Concurring and Dissenting and Opinion filed January 25, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01088-CV

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RAVIN SHARMA, ASHVIN DHINGRA, AMIT BANSAL, JAMES REW, CHEMTRADE SOLUTIONS, INC., YANG WOO CHEMICAL AMERICA, INC. AND J & J CHEMTRADING, INC., Appellants

V.

VINMAR INTERNATIONAL, LTD. AND VINMAR OVERSEAS, LTD., Appellees

On Appeal from the 333^rd District Court

Harris County, Texas

Trial Court Cause No. 05-42636

C O N C U R R I N G    AND    D I S S E N T I N G    O P I N I O N

I concur in the majority=s disposition of five of the six issues presented on appeal; however, I respectfully disagree with the majority=s holding affirming Paragraph 2 of the injunction, which states, ANo Defendant shall engage in any way in the business of purchasing, transporting, storing, marketing, selling, or trading Isoprene Monomer that is produced in Russia or Caprolactum either supplied from Mexico or Belarus or sold in China.@  Because I agree with the Rew appellants that this paragraph of the temporary injunction is overly broad, I would modify this portion of the trial court=s order as to these parties.  See T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 25 (Tex. App.CHouston [1st Dist.] 1998, pet. dism=d) (modifying an overly broad injunction).

The majority correctly notes that the purpose of a temporary injunction is to preserve the status quo of the litigation=s subject matter pending a trial on the merits.  See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).  But, as we have previously stated, an injunction Amay not be framed so broadly as to prohibit the enjoyment of lawful rights.@ Kulkarni v. Braeburn Valley W. Civic Ass=n, Inc., 880 S.W.2d 277, 278 (Tex. App.CHouston [14th Dist.] 1994, no writ) (citing Hellenic Inv., Inc. v. Kroger Co., 766 S.W.2d 861, 866 (Tex. App.CHouston [1st Dist.] 1989, no writ).  A temporary injunction is impermissibly overbroad if it prohibits not only the use of confidential and proprietary information, but lawful conduct as well.  See Sw. Research Inst. v. Keraplast Techs., Ltd., 103 S.W.3d 478, 482B83 (Tex. App.CSan Antonio 2003, no pet.).

The majority emphasizes that the Rew appellants traded no isoprene or caprolactum before the events underlying this litigation; however, this observation does not fully reflect the status quo ante.  Before the present controversy arose between the parties, the Rew appellants had a limited legal right to engage in international chemical trading. Although the Rew appellants did not exercise that right, the right nevertheless existed, albeit within certain limits.  For the purposes of this discussion, these limits were defined by the non-competition and confidentiality agreements described in the majority=s opinion and by the prohibition against the improper use of trade secrets.  Accordingly, the Rew appellants could engage in international chemical trading if they acted within these boundaries.  But, the temporary injunction arbitrarily replaces these contractual and common law limits with geographical boundaries, imposing barriers based on a chemical=s country of origin or sale. 

The majority implies that this distinction is immaterial on the facts presented, and recites that while Togliatti was Vinmar=s only isoprene supplier, there Awas also evidence that Togliatti was the only Russian manufacturer selling isoprene for export.@  But, unlike the Rew appellants, the international isoprene and caprolactum markets are not bound to maintain the status quo as it existed before this controversy arose; new suppliers and customers may enter the market during the pendency of the litigation, and alternate transport and storage facilities may become available.  Under the language of the injunction, the Rew appellants are not only prohibited from dealing with suppliers and customers known to the Rew appellants through the improper use and disclosure of Vinmar=s confidential information, but currently are enjoined from commerce with any isoprene supplier in Russia, any caprolactum supplier in Mexico or Belarus, and any caprolactum purchaser in China, even if such entities are new entries in the market or are otherwise strangers to Vinmar.  The injunction likewise bars the Rew appellants from purchasing from new suppliers for resale within the same country, even where Vinmar purchased chemicals solely for export.  The Rew appellants are even enjoined from transporting or storing isoprene originating in Russia, caprolactum supplied by Mexico or Belarus, and caprolactum sold in China, even if they use methods, facilities, and supply chains never used by Vinmar. 

In sum, the Rew appellants are enjoined from trading with new suppliers, establishing original supply chains, using alternative storage and transport facilities, and developing untapped markets for the sale of isoprene or caprolactum in those nations where Vinmar operatesCregardless of whether such actions infringe on appellees= rights.  Moreover, the injunction does not restrict the Rew appellants= ability to compete for only six months, as specified in the non-competition and confidentiality agreements with Vinmar, but has been in effect for over a year, and will continue until trial.

Because the injunction imposes restrictions on the Rew appellants beyond those arising from their relationship with Vinmar and enjoins them from engaging even in lawful competition that does not involve the use of confidential information, I would hold that the trial court abused its discretion by granting the injunction in its current overly broad form.

/s/      Eva M. Guzman

Justice

Judgment Rendered and Opinion and Concurring and Dissenting Opinion filed January 25, 2007.

Panel consists of Justices Anderson, Hudson, and Guzman.(J., Anderson files majority).