Anwar Kazi, Zameer Sachedina, Rohit Sharma, and Wiseman Innovations, LLC. v. Mohammad Sohail ( 2022 )

AFFIRMED and Opinion Filed January 24, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00432-CV
ANWAR KAZI, ZAMEER SACHEDINA, ROHIT SHARMA, AND
WISEMAN INNOVATIONS, LLC., Appellants
V.
MOHAMMAD SOHAIL, Appellee
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-09713
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Garcia
Opinion by Justice Garcia
This is an accelerated interlocutory appeal from a temporary injunction
enjoining appellants from altering or silencing the testimony of witnesses and
potential witnesses in disputes involving Mohammad Sohail. In a single issue with
several subsidiary issues, appellants argue that the trial court abused its discretion
by entering the complained-of order. We disagree and affirm the trial court’s order.
I. BACKGROUND
Sohail is one of the founders of and former CEO and director of Wiseman
Innovations, LLC (“Wiseman”), a Texas company. Anwar Kazi is a member and
director of Wiseman, and a managing member and CEO of a related entity, Sybrid
Health, LLC. Zameer Sachedina and Rohit Sharma are Wiseman officers and
directors. Sohail, Kazi, Sachedina, and Sharma all reside in Texas.
In 2021, Sohail sued Wiseman, Kazi, Sachedina, and Sharma (collectively,
“appellants”) for fraud, fraudulent inducement, breach of contract, breach of
fiduciary duty, and abuse of process, requesting damages, declaratory relief,
recission, and specific performance. The lawsuit is premised on allegations that
appellants threatened Sohail and his family and lied to him to induce his
resignation and execution of a consulting agreement.
After the lawsuit was filed, appellants filed a criminal complaint against
Sohail and his brother in Pakistan and had Sohail’s brother arrested. Then,
appellants attempted to have two individuals, Sajid Fiaz and Waleed Khaled, (both
of whom reside in Pakistan) give false testimony against Sohail. Sohail sought a
temporary restraining order and a temporary injunction seeking an end to witness
intimidation. The TRO application was supported by statements from Fiaz and
Khaled describing the threats to bring criminal charges against them, harm their
family members, and in Khaled’s case to “make an example out of him.”
The trial court entered a TRO enjoining appellant from harassing,
intimidating, or influencing any witness or potential witness. In that order, the
court found that the TRO was necessary to preserve the status quo and avoid
imminent and irreparable harm.
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The court subsequently conducted a temporary injunction hearing. Fiaz
testified about threats made by appellants and their agents in Pakistan in an effort
to pressure him to lie and fabricate evidence against Sohail. Fiaz refused to “create
false evidence” against Sohail and resigned from Wiseman. Fiaz was terrified, was
so distressed that his blood pressure spiked, and he was hospitalized for two days.
Sharma and others from Wiseman continued to call Fiaz and said that helping them
was necessary to protect Fiaz’s family. The appellants told Fiaz about how they
created a criminal case against Khalid and “put him in a situation where [he] could
not find anyone to hire him in Islamabad and that he would soon “be on a [travel
restriction list]” and unable to travel anymore. The court’s summary of Fiaz’s
testimony is supported by the record:
Fiaz, was ordered to confirm and testify that he had helped Sohail
violate company protocols, steal confidential information, and gain
access to emails and data belonging to Sybrid Health, LLC, among
other things. Fiaz refused. When he did, Wiseman’s agents in Pakistan
and Mr. Sharma from the United States, threatened Mr. Fiaz and his
family. He was told that if he did not comply and say what they
wanted him to say about Sohail’s theft and access to emails, he too
would be made an example of like Waleed Khalid before him, and
that his safety was in danger and that of his family because “Wiseman
is very powerful” and “Sohail would not be able to protect [him].”
Instead, they promised they would “protect him” if he simply “told the
truth” — which meant making allegations that Mr. Fiaz believed were
false. Mr. Fiaz had to be taken to the hospital emergency room to
quell his panic over these threats. He was then threatened again that
he would go to “Jenna" which means heaven. He resigned via letter to
the Board of Wiseman, citing these threats and his unwillingness to lie
in order to support the false accusations against Mr. Sohail. He asked
that he only be contacted through counsel, and not directly. But
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Defendants continued to contact him directly and withheld
compensation due him.
The court found Fiaz’s testimony “credible enough to raise a serious concern
that the judicial process needs to be protected from this type of interference,” and
“an assault on witnesses whose testimony stands to be compromised or spoliated,
which the Court deems a grave assault on both the integrity of the judicial process
as well as on its jurisdiction over the matters before it.” Finding that the requested
injunctive relief was available as an equitable remedy through the court’s inherent
power and was necessary “to protect the integrity of the judicial process and [the]
court’s jurisdiction,” the trial court entered the temporary injunction order that is
the subject of this appeal.
II. ANALYSIS
Appellants argue that the trial court abused its discretion by entering the
temporary injunction because: (i) it fails to adequately specify the individuals
appellants are enjoined from harassing or intimidating, (ii) it is overly broad
because it enjoins lawful activity, including legitimate business communications,
and is therefore an unconstitutional prior restraint on speech, (iii) appellee failed to
show a probable right to relief and irreparable harm, (iv) the order improperly
includes a non-party who was not served with notice of the hearing, and (v) the
injunction violates principles of international comity by hindering a criminal
investigation in Pakistan.
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A. Standard of Review and Applicable Law
Whether to grant a permanent or temporary injunction is ordinarily within
the sound discretion of the trial court and, on appeal, review of the trial court’s
action is limited to the question of whether the action constituted a clear abuse of
discretion. Computek Computer & Office Supplies Inc. v. Walton, 156 S.W.3d 217,
220 (Tex. App.—Dallas 2005, no pet.). Because an injunction is an equitable
remedy, a trial court weighs the respective conveniences and hardships of the
parties and balances the equities. Hitt v. Mabry, 687 S.W.2d 791, 792 (Tex. App.—
San Antonio 1985, no writ). “We limit the scope of our review to the validity of
the order, without reviewing or deciding the underlying merits, and will not disturb
the order unless it is so arbitrary that it exceeds the bounds of reasonable
discretion.” Henry v. Cox, 520 S.W.3d 28, 33–34 (Tex. 2017) (internal quotes and
footnotes omitted).
A temporary injunction’s purpose is to preserve the status quo of the
litigation’s subject matter pending a trial on the merits.” TMC Worldwide, L.P. v.
Gray, 178 S.W.3d 29, 36 (Tex. App.—Houston [1st Dist.] 2005, no pet.). To
obtain a temporary injunction, an applicant must plead and prove three 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. Butnaru v. Ford
Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). An injury is irreparable if the injured
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party cannot be adequately compensated in damages or if the damages cannot be
measured by any certain pecuniary standard. TMC Worldwide, 178 S.W.3d at 36.
B. Is the Injunction Impermissibly Vague in Violation of Rule 683’s
Specificity Requirements?
Appellants argue that the temporary injunction fails to meet Rule 683’s
specificity requirements because it “imposes sweeping restrictions on
communications with persons not named or even adequately described,” and is
therefore impermissibly vague. In essence, appellants complain that the injunction
fails to identify the witnesses and prospective witnesses they are enjoined from
harassing.
Rule 683 of the Texas Rules of Civil Procedure set forth various
requirements of a temporary injunction. The rule provides, in part, as follows:
Every order granting an injunction . . . shall set forth the reasons for
its issuance; shall be specific in terms; shall describe in reasonable
detail and not by reference to the complaint or other document, the act
or acts sought to be restrained; and is binding only upon the parties to
the action, their officers, agents, servants, employees, and attorneys,
and upon those persons in active concert or participation with them
who receive actual notice of the order by personal service or
otherwise.
TEX. R. CIV. P. 683. Accordingly, every order granting an injunction must be
specific in its terms and describe the acts sought to be restrained in reasonable
detail. See TEX. R. CIV. P. 683; Lagos v. Plano Economic Dev. Bd., Inc., 378
S.W.3d 647, 650 (Tex. App.—Dallas 2012, no pet.). The purpose of rule 683’s
specificity requirement is to ensure that parties are adequately informed of the acts
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they are enjoined from doing and the reasons for the injunction. Miller v. Talley
Dunn Gallery, LLC, No. 05-15-00444-CV, 2016 WL 836775, at *5 (Tex. App.—
Dallas Mar. 3, 2016, no pet.) (mem. op); El Tacaso, Inc. v. Jireh Star, Inc., 356
S.W.3d 740, 744 (Tex. App.—Dallas 2011, no pet.). A trial court abuses its
discretion by issuing a temporary injunction order that does not comply with the
requirements of rule 683. Indep. Capital Mgmt., L.L.C. v. Collins, 261 S.W.3d 792,
795 (Tex. App.—Dallas 2008, no pet.).
At first blush and viewed in isolation, enjoining conduct relating to unnamed
“witnesses” and “potential witnesses” may appear somewhat vague. But when the
order’s language is read in context, particularly regarding the prohibited behavior,
the meaning is specific and clear. Do not engage in unlawful acts. Specifically, the
order enjoins appellants, their principles, agents, employees, and representatives,
and those acting in concert with them from “engaging in conduct to alter or
silence the testimony of a witness or prospective witness in any dispute
involving . . . Sohail” including, but not limited to:
• trying to bribe a witness prospective witness with money or gifts to
influence his/her testimony.
• persuading a witness/ prospective witness to testify falsely
and/or withhold testimony, information or documents.
• persuading a witness/prospective witness to elude legal process
summoning the witness to testify or supply evidence.
• persuading the witness/prospective witness to be “absent “from
an official proceeding to which the witness has been legally
summoned.
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• threatening to take away or take custody of the witnesses’ or
prospective witnesses’ children.
• threatening to harm the witness’ /or prospective witness’ family
if they testify.
• sending threatening or intimidating message(s) to a
witness/prospective witness in an effort to prevent or influence
testimony.
• threatening physical force to keep a witness/prospective witness
from testifying.
• blackmailing a witness/prospective witness in an attempt to
prevent or influence their testimony.
• using social media to intimidate or frighten a
witness/prospective witness.
(Emphasis added). This prohibited conduct pertains to unlawful acts. 1 Hopefully,
appellants do not mean to suggest that if the order named witnesses and potential
witnesses, they would otherwise be free to intimidate, coerce, blackmail, or
otherwise harm individuals who are not named. No court could condone such
untenable conduct, and we are disinclined to condemn an order’s specificity so that
appellants may identify persons they are permitted to harass.
Appellants rely on Computek Computer & Office Supplies v. Waldren, 156
S.W.3d 217, 223 (Tex. App.—Dallas 2005, no pet.), Retail Svs. WIS Corp. v.
Crossmark, Inc., No. 05-20-00937-CV, 2021 WL 1747033, at *12–14 (Tex.
App.— Dallas May 4, 2021, pet. denied) (mem. op.), and In re Krueger, No. 03-
1
Appellants concede that “most” of these activities are illegal but claim that enjoining them from
engaging in illegal activity harms their business reputation.
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12-00838-CV, 2013 WL 2157765, at *9 (Tex. App.—Austin May 16, 2013, no
pet.) (mem. op.) to argue that witnesses and potential witnesses must be named. As
a sister court has recognized, the issue of how an injunction order prohibiting a
class of persons from contacting or dealing with another class of persons should
identify the persons who fall within this class frequently arises in cases enforcing
noncompete clauses. See Hernandez v. Combined Insurance Co. of America, No.
02-20-00225-CV, 2021 WL 520456, at *22 (Tex. App.—Fort Worth Feb. 11,
2021, pet. denied) (mem. op.). But these types of cases, including those cited by
appellants, do not inform our analysis here.
In Computek, OEM Supplies (OEM) and Michael Williams (Computek’s
owner), were opposing parties in litigation involving Computek’s alleged use of
trade secrets to form a competing company in violation of a covenant not to
compete. Id. at 219–20. Computek had been permanently enjoined “from doing
business, or authorizing anyone else to do business, with any OEM client not listed
on Attachment A or that was a new account set up while Williams worked for
OEM.” Id. at 221. Although Attachment A listed some clients whom Computek
could contact, the injunction did not name or otherwise identify the clients whom
Computek could not contact. Id. Computek contended that due to this lack of
specificity, it could not know whether contacting certain clients violated the
injunction. Id. at 221–22. We agreed, explaining that:
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[T]hese paragraphs [of the injunction] enjoin Computek from taking
specific actions involving specific OEM clients who are not identified
or listed in the permanent injunction, and from using or disclosing
information and files that are not specifically identified in the
permanent injunction. Because these OEM clients are not specifically
named, we agree with Computek that it must ask every non-ABBA
contact it makes whether it was an OEM client during the relevant
times, and that question may be construed as “canvassing” or
“soliciting,” and thus a violation of the permanent injunction. We
agree with Computek that the permanent injunction lacks specificity
in this regard.
Id. at 222.
Similarly, in Retail Services, we concluded that several aspects of the
injunction lacked specificity. Retail Svs., 2021 WL 1747033 at *12-14. For
example, the order defined “covered clients customers” as “those persons or
entities that Crossmark provided services to and that the Former Employees either
had contact with, or received proprietary information about . . . .” Id. at *13. We
concluded that the meaning of “had contact with” was unclear and the definition
did not address how Retail Services would know whom the supervised employees
“had contact with.” Id. We also concluded that a provision enjoining Retail
Services from recruiting “any persons formerly or currently employed by or
associated with Crossmark” lack specificity because “associated with” was
undefined. Id.
The Krueger court also found that the injunction lacked specificity because
it did not inform Krueger who he was allowed to contact and who he was enjoined
from contacting. Krueger, 2013 Wl 2157765, at *9. As the court observed, “[T]he
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obvious purpose of [Rule 683] is to adequately inform a party of what he is
enjoined from doing and the reason why he is so enjoined.” Id. at *5, (citing El
Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 744 (Tex. App.—Dallas 2011, no
pet.)
There are several critical distinctions between the cited cases and the present
case. Indeed, as the trial court recognized, the circumstances here are disturbing
and unique and constitute a serious affront to the integrity of the judicial process.
First, the foregoing cases involved legal activity whereas the injunction here
enjoins appellants from engaging in activities the law forbids. See TEX. PENAL
CODE ANN. §36.05(e-3) (criminalizing witness intimidation); TEX. PENAL CODE
ANN. § 37.09 (crime of fabricating evidence); TEX. PENAL CODE ANN. §
37.02(a)(1) (perjury); see also Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 24
(Tex. 2014) (discussing spoliation of evidence). In the cited cases, the courts
focused on the specificity of language enjoining legitimate business activity. It is
axiomatic that the purpose of Rule 683’s specificity requirement is to make clear
what parties can and cannot do in the context of what the law otherwise allows.
Enjoining illegal activity involving witnesses and potential witnesses does not run
afoul of this requirement.
Moreover, the injunctions at issue in the cases appellants cite were not
deemed insufficiently specific merely because the order described individuals by
category or role rather than name. Instead, the orders were not sufficiently specific
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because the meaning and definitions of the categories were unclear. See Computek,
156 S.W.3d at 221–222; Retail Svs., 2021 WL 1747033, at *12–14. There is no
such absence of clarity here.
Nothing in Rule 683 mandates that individuals be specifically named. In
fact, courts have affirmed injunctions identifying only categories or classes of
persons to whom the order applies. See In re S.V., No. 05-18-00037-CV, 2019 WL
516730, at *9 (Tex. App.—Dallas Feb. 11, 2019, no pet.) (mem. op.) (affirming
permanent injunction enjoying father from contacting children’s “teachers” or
“coaches” who were not named).
The injunction spells out the details of compliance in clear, specific, and
unambiguous terms so that appellant can readily ascertain the duties and
obligations imposed on them. See Drew v Unauthorized Practice of Law Comm.,
970 S.W.2d 152, 156 (Tex. App.—Austin 1998, pet. denied). Accordingly, we
cannot conclude that the temporary injunction fails to comply with Rule 683’s
specificity requirements.
C. Is the Injunction Overly Broad?
Appellants also complain that the injunction is overly broad because it
imposes a constitutionally impermissible prior restraint on communications
undertaken for legitimate business purposes. We disagree.
An injunction must be as definite, clear, and precise as possible and when
practicable it should inform the defendant of the acts he is restrained from doing.
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San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 291 S.W.2d 697, 702
(Tex. 1956). But it must be in sufficiently broad terms to prevent repetition of the
evil sought to be stopped. Id. An injunction “must not be so broad as to enjoin a
defendant from activities which are a lawful and proper exercise of his rights.” Hitt
v. Mabry, 687 S.W.2d 791, 795 (Tex. App.—San Antonio 1985, no writ).
Regarding the illegal conduct enjoined, appellants have not identified, nor
are we aware of any authority recognizing a right, constitutional or otherwise, to
engage in illegal activity. Nor can such activity be reasonably described as a
legitimate business purpose.
The order also prohibits communicating directly with witnesses and
potential witnesses about any dispute with Sohail without counsel present.
Appellants do not specifically complain that the “any dispute” verbiage is vague.
Rather, they challenge only the reference to witnesses and potential witnesses,
insisting that these categories of persons could potentially include all employees of
Wiseman’s Pakistani affiliate as well as non-employee business associates who
may have had contact with Sohail. The record does not reflect whether the
Pakistani affiliate has many or just a few employees, so it is impossible to ascertain
the significance of this application. Regardless, the order does not prohibit all
communication; it relates only to communication about Sohail disputes when that
communication is with someone who is or may be a witness. Moreover, it does not
forbid such communication; it requires that counsel be present when such
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communication occurs. The order does not, as appellants suggest, include every
non-employee who merely had contact with Sohail. Rather, such communications
fall within the scope of the order to the extent that they involve communication
about Sohail disputes. Further, as active participants in the litigation, appellants
cannot reasonably claim they are not well-positioned to know who is or may be a
witness in these disputes.
The trial court found that the evidence of harassing, intimidating, and
threatening the safety of witnesses and potential witnesses and their families was
credible. Requiring counsel’s presence for future witness communications is not
arbitrary or unreasonable, and in fact, can reasonably be viewed as designed to
hinder future “calculated [efforts] to circumvent the law.” San Antonio Bar Ass’n,
291 S.W.2d at 702. Given the gravity of the situation and the evidence
demonstrating the necessity of deterring future misconduct, the breadth of the
order was required to prevent repetition of the evil sought to be stopped, See id.,
but is not so broad as to prevent appellants’ lawful exercise of legitimate rights.
D. Probable right to Relief/Eminent Harm/Adequate Remedies
Appellants argue that there was insufficient evidence to establish a probable
right to recovery, or a probable, irreparable, and imminent injury. They further
argue that injunctive relief was not appropriate because Sohail has adequate legal
remedies. These arguments are not persuasive.
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1. Injury
We begin with probable, irreparable, and imminent injury. As the trial court
noted, the request for injunctive relief was atypical in that it was not a request to
preserve the subject matter of the litigation, but rather, a request to protect the
integrity of the judicial process itself. Based on the evidence, the trial court found
that the requested relief was available through the court’s inherent power to protect
the integrity of the judicial process and the court’s jurisdiction.
There is no question that the court has such inherent power. As this court
has explained:
A court does not derive its inherent judicial power from legislative
grant or specific constitutional provision but from the very fact that
the state constitution has created and charged the court with certain
duties and responsibilities. The inherent powers of a court are those
that it may call upon to aid in the exercise of its jurisdiction, in the
administration of justice, and in the preservation of its independence
and integrity.
Greiner v. Jameson, 865 S.W.2d 493, 498–99 (Tex. App.—Dallas 1993, writ
denied); see also Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979).
Accordingly, trial courts may exercise their inherent power to deter, alleviate, and
counteract any significant interference with their core functions. Davis v. Rupe,
307 S.W.3d 528, 531 (Tex. App.—Dallas 2010, no pet.).
The court found that intimidating witnesses and suborning perjury is a
species of spoliation because it is an attempt to destroy evidence. We agree. The
destruction of potentially relevant evidence “clearly inhibits courts’ ability to hear
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evidence and accurately determine facts,” and absent the inherent power to protect
against such destruction, courts “would be unable to ensure the proper
administration of justice.” Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998).
Moreover, “there is no one remedy for every incidence of spoliation; the trial court
must respond appropriately based upon the facts of each individual case.” Id. at
953. In instances where Rule 215 sanctions may not apply, courts have inherent
power to take action that will “aid in the exercise of its jurisdiction, in the
administration of justice, and in the preservation of its independence and integrity.”
Id. at 958, (Baker, J. concurring).
Here, the court found there was credible evidence of contumacious conduct
undermining the integrity of the judicial process and the court’s jurisdiction. It is
difficult to imagine more express examples of an attempt to subvert the integrity of
the judicial process than witness intimidation and efforts to suborn perjury.
“Coercing or seeking to obtain or manufacture false testimony strikes at the heart
of the judicial system. Lying cannot be condoned in any formal proceeding . . . Our
legal system is dependent on the willingness of the litigants to allow an honest and
true airing of the facts.” Young v. Office if the United States Senate Sergeant at
Arms, 217 F.R.D. 61, 71 (D.D.C. 2003). The trial court correctly concluded that
such calculating attempts to strip the judicial process of the very fiber that makes it
function properly constitutes irreparable harm, not only to Sohail, but to the entire
process.
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2. Right to relief
Next, we examine whether Sohail established a probable right to relief.
Appellants argue that Sohail cannot establish a probable right to recovery because
the equitable relief does not follow from any of his causes of action. See Abbott v.
Anti-Defamation League Austin, Sw. & Texoma Regions, 610 S.W.3d 911, 917
(Tex. 2020) (plaintiff must demonstrate claims will probably succeed on merits).
Citing All. Royalties, LLC v. Boothe, 313 S.W.3d 493, 497 (Tex. App.—
Dallas 2010, no pet.), appellants argue that there must be some connection between
the claims alleged and the conduct sought to be enjoined. We agree with this
general proposition but note that Boothe is unlike this case. In Boothe, our court
concluded that the court abused its discretion by enjoining the termination of a
contract with a third-party in an interpleader action because the contract was not in
any way related to the pleaded claims. In this case, however, Sohail asserted claims
for fraud, fraudulent inducement, breach of contract, breach of fiduciary duty,
corporate waste, and abuse of process arising out of appellants alleged scheme to
cheat him out of his job, investment, and role at the company and induce him to
sign a consulting agreement. The trial court found that plaintiff stated a cause of
action, established a probability of prevailing on the merits of at least one of his
underlying claims and that Sohail proffered evidence that he was forced to resign
under duress. This forced resignation goes to the heart of Sohail’s claims.
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We review the evidence in the light most favorable to the trial court’s order,
indulging every reasonable inference in its favor. See Inst. Securities v. Hood, 390
S.W.3d 680, 682 (Tex. App.—Dallas 2012, no pet.). The trial court has broad
discretion in determining whether the pleadings and evidence support a temporary
injunction. Intercontinental Terminals Co., LLC v. Vopak N. Am. Inc., 354 S.W.3d
887, 895–96 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The integrity of the
legal process is necessary to properly dispose of both parties’ claims and defenses.
As the injunction serves to protect that process, there was no abuse of that
discretion here.
3. Adequate remedy at law
We next consider whether Sohail has an adequate remedy at law. “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.” Butnaru, 84 S.W.3d at 210.
“The party requesting the injunction has the burden to establish that there is no
adequate remedy at law for damages.” Reach Grp., L.L.C. v. Angelina Grp., 173
S.W.3d 834, 838 (Tex. App.—Houston [14th Dist.] 2005, no pet.). “An adequate
remedy at law is one that is as complete, practical, and efficient to the prompt
administration of justice as is equitable relief.” Cardinal Health Staffing Network,
Inc. v. Bowen, 106 S.W.3d 230, 235 (Tex. App.—Houston [1st Dist.] 2003, no
pet.) “An injunction will not issue if damages are sufficient to compensate the
plaintiff for any wrong committed by the defendant and if the damages are subject
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to measurement by an ascertainable pecuniary standard.” Tom James Co. v.
Mendrop, 819 S.W.2d 251, 253 (Tex. App.—Fort Worth 1991, no writ).
Appellants do not identify any damage remedies that might be available for
witness tampering and disruption of the judicial process. They nonetheless insist
that there are adequate legal remedies to address any future misconduct in the form
of sanctions or an order of contempt. This argument presupposes that such conduct
would be discoverable and capable of being proved. See e.g., Hogg v. Lynch,
Chappell, & Alsup, P.C., 553 S.W.3d 55, 68 (Tex. App.—El Paso 2018, no pet.)
(party cannot be sanctioned for failing to produce evidence if there is no proof that
it existed). It also ignores that the court found witness intimidation has already
occurred, and that judicial action was necessary to prevent subsequent occurrences.
It makes little sense to require further misconduct before a court is permitted take
remedial steps to safeguard the integrity of the process, particularly since the
purpose of injunctive relief is to “preserve the status quo of the litigation’s subject
matter pending a trial on the merits.” Butnaru, 84 S.W.3d at 204.
The purpose of spoliation sanctions is to “impose an appropriate remedy so
that the parties are restored to a rough approximation of what their positions would
have been were the evidence available.” Brookshire Bros., 438 S.W.3d at 18.
Appellants offer no explanation as to how Sohail might be restored to his former
position if witnesses have altered their testimony or have been so intimidated that
they do not testify at all. Under the circumstances present here, the trial court did
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not abuse its discretion in concluding that there was no adequate legal remedy to
address any recurring bad behavior and the resulting distortion of the judicial
process.
E. Enjoining the Nonparty Entity
Appellants also argue that the temporary injunction is void as to non-party
Sybrid because there is no evidence that it had notice of the hearing or the
temporary restraining order or that it was “in active concert or participation” with
the noticed parties.
Rule 683 identifies specific categories of persons, according to their
relationship to the named defendants, against whom the temporary injunction may
be enforced. These include the “officers, agents, servants, employees, and
attorneys” of the named defendants. TEX. R. CIV. P. 683. Rule 683 also contains a
general category of persons who can be brought within the temporary injunction’s
enforcement: “those persons in active concert or participation with them [the
named defendants] who receive actual notice of the order by personal service or
otherwise.” Id. (Emphasis added).
We reject appellants’ argument concerning Sybrid’s notice of the hearing.
The rule requires actual notice of the injunction order itself, not the hearing. See id.
Similarly, nothing in the rule requires that Sybrid have notice of the TRO, a prior
order in which it was not named; the notice requirement pertains to the temporary
injunction order enjoining Sybrid.
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We also reject appellant’s contention that there is no evidence that Sybrid
acts in concert with Wiseman. The record reflects that Wiseman was spun off from
Sybrid in 2017, and Sybrid is one of Wiseman’s members. Sybrid and Wiseman
are both controlled by the same member majority, and Kazi is Sybrid’s CEO. One
of Fiaz’s sworn statements said he had been informed that Wiseman’s executives
planned to take action against him through Sybrid or its affiliates in Pakistan. This
is sufficient to meet the “active concert or participation with” aspect of the rule.
See e.g., Hsin-Chi-Su v. Vantage Drilling Co., 474 S.W.3d 284, 296 (Tex. App.—
Houston [14th Dist.] 2015, pet. denied) (corporation acting in concert with named
party who was corporation’s sole director, shareholder, and officer); Huynh v.
Blanchard, No. 12-20-00198-CV, 2021 WL 3265549, at *9 (Tex. App.—Tyler
July 30, 2021, pet. filed) (mem. op.) (record demonstrated that appellants were
either officers, agents, servants, employees, or persons in active concert with
parties).
F. International Comity
Appellants further argue that the order violates principles of international
comity because it inhibits Pakistani authorities from conducting an ongoing
investigation. Appellants’ argument is misplaced.
As the Texas Supreme Court has explained:
‘Comity,’ in the legal sense, is neither a matter of absolute obligation,
on the one hand, nor of mere courtesy and good will, upon the other.
But it is the recognition which one nation allows within its territory to
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the legislative, executive or judicial acts of another nation, having due
regard both to international duty and convenience, and to the rights of
its own citizens, or of other persons who are under the protection of its
laws.
Gannon v. Payne, 706 S.W.2d 304, 306 (Tex. 1986). Appellants offer no
explanation as to how the prohibition against bribing, harming, and intimidating
witnesses and potential witnesses involved a Texas judicial proceeding interferes
with official legislative, judicial, or executive acts in Pakistan or impedes a
criminal investigation. 2 Contrary to appellants’ suggestion, the Texas lawsuit does
not concern a foreign nation, but rather involves Texas parties, including a Texas
company, and some witnesses who reside abroad. Moreover, while we do not
underestimate the need for courts’ actions to advance the rule of law among
nations, the integrity of the judicial process in this country is our foremost concern.
The trial court’s order here expressed concern for and was specifically tailored to
maintain the integrity of that process in this lawsuit.
2
In addition, while appellants do not suggest that any investigating Pakistani officials are witnesses
or potential witnesses, to the extent that they may be because the investigation involves communication
about appellants’ disputes with Sohail, appellants have not explained how counsel’s presence would in
any way impede that investigation or process.
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III. CONCLUSION
Having resolved appellants’ issue and subsidiary arguments against them,
we affirm the trial court’s order.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
210432F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANWAR KAZI, ZAMEER On Appeal from the 101st Judicial
SACHEDINA, ROHIT SHARMA, District Court, Dallas County, Texas
AND WISEMAN INNOVATIONS, Trial Court Cause No. DC-20-09713.
LLC., Appellants Opinion delivered by Justice Garcia.
Justices Myers and Molberg
No. 05-21-00432-CV V. participating.
MOHAMMAD SOHAIL, Appellee
In accordance with this Court’s opinion of this date, the trial court’s order is
AFFIRMED.
It is ORDERED that appellee MOHAMMAD SOHAIL recover his costs of
this appeal from appellant ANWAR KAZI, ZAMEER SACHEDINA, ROHIT
SHARMA, AND WISEMAN INNOVATIONS, LLC..
Judgment entered January 24, 2022.
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