Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00615-CV
Kelly Reid WALLS, Appellant
v.
Daniel KLEIN, Appellee
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-11285 Honorable Victor Hugo Negron Jr., Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice
Delivered and Filed: March 13, 2013
AFFIRMED AS MODIFIED
This is an accelerated, interlocutory appeal in which appellant, Kelly Walls, appeals a
temporary injunction granted in favor of appellee, Daniel Klein. Walls contends the temporary
injunction should be dissolved because (1) it constitutes a prior restraint on Walls’s
constitutional right of free speech, (2) the remedy of specific performance is not available for an
alleged breach of contract not to defame, and (3) the trial court abused its discretion in granting
the temporary injunction because Klein failed to show Walls posed an immediate threat of
irreparable harm. We modify the temporary injunction and we affirm as modified. 04-12-00615-CV
BACKGROUND
Walls and Klein were in a romantic relationship. After their relationship ended, disputes
arose between the parties. Walls’s attorney sent a letter to Klein’s attorney threatening to file a
suit for damages against Klein for claims including intentional infliction of emotional distress,
assault, fraud, and defamation. After receiving this letter, Klein and Walls entered into an
agreement and settled their disputes wherein Walls agreed, amongst other things, to release all
claims against Klein in exchange for a sum of $30,000. The Settlement Agreement and Full and
Final Release, signed on April 26, 2012, included a “Confidentiality and Non-disparagement”
clause which, in relevant part, stated:
The Parties agree and acknowledge that they will not disparage one another. The Parties will have no further contact with each other in any form, their respective family members and close friends relating in any way to the Claims or the matters alleged in the Claims Letter.
In the Agreement, Walls affirmed “she has not previously made and will not make in the future
any claims, allegations or complaints against or relating to Klein with any agency, including . . .
the San Antonio Police Department (other than her prior verbal complaint on January 15, 2012),
. . . or any licensing or regulatory board regarding or in any way related to the Claims or the
matters alleged in the Claims Letter.”
The agreement also included a provision entitled “Contractual Agreement” that provided:
It is expressly understood and agreed that the terms of this Agreement are contractual and not merely recitals. In the event any dispute concerning a right or obligation specifically created under the terms of this Agreement arises, such right or obligation shall be enforceable in a court of equity by specific performance. This remedy shall be in addition to any other remedy available at law or equity.
Further, the agreement included a provision entitled “Voluntary Execution of Agreement” that
provided:
The Parties expressly represent and warrant that they have participated in the negotiation and preparation of this Agreement, and that they are executing this -2- 04-12-00615-CV
Agreement voluntarily, with the benefit and advice of counsel, without any duress, coercion, or undue influence.
In July 2012, shortly after the Agreement was signed, Walls filed an original petition for
injunctive relief against Klein. Walls alleged Klein continued to “stalk, harass, and humiliate”
her in violation of the no-contact and non-disparagement clauses contained in the Agreement by
attempting to run her and her pets over with his vehicle and by following her in his vehicle and
calling her foul names. Walls reported both incidents to the San Antonio Police Department.
The trial court granted Walls an ex parte temporary restraining order against Klein and set a
hearing on a temporary injunction.
Klein filed an answer to Walls’s suit as well as a counter-claim against Walls seeking his
own temporary injunction and asserting claims for defamation, breach of contract, and invasion
of privacy. Klein alleged Walls was needlessly walking in front of his residence, sending
threatening emails to his close friends, sending anonymous, disparaging emails to members of
the religious institution he attended, and making disparaging and derogatory remarks in an
attempt to injure him. Specifically, Klein alleged Walls posted on her Facebook page that she
intended to publically disparage Klein with the launch of a website containing photographs of
him that Walls had taken while they were still in a relationship.
A hearing was held and the trial court denied Walls’s application for temporary
injunction and granted Klein’s application for temporary injunction. The trial court found Klein
will likely prevail on the trial of this cause, Walls intends to harm and injure Klein, and Walls
intends to violate her obligations under the Agreement previously entered into between the
parties.
Walls objected to the language of the order granting Klein’s application for temporary
injunction. At the hearing on the motion to enter order, Walls argued the language was overly
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vague and imposed prior restraint on her, that Klein presented no evidence to support the
injunction, and that she had not violated the Agreement. The court modified sections of the
temporary injunction and signed the modified temporary injunction. Walls then filed a motion to
dissolve the temporary injunction, which the trial court denied. This accelerated appeal
followed.
STANDARD OF REVIEW
The decision to grant a temporary injunction lies within the sound discretion of the trial
court. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). An appellate court may not
substitute its judgment for that of the trial court. Menna v. Romero, 48 S.W.3d 247, 252 (Tex.
App.—San Antonio 2001, pet. dism’d w.o.j.). “Rather, we limit our review to whether there has
been a clear abuse of discretion.” Id. (citing Davis v. Huey, 571 S.W.2d 859, 861 (Tex. 1978)).
“At the hearing for a temporary injunction, the only question before the trial court is
whether the applicant was entitled to an order to preserve the status quo pending trial on the
merits.” Henderson v. KTRS, Inc., 822 S.W.2d 769, 773 (Tex. App.—Houston [1st Dist.] 1992,
no pet.). The trial court must state the reasons why it deems the temporary injunction
appropriate to prevent injury to the applicant. Id.
PRIOR RESTRAINT
In her first issue, Walls contends the following paragraphs of the temporary injunction
impose a prior restraint on her protected speech by commanding her to desist and refrain from:
(1) Communicating . . . with any person, entity, organization, agency or religious institution regarding or concerning Klein . . . concerning any allegation or matter set forth in the Agreement and any exhibits attached thereto, except as may be necessary to defend herself in this action, or to respond to an investigation by a governmental agency initiated by that agency; (2) Publishing or attempting to publish on any website, including but not limited to Facebook, any fictional narrative concerning or based, in whole or in part, on Klein, without his written consent or without leave of court; (3) Publishing to any third parties in any form or fashion any photographs or depictions of -4- 04-12-00615-CV
Klein, without his written consent or without leave of court; (4) Interfering with Klein’s personal, familial, or business relationships or the relationship between Klein and [his religious institution] by intentionally, knowingly, or recklessly making anonymous false complaints and reports to governmental, private, and religious regulatory agencies; . . . and (7) Disparaging and/or defaming Klein in any mode, form, or fashion whatsoever.
Walls cites and relies on Brammer v. KB Home Lone Star, L.P., 114 S.W.3d 101 (Tex.
App.—Austin 2003, no pet.) in which the Austin Court of Appeals held a temporary injunction
restraining defamatory speech was unconstitutional. Id. at 113–14. In concluding the Brammers
did not waive their free speech rights by signing an agreement not to disparage KB Home, the
court stated, “if free speech rights can be waived in Texas, a court must find clear and
convincing evidence that the waiver is knowing, voluntary and intelligent.” Id. at 110 (footnote
omitted). The court pointed out KB Home failed to present any evidence at the hearing on the
temporary injunction to show that when the Brammers signed the Agreement they “knowingly,
voluntarily, and intelligently agreed to waive the constitutional safeguards implicated by 1 defamatory or disparaging speech.” Id. The court took note that the Brammers themselves
never testified at the temporary injunction hearing. We believe the case before us is
distinguishable. Here, Walls testified at the hearing and indicated she had signed the Agreement:
The Court: Is this your mediated settlement agreement?
[Walls]: Yes, sir, it is.
1 The court in KB Home also emphasized the impact of public concern on its decision not to limit the Brammer’s disparaging speech. The court stated: “Regardless of the veracity of such disparagement, the criticism of the business can be reasonably related to social views that are strongly held by the speakers. Here, the Brammers spoke as members of a group advocating legislation to protect buyers of new homes from unscrupulous homebuilders, which arguably is an issue of public concern.” Brammer, 114 S.W.3d at 108. The court further stated: “Nonetheless, KB Home has not referred us to, nor have we located, a Texas case upholding a temporary injunction to enforce a contract like the one at issue here: a contract not to defame or disparage on issues that, arguably, are of social concern.” Id. at 109. There are no similar issues of social or public concern in the instant case. Here, the parties are persons, not businesses, and the Agreement was not to disparage on issues relating personally to the parties—issues that cannot be classified as those of social concern.
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The Court: And in this agreement did you and Mr. Klein reach any agreement regarding him staying away from you or you staying away from him or don’t disparage each other —
[Walls]: Not to disparage, yes, sir.
Walls also confirmed she received $30,000 in exchange for their agreement. This in-court
testimony, coupled with the language of the Agreement in which Walls agreed she was
“executing this Agreement voluntarily, with the benefit and advice of counsel, without any
duress, coercion, or undue influence,” leads us to conclude that Walls, unlike the Brammers in
KB Home, “knowingly, voluntarily, and intelligently agreed to waive the constitutional
safeguards implicated by defamatory or disparaging speech” against Klein when she signed the
Agreement. See id. at 110.
Having determined Walls voluntarily and knowingly entered into the Agreement to not
use disparaging speech against Klein, we must now determine whether the specific paragraphs in
the temporary injunction against Walls are overly broad. In French v. Community Broadcasting
of Coastal Bend, Inc., 766 S.W.2d 330 (Tex. App.—Corpus Christi 1989, writ dism’d w.o.j.), the
court held an injunction seeking to enforce a covenant not to compete was overly broad and,
therefore, improper. The court held: “The non-competition agreement in this case prohibited
French from entering into direct or indirect competition with CBCB. The injunction prohibited
French from engaging in activities well beyond the express prohibitions of the covenant.” Id. at
335–36. The court discussed how, even though the underlying covenant not to compete was
valid, the temporary injunction must be careful to prohibit only activities within the scope of that
covenant and not those only “marginally covered by it;” especially “[w]hen those marginally
prohibited activities are also activities that have strong constitutional . . . protection . . . .” Id. at
335. Accordingly, if paragraphs (1), (2), (3), (4), or (7) of the temporary injunction prohibit
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activity beyond the scope of the provisions she agreed to in the underlying Agreement they are
overly broad and, thus, are improper.
Walls agreed in the Settlement Agreement to “not disparage one another” and to “have no
further contact with each other in any form, their respective family members and close friends
. . . .” At the hearing, Klein entered into evidence a Facebook post created by Walls on May 30,
2012, after the Agreement was signed, that stated: “I am excited to begin a new art project
utilizing photographs and text. ‘Veracity of a Lush Life’ is a fictional narrative of a narcissistic,
passive-aggressive drug dealing prostitute named Samuel. Web site should be live soon.” Klein
testified at the hearing that he knew this referred to him and his friends knew it referred to him as
well. Klein has been the host of a radio show entitled “Lush Life” for eleven years and Klein
manages a Facebook page entitled “Lush Life” to promote his radio show. Additionally,
“Samuel” is the name of Klein’s father. Klein further testified he knew the photographs Walls
intended to use in her “art project” were of the two of them that had been taken in private while
they were still in a romantic relationship.
Clearly, posting a website with pictures of Klein in a “fictional narrative” about a
“narcissistic, passive-aggressive drug dealing prostitute” is disparaging to Klein. Walls
specifically agreed, in exchange for a substantial amount of money, “not to disparage” Klein. At
the hearing, Walls asserted Klein gave his permission to use the photographs in a “fictional
narrative.” However, the only question before the trial court was whether Klein was entitled to
an order to preserve the status quo pending trial on the merits. See Henderson, 822 S.W.2d at
773. Whether Klein gave permission is a question of fact to be addressed at the trial on the
merits. Before its resolution, the trial court’s temporary injunction serves to maintain the status
quo and prevent Walls from posting such potentially disparaging material in violation of the
Agreement. We therefore conclude the trial court did not abuse its discretion in ordering Walls -7- 04-12-00615-CV
to desist and refrain from the activities in paragraphs (2), (3), and (7) of the temporary injunction
because these activities are within the scope of the non-disparagement/non-contact provisions of
the underlying Agreement.
As to paragraph (4), Klein testified that Walls recently started attending the same
religious institution Klein had attended for the past fifteen years. After the Agreement was
signed, Walls continued to attend the same religious institution and, according to Klein, Walls
would attend every night Klein played in the band and stare at him in an uncomfortable fashion.
Klein testified this “was particularly unnerving and rattling” to him. Klein also testified Walls
urged the church leadership to prohibit Klein from working with the youth on any church trips by
filing complaints against Klein to the leadership, falsely accusing him of dealing drugs while his
child was in the house. Making accusations against Klein at his religious institution that he was
selling drugs with his child in the house, a crime for which Klein has not been charged, is an
attempt to disparage Klein to the leadership of his church. Accordingly, we conclude the
language in paragraph (4) of the temporary injunction prohibiting Walls from “[i]nterfering with
Klein’s personal, familial, or business relationships or the relationship between Klein and [his
religious institution] by intentionally, knowingly, or recklessly making anonymous false
complaints . . .” is within the scope of the Agreement and, therefore, was not overly broad.
Walls claims paragraph (1), prohibiting her from “[c]ommunicating . . . with any person
. . . regarding or concerning Klein . . .,” is overly broad in that it bars her “from communicating
with medical providers regarding the permanent injuries she suffered as a result of Appellee’s
sexual assault of her.” According to the record, this is in reference to a sexually transmitted
disease she allegedly received from Klein. We find no merit to her argument that paragraph (1)
restricts her from obtaining medical treatment. The trial court stated at the hearing, “I think its
clear to everybody in this court that the injunction was never intended for you not to -8- 04-12-00615-CV
communicate with your medical healthcare entities of any kind your condition or for treatment.”
We agree with the trial court and conclude appellant’s argument that paragraph (1) is overly
broad by prohibiting her from communicating with medical providers about treatment is without
merit.
Walls also claims paragraph (1) is “so overly broad and restrictive that it even forbids
[her] from communicating with law enforcement and governmental agencies regarding [Klein’s]
illegal activities.” Because the language of the injunction prohibits Walls from reporting any
illegal conduct by Klein that may be directed at her, we conclude this provision of the temporary
injunction is overly broad. It is within an appellate court’s discretion to modify an injunction
that is overbroad. Center for Econ. Justice v. Am. Ins. Ass’n, 39 S.W.3d 337, 347 (Tex. App.—
Austin 2001, no pet.). We hereby modify paragraph (1) of the injunction by adding the
following italicized language. Walls must desist and refrain from:
(1) Communicating, directly or indirectly, in any mode or fashion, with any person, entity, organization, agency or religious institution regarding or concerning Klein, including, without limitation, the use of anonymous email or other communications or communications through a third party, concerning any allegation or matter set forth in the Agreement and any exhibits attached thereto, except as may be necessary to defend herself in this action, or to respond to an investigation by a governmental agency initiated by that agency, or to report any truthful incidents of illegal conduct directed at her to law enforcement;
We conclude all the activities the trial court prohibited Walls from engaging in were
within the express non-contact and non-disparagement prohibitions of the Agreement and were
proper, with the exception of paragraph (1), which we conclude was overly broad and we have
modified.
SPECIFIC PERFORMANCE
Next, Walls contends the remedy of specific performance is not available in a suit for
breach of contract not to defame and, therefore, the temporary injunction should be dissolved. -9- 04-12-00615-CV
Walls argues in her brief: “Specific performance, as a matter of law, is not an available remedy
in a defamation suit because there is an adequate remedy at law by way of an action for monetary
damages.”
In the Agreement, Walls specifically agreed “not to disparage” Klein and the Agreement
clearly provided for specific performance as a means of enforcing the agreement: “In the event
any dispute concerning a right or obligation specifically created under the terms of this
Agreement arises, such right or obligation shall be enforceable in a court of equity by specific
performance.” We believe the temporary injunction was a proper means of maintaining the
status quo by enforcing the Agreement Walls and Klein agreed to pending a trial on the merits.
ABUSE OF DISCRETION
Finally, Walls argues the trial court abused its discretion in granting the temporary
injunction because Klein failed to show Walls posed an immediate threat of irreparable harm.
Walls contends the record shows “no evidence that [Klein] had lost any customers or was
physically harmed or threatened in any manner.”
To obtain a temporary injunction, an applicant must prove (1) a cause of action against
the defendant, (2) a probable right to the relief sought, and (3) a probable, imminent, and
irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
It is an abuse of discretion when the trial court misapplies the law to the established facts or if it
concludes the applicant has demonstrated a probable injury when that conclusion is not
reasonably supported by the evidence. Brammer, 114 S.W.3d at 106. An appellate 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. Butnaru, 84 S.W.3d at 204.
To enter a temporary injunction, the trial court must find a “probable, imminent, and
irreparable injury in the interim.” Id. (emphasis added). Walls’s argument that there was “no - 10 - 04-12-00615-CV
evidence that [Klein] had lost any customers or was physically harmed or threatened in any
manner” by her assumes the injury must have already occurred. However, the trial court only
need find a probable injury. A temporary injunction would serve no purpose if the injury must
have already occurred in order for it to be granted. See Henderson, 822 S.W.2d at 773 (citing
Transport Co. of Tex. v. Robertson Transp. Inc., 152 Tex. 551, 261 S.W.2d 549, 553 (1953))
(asserting purpose of temporary injunction is to maintain status quo and stating a trial court must
“state the reasons why the court deems it proper to issue the writ to prevent injury to the
applicant, including any reasons why the court believes the applicant’s probable rights will be
endangered if the writ is not issued”) (emphasis added).
Klein testified that Walls continued to attend the same religious institution as he, and she
had made false “accusations and threats” to the leadership regarding Klein’s behavior, and that
Walls had been escorted out of the religious institution due to her disruptive behavior. Klein
testified this had interfered with his relationships there to the extent that he had discontinued
attending. Klein also testified at the hearing and entered into evidence Walls’s comments on her
Facebook wall indicating her intention to publish a website containing photographs of Klein,
portraying him in a disparaging light as a “narcissistic, passive-aggressive drug dealing
prostitute.”
In the order granting a temporary injunction, the court found that without the temporary
injunction Walls would “thereby alter the status quo and tend to make ineffectual a judgment in
favor of Klein, in that the loss of his business, familial, and personal relationships, including the
religious institution of his choice . . . will damage Klein’s good will and existing and future
relationships with his clients, customers, son [sic] father, and other members of [his religious
institution], that such damage would be irreparable and inestimable, and that unless Walls is
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deterred from carrying out that intention, Klein will be without any adequate remedy at law for
his losses.”
On review of the evidence presented at the hearing indicating the website Walls
threatened to publish and demonstrating Klein had already been forced to stop attending his
religious institution due to Walls’s interference with his relationships there, we conclude the trial
court did not abuse its discretion in finding Walls posed a threat of immediate and irreparable
harm to Klein in the form of further damage to his reputation and relationships and thereby
granting the temporary injunction in Klein’s favor.
CONCLUSION
Based on the foregoing, we conclude (1) the temporary injunction did not constitute a
prior restraint on Walls, (2) the temporary injunction was a proper means of maintaining the
status quo pending trial, and (3) the trial court did not abuse its discretion in granting the
temporary injunction. However, because we conclude paragraph (1) of the temporary injunction
is overly broad, we modify it accordingly. We affirm.
Sandee Bryan Marion, Justice
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