co., 737 S.W.2d 58, 59 (Tex.App.-San Antonio 1987, no writ) (noting that “each and every piece of real estate is unique” and that “is certainly an element to be considered in deciding whether there [will be] irreparable damages”). *210 1. Statutory Violation [15] The Butnarus' misplace their reliance on Furr. See Furr, 553 S.W.2d at 672. Furr does not generally propose that an alleged statutory violation relieves the plaintiff's burden to show an inadequate legal remedy. Rather, the party seeking injunctive relief in Furr relied on a specific statute giving the right to an injunction, and the court of appeals concluded that the statutory right relieved the party from proving an inadequate legal remedy. Furr, 553 S.W.2d at 672. The court relied on Republic Insurance Co. v. O'Donnell Motor Co., which explains: The general rule at equity is that before injunctive relief can be obtained, it must appear that there does not exist an adequate remedy at law. This limitation, however, has no application where the right to relief is predicated on a statutory ground other than on the general principles of equity. 289 S.W. 1064, 1066 (Tex.Civ.App.-Dallas 1926, no writ). Here, the Butnarus rely on general equitable principles, not a statutory injunctive-relief right, to enjoin Ford's conduct. Thus, Furr does not apply. And the Butnarus had to establish in the trial court, in addition to the other temporary-injunction elements, an inadequate legal remedy. 2. Temporary Injunction Elements [16] In the trial court, the Butnarus alleged that Ford's exercising its right of first refusal would tortiously interfere with the Butnarus' contract to purchase the real property and the contract to purchase the dealership. They further contended that their right to purchase the real property and dealership would be lost if Ford exercised its right of first refusal, and, therefore, injunctive relief was necessary to preserve the status quo. At the temporary injunction hearing, the Butnarus presented the following evidence: (1) their agreement with Graf and Barton to purchase the real property, (2) their agreement with Graf and Graf Ford to purchase the dealership, (3) Graf Ford's agreement with Ford containing the right of first refusal that allegedly violates the Code, (4) the Code provisions that allegedly prohibit Ford's right of first refusal provision, and (5) the Butnarus' dealership application to Ford detailing their business experience and financial qualifications. Additionally, Hanan Butnaru testified about his agreements with Graf, Graf Ford, and Barton to purchase dealership and the real property in Del Rio. He stated that in planning to establish a dealership, he was only looking © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 within a 100 mile radius of San Antonio, which includes Del Rio. He also explained, and the agreements entered in evidence showed, that the Butnarus agreed to pay $1.2 million for the real property and only $500,000 for the dealership. Based on the Butnarus' allegations and this evidence, the trial court granted the temporary injunction. The trial court stated in the order that the Butnarus would be irreparably harmed if Ford exercises its right of first refusal “in that the issues and rights sought to be adjudicated will become moot and [the Butnarus] will have lost the opportunity to purchase the Dealership and the Real Property.” The court of appeals, however, dissolved the temporary injunction after concluding that the Butnarus did not establish an inadequate legal remedy: The Butnarus are not interested in the real property for its own resources or aesthetics. Their interest in the property results solely from the fact that the dealership is located on it. Thus, their true complaint relates to their inability to purchase the dealership. The uniqueness *211 of the real property is therefore irrelevant to the adequacy of their legal remedy. 18 S.W.3d at 769. The court of appeals' holding is predicated upon its assumptions that the real property is neither unique nor pertinent to this dispute and that the Butnarus are only interested in purchasing the dealership. [17] [18] [19] [20] We agree with the court of appeals that, generally, a court will not enforce contractual rights by injunction, because a party can rarely establish an irreparable injury and an inadequate legal remedy when damages for breach of contract are available. Canteen Corp., 773 S.W.2d at 401; Chevron U.S.A., Inc. v. Stoker, 666 S.W.2d 379, 382 (Tex.App.- Eastland 1984, writ dism'd). But under an abuse of discretion standard, the court of appeals cannot overrule the trial court's decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Davis, 571 S.W.2d at 861–62. Moreover, the court of appeals cannot substitute its judgment for the trial court's reasonable judgment even if it would have reached a contrary conclusion. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.1992); Beaumont Bank, 806 S.W.2d at 226. The trial court does not abuse its discretion if some evidence reasonably supports the trial court's decision. Davis, 571 S.W.2d at 862. [21] The evidence shows this is a case involving two contracts: a contract to purchase land and a contract to purchase a business. There is some evidence that the Butnarus desired valuable land located at this specific Del Rio location. Thus, the evidence before the trial court supports its conclusion that this dispute is about the right to purchase real property worth at least $1.2 million and not just the dealership itself. See Home Sav., 737 S.W.2d at 59 (upholding temporary injunction in dispute involving land worth $1.5 million). And a trial court may grant equitable relief when a dispute involves real property. See Bennett v. Copeland, 149 Tex. 474, 235 S.W.2d 605, 609 (1951); E.I. DuPont de Nemours & Co. v. Zale Corp., 462 S.W.2d 355, 359–60 (Tex.Civ.App.-Dallas 1970, writ ref'd n.r.e.); Burnett v. Mitchell, 158 S.W. 800, 801–02 (Tex.Civ.App.-Fort Worth 1913, writ ref'd). Thus, the trial court's conclusion that the Butnarus do not have an adequate legal remedy was not arbitrary and unreasonable and was not made without reference to guiding rules and principles. And, because the trial court's determination was not an abuse of discretion, the court of appeals should not have substituted its judgment for that of the trial court. Beaumont Bank, 806 S.W.2d at 226. Ford contends that the court of appeals could have also determined that the Butnarus did not establish a probable right to recovery. We disagree. The trial court could reasonably conclude, based on the Butnarus' allegations and the evidence previously discussed, that the Butnarus had a probable right to recovery. See Sun Oil, 424 S.W.2d at 218 (stating that the temporary injunction applicant is not required to establish that it will prevail on final trial and need only plead a cause of action and show a probable right to the relief sought). Because this conclusion was not “so arbitrary as to exceed the bounds of reasonable discretion,” CRC–Evans Pipeline Int'l, Inc. v. Myers, 927 S.W.2d 259, 262 (Tex.App.-Houston [1st Dist.] 1996, no writ), the trial court did not abuse its discretion in finding a probable right to recovery. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (2002) 45 Tex. Sup. Ct. J. 916 Accordingly, we conclude that there is evidence to support the trial court's decision to issue the temporary injunction. See Davis, 571 S.W.2d at 862. Thus, the *212 trial court did not abuse its discretion, and we reverse the court of appeals' order dissolving the temporary injunction. IV. CONCLUSION Section 3.01(a) grants the Board exclusive jurisdiction but only over the issues and claims the Code governs. Because the Code does not govern, or expressly authorize the Board to resolve, the Butnarus' tortious interference and declaratory judgment claims, these prospective transferees need not exhaust any administrative remedies before the trial court has jurisdiction over these claims. However, under the primary jurisdiction doctrine, the trial court should abate these claims to the extent that may be necessary to allow the Board a reasonable opportunity to resolve the Code construction issue they raise. Finally, the trial court did not abuse its discretion in granting the temporary injunction. Thus, we reverse the court of appeals' judgment and remand the cause to the trial court for further proceedings consistent with this opinion on rehearing. All Citations 84 S.W.3d 198, 45 Tex. Sup. Ct. J. 916 Footnotes 1 Unless otherwise indicated, “the Code” refers to the Texas Motor Vehicle Commission Code, and “the Board” refers to the Motor Vehicle Board. See TEX.REV.CIV. STAT. art. 4413(36). End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Canteen Corp. v. Republic of Texas Properties, Inc., 773 S.W.2d 398 (1989) 773 S.W.2d 398 Court of Appeals of Texas, Dallas. CANTEEN CORPORATION, d/b/a Gulliver's, Appellant, v. REPUBLIC OF TEXAS PROPERTIES, INC., Appellee. No. 05–88–01397–CV. | June 8, 1989. Landlord sued tenant for breach of commercial lease. The 298th Judicial District Court, Dallas County, James Fry, J., rendered judgment in favor of landlord which enjoined tenant from maintaining a vending machine operation and ordered tenant to reopen and operate restaurant similar to other restaurants operated by tenant in the area. The Court of Appeals, Burnett, J., held that: (1) vending machines were not a “restaurant” and therefore installation of the machines was a breach of the lease; (2) order requiring tenant to open and operate a restaurant on premises was improper; and (3) injunction was proper as far as enjoining tenant's vending machine operation. Affirmed in part and reversed in part. West Headnotes (6) [1] Contracts Intention of Parties Contracts Written contracts in general Primary concern of the courts is to give effect to the intentions of the parties as expressed in the instruments; in the face of unambiguous provisions, the court must give effect to the contract as written. 1 Cases that cite this headnote [2] Landlord and Tenant Restrictions in lease Vending machines were not a “restaurant” as contemplated by the parties and therefore tenant's installation of open access, unstaffed vending machine operation breached lease under which tenant warranted that premises would be used and occupied only for the purpose of restaurant use. Cases that cite this headnote [3] Specific Performance Defenses or Objections to Relief Court will generally not decree a party to perform a continuous series of acts which extend through a long period of time and require constant supervision by the court; parties are left to their remedies at law unless the interest of the public is involved. 6 Cases that cite this headnote [4] Specific Performance Performance of Contract in General Order requiring tenant which breached commercial lease requiring that leased premises be used and occupied only for restaurant use to open and operate a restaurant in the style of other restaurants operated by tenant in the area was © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Canteen Corp. v. Republic of Texas Properties, Inc., 773 S.W.2d 398 (1989) improper in that present performance was not possible and operation of a delicatessen restaurant was not a matter of public interest which justified deviation from general rule against ordering ongoing activities. 2 Cases that cite this headnote [5] Injunction Contracts Contractual rights are generally not enforced by writs of injunction since inadequate remedy at law and irreparable injury are rarely shown when a suit for damages for breach of contract is available. 34 Cases that cite this headnote [6] Injunction Business, commercial, or industrial uses Injunction was proper insofar as it enjoined tenant from operating vending machines where landlord demonstrated an inability to compute damages for tenant's breach of commercial lease requiring that premises would be used and occupied only for purposes of restaurant use; evidence showed that other tenants complained about vending machines installed by tenant, that some prospective tenants did not lease building space due to fact that there was no restaurant and that there was no way to prove how many prospective tenants had not approached landlord about leasing due to lack of restaurant. Cases that cite this headnote Attorneys and Law Firms *399 Larry F. Amerine, Susan Johnson Foster, Dallas, for appellant. Michael E. Mears, Dallas, for appellee. Before McCLUNG, ROWE and BURNETT, JJ. Opinion BURNETT, Justice. Canteen Corporation, doing business as Gulliver's, appeals an adverse judgment rendered in favor of Republic of Texas Properties, Inc. which 1) enjoined Canteen from maintaining a vending machine operation and 2) ordered Canteen to reopen and operate Gulliver's restaurant in accordance with the lease agreement between Canteen and Republic. In three points of error, Canteen asserts that 1) the temporary injunctive relief is void ab initio 2) the finding that Canteen breached the lease was in error and 3) the mandatory injunction was granted in error. Although we disagree with points of error one and two, we agree with Canteen's third point of error and for the reasons discussed herein, affirm the judgment of the trial court as to the prohibitory portion of the injunction and reform the judgment to eliminate the portion which decrees specific performance. In February, 1985, Canteen, as lessee, and Republic as lessor, entered into a commercial lease agreement for the lease of space in RepublicBank Plano Tower. The lease agreement provided in part that “lessee warrants and represents to lessor that the leased premises shall be used and occupied only for the purpose of a restaurant.” Approximately three years later, Canteen ceased to operate Gulliver's as a delicatessen style restaurant and installed vending machines. These machines served hot and cold beverages and food. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Canteen Corp. v. Republic of Texas Properties, Inc., 773 S.W.2d 398 (1989) The trial court found that Canteen's vending machine operation did not constitute the operation of the restaurant and, therefore, was a violation of the lease agreement. The trial court rendered judgment in favor of Republic and granted Republic's request for injunctive relief. Specifically, the trial court enjoined Canteen from maintaining a vending machine operation in the leased premises and ordered *400 Canteen to reopen a restaurant in accordance with the lease agreement and in accordance with the Gulliver's concept as utilized by Canteen at other locations in the Dallas area. In its first point of error, Canteen maintains that the temporary injunctive relief granted by the trial court is void ab initio. A review of the record reveals that although Republic requested a temporary injunction in its original petition, the injunction which issued was not a temporary injunction. Instead, it was a permanent injunction entered after a trial before the court. Thus, the defects urged by Canteen such as lack of a bond, failure to set a trial date, and failure to state a reason for the temporary injunction are not fatal to the injunction which was granted by the trial court. Canteen's first point of error is overruled. In its second point of error, Canteen asserts that the trial court erroneously found that the installation of the vending machines did not constitute the operation of a restaurant and, thus, was a breach of the lease agreement. In paragraph 5, the lease provides as follows: Lessee warrants and represents to lessor that the leased premises shall be used and occupied only for the purpose of restaurant use ... The lease at paragraph 5(b) continues: Lessee shall not at any time leave the leased premises vacant, but shall in good faith continuously throughout the term of this lease conduct and carry on in the entire leased premises the type of business for which the leased premises are leased. Lessee shall operate its business in an efficient, high class and reputable manner so as to produce the maximum amount of sales from the leased premises, and shall, except during reasonable periods for repairing, cleaning and decorating, keep the leased premises open to the public for business with adequate personnel in attendance on all days and during all hours established by lessor from time to time as store hours for the building, and during any other hours when the building is generally open to the public for business ... The lease at paragraph 5(c) continues: Lessee understands that normal operating hours for this building are expected to be Monday through Friday, 7:30 a.m. to 6:30 p.m.; Saturday, 8:00 a.m. to 1:00 p.m. ... The lease at paragraph 5(e) continues: Lessee shall not ... do anything which would tend to injure the reputation of the premises. Finally, the lease at paragraph 5(f) provides: Exclusivity clause: Canteen Corporation shall have the exclusive right to provide manual food service in the building with exception of a white tablecloth restaurant on the premises. Lessee reserves the first right of refusal to install and maintain public vending machines at a location to be agreed upon in the future. [1] Under general contract principles, the primary concern of the courts is to give effect to the intentions of the parties as expressed in the instruments. Ideal Lease Service, Inc. v. Amoco Production Co., 662 S.W.2d 951, 952–53 (Tex.1984). In the face of unambiguous provisions, the court must give effect to the contract as written. Id.; Sun Oil Co. v. Madeley, 626 S.W.2d 726, 728 (Tex.1981). [2] It is clear from a reading of the contract that the restaurant contemplated by the parties was not an open access, unstaffed vending machine operation as was installed by Canteen. In fact, paragraph 5(f) refers to vending machines as a separate type © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Canteen Corp. v. Republic of Texas Properties, Inc., 773 S.W.2d 398 (1989) of operation than that contemplated by the parties. Thus, the trial judge properly found that the vending machines were not a restaurant and that the installation of the machines was a breach of the lease. Canteen's second point of error is overruled. [3] Canteen maintains, in its third point of error, that the trial court improperly granted the mandatory injunction. the injunction of the trial court consists of two parts: (1) a portion which prohibits Canteen from operating the vending machines *401 in the lease space; and (2) a portion which orders Canteen to operate a restaurant in the leased premises in accordance with the Gulliver's concept. It is well established that a court of equity will only order specific performance when present performance is possible. A court will generally not decree a party to perform a continuous series of acts which extend through a long period of time and require constant supervision by the court. Texas & Pacific Ry. Co. v. City of Marshall, 136 U.S. 385, 390–91, 10 S.Ct. 846, 847, 34 L.Ed. 385 (1890); American Housing Resources, Inc. v. Slaughter, 597 S.W.2d 13, 15 (Tex.Civ.App.—Dallas 1980, writ ref'd n.r.e.); United Coin Meter Co., Inc. v. Johnson–Campbell Lumber Co., 493 S.W.2d 882, 888 (Tex.Civ.App.1973); 81 C.J.S. Specific Performance § 75 (1977). Instead, the parties are left to their remedies at law unless the interest of the public is involved. Beckham v. Munger Oil & Cotton Co., 185 S.W. 991, 992 (Tex.Civ.App.—Dallas 1916, no writ); See Nueces Valley Townsite Co. v. San Antonio, Uvalde & Gulf R.R. Co., 67 S.W.2d 215, 220–221 (Tex.1933). [4] In the instant case, the trial court ordered Canteen to open and operate a restaurant in the style of the Gulliver's restaurants operated in the Dallas area. This is not capable of present performance. Neither is the operation of a delicatessen restaurant a matter of public interest which justifies deviation from the general rule against ordering ongoing activities. The portion of the injunction which orders the operation of a Gulliver's is improper. Accordingly, we sustain Canteen's third point of error. [5] Generally, contractual rights are not enforced by writs of injunction, since inadequate remedy at law and irreparable injury are rarely shown when a suit for damages for breach of contract is available. Chevron U.S.A., Inc. v. Stoker, 666 S.W.2d 379, 382 (Tex.App.—Eastland 1984, writ dism'd w.o.j.). “Irreparable injury” is stated to be “an injury of such nature that the injured party cannot be adequately compensated therefore in damages, or that the damages which result therefrom cannot be measured by any certain pecuniary standard.” Id.; see Minexa Arizona, Inc. v. Staubach, 667 S.W.2d 563, 567 (Tex.App.—Dallas 1984, no writ). [6] In the instant case, Republic presented evidence that tenants were complaining about the vending machines and that some prospective tenants did not lease space in the building in part because there was no restaurant. Additionally, Republic demonstrated that there was no way to prove how many prospective tenants had not approached Republic about leasing and had not leased in the building because there was no restaurant. Thus, Republic demonstrated an inability to compute damages. The injunction is proper as far as enjoining Canteen's vending machine operation. However, the injunction also commands Canteen to reopen and operate a Gulliver's-type restaurant in the nature of a decree of specific performance. “Whether a court will grant an injunction the effect of which is to compel the specific performance of a contract, depends, of course, upon the same principles as govern a decree of specific performance.” Beckham v. Munger Oil & Cotton Co., 185 S.W. 991, 992 (Tex.Civ.App.—Dallas 1916, no writ). The judgment of the trial court is AFFIRMED in part and REVERSED in part. All Citations 773 S.W.2d 398 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 City of Houston v. Memorial Bend Utility Co., 331 S.W.2d 418 (1960) 32 P.U.R.3d 522 331 S.W.2d 418 Court of Civil Appeals of Texas, Houston. CITY OF HOUSTON, Appellant, v. MEMORIAL BEND UTILITY COMPANY, Appellee. No. 13555. | Jan. 21, 1960. Suit for injunction. The District Court, Harris County, John, Snell, Jr., J., refused to grant injunction, and plaintiff appealed. The Court of Civil Appeals, Bell, C. J., held that city was entitled to temporary injunction restraining private water and sewer utility from charging more than the rates which had been fixed in ordinance which adopted rates requested by city and which had not been contested by utility as fixing confiscatory rates until two years after ordinance became effective. Reversed and rendered. West Headnotes (11) [1] Constitutional Law Water, sewer, and irrigation Municipal Corporations Sewer rates Water Law Notice Water Law Hearing, in general Where private water and sewer utility requested city to pass ordinance approving utility's rates and city passed ordinance having that effect, the utility was not denied procedural due process because it was given no notice or hearing in connection with such ordinance, and after the elapse of more than two years without the utility having contested the ordinance on ground that rates established therein were confiscatory the utility could not change its rates without approval of city council. Cases that cite this headnote [2] Public Utilities Nature and extent in general Until such time as a regulatory body assumes to exercise its authority to fix rates which a utility may charge, the utility may fix its own rates, provided they are reasonable. 5 Cases that cite this headnote [3] Constitutional Law Charges and prices in general In case the regulatory body proposes to fix the rates to be charged by the utility, due process of law requires that the utility be given notice and be given a hearing, unless utility in some manner consents to fixing of particular rates which regulatory body in fact fixes, and if there is such consent no notice of the passage of the order need be given and no hearing need be accorded the utility. 3 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 City of Houston v. Memorial Bend Utility Co., 331 S.W.2d 418 (1960) 32 P.U.R.3d 522 [4] Municipal Corporations Sewer rates Water Law Revision, Increase, or Reductions of Charges Where an ordinance is passed fixing the rates which a private utility may charge for water and sanitary sewer service, the utility cannot promulgate new rates until the existing rates are set aside and the only way the rates can be changed is through a hearing before the city council and the courts cannot intervene until the utility first exhausts its remedy before the city council. Cases that cite this headnote [5] Municipal Corporations Charges and prices If city council denies the utility a hearing and seeks to enforce a rate-fixing ordinance which the utility contends operates to confiscate its property, the court can intervene to determine whether there is in fact confiscation. Cases that cite this headnote [6] Municipal Corporations Sewer rates Water Law Methodologies; establishment of rate base A nonrecurring revenue of private utility furnishing water and sanitary sewer service cannot be considered in fixing a rate operative in the future. Cases that cite this headnote [7] Municipal Corporations Judicial proceedings Water Law Injunction In suit by city to enjoin private water and sewer utility from charging rates in excess of those fixed by ordinance, wherein the utility contended that it had been operating at a loss, the court could consider that if revenue from tap charges was included as income the utility would show a profit, even though such nonrecurring income could not be considered in fixing a rate operative in the future. Cases that cite this headnote [8] Appeal and Error Injunction The inquiry of the Court of Civil Appeals in a temporary injunction proceeding is whether the trial court has abused its discretion. 2 Cases that cite this headnote [9] Injunction Injunctions to enforce laws and regulations in general Where the facts conclusively show that a party is violating the substantive law it becomes duty of court to enjoin the violation and in such case there is no discretion to be exercised. 5 Cases that cite this headnote [10] Injunction Preservation of status quo © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 City of Houston v. Memorial Bend Utility Co., 331 S.W.2d 418 (1960) 32 P.U.R.3d 522 It is the office of a temporary injunction to preserve the “status quo”, meaning the last actual, peaceful, noncontested status of the parties to the controversy, which preceded the suit. 1 Cases that cite this headnote [11] Municipal Corporations Sewer rates Water Law Injunction City was entitled to temporary injunction restraining private water and sewer utility from charging more than the rates which had been fixed in ordinance which adopted rates requested by city and which had not been contested by utility as fixing confiscatory rates until two years after ordinance became effective. Cases that cite this headnote Attorneys and Law Firms *420 R. H. Burks, City Atty., John Gano, Senior Asst. City Atty., Charles F. Weaver, Asst. City Atty., Houston, for appellant. Dow & Dow, Melvin A. Dow, Houston (Howard W. Edmunds, Houston, of counsel), for appellee. Opinion BELL, Chief Justice. The appellee is a private utility furnishing water and sanitary sewer service to residents of a defined area in the City of Houston. Prior to December 31, 1956, the territory served was outside the limits of the City. As a result of annexation, a part of the area served by appellee bcame a part of the City of Houston. At the time of annexation appellee was charging rates for services rendered by it according to a rate schedule promulgated by it. These rates it continued to charge until it raised its rates effective July 1, 1959. On January 2, 1957, the City Council of the City of Houston passed general ordinances Nos. 57–1 and 57–3, by which it, without notice to appellee, fixed the rates that might be charged by a utility situated as was appellee for water and sanitary sewer service. The rates so fixed were less than the rates prescribed by appellee's schedule of rates. The record here reflects that on February 18, 1957, appellee furnished the City information as to the value of its properties, the appraisal being made by Freese, Nichols and Turner, the report being dated February 15, 1957. Also it furnished a statement of its income and expenses for the fiscal year ending November 30, 1956. The [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4070483. Public record. Not legal advice.