ACCEPTED
`13-23-00272-cv
`THIRTEENTH COURT OF APPEALS
`CORPUS CHRISTI, TEXAS
`8/21/2023 3:31 PM
`Kathy S. Mills
`CLERK
`
`CAUSE NO. 13-23-00272-CV
`
`IN THE THIRTEENTH DISTRICT COURT OF APPEALS
`CORPUS CHRISTI - EDINBURG, TEXAS
`
`Novus Prime Properties, LLC v. Space Exploration Technologies Corp.
`
`APPELLANT’S BRIEF
`
`ON APPEAL FROM THE 107th JUDICIAL DISTRICT COURT OF
`CAMERON COUNTY, TEXAS
`HONORABLE BENJAMIN EURESTI, JR., JUDGE PRESIDING
`
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`Tomas Tijerina
`Attorney
`State Bar No. 24070746
`MARTINEZ/TIJERINA, PLLC.
`1201 E. Van Buren
`Brownsville, TX 78520
`P: (956) 546-7159
`F: (956) 544-0602
`E: ttijerina@mbmtlawfirm.com
`
`
`
`Gustavo A. Grajales
`
`
`Attorney
`
`
`
`State Bar No. 24104715
`
`THE LAW OFFICES OF
`GUSTAVO A. GRAJALES, PLLC.
`905 E. Los Ebanos Blvd. Suite D
`Brownsville, Texas 78520
`
`P: (956) 280-5787
`
`
`E: gusgrajaleslaw@gmail.com
`
`Benigno (Trey) Martinez
`Attorney
`State Bar No. 00797011
`MARTINEZ/TIJERINA, PLLC
`1201 E. Van Buren
`Brownsville, Texas 78520
`P: (956) 546-7159
`F: (956) 544-0602
`E:trey@mbmtlawfirm.com
`
`Counsel for Appellant
`
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`ARGUMENT REQUESTED
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`i
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` FILED IN
`
` 13th COURT OF APPEALS
`
`CORPUS CHRISTI/EDINBURG, TEXAS
`
` 8/21/2023 3:31:07 PM
`
` KATHY S. MILLS
`
` Clerk
`
`

`

`IDENTIFICATION OF THE PARTIES AND COUNSEL
`
`
`
`Appellant:
`
`Appellant’s Trial Counsel:
`
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`NOVUS PRIME PROPERTIES, LLC.
`
`Hon. Tomas F. Tijerina
`State Bar No. 2407046
`MBMT LAW FIRM
`1201 E. Van Buren
`Brownsville, TX 78520
`P: (956) 550-4868
`F: (956) 621-0135
`ttijerina@mbmtlawfirm.com
`
`Hon. Benigno “Trey” Martinez
`State Bar No. 00797011
`MBMT LAW FIRM
`1201 E. Van Buren
`Brownsville, TX 78520
`P: (956) 550-4868
`F: (956) 621-0135
`trey@mbmtlawfirm.com
`
`
`
`Appellant’s Appellate Counsel: Hon. Gustavo A. Grajales
`State Bar No. 24104715
`THE LAW OFFICES OF
`GUSTAVO A. GRAJALES, PLLC.
`905 E. Los Ebanos Blvd. Suite D.
`Brownsville, TX 78520
`(956) 280-5787
`gusrajaleslaw@gmail.com
`
`Hon. Tomas F. Tijerina
`State Bar No. 2407046
`MBMT LAW FIRM
`1201 E. Van Buren
`Brownsville, TX 78520
`P: (956) 550-4868
`F: (956) 621-0135
`ttijerina@mbmtlawfirm.com
`
`ii
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`

`

`Appellee:
`
`Appellee’s Trial Counsel:
`
`Hon. Benigno “Trey” Martinez
`State Bar No. 00797011
`MBMT LAW FIRM
`1201 E. Van Buren
`Brownsville, TX 78520
`P: (956) 550-4868
`F: (956) 621-0135
`trey@mbmtlawfirm.com
`
`SPACE EXPLORATION
`TECHNOLOGIES CORP.
`Hon. Francisco J. Orozco, Jr.
`State Bar No. 24088162
`SANCHEZ, WHITTINGTON, WOOD
`& OROZCO, LLC.
`3505 Boca Chica Blvd. Suite D.
`Brownsville, TX 78520
`P: (956) 546-3731
`F: (956) 546-3765 or (956) 546-3766
`E: forozco@southtexaslegal.com
`
`
`Appellee’s Appellate Counsel: Hon. Francisco J. Orozco, Jr.
`State Bar No. 24088162
`SANCHEZ, WHITTINGTON, WOOD
`& OROZCO, LLC.
`3505 Boca Chica Blvd. Suite D.
`Brownsville, TX 78520
`P: (956) 546-3731
`F: (956) 546-3765 or (956) 546-3766
`E: forozco@southtexaslegal.com
`
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`iii
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`TABLE OF CONTENTS
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`Page
`
`
`IDENTIFICATION OF THE PARTIES AND COUNSEL .................................................................... ii
`TABLE OF CONTENTS .......................................................................................................................... iv
`INDEX OF AUTHORITIES ..................................................................................................................... vi
`STATEMENT OF THE CASE .................................................................................................................. x
`STATEMENT REGARDING ORAL ARGUMENT ............................................................................. xi
`ISSUES PRESENTED .............................................................................................................................. xii
`1. May a court order a constructive trust imposed upon a property where the party seeking the
`equitable remedy never owned a res which is traceable to the property at issue? ............................... xii
`2. May a court grant an application for temporary injunction which is: ........................................ xii
`a. unsupported by sworn affidavit and or insufficient evidence; and or .......................................... xii
`the applicant’s right to relief is either legally impossible and or where an irreparable harm is
`b.
`undemonstrated within the trial record? ............................................................................................... xii
`3. May a court grant an application for temporary injunction where an equitable remedy is sought
`more than three (3) years after the incident which gave rise to applicant’s claim occurred? ............ xii
`SALUTATION ............................................................................................................................................ 1
`STATEMENT OF FACTS ......................................................................................................................... 2
`1. NOVUS’ January 13, 2020 Purchase of the Dopak Property and NOVUS’ January 16, 2020
`Agreement with SPACEX. ....................................................................................................................... 2
`2. SPACEX’s Lawsuit, NOVUS’ Counter Lawsuit, and the Parties’ Motions for Summary
`Judgment. ................................................................................................................................................. 5
`3. SPACEX’s Motion for Temporary Injunction and NOVUS Response. ......................................... 7
`4. The Hearing on SPACEX’s Application for Temporary Injunction, the Trial Courts Ruling and
`Order. ...................................................................................................................................................... 10
`SUMMARY OF THE ARGUMENT....................................................................................................... 16
`ARGUMENT ............................................................................................................................................. 17
`1. The trial court abused its discretion by ordering a constructive trust be placed upon the Dopak
`Property because SPACEX cannot trace its requested equitable relief to the res. .............................. 17
`a. Standard of Review: Abuse of Discretion. ................................................................................ 17
`b. Applicable Law: KCM Fin. LLC & SCOTEX’s Three Element Test for Constructive Trusts.
`
`19
`
`iv
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`

`

`c. SPACEX’s desire for the Dopak Property does not equate to legal and or equitable ownership
`to secure a constructive trust. ............................................................................................................ 21
`2. The trial abused its discretion in granting SPACEX’s application for temporary injunction
`because it was both unsworn and unsupported by sufficient evidence to establish both a probable
`right to relief and or irreparable harm. ................................................................................................. 31
`a. Standard of Review: Abuse of Discretion. ................................................................................ 31
`b. Applicable Law: Butnaru v. Ford Motor Co., Texas Rule of Civil Procedure 628, and Texas
`Business & Commerce Code Section 15.50. ..................................................................................... 33
`c. SPACEX’s unverified petition, deficient affidavit and arguments are insufficient to
`demonstrate either irreparable harm and or a probable right to relief against NOVUS. ............... 36
`3. The trial court abused its discretion in granting SPACEX’s application for a temporary
`injunction because the request was barred by laches. .......................................................................... 50
`a. Standard of Review: Abuse of Discretion. ................................................................................ 50
`b. Applicable Law: In Re Laibe Corp. ........................................................................................... 50
`c. SPACEX’s three year wait to request injunctive relief demonstrates it slept on its rights. ..... 51
`PRAYER .................................................................................................................................................... 55
`APPENDIX ................................................................................................................................................ 58
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`v
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`

`

`INDEX OF AUTHORITIES
`
`CASES
`
`Ahlgren v. Ahlgren,
`No. 13-22-00029-CV, 2023 WL 4002849 (Tex. App.—Corpus Christi–
`Edinburg June 15, 2023, no pet. h.)………………………………………..21
`
`PAGE
`
`
`Alexander v. Anderson,
`207 S.W. 205 (Tex. App.—Amarillo 1918, no writ)………………………46
`
`
`Butnaru v. Ford Motor Co.,
`84 S.W.3d 198 (Tex. 2002)………………………………...33, 34, 43, 44, 45
`
`
`Cire v. Cummings,
`134 S.W.3d 835 (Tex. 2004)…………………………………...18, 31, 49, 54
`
`
`Copano Energy, LLC v Bujnoch,
`593 S.W.3d 721 (Tex. 2020)……………………………………………….23
`
`
`Downer v. Aquamarine Operators, Inc.,
`701 S.W.2d 238 (Tex. 1985)……………………………….18, 19, 31, 50, 54
`
`
`EMS USA, Inc. v. Shary,
`309 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2010, no pet.)………..32
`
`
`Ex Parte Rodriguez,
`568 S.W.2d 894 (Tex. App.—Fort Worth 1978, no writ)………….35, 41, 42
`
`
`Ginther v. Taub,
`675 S.W.2d 724 (Tex. 1984)……………………………………………….19
`
`
`Greater Houston Bank v. Conte,
`641 S.W.2d 407 (Tex. App.—Houston [14th Dist.] 1982, no writ)………..34
`
`
`Home Sav. of Am., F.A. v. Van Cleave Dev. Co., Inc.,
`737 S.W.2d 58 (Tex. App.—San Antonio 1987, no writ)………………….34
`
`
`Iliff v. Iliff,
`339 S.W.3d 74 (Tex. 2011)………………………………………………...19
`
`vi
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`
`

`

`In re Jay,
`432 F.3d 323 (5th Cir. 2005)……………………………………………….46
`
`
`In re Laibe Corp.,
`307 S.W.3d 314 (Tex. 2010)…………………………………………...50, 53
`
`
`In re Oceanografia,
`S.A. de C.V., 492 S.W.3d 330 (Tex. App.—Corpus Christi–Edinburg 2014,
`no pet.)……………………………………………………...50, 51, 52, 53, 54
`
`
`Jenkins v. Chambers,
`9 Tex. 167 (1852)…………………………………………………………..46
`
`
`KCM Fin. LLC v. Bradshaw,
`457 S.W.3d 70 (Tex. 2015)…………………………….19, 20, 24, 25, 26, 27
`
`
`Kern v. Treeline Golf Club, Inc.,
`433 S.W.2d 215 (Tex. App.—Houston [14th Dist.] 1968, no writ)………..35
`
`
`Kinsel v. Lindsey,
`526 S.W.3d 411 (Tex. 2017)……………………………………….18, 19, 27
`
`
`Landon v. Jean-Paul Budinger, Inc.,
`724 S.W.2d 931 (Tex. App.—Austin 1987, no writ)………………………17
`
`
`Limon v. State,
`947 S.W.2d 620 (Tex. App. – Austin 1997, no writ)………………………48
`
`
`Loftin v. Martin,
`776 S.W.2d 145 (Tex. 1989)……………………………………………….18
`
`Longview Energy Co. v. Huff Energy Fund LP,
`533 S.W.3d 866 (Tex. 2017)……………………………………….20, 29, 30
`
`
`Meadows v. Bierschwale,
`516 S.W.2d 125 (Tex. 1974)……………………………………………….19
`
`
`Millwrights Local Union No. 2484 v. Rust Eng'g Co.,
`433 S.W.2d 683 (Tex. 1968)……………………………………34, 35,39, 40
`
`
`
`vii
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`

`

`Peirce v. Sheldon Petroleum Co.,
`589 S.W.2d 849 (Tex. App.—Amarillo 1979, no writ)……………20, 21, 26
`
`
`Pope v. Garrett,
`211 S.W.2d 559 (Tex. 1948)…………………………………………...19, 27
`
`
`Reyna v. Reyna,
`738 S.W.2d 772 (Tex. App.—Austin 1987, no writ)………18, 31, 48, 49, 54
`
`
`Shoreline Gas, Inc. v. McGaughey,
`No. 13-07-364-CV, 2008 WL 1747624 (Tex. App.—Corpus Christi–
`Edinburg Apr. 17, 2008, no pet.)…………………………...17, 32, 33, 34, 36
`
`
`State v. Sw. Bell Tel. Co.,
`526 S.W.2d 526 (Tex. 1975)…………………………………………...17, 18
`
`Tex. State Bd. of Med. Examiners v. McKinney,
`315 S.W.2d 387 (Tex. App.—Waco 1958, no writ)……………………….35
`
`
`Tom James of Dallas, Inc. v. Cobb,
`109 S.W.3d 877 (Tex. App.—Dallas 2003, no pet.)……………….17, 32, 36
`
`
`Walling v. Metcalfe,
`863 S.W.2d 56 (Tex.1993)……………………………………………..17, 33
`
`
`Wilkerson v. Wilkerson,
`992 S.W.2d 719 (Tex. App.—Austin 1999, no pet.)……………………….46
`
`
`Wilson v. Whitaker,
`353 S.W.2d 945 (Tex. App.—Houston 1962, no writ)…………….35, 40, 41
`
`
`STATUTUES AND RULES
`
`Tex. Bus. & Com. Code Ann. § 26.01 (West 2023)………………………………23
`
`Tex. Civ. Prac. & Rem. Code Ann. § 15.05 (West 2023)………………………...36
`
`Tex. Civ. Prac. & Rem. Code Ann. § 15.50 (West 2023)………………………...36
`
`Tex. R. Civ. Pro. 628 (West 2023)………………………………………………..32
`
`viii
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`

`

`SECONDARY SOURCES
`
`Hon. Adele Hedges & Lynee Liberato, Texas Practice Guide: Civil Appeals,
`1 Thompson Reuters 712-17 (2021)………………………………………..17
`
`
`David Dittfurth, The Texas Constructive Trust and Its Peculiar Requirements,
`50 Tex. Tech L. Rev. 447 (2018)…………………………………………..27
`
`
`Ryan G. Anderson, Standards of Review in Texas,
`50 St. Mary’s L. Rev. 4 (2019)………………………………...19, 31, 50, 55
`
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`ix
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`STATEMENT OF THE CASE
`
`An accelerated appeal concerning Appellee’s
`application for a temporary injunction in a suit
`which Appellee alleges breach of contract,
`interference with business relations, fraud, and
`injunctive relief concerning a property located in
`Cameron County, Texas.
`
`107th Judicial District Court of Cameron County
`Texas, Honorable Benjamin Euresti, Jr., Presiding
`Judge.
`
`granted Appellee’s
`The Honorable Court
`application for temporary injunction, imposed a
`constructive trust for the property at issue, and set
`the cause for trial on the merits.
`
`Nature of the Case:
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`Trial Court:
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`Trial Court’s Disposition:
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`x
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`STATEMENT REGARDING ORAL ARGUMENT
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` Respectfully, in the instant case, Appellant submits oral argument would serve to
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`enlighten the Honorable Court as arguments could address any questions the Justices
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`may develop upon reviewing the arguments presented within the submitted briefs.
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`Therefore, Appellant respectfully submits oral argument in this case is necessary and
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`request an oral argument.
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`xi
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`

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`ISSUES PRESENTED
`1. May a court order a constructive trust imposed upon a property where the
`
`party seeking the equitable remedy never owned a res which is traceable
`
`to the property at issue?
`
`2. May a court grant an application for temporary injunction which is:
`
`a. unsupported by sworn affidavit and or insufficient evidence; and
`
`or
`
`b. the applicant’s right to relief is either legally impossible and or
`
`where an irreparable harm is undemonstrated within the trial
`
`record?
`
`3. May a court grant an application for temporary injunction where an
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`equitable remedy is sought more than three (3) years after the incident
`
`which gave rise to applicant’s claim occurred?
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`xii
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`

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`SALUTATION
`CAUSE NO. 13-23-00272-CV
`
`IN THE THIRTEENTH DISTRICT COURT OF APPEALS
`CORPUS CHRISTI - EDINBURG, TEXAS
`
`Novus Prime Properties, LLC v. Space Exploration Technologies Corp.
`
`APPELLANT’S BRIEF
`
`ON APPEAL FROM THE 107th JUDICIAL DISTRICT COURT OF
`CAMERON COUNTY, TEXAS
`HONORABLE BENJAMIN EURESTI, JR., JUDGE PRESIDING
`
`To the Honorable Thirteenth Court of Appeals:
`
`
`COMES NOW, Appellant, NOVUS PRIME PROPERTIES, LLC.,
`
`hereinafter referred to as “NOVUS,” by and through its appellate counsel of record,
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`and files this Appellate Brief. NOVUS asks this Honorable Court to reverse and
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`remand the Honorable 107th Judicial District Court’s order granting Appellee’s
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`application for temporary injunction, dissolve the constructive trusts, and deny any
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`and all other relief requested by Appellee which may be presented in its brief and or
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`during oral argument.
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`1
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`

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`STATEMENT OF FACTS
`
`1. NOVUS’ January 13, 2020 Purchase of the Dopak Property and NOVUS’
`January 16, 2020 Agreement with SPACEX.
` As this appeal concerns an interlocutory order, the case is pending trial on the
`
`merits.
`
` Factually, the accelerated appeal before this Honorable Court concerns disputes
`
`involving real property located upon the coastal region of the Rio Grande Valley in
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`Cameron County, Texas. 1 CR 8, 6. The parties to this appeal are two (2) entities
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`engaged in a David vs. Goliath battle for said real property: NOVUS PRIME
`
`PROPERTIES, LLC., hereinafter referred
`
`to as “NOVUS,” and SPACE
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`EXPLORATION TECHNOLOGIES CORP., hereinafter referred to as “SPACEX.”
`
`1 CR 8, 6. NOVUS is a local entity engaged in real estate investment here on planet
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`Earth, which is a unique distinction to note as SPACEX is an entity engaged in the
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`advancement of private space exploration with a noble goal of colonizing Mars. 1
`
`CR 36, 112, 229-230 489, 512, 526, 576, 592.
`
` Initially, on January 13, 2020, NOVUS entered into an earnest money contract
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`for real property owned by Marion Dopak, hereinafter referred to as the “Dopak
`
`Contract,” legally described as: Lot Nine (9), Block One (1), THE SPANISH
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`DAGGER SUBDIVISION, SECTION I, Cameron County, Texas, according to the
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`map or plat thereof recorded in Cabinet I, Page 277-A, Map Records, Cameron
`
`2
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`
`

`

`County, Texas, hereinafter referred to as the “Dopak Property.” 1 CR 818. The
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`Dopak Property is located within an area of Cameron County known as Boca Chica
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`Beach. Next, on January 16, 2020, NOVUS, as the seller, and SPACEX, as the
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`buyer, entered an Unimproved Property Contract for the purchase of four (4) lots in
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`the Boca Chica Beach area, which were located near SPACEX’s rocket production
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`and testing facilities, hereinafter referred to as the “SpaceX Contract.” 1 CR 6, 170-
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`72. Importantly, the SpaceX Contract contained a “No Further Purchases Clause,”
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`which prevented NOVUS from future purchases of real property within a five-mile
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`(5) radius, hereinafter referred to as the “Prohibited Area,” in the area of Boca Chica
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`Beach following the execution of the contract. 1 CR 170-72. In full, the clause reads:
`
`As a material inducement for Buyer to purchase the Property,
`Seller, on behalf of itself and Seller’s Affiliates, agrees that Seller
`shall not purchase or acquire, whether voluntarily or through
`operation of law, any properties, or interest therein, within the
`LAGUNA MADRE BEACH SUBDIVISION, SPANISH DAGGER
`SUBDIVISION, RIO GRANDE BEACH SUBDIVISION,
`LAGUNA MADRE BEACH SUBDIVISION, or within a five (5)
`mile radius of any of the foregoing subdivisions (the “Prohibited
`Area”). Seller understands and acknowledges that the business of
`Buyer is highly competitive and that the operations and business of
`the Buyer is of such a nature that any additional competition in the
`purchaser or acquisition of property within the Prohibited Area,
`either directly or indirectly, is severely detrimental to the
`operations and business of Buyer, and shall cause Buyer
`irreparable harm and injury, which cannot be measured in
`monetary damages and for which no remedy at law exists. Seller
`further agrees that it possesses unique knowledge of Buyer and the
`properties within the Prohibited Area, including but not limited to,
`Buyer’s intentions with to acquire the property within the
`
`3
`
`
`

`

`Prohibited Area to satisfy its business needs and operations, prices
`paid for property within the Prohibited Area, market value of
`property within the Prohibited Area, property owners names and
`contact information, terms of negotiations with prospective sellers
`of property within the Prohibited Area, and Buyer’s strategies and
`techniques regarding the acquisition of property within the
`Prohibited Area.
`1 CR 170-72. Then, on January 29, 2020, NOVUS, as result of the prior
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`January 13, 2020 Dopak Contract, obtained the general warranty deed for the
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`Dopak Property, which was filed under Document No. 3642 in the Official
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`Records of Cameron County, Texas. 3 RR 122. Next, on February 20, 2020
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`and again on March 29, 2021, SPACEX sent NOVUS pre-suit notice which
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`alleged NOVUS breached the No Further Purchases clause in its acquisition
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`of the Dopak Property: SPACEX threatened NOVUS with litigation if
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`NOVUS failed to sell the Dopak Property to SPACEX. 1 CR 175, 191.
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`Finally, on or about May 12, 2023, SPACEX alleged NOVUS sole member,
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`Francisco Chavez, stated to SPACEX’s personnel NOVUS “intended to put
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`the Dopak Property up for sale as soon as possible and had potential buyers
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`for the same.” 1 CR 799-800. Consequently, SPACEX initiated litigation,
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`which included an application for temporary injunction. 1 CR 6.
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`4
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`

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`2. SPACEX’s Lawsuit, NOVUS’ Counter Lawsuit, and the Parties’ Motions
`for Summary Judgment.
` During the course of litigation, both NOVUS and SPACEX filed numerous
`
`pleadings and dispositive motions. On May 27, 2021, SPACEX filed its Plaintiff’s
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`Original Petition and Request for Injunctive Relief. 1 CR 6. On June 28, 2021,
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`NOVUS filed its Defendant’s Original Answer, Affirmative Defenses, Special
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`Exceptions, Counterclaims, Request for Disclosures, and Jury Demand. 1 CR 16. On
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`July 29, 2021, SPACEX filed its Plaintiff’s First Amened Petition and Request for
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`Injunctive Relief, which added a request for reformation of the No Further Purchases
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`Clause and a claim for fraud in a real estate transaction. 1 CR 24. On September 16,
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`2021, SPACEX filed its Space Exploration Technology Corp.’s Original Answer.
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`46. On November 15, 2021, NOVUS filed its Defendant’s First Amened Answer,
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`Affirmative Defenses, Special Exceptions, Counterclaims. 1 CR 50. On July 6, 2022,
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`SPACEX filed its Plaintiff’s Second Amened Petition and Request for Injunctive
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`Relief, which added a request for a constructive trust concerning the Dopak Property.
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`1 CR 74. On September 19, 2022, NOVUS filed its Defendant’s Second Amened
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`Answer, Affirmative Defenses, Special Exceptions, Counterclaims. 1 CR 87. On
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`September 21, 2022, NOVUS filed its Defendant’s Motion for Partial Summary
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`Judgement. 1 CR 112. On October 27, 2022, SPACEX filed its Space Exploration
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`Technology Corp.’s First Amended Answer. 1 CR 219. On November 7, 2022,
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`SPACEX filed its Space Exploration Technology Corp.’s Traditional and No
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`5
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`Evidence Motion for Partial Summary Judgment. 1 CR 223. On November 22, 2022,
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`NOVUS filed its Defendant’s Response to Space Exploration Technology Corp.’s
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`Tradition and No Evidence Motion for Partial Summary Judgment. 1 CR 314. On
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`November 22, 2022, SPACEX filed its Space Exploration Technology Corp.’s
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`Response to Defendant’s Motion for Partial Summary Judgement. 1 CR 407. On
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`February 21, 2023, NOVUS filed its Defendant’s Third Amened Answer,
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`Affirmative Defenses, Special Exceptions, Counterclaims. 1 CR 489. On February
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`27, 2023, SPACEX filed its Plaintiff’s Third Amended Petition and Request for
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`Injunctive Relief, which added a request for declaratory relief. 1 CR 512. On
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`February 27, 2023, SPACEX filed its Space Exploration Technology Corps.
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`Traditional and No Evidence Motion for Partial Summary Judgement. On March 8,
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`2023, NOVUS filed its Defendant’s Motion for Leave to File Supplemental
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`Response to SpaceX’s Motion for Partial Summary Judgement. 1 CR 574. On March
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`13, 2023, NOVUS filed its Defendant’s Amended Motion for Partial Summary
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`Judgment. 1 CR 592. On March 13, 2023, NOVUS filed its Defendant’s Response
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`To Spacex’s Motion Traditional And No Evidence Motion For Partial Summary
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`Judgment– Acquisition Breach. 1 CR 668. On April 20, 2023, SPACEX filed its
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`Space Exploration Technologies Corp.’s Objections and Response To Defendant’s
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`Amended Motion For Partial Summary Judgment. 1 CR 701. On April 27, 2023, the
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`trial Court signed its Order Denying Novus Prime Properties, LLC’s Amended
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`Motion For Partial Summary Judgment. 1 CR 786. Also, on April 27, 2023, the trial
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`Court signed its Order Denying Space Exploration Technologies Corp’s Traditional
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`And No Evidence Motion For Partial Summary Judgment. 1 CR 788. Additionally,
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`on April 27, 2023, the trial Court signed its Order Granting Space Exploration
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`Technologies Corp’s Traditional And No Evidence Motion For Partial Summary
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`Judgment. 1 CR 790.
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`3. SPACEX’s Motion for Temporary Injunction and NOVUS Response.
` On May 22, 2023, SPACEX filed its Space Exploration Technologies Corp.'s
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`Application For Temporary Injunction, in which SPACEX requested the trial Court
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`“[enjoin] Novus and Chavez from selling, transferring, disposing, liquidating, or
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`conveying title to, or any interest in the Dopak Property,” by the imposition of a
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`constructive trust. 1 CR 792. The crux of SPACEX’s argument was the “No Further
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`Purchases Clause” contained within the SpaceX Contract, which prohibited NOVUS
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`from purchasing new property within the Prohibited Area after the execution of the
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`contract. 1 CR 792-97. SPACEX asserted “[o]n January 29, 2020, in violation of the
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`No Further Purchases Clause, Novus acquired the Dopak Property via General
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`Warranty Deed which was subsequently filed under Document No. 3642 in the
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`Official Records of Cameron County, TX. 1 CR 792-97. Additionally, SPACEX
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`alleged NOVUS purchased the Dopak Property and committed fraud by
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`nondisclosure in a real estate transaction. 1 CR 792-97. SPACEX’s asserted the
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`Dopak Property was “unique real estate that is the subject of an equitable remedy
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`sought by SpaceX. If Novus is allowed to transfer or liquidate the Dopak Property
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`in any manner, it will cause irreparable harm to SpaceX by rendering its requested
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`remedy impossible to perform. 1 CR 792-97. With its application, SPACEX
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`submitted the affidavit a corporate representative, David Finlay, whom alleged:
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`[o]n May 12, 2023, Mr. Chavez spoke with SpaceX personnel at SpaceX’s
`production site. At that time, Mr. Chavez and his realtor were flying a drone over
`and around the Dopak Property. Mr. Chavez informed SpaceX personnel that he
`intended to put the Dopak Property up for sale as soon as possible and that me have
`potential buyers for the same.
`1 CR 798-99.
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` On June 6, 2023, NOVUS filed its Defendant’s Objections to Plaintiff’s Request
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`for Injunction, which challenged SPACEX’s requested relief for injunctive relief and
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`a constructive trust. 1 CR 803-17. There, NOVUS argued SPACEX’s application
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`was insufficient to warrant the trial Court granting a temporary injunction.
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`Specifically, NOVUS challenged SPACEX’s assertion the Dopak Property was both
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`“unique real estate” and that “if Novus is allowed to transfer or liquidate the Dopak
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`Property in any manner, it will cause irreparable harm to SpaceX by rendering its
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`requested remedy impossible to perform.” 1 CR 805-806. NOVUS challenged Mr.
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`Finlay’s statements within the affidavit concerning “irreparable damages as being
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`directly contradicted by Mr. Finlay’s deposition.” 1 CR 806.
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` NOVUS argued SPACEX cannot demonstrate a probable right to the relief
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`sought, which were SPACEX’s claims for “1) Breach of Contract; 2) Injunctive
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`Relief Ordering the Transfer of the Property; 3) Injunctive Relief for Future
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`Conduct; 4) Interference with Prospective Business Relations; 5) Fraud In a Real
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`Estate Transaction; 6) Constructive Trust; and 7) Declaratory Relief,” because each
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`claim was “dependent on the validity of the non-compete at issue in this case,” which
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`was the No Further Purchases Clause. 1 CR 806-07. Initially, NOVUS challenged
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`the validity of the No Further Purchases Clause concerning time because the clause
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`was unlimited in duration. 1 CR 808. Next, NOVUS challenged the validity of the
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`No Further Purchases Clause concerning geographical area because it “extend[ed]
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`five miles beyond the specific subdivision listed as the ‘Prohibited Area.’” 1 CR
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`809. Then, NOVUS challenged the validity of the No Further Purchases Clause
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`concerning its scope as being unreasonable and overbroad because it prohibited
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`activities between two entities whom were not involved in the same filed of business
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`and included NOVUS’ owners, employees, consultants, or those whom acted within
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`its interest. 1 CR 809-10. Finally, NOVUS challenged the validity of the No Further
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`Purchases Clause and its necessity to protect the goodwill or business interest of
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`SPACEX, which NOVUS argued was an attempt to protect SPACEX from ordinary
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`competition and done without NOVUS having received confidential information
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`from SPACEX. 1 CR 811.
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` NOVUS argued the constructive trust sought by SPACEX was not an available
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`remedy based on NOVUS’ purchase of the Dopak Property. 1 CR 811. Specifically,
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`NOVUS argued SPACEX cannot demonstrate “an identifiable res [which] can be
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`traced back to the original property.” 1 CR 811-12. NOVUS argued “assuming
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`arguendo [SPACEX] [could] show [NOVUS] engaged in some form or actual or
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`constructive fraud, [SPACEX] cannot meet [its] burden to warrant the imposition of
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`a constructive trust because [SPACEX] cannot trace a legal right of ownership to the
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`[Dopak] [Property].” 1 CR 812-13. Additionally, NOVUS argued SPACEX’s
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`pleadings and evidence cannot demonstrate it will suffer irreparable harm. 1 CR
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`813. NOVUS argued “[t]here is no [irreparable] imminent harm to [SPACEX],
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`because nothing occurring would in any way stop [SPACEX] from purchasing the
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`property.” 1 CR 814. Finally, NOVUS argued SPACEX’s request for a temporary
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`injunction, as equitable relief, was barred by both laches and equitable estoppel. 1
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`CR 814.
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`4. The Hearing on SPACEX’s Application for Temporary Injunction, the
`Trial Courts Ruling and Order.
` On June 17, 2023, the 107th Judicial District Court, heard arguments from both
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`NOVUS and SPACEX on SPACEX’s Application for Temporary Injunction. 2 RR
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`1-19. Initially, SPACEX argued NOVUS single member, “Mr. Chavez[,] [was]
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`attempting to sell the [Dopak] [Property] prior to trial.” 2 RR 4. Next, SPACEX
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`argued “the [Dopak] [Property] [was] subject to a constructive trust [which]
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`[SPACEX] requested as an equitable remedy.” 2 RR 4. Then, SPACEX argued the
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`constructive trust was “essentially a remedy, but to allow Mr. Chavez and [NOVUS]
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`to sell that property today basically disposes of that potential remedy and wouldn’t
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`give either parties the use of it.” 2 RR 5. Therefore, SPACEX concluded “the
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`constructive trust [was] designed to protect or to avoid a wrongdoer from benefitting
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`from [their] wrongdoing . . . through some legal act,” which SPACEX argued had
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`occurred because “Mr. Chavez shouldn’t have bought [the] [Dopak] [Property].” 2
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`RR 5.
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` In response, NOVUS argued granting a temporary injunction “[requires] a cause
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`of action, probable right to relief on that cause of action, and [to] show probable
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`imminent and irreparable injury.” 2 RR 6. Next, NOVUS urged the Court to consider
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`NOVUS’ argument the No Further Purchases Clause, as a basis of SPACEX’s
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`causes of action, was “unreasonable, and it should be reformed to fit in time, scope,
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`and geographic region.” 2 RR 6. Then, NOVUS argued “a constructive trust . . . [is]
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`not available under” the facts at issue in this cause because “a constructive trust has
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`to apply to an equitable right to a piece of property or specific identified property.”
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`2 RR 6. Also, NOVUS presented scenarios concerning where constructive trusts
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`were found appropriate by Texas courts, such as when “a fiduciary who[m] obtains
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`property wrongfully from a specific property when . . . it was a trust. They transferred
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`it, and the trustee says that was my property.” 2 RR 6-7. Furthermore, NOVUS
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`argued SPACEX’s request for a constructive trust was inapplicable because “[h]ere
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`there [was] nothing like that. There is no tracing. There’s no ability for [SPACEX]
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`to say that [the] [Dopak] [Property] was [theirs], should have been [theirs], or
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`otherwise. . . There’s no give-me-your property because . . . that’s not one of the
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`remedies available.” 2 RR 7-8. Additionally, NOVUS argued the No Further
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`Purchases Clause, being the crux of any probable right to relief for SPACEX, was
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`invalid because “[t]his is not an employee-employer relationship. This is not the sale
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`of a business.” 2 RR 7.
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` In rebuttal, SPACEX argued “[t]he [trial] Court has [ruled] the [No] [Further]
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`[Purchases] [Clause] is valid,” so NOVUS cannot it was not subject to a remedy for
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`an alleged breach of the clause. 2 RR 8. Next, SPACEX argued the “Supreme Court
`
`of Texas has [held] that the specific instances in which equity impresses a
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`constructive trust are numberless, as numberless as the modes by which property
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`may be obtained through bad faith and unconscientious acts.” 2 RR 9. Then,
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`SPACEX alleged NOVUS committed “fraud [in] a real estate transaction. The basis
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`o