Preview
FILED
11/15/2023 8:11 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Elizabeth Ferguson DEPUTY
CAUSE NO. DC-23-15759
SKYWARD TRANSPORTATION, LLC, IN THE DISTRICT COURT
Plaintiff,
DALLAS COUNTY, TEXAS
MEXICO FOODS, LLC d/b/a
EL RANCHO and CONECTA
LOGISTICS, LLC,
Defendants. 160TH JUDICIAL DISTRICT
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION
TO THE HONORABLE COURT:
Plaintiff Skyward Transportation, LLC (“Skyward”) files this Bench Brief in Further
Support of its Application (“Application”) for Temporary Injunction. In support thereof, Skyward
tespectfully shows as follows:
I Skyward’s Application Seeks a Prohibitive, Not Mandatory Injunction.
“The purpose of a temporary injunction is to preserve the status quo of the litigation’s
subject matter pending trial on the merits.” See Miller v. Talley Dunn Gallery, No. 05-150-00444-
CV, 2016 WL 836775, at *5 (Tex. App—Dallas March 3 2016, no pet.). A “mandatory
injunction” is one which “changes the status quo.” See Haynie v. General Leasing Co., Inc., 538
S.W.2d 244 (Tex. App.—Dallas 1976, no writ). The status quo is defined as the last, actual,
peaceable, non-contested status which preceded the pending controversy.” See Miller, 2016 WL
836775, at *5 (internal citation and quotation marks omitted). The status quo does not—as
Defendants would have it—‘‘consist of a photographic replication of the circumstances existing at
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 1
the moment suit was filed ...” See Bayer CropScience LP v. Chemtura Corp., 2012 WL 2878174,
at *4 (N.C. Super. Ct. July 13, 2012) (internal citation and quotation marks omitted).
Here, Skyward and Defendants had a years-long business relationship and, relevant here,
operated under certain contractual Transportation Services Agreements prior to Defendants’
purported attempt to terminate the same, effective October 6, 2023. That is the “status quo” that
must be preserved during this litigation. See Bayer CropScience, 2012 WL 2878174, at *4 (“An
injunction is generally framed so as to restrain the defendant from permitting his previous act to
operate, or to restore conditions that existed before the wrong complained of was committed.”)
(internal citation and quotation marks omitted). Bayer CropScience is instructive. In Bayer
CropScience, Chemtura purported to terminate the parties’ contract after alleging that defaults
noticed were not timely cured. /d. at *3. Bayer then brought suit alleging that the contract was
unjustly terminated and sought injunctive relief requiring performance of the contract. /d. at *3, 8.
The parties then disputed whether Bayer’s request for injunctive relief should be
characterized as mandatory or prohibitive. /d. at *4. The court held that the injunction was
prohibitory. /d. In so holding, the court reasoned:
Here, the parties operated under the Chemtura Agreement for nearly four years
before Chemtura decided to terminate the same on April 30, 2012. Chemtura
contends that the status quo is that the is that the parties do not have an agreement.
As such, Chemtura argues that Bayer is seeking a mandatory injunction by forcing
Chemtura to resume performance of the Chemtura Agreement. .. Adopting
Chemtura’s position regarding the status quo would create an incentive for a party
to breach an existing contract before the other party can seek injunctive relief in an
effort to alter the status quo and the nature of the injunctive relief sought (i.e.,
mandatory relief rather than prohibitory relief) ....
In the present case, Bayer’s breach of contract claim arises from Chemtura’s alleged
wrongful termination of the Chemtura Agreement on April 30, 2012.
Subsequently, Bayer filed this civil action on May 10, 2012. The status quo
between the parties is the contractual relationship that existed for over four years
before the dispute arose. As such, maintaining the status quo would have Chemtura
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 2
providing Ipconazole to Bayer pursuant to the Chemtura Agreement.
Consequently, Bayer is seeking an injunction that is more appropriately
characterized as a prohibitory injunction. In substance, Bayer is seeking to prohibit
Chemtura from wrongfully terminating the Chemtura Agreement (i.e., prohibit
Chemtura from disrupting the status quo during the pendency of this litigation).
Id. Respectfully, this Court should find the same on Skyward’s Application and the facts at issue
here. See also Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A., 875 F.2d 1174, 1178 n.1
(5th Cir. 1989) (“Petrobas also argues that the injunction does not preserve the status quo since at
the time of the injunction hearing the letter of credit had expired. This argument is fallacious. The
injunction appropriately preserves the status quo at the time the suit was filed and at the time the
disagreements between the parties first arose.”).
Even assuming, arguendo, that the injunction Skyward seeks is mandatory, Skyward would
still be entitled to the relief sought: As otherwise discussed herein and as the evidence shows,
Skyward cannot obtain complete relief at the conclusion of this litigation. See infra at 3-4; G-M
Water Supply Corp. v. City of Hemphill, No. 12-16-00129-CV, 2016 WL 6876499, at *3 (Tex.
App.—Tyler 2016, no pet.) (issuance of mandatory injunction proper if applicant makes “a clear
and compelling presentation that without the injunction, it would suffer an actual irreparable injury
resulting in extreme hardship, or that the injunction is extremely necessary to prevent an actual
irreparable injury.”).
IL. Skyward Has Suffered and Will Continue to Suffer Probable, Imminent, Irreparable
Injury if the Injunction Is Not Granted.
“[T]he irreparable injury requirement is satisfied” when the nature of the injury suffered is
“difficult to calculate or monetize.” McGuire-Sobrino v. TX Cannalliance LLC, No. 05-19-01261-
CV, 2020 WL 4581649, at *5 (Tex. App.—Dallas Aug. 10, 2020, no pet.). “Simply because the
applicant for a temporary injunction asks ... for damages as ultimate relief does not guarantee that
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 3
damages are completely adequate as a remedy.” Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.
1993) (emphasis added).
Relevant here, many courts have held that disruption to a business’ operations and
economic harm that otherwise threatens a business’ very existence can constitute irreparable
injury. See Miller v. Talley Dunn Gallery, LLC, No. 05-15-00444-CV, 2016 WL 836775, *8 (Tex.
App.—Dallas Mar. 3, 2016, no pet.) (“Disruption to a business can constitute irreparable harm.”);
Dass, Inc. v. Smith, 206 S.W.3d 197, 202-03 (Tex. App.—Dallas 2006, no pet.) (affirming the
grant of temporary injunction where the “loss or disruption of Plaintiff's business will be an
irreparable harm”); Tuyl v. Manuel Chrysler Dodge, Inc., No. 05-95-00652-CV, 1995 WL 577367,
at *4 (Tex. App.—Dallas Sept. 26, 1995, no writ) (the “[l]oss of a business ... is an irreparable
injury that will support a temporary injunction to preserve the status quo.”); see also Est. of Huron,
No. 04-22-00219-CV, 2023 WL 2004091, at *6 (Tex. App.—San Antonio Feb. 15, 2023, no pet.)
(citing Atwood Turnkey Drilling, 875 F.2d at 1179) (holding that “a temporary injunction is an
appropriate remedy where the potential economic loss is so great as to threaten a movant’s business
operations.”); Atwood Turnkey Drilling, 875 F.2d at 1179 (injunction appropriate and monetary
damages inadequate “where the potential economic loss is so great as to threaten the existence of
the movant’s business,” because “[a] judgment for damages, acquired years after [the] business
has been obliterated would not be a meaningful remedy.”). Additionally, “[t]hreatened injury to a
business’s reputation and good will with customers is frequently the basis for temporary injunctive
telief.” See Intercontinental Terminals Co., LLC v. VopakN. Am., Inc., 354 S.W.3d 887, 895 (Tex.
App.—Houston [1st Dist.] 2011, no pet.); see also McGuire-Sobrino, 2020 WL 4581649, at *5
(“[C]ourts have further held that assigning a dollar amount to such intangibles as a company’s loss
of clientele, goodwill, marketing techniques, and office stability, among others, is not easy.”).
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 4
Indeed, “[a] judgment for damages, acquired years after [Skyward’s] business has been obliterated
would not be a meaningful remedy.” Atwood Turnkey Drilling, 875 F.2d at 1179.
Defendants’ argument that Skyward has an adequate remedy at law is therefore incorrect.
The evidence demonstrates that Skyward has already suffered, and will continue to suffer,
irreparable injury (and extreme hardship) if Defendants are not enjoined as requested. Among
other things, Defendants’ breaches of contract have caused massive disruption to Skyward’s
business operations, threaten Skyward’s very existence, and have otherwise caused and will
continue to cause Skyward to suffer incalculable injury to its reputation and goodwill. Simply put,
money damages are not easily calculable here, nor will they suffice to make Skyward whole. GN
Ventures v. Stanley, No. 05-19-01076-CV, 2020 WL 5868282, at *9—10 (Tex. App.—Dallas Oct.
2, 2010, pet. denied).
il. Defendants’ Response In Opposition to Skyward’s Application Does Not Establish
That Skyward’s Request for Injunctive Relief Should Be Denied.
Defendants’ Response does not meaningfully demonstrate that Skyward’s request for
injunctive relief should be denied for at least the following reasons:
First, the fact that Skyward has set forth a claim for relief in its Original Petition that
includes monetary relief—in compliance with Rule 47—is not a concession by Skyward that such
damages are completely adequate as a remedy here. And they are not. As the Texas Supreme
Court has unequivocally recognized, “[s]imply because the applicant for a temporary injunction
asks ... for damages as ultimate relief does not guarantee that damages are completely adequate
as a remedy ... circumstances can arise in which a temporary injunction is appropriate to preserve
the status quo pending an award of damages at trial.” See, e.g., Walling, 863 S.W.2d 56, 58.
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION PAGES
Second, Defendants’ attempt to distinguish Atwood is unavailing. Try as they may to
render the Atwood decision inapposite, the truth remains that it stands for the proposition that—
even where harm is “financial”—a party may nevertheless be irreparably injured where (as here)
another’s breach of contract “threatens the existence of the movant’s business.” See Turnkey
Drilling, 875 F.2d at 1178-79 (“The record also supports Atwood’s contention that it would be
irreparably harmed if the letter of credit expired. It reveals that ... if Atwood cannot collect under
the letter of credit it will be unable to continue its business operations ....”). Many other decisions
rendered by Texas courts have held the same, including when citing to Ahvood as persuasive
authority for such findings. See infra Part Il. And neither is Defendants’ reliance on Texas
Disposal System, Inc. v. City of Round Rock well founded. No. 03-22-450-CV, 2023 WL 3727963
(Tex. App.—Austin May 31, 2023, no pet.). There, the court found that there was “some evidence”
to support the trial court’s finding that the movant failed to establish a likelihood of imminent,
irreparable injury that the requested injunctive relief would have prevented precisely because
defendant had the “sole discretion” to terminate the contract at issue. See id. at *7 (“Texas
Disposal has not cited, and we have not found, authority that would support requiring the City to
reinstate an agreement that the City had the ‘sole discretion’ to terminate ....”).
Third, Defendants’ reliance on Canteen Corp v. Republic of Texas Properties, Inc., Cate
v. Woods, and Nguyen v. Woodley is similarly misplaced. In Canteen, the lease agreement at issue
provided that “the leased premises shall be used and occupied only for the purpose of a restaurant.”
773 S.W.2d 398, 399 (Tex. App.—Dallas 1989, no writ). There, Plaintiff Canteen had voluntarily
ceased doing business as a restaurant and instead transitioned to a vending machine operation. /d.
The appellate court found that the trial court’s injunction was proper to the extent it enjoined
Canteen from vending machine operations, but was improper to the extent it required Canteen to
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 6
reopen as a restaurant in accordance with the requirements of the lease agreement was improper,
as Canteen could not render such performance. /d. at 401. In Cate, the appellate court reversed
the trial court’s judgment enforcing a contract for the sale of land, finding that the contract could
not be performed because, although “it was contingent upon obtaining third-party financing,” that
“financing was not obtained by the closing date,” such that the “contract terminated by its terms. »
299 S.W.3d 149, 152-53 (Tex. App.—Texarkana 2009, no pet.). Similarly, in Nguyen, the court
denied plaintiff's efforts to compel the sale of a home on an earnest money contract, finding that
the plaintiff's notice of inability to obtain financing immediately terminated the agreement
pursuant to its terms. 273 S.W.3d 891, 898 (Tex. App.—Houston [14th Dist.] Dec. 30, 2008, no
pet.). None of these cases share any similarity with the facts at issue here.
Fourth, Skyward did not delay in bringing this lawsuit or seeking this injunction. Skyward
filed suit on September 15, 2023 and filed its Application, days later, on September 19, 2023.
Defendants purported to attempt to terminate their respective contractual relationships with
Skyward on September 6, 2023, effective October 6. Skyward promptly sought to set its
Application for hearing shortly after filing suit. Defendants’ argument to the contrary ignores the
factual record.
Fifth, in moving for an injunction, Skyward is asking this Court to find, inter alia, that it
has a probable right to the relief sought on its respective causes of action against Mexico Foods
and Conecta. That is, it is doing no more than exercising its right to seek this legally available
remedy that preserves the status quo pending trial on the merits. Doing so does not somehow moot
this lawsuit or constitute a finding that “accomplishes the object of the suit,” as Defendants
somehow claim. If Defendants are right, every party opposing a request for injunctive relief could
defeat the movant’s application by simply making this same argument. Such an outcome is absurd,
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION PAGE7
because it effectively writes this statutorily provided-for equitable measure out of existence. And
accepting this argument here would be especially inequitable, as itis Defendants’ very misconduct
that has already and will continue to cause Skyward irreparable injury if not enjoined.
Sixth, Skyward does not need to join any other parties to this controversy for this Court to
grant the requested injunction. Setting aside that Defendants do not identify in their Response the
“third-party” that they are apparently now using for their “distribution needs,” or otherwise
identify the terms of any such agreement with that undisclosed third-party, the respective
Transportation Services Agreements whose wrongful termination Skyward seeks to enjoin are
between Skyward and Defendants. Defendants have not argued or shown that any other party has
an interest in such contracts or that complete relief cannot be afforded to Skyward in this lawsuit
absent the inclusion of additional parties not presently named. See Lamas v. Sandoval, No. 08-21-
00095-CV, 2022 WL 3755790, at *5 (Tex. App.—El Paso 2022) (“Because there is no evidence
that complete relief could not be given without joining [third-party] in this temporary
injunction action, the trial court did not abuse its discretion by refusing to require
Marquez's joinder before the issuance of the temporary injunction.” (emphasis added)). This is
perhaps best evinced by the fact that Defendants, themselves, have not sought to join any other
party to this lawsuit.
Seventh, Defendants’ argument that Skyward’s Application should be denied because it
seeks to compel specific performance that is not capable of presently being performed must be
tejected. Again, Skyward asks on its Application that the Court maintain the status quo and prohibit
Defendants from wrongfully terminating the Parties’ contractual relationships. It does not seek a
mandatory injunction, which is what Defendants’ argument in this respect presupposes.
Regardless, Skyward is in fact capable of present performance. And, Skyward otherwise has no
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION PAGE8
adequate remedy should Defendants not be enjoined—i.e., Skyward has already suffered and will
continue to suffer absent Defendants being enjoined as sought adequately be compensated through
a later money judgment. Defendants’ argument that court supervision will be required is wholly
premised on Defendants’ contention that Skyward defaulted on the Parties’ contracts. But, as the
evidence shows, Skyward did not—and, respectfully, this Court should not credit Defendants’
manufactured and groundlessly alleged contractual defaults as a basis to alter the status quo when
Skyward lacks an adequate legal remedy absent its Application being granted and has otherwise
shown a probable right to recovery. For all of these reasons, Defendants’ reliance on Beckham v.
Munger Oil & Cotton Company, Cytogenix, Inc. v. Waldroff, and Free v. Lewis is misplaced. See
Beckham, 185 S.W. 991 (Tex. App.—Dallas 1916, no writ) (finding that “the appellant has a
remedy in damages, [so] an injunction will not lie” and noting that a court “will not decree specific
performance where there is no insurmountable difficulty in ascertaining the damages sustained ...
for the breach of the contract ....””); Cytogenix, Inc.,213 S.W.3d 479, 487-88 (Tex. App.—Houston
[1st Dist.] 2006, pet. denied) (noting that “the trial court’s injunction . [does] not ... stop any
urrent breach of the agreements and enforce present performance” and otherwise remarking that
“the licensing agreements lack the definiteness required for injunctive relief and that [the] claim
for past actual damages based on the terms of the agreement demonstrates ... an adequate remedy
at law.”); Free, 2012 WL 3242090, at *6 (Tex. App.—Corpus Christi Aug. 9, 2012, no pet.)
(permanent injunction improper where present performance not possible).
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 9
Dated: November 15, 2023 Respectfully submitted,
/s/ Michael K. Hurst
Michael K. Hurst
Texas Bar No. 10316310
mhurst@lynnllp.com
Jared D. Eisenberg
Texas Bar No. 24092382
jeisenberg@lynnllp.com
Andy Kim
Texas Bar No. (admission pending)
akim@lynnllp.com
LYNN PINKER HURST &
SCHWEGMANN, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone: (214) 981-3800
Facsimile: (214) 981-3839
/s/ Anthony M. Farmer
Anthony M. Farmer
Texas Bar No. 24057844
afarmer@farmerlawgroup.com
Donte Jones
Texas Bar No. 10871500
djones@farmerlawgroup.com
THE FARMER LAW GROUP, PLLC
400 S. Zang Blvd., Suite 350
Dallas, Texas 75208
Telephone: (214) 948-8333
Facsimile: (214) 915-8853
ATTORNEYS FOR PLAINTIFF
SKYWARD TRANSPORTATION, LLC
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 10
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing document was served
on all counsel of record via the Court’s electronic notification service on November 15, 2023.
/s/ Michael K, Hurst
Michael K. Hurst
PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT
OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 11
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Michael Hurst on behalf of Michael K. Hurst
Bar No. 10316310
mhurst@lynnilp.com
Envelope ID: 81647211
Filing Code Description: Brief Filed
Filing Description: INFURTHER SUPPORT OF APPL. FOR
TEMPORARY INJUNCTION
Status as of 11/15/2023 8:29 AM CST
Associated Case Party: SCYWARD TRANSPORTATION LLC
Name BarNumber Email TimestampSubmitted Status
Michael K.Hurst mhurst@lynnilp.com 11/15/2023 8:11:25 AM SENT
Kay Ridenour kridenour@lynnllp.com 11/15/2023 8:11:25 AM SENT
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Donte L.Jones djones@farmerlawgroup.com 11/15/2023 8:11:25 AM SENT
Associated Case Party: MEXICO FOODS LLC
Name BarNumber Email TimestampSubmitted Status
Greg Noschese gnoschese@munsch.com 11/15/2023 8:11:25 AM SENT
William MToles wtoles@munsch.com 11/15/2023 8:11:25 AM SENT
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mhurst@lynnilp.com
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Preview
FILED 11/15/2023 8:11 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Elizabeth Ferguson DEPUTY CAUSE NO. DC-23-15759 SKYWARD TRANSPORTATION, LLC, IN THE DISTRICT COURT Plaintiff, DALLAS COUNTY, TEXAS MEXICO FOODS, LLC d/b/a EL RANCHO and CONECTA LOGISTICS, LLC, Defendants. 160TH JUDICIAL DISTRICT PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION TO THE HONORABLE COURT: Plaintiff Skyward Transportation, LLC (“Skyward”) files this Bench Brief in Further Support of its Application (“Application”) for Temporary Injunction. In support thereof, Skyward tespectfully shows as follows: I Skyward’s Application Seeks a Prohibitive, Not Mandatory Injunction. “The purpose of a temporary injunction is to preserve the status quo of the litigation’s subject matter pending trial on the merits.” See Miller v. Talley Dunn Gallery, No. 05-150-00444- CV, 2016 WL 836775, at *5 (Tex. App—Dallas March 3 2016, no pet.). A “mandatory injunction” is one which “changes the status quo.” See Haynie v. General Leasing Co., Inc., 538 S.W.2d 244 (Tex. App.—Dallas 1976, no writ). The status quo is defined as the last, actual, peaceable, non-contested status which preceded the pending controversy.” See Miller, 2016 WL 836775, at *5 (internal citation and quotation marks omitted). The status quo does not—as Defendants would have it—‘‘consist of a photographic replication of the circumstances existing at PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 1 the moment suit was filed ...” See Bayer CropScience LP v. Chemtura Corp., 2012 WL 2878174, at *4 (N.C. Super. Ct. July 13, 2012) (internal citation and quotation marks omitted). Here, Skyward and Defendants had a years-long business relationship and, relevant here, operated under certain contractual Transportation Services Agreements prior to Defendants’ purported attempt to terminate the same, effective October 6, 2023. That is the “status quo” that must be preserved during this litigation. See Bayer CropScience, 2012 WL 2878174, at *4 (“An injunction is generally framed so as to restrain the defendant from permitting his previous act to operate, or to restore conditions that existed before the wrong complained of was committed.”) (internal citation and quotation marks omitted). Bayer CropScience is instructive. In Bayer CropScience, Chemtura purported to terminate the parties’ contract after alleging that defaults noticed were not timely cured. /d. at *3. Bayer then brought suit alleging that the contract was unjustly terminated and sought injunctive relief requiring performance of the contract. /d. at *3, 8. The parties then disputed whether Bayer’s request for injunctive relief should be characterized as mandatory or prohibitive. /d. at *4. The court held that the injunction was prohibitory. /d. In so holding, the court reasoned: Here, the parties operated under the Chemtura Agreement for nearly four years before Chemtura decided to terminate the same on April 30, 2012. Chemtura contends that the status quo is that the is that the parties do not have an agreement. As such, Chemtura argues that Bayer is seeking a mandatory injunction by forcing Chemtura to resume performance of the Chemtura Agreement. .. Adopting Chemtura’s position regarding the status quo would create an incentive for a party to breach an existing contract before the other party can seek injunctive relief in an effort to alter the status quo and the nature of the injunctive relief sought (i.e., mandatory relief rather than prohibitory relief) .... In the present case, Bayer’s breach of contract claim arises from Chemtura’s alleged wrongful termination of the Chemtura Agreement on April 30, 2012. Subsequently, Bayer filed this civil action on May 10, 2012. The status quo between the parties is the contractual relationship that existed for over four years before the dispute arose. As such, maintaining the status quo would have Chemtura PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 2 providing Ipconazole to Bayer pursuant to the Chemtura Agreement. Consequently, Bayer is seeking an injunction that is more appropriately characterized as a prohibitory injunction. In substance, Bayer is seeking to prohibit Chemtura from wrongfully terminating the Chemtura Agreement (i.e., prohibit Chemtura from disrupting the status quo during the pendency of this litigation). Id. Respectfully, this Court should find the same on Skyward’s Application and the facts at issue here. See also Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A., 875 F.2d 1174, 1178 n.1 (5th Cir. 1989) (“Petrobas also argues that the injunction does not preserve the status quo since at the time of the injunction hearing the letter of credit had expired. This argument is fallacious. The injunction appropriately preserves the status quo at the time the suit was filed and at the time the disagreements between the parties first arose.”). Even assuming, arguendo, that the injunction Skyward seeks is mandatory, Skyward would still be entitled to the relief sought: As otherwise discussed herein and as the evidence shows, Skyward cannot obtain complete relief at the conclusion of this litigation. See infra at 3-4; G-M Water Supply Corp. v. City of Hemphill, No. 12-16-00129-CV, 2016 WL 6876499, at *3 (Tex. App.—Tyler 2016, no pet.) (issuance of mandatory injunction proper if applicant makes “a clear and compelling presentation that without the injunction, it would suffer an actual irreparable injury resulting in extreme hardship, or that the injunction is extremely necessary to prevent an actual irreparable injury.”). IL. Skyward Has Suffered and Will Continue to Suffer Probable, Imminent, Irreparable Injury if the Injunction Is Not Granted. “[T]he irreparable injury requirement is satisfied” when the nature of the injury suffered is “difficult to calculate or monetize.” McGuire-Sobrino v. TX Cannalliance LLC, No. 05-19-01261- CV, 2020 WL 4581649, at *5 (Tex. App.—Dallas Aug. 10, 2020, no pet.). “Simply because the applicant for a temporary injunction asks ... for damages as ultimate relief does not guarantee that PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 3 damages are completely adequate as a remedy.” Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (emphasis added). Relevant here, many courts have held that disruption to a business’ operations and economic harm that otherwise threatens a business’ very existence can constitute irreparable injury. See Miller v. Talley Dunn Gallery, LLC, No. 05-15-00444-CV, 2016 WL 836775, *8 (Tex. App.—Dallas Mar. 3, 2016, no pet.) (“Disruption to a business can constitute irreparable harm.”); Dass, Inc. v. Smith, 206 S.W.3d 197, 202-03 (Tex. App.—Dallas 2006, no pet.) (affirming the grant of temporary injunction where the “loss or disruption of Plaintiff's business will be an irreparable harm”); Tuyl v. Manuel Chrysler Dodge, Inc., No. 05-95-00652-CV, 1995 WL 577367, at *4 (Tex. App.—Dallas Sept. 26, 1995, no writ) (the “[l]oss of a business ... is an irreparable injury that will support a temporary injunction to preserve the status quo.”); see also Est. of Huron, No. 04-22-00219-CV, 2023 WL 2004091, at *6 (Tex. App.—San Antonio Feb. 15, 2023, no pet.) (citing Atwood Turnkey Drilling, 875 F.2d at 1179) (holding that “a temporary injunction is an appropriate remedy where the potential economic loss is so great as to threaten a movant’s business operations.”); Atwood Turnkey Drilling, 875 F.2d at 1179 (injunction appropriate and monetary damages inadequate “where the potential economic loss is so great as to threaten the existence of the movant’s business,” because “[a] judgment for damages, acquired years after [the] business has been obliterated would not be a meaningful remedy.”). Additionally, “[t]hreatened injury to a business’s reputation and good will with customers is frequently the basis for temporary injunctive telief.” See Intercontinental Terminals Co., LLC v. VopakN. Am., Inc., 354 S.W.3d 887, 895 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also McGuire-Sobrino, 2020 WL 4581649, at *5 (“[C]ourts have further held that assigning a dollar amount to such intangibles as a company’s loss of clientele, goodwill, marketing techniques, and office stability, among others, is not easy.”). PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 4 Indeed, “[a] judgment for damages, acquired years after [Skyward’s] business has been obliterated would not be a meaningful remedy.” Atwood Turnkey Drilling, 875 F.2d at 1179. Defendants’ argument that Skyward has an adequate remedy at law is therefore incorrect. The evidence demonstrates that Skyward has already suffered, and will continue to suffer, irreparable injury (and extreme hardship) if Defendants are not enjoined as requested. Among other things, Defendants’ breaches of contract have caused massive disruption to Skyward’s business operations, threaten Skyward’s very existence, and have otherwise caused and will continue to cause Skyward to suffer incalculable injury to its reputation and goodwill. Simply put, money damages are not easily calculable here, nor will they suffice to make Skyward whole. GN Ventures v. Stanley, No. 05-19-01076-CV, 2020 WL 5868282, at *9—10 (Tex. App.—Dallas Oct. 2, 2010, pet. denied). il. Defendants’ Response In Opposition to Skyward’s Application Does Not Establish That Skyward’s Request for Injunctive Relief Should Be Denied. Defendants’ Response does not meaningfully demonstrate that Skyward’s request for injunctive relief should be denied for at least the following reasons: First, the fact that Skyward has set forth a claim for relief in its Original Petition that includes monetary relief—in compliance with Rule 47—is not a concession by Skyward that such damages are completely adequate as a remedy here. And they are not. As the Texas Supreme Court has unequivocally recognized, “[s]imply because the applicant for a temporary injunction asks ... for damages as ultimate relief does not guarantee that damages are completely adequate as a remedy ... circumstances can arise in which a temporary injunction is appropriate to preserve the status quo pending an award of damages at trial.” See, e.g., Walling, 863 S.W.2d 56, 58. PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION PAGES Second, Defendants’ attempt to distinguish Atwood is unavailing. Try as they may to render the Atwood decision inapposite, the truth remains that it stands for the proposition that— even where harm is “financial”—a party may nevertheless be irreparably injured where (as here) another’s breach of contract “threatens the existence of the movant’s business.” See Turnkey Drilling, 875 F.2d at 1178-79 (“The record also supports Atwood’s contention that it would be irreparably harmed if the letter of credit expired. It reveals that ... if Atwood cannot collect under the letter of credit it will be unable to continue its business operations ....”). Many other decisions rendered by Texas courts have held the same, including when citing to Ahvood as persuasive authority for such findings. See infra Part Il. And neither is Defendants’ reliance on Texas Disposal System, Inc. v. City of Round Rock well founded. No. 03-22-450-CV, 2023 WL 3727963 (Tex. App.—Austin May 31, 2023, no pet.). There, the court found that there was “some evidence” to support the trial court’s finding that the movant failed to establish a likelihood of imminent, irreparable injury that the requested injunctive relief would have prevented precisely because defendant had the “sole discretion” to terminate the contract at issue. See id. at *7 (“Texas Disposal has not cited, and we have not found, authority that would support requiring the City to reinstate an agreement that the City had the ‘sole discretion’ to terminate ....”). Third, Defendants’ reliance on Canteen Corp v. Republic of Texas Properties, Inc., Cate v. Woods, and Nguyen v. Woodley is similarly misplaced. In Canteen, the lease agreement at issue provided that “the leased premises shall be used and occupied only for the purpose of a restaurant.” 773 S.W.2d 398, 399 (Tex. App.—Dallas 1989, no writ). There, Plaintiff Canteen had voluntarily ceased doing business as a restaurant and instead transitioned to a vending machine operation. /d. The appellate court found that the trial court’s injunction was proper to the extent it enjoined Canteen from vending machine operations, but was improper to the extent it required Canteen to PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 6 reopen as a restaurant in accordance with the requirements of the lease agreement was improper, as Canteen could not render such performance. /d. at 401. In Cate, the appellate court reversed the trial court’s judgment enforcing a contract for the sale of land, finding that the contract could not be performed because, although “it was contingent upon obtaining third-party financing,” that “financing was not obtained by the closing date,” such that the “contract terminated by its terms. » 299 S.W.3d 149, 152-53 (Tex. App.—Texarkana 2009, no pet.). Similarly, in Nguyen, the court denied plaintiff's efforts to compel the sale of a home on an earnest money contract, finding that the plaintiff's notice of inability to obtain financing immediately terminated the agreement pursuant to its terms. 273 S.W.3d 891, 898 (Tex. App.—Houston [14th Dist.] Dec. 30, 2008, no pet.). None of these cases share any similarity with the facts at issue here. Fourth, Skyward did not delay in bringing this lawsuit or seeking this injunction. Skyward filed suit on September 15, 2023 and filed its Application, days later, on September 19, 2023. Defendants purported to attempt to terminate their respective contractual relationships with Skyward on September 6, 2023, effective October 6. Skyward promptly sought to set its Application for hearing shortly after filing suit. Defendants’ argument to the contrary ignores the factual record. Fifth, in moving for an injunction, Skyward is asking this Court to find, inter alia, that it has a probable right to the relief sought on its respective causes of action against Mexico Foods and Conecta. That is, it is doing no more than exercising its right to seek this legally available remedy that preserves the status quo pending trial on the merits. Doing so does not somehow moot this lawsuit or constitute a finding that “accomplishes the object of the suit,” as Defendants somehow claim. If Defendants are right, every party opposing a request for injunctive relief could defeat the movant’s application by simply making this same argument. Such an outcome is absurd, PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION PAGE7 because it effectively writes this statutorily provided-for equitable measure out of existence. And accepting this argument here would be especially inequitable, as itis Defendants’ very misconduct that has already and will continue to cause Skyward irreparable injury if not enjoined. Sixth, Skyward does not need to join any other parties to this controversy for this Court to grant the requested injunction. Setting aside that Defendants do not identify in their Response the “third-party” that they are apparently now using for their “distribution needs,” or otherwise identify the terms of any such agreement with that undisclosed third-party, the respective Transportation Services Agreements whose wrongful termination Skyward seeks to enjoin are between Skyward and Defendants. Defendants have not argued or shown that any other party has an interest in such contracts or that complete relief cannot be afforded to Skyward in this lawsuit absent the inclusion of additional parties not presently named. See Lamas v. Sandoval, No. 08-21- 00095-CV, 2022 WL 3755790, at *5 (Tex. App.—El Paso 2022) (“Because there is no evidence that complete relief could not be given without joining [third-party] in this temporary injunction action, the trial court did not abuse its discretion by refusing to require Marquez's joinder before the issuance of the temporary injunction.” (emphasis added)). This is perhaps best evinced by the fact that Defendants, themselves, have not sought to join any other party to this lawsuit. Seventh, Defendants’ argument that Skyward’s Application should be denied because it seeks to compel specific performance that is not capable of presently being performed must be tejected. Again, Skyward asks on its Application that the Court maintain the status quo and prohibit Defendants from wrongfully terminating the Parties’ contractual relationships. It does not seek a mandatory injunction, which is what Defendants’ argument in this respect presupposes. Regardless, Skyward is in fact capable of present performance. And, Skyward otherwise has no PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION PAGE8 adequate remedy should Defendants not be enjoined—i.e., Skyward has already suffered and will continue to suffer absent Defendants being enjoined as sought adequately be compensated through a later money judgment. Defendants’ argument that court supervision will be required is wholly premised on Defendants’ contention that Skyward defaulted on the Parties’ contracts. But, as the evidence shows, Skyward did not—and, respectfully, this Court should not credit Defendants’ manufactured and groundlessly alleged contractual defaults as a basis to alter the status quo when Skyward lacks an adequate legal remedy absent its Application being granted and has otherwise shown a probable right to recovery. For all of these reasons, Defendants’ reliance on Beckham v. Munger Oil & Cotton Company, Cytogenix, Inc. v. Waldroff, and Free v. Lewis is misplaced. See Beckham, 185 S.W. 991 (Tex. App.—Dallas 1916, no writ) (finding that “the appellant has a remedy in damages, [so] an injunction will not lie” and noting that a court “will not decree specific performance where there is no insurmountable difficulty in ascertaining the damages sustained ... for the breach of the contract ....””); Cytogenix, Inc.,213 S.W.3d 479, 487-88 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (noting that “the trial court’s injunction . [does] not ... stop any urrent breach of the agreements and enforce present performance” and otherwise remarking that “the licensing agreements lack the definiteness required for injunctive relief and that [the] claim for past actual damages based on the terms of the agreement demonstrates ... an adequate remedy at law.”); Free, 2012 WL 3242090, at *6 (Tex. App.—Corpus Christi Aug. 9, 2012, no pet.) (permanent injunction improper where present performance not possible). PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 9 Dated: November 15, 2023 Respectfully submitted, /s/ Michael K. Hurst Michael K. Hurst Texas Bar No. 10316310 mhurst@lynnllp.com Jared D. Eisenberg Texas Bar No. 24092382 jeisenberg@lynnllp.com Andy Kim Texas Bar No. (admission pending) akim@lynnllp.com LYNN PINKER HURST & SCHWEGMANN, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 Telephone: (214) 981-3800 Facsimile: (214) 981-3839 /s/ Anthony M. Farmer Anthony M. Farmer Texas Bar No. 24057844 afarmer@farmerlawgroup.com Donte Jones Texas Bar No. 10871500 djones@farmerlawgroup.com THE FARMER LAW GROUP, PLLC 400 S. Zang Blvd., Suite 350 Dallas, Texas 75208 Telephone: (214) 948-8333 Facsimile: (214) 915-8853 ATTORNEYS FOR PLAINTIFF SKYWARD TRANSPORTATION, LLC PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 10 CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing document was served on all counsel of record via the Court’s electronic notification service on November 15, 2023. /s/ Michael K, Hurst Michael K. Hurst PLAINTIFF’S BENCH BRIEF IN FURTHER SUPPORT OF APPLICATION FOR TEMPORARY INJUNCTION PAGE 11 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Michael Hurst on behalf of Michael K. Hurst Bar No. 10316310 mhurst@lynnilp.com Envelope ID: 81647211 Filing Code Description: Brief Filed Filing Description: INFURTHER SUPPORT OF APPL. FOR TEMPORARY INJUNCTION Status as of 11/15/2023 8:29 AM CST Associated Case Party: SCYWARD TRANSPORTATION LLC Name BarNumber Email TimestampSubmitted Status Michael K.Hurst mhurst@lynnilp.com 11/15/2023 8:11:25 AM SENT Kay Ridenour kridenour@lynnllp.com 11/15/2023 8:11:25 AM SENT Beverly Congdon bcongdon@lynnilp.com 11/15/2023 8:11:25 AM SENT Jared Eisenberg jeisenberg@lynnilp.com 11/15/2023 8:11:25 AM SENT Anthony M.Farmer afarmer@farmerlawgroup.com 11/15/2023 8:11:25 AM SENT April Kimrey akimrey@lynnllp.com 11/15/2023 8:11:25 AM SENT Gina Flores gflores@lynnilp.com 11/15/2023 8:11:25 AM SENT Andy Kim akim@lynnllp.com 11/15/2023 8:11:25 AM SENT D. RobertJones drjones@farmerlawgroup.com 11/15/2023 8:11:25 AM SENT Donte L.Jones djones@farmerlawgroup.com 11/15/2023 8:11:25 AM SENT Associated Case Party: MEXICO FOODS LLC Name BarNumber Email TimestampSubmitted Status Greg Noschese gnoschese@munsch.com 11/15/2023 8:11:25 AM SENT William MToles wtoles@munsch.com 11/15/2023 8:11:25 AM SENT Sharon Blackstock sblackstock@munsch.com 11/15/2023 8:11:25 AM SENT Jay Evans jdevans@munsch.com 11/15/2023 8:11:25 AM SENT Tracey Murrell TMurrell@munsch.com 11/15/2023 8:11:25 AM SENT Associated Case Party: HECTOR VASQUEZ Name BarNumber Email TimestampSubmitted | Status Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Michael Hurst on behalf of Michael K. Hurst Bar No. 10316310 mhurst@lynnilp.com Envelope ID: 81647211 Filing Code Description: Brief Filed Filing Description: INFURTHER SUPPORT OF APPL. FOR TEMPORARY INJUNCTION Status as of 11/15/2023 8:29 AM CST Associated Case Party: HECTOR VASQUEZ Name BarNumber | Email TimestampSubmitted | Status Jennifer M.Lee jlee@feesmith.com | 11/15/2023 8:11:25 AM | SENT