978-1285770178 Case Printout Case CPC-01-05

Tex.App.–Tyler,2011.

Kejzar Motors, Inc. v. Kubota Tractor Corp.

334 S.W.3d 351 Court of Appeals of Texas,

To obtain a temporary injunction, the applicant must plead a cause of action and show a probable right to the re-

lief he seeks, and probable, imminent, and irreparable injury in the interim.

[3] Injunction 212 138.18

212 Injunction

212IV Preliminary and Interlocutory Injunctions

212IV(A) Grounds and Proceedings to Procure

212IV(A)2 Grounds and Objections

212k138.18 k. Likelihood of success on merits. Most Cited Cases

212IV(A) Grounds and Proceedings to Procure

212IV(A)1 In General

212k135 k. Discretion of court. Most Cited Cases

Whether to grant or deny a temporary injunction is within the trial court’s sound discretion.

30k954 Injunction

30k954(1) k. In general. Most Cited Cases

Appeal and Error 30 954(2)

The appellate court limits its review of the grant or denial of a temporary injunction to whether there has been a

clear abuse of discretion, and the appellate court may not substitute its judgment for that of the trial court; the appel-

late court merely determines whether the trial court’s action was so arbitrary as to exceed the bounds of reasonable

discretion.

157XI(A) Contradicting, Varying, or Adding to Terms of Written Instrument

157k397 Contracts in General

157 Evidence

157XI Parol or Extrinsic Evidence Affecting Writings

157XI(D) Construction or Application of Language of Written Instrument

157k449 Nature of Ambiguity or Uncertainty in Instrument

157k450 In General

[11] Antitrust and Trade Regulation 29T 265

29T Antitrust and Trade Regulation

29TIII Statutory Unfair Trade Practices and Consumer Protection

Agreements Act (TBOA) prohibiting a supplier from substantially changing the competitive circumstances of a

dealer agreement without cause; in their dealer agreement between plaintiff and defendant, defendant reserved the

right, in its sole discretion, to directly or indirectly sell products to others and to enter into dealer agreements with

others at any location within or without the locale wherein plaintiff maintained its retail stores. V.T.C.A., Bus. & C.

§ 55.052.

29TIII(E)7 Relief

29Tk380 Injunction

29Tk383 Preliminary or Temporary Relief, Grounds, Subjects, and Scope

29Tk383(2) k. Particular cases. Most Cited Cases

Assuming that the provision of the Texas Business Opportunities and Agreements Act (TBOA) prohibiting a

statute meaningless. In its fifth issue, Eastex asserts that the trial court erred in not considering extrinsic evidence in

deciding whether Kubota substantially changed the Dealer Agreement.

Standard of Review

[1][2][3][4][5][6] In an interlocutory appeal from a ruling on an application for a temporary injunction, we do

tion. Id. We may not substitute our judgment for that of the trial court; we merely determine whether the court’s ac–

tion was so arbitrary as to exceed the bounds of reasonable discretion. Id. The trial court abuses its discretion when

it misapplies the law to the established facts, or when the evidence does not reasonably support the conclusion that

the applicant has a probable right of recovery. Sw. Bell Tel. Co., 526 S.W.2d at 528.

damages. Id. § 55.201.

Analysis

The trial court determined that, as a matter of law, Eastex does not have a probable right to recover under Sec–

tion 55.052 “because the Dealership Agreement, which has an entirety clause, unambiguously provides Eastex with

tract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the cir–

cumstances present when the contract was entered. Sacks v. Haden, 266 S.W.3d 447, 451 (Tex.2008). A contract is

not ambiguous if a court can give the contract a definite or certain meaning as a matter of law. Columbia Gas

Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). If a written contract’s terms are unam-

biguous, then parol evidence is inadmissible to vary, add to, or contradict its terms. Sun Oil Co. v. Madeley, 626

at the location(s) set forth on the first page … of this Agreement” and “shall focus the sales, service, and marketing

efforts for the Retail Store(s) in the Local Market(s).” Eastex argues that evidence related to the local market was

needed to determine the competitive circumstances of the dealer agreement. Eastex further argues that evidence of

the local market is important because it provides the baseline for evaluating the substantiality of the change in com-

petitive circumstances that will occur when Kubota authorizes placement of a new dealer in Eastex’s local market.

[10] The Dealer Agreement, however, is written in such a way that it can be given a definite meaning without a

definition or explanation of what the parties reasonably believed to be Eastex’s local market. Paragraph 1.A. of the

Dealer Agreement provides that Kubota “reserves the right, in its sole discretion, to directly or indirectly sell Prod-

ucts to others and to enter into Dealer Sales and Service Agreements with others at any location within or without

the locale wherein [Eastex] maintains the Retail store(s).” Regardless of what constituted Eastex‘s local market, Ku-

bota had the right to enter into a dealer agreement with others at any location. We agree with the trial court’s deter-

mination that the Dealer Agreement is not ambiguous. See New Ulm Gas, Ltd., 940 S.W.2d at 589. Furthermore, as

there was no change in the competitive circumstances of the Dealer Agreement, the necessity for a baseline for eval-

uating the substantiality of a change never arises. The trial court did not err in not considering extrinsic evidence in

right to enter into dealer agreements “with others at any location within or without the locale wherein [Eastex] main-

tains” its stores. Kubota’s right to do so is part of the competitive circumstances contemplated by their Dealer

Agreement. See Freightliner of Knoxville, Inc. v. DaimlerChrysler Vans, LLC, 484 F.3d 865, 869–70 (6th Cir.2007)

(business relationship between supplier and dealer did not amount to a change in the competitive circumstances of

the agreement in violation of statute where the relationship was anticipated by the dealer agreement).

Eastex’s “destruction” and constitute a de facto termination of the Dealer Agreement by Kubota due to loss of busi-

ness. Eastex claims that it presented evidence predicting that “the gross margin would drop significantly” if a new

Kubota dealer opened in Lufkin. In its brief, Eastex refers to its own evidence as “common-sense assumptions.”

One of the owners of Eastex testified that Eastex was currently operating “at break even” and that it would not

did not show that placement of a new Kubota dealer in Lufkin would constitute a constructive termination of the

Dealer Agreement. Faced with conflicting evidence, the trial court did not abuse its discretion in determining that

Eastex did not prove a probable right of recovery under Section 55.056.

The trial court’s ruling is not, as Eastex claims, a declaration that the Dealer Agreement trumps the statute. Un-

der the facts of this case, the statute is not implicated and cannot be used to alter the terms of the parties‘ binding

Parol evidence was inadmissible to vary the terms of the unambiguous Dealer Agreement. Eastex has not shown

a probable right of recovery. Therefore, the trial court did not abuse its discretion in denying Eastex’s application for

a temporary injunction. We need not reach the remainder of Eastex’s issues. See TEX.R.APP. P. 47.1.

We affirm the trial court’s order denying Eastex’s application for a temporary injunction.