Unio Global Trade LLC, Michael Vogel, and Marcela Vogel v. Zinc Point Manufacturing, Inc.

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00026-CV
__________________

UNIO GLOBAL TRADE LLC, MICHAEL VOGEL, AND MARCELA
VOGEL, Appellants

V.

ZINC POINT MANUFACTURING, INC., Appellee

__________________________________________________________________

On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 22-12-17043-CV (after appeal
consolidated with Trial Cause No. 22-10-14637-CV)
__________________________________________________________________

MEMORANDUM OPINION

Plaintiff Zinc Point Manufacturing, Inc. (“Appellee” or “Zinc Point”) filed an

Original Verified Petition, Application for Temporary Restraining Order,

Temporary Injunction, Permanent Injunction, an Appointment of Receiver and

Motion For Expedited Recovery in its suit against Defendants Unio Global Trade

LLC (“Unio Global”), Michael Vogel, and Marcela Vogel (collectively

“Appellants” or “Defendants”) for tortious interference with prospective relations

1
and civil conspiracy.1 After a hearing on the application for temporary injunction,

the trial court granted the motion for temporary injunction in part and denied it in

part. 2 In four issues, Appellants argue the trial court abused its discretion in granting

Appellee’s request for temporary injunction. We affirm.

Background

According to Zinc Point’s petition, Zinc Point is a company headquartered in

Huntsville, Texas, that stores and ships ammunition and primers for firearms on

behalf of its customers, and Zinc Point’s primary supplier for primers is Servicios &

Aventuras (“Servicios”). Originally Zinc Point handled sales, distribution,

warehousing, and fulfillment. But, as of May 1, 2021, Baron Global, Zinc Point’s

affiliate, assumed responsibility for sales, distribution, and marketing for Zinc Point.

Zinc Point alleges that it was formed in 2015, that in 2018 Adolfo Rafael

Vivas’s company, Still American, LLC (“Still American”), acquired 10% of Zinc

Point and Vivas became a director of Zinc Point, and Vivas’s son was a manager of

Zinc Point. Zinc Point alleges in its petition that Vivas became Chief Operating

Officer in 2022 and handled Zinc Point’s daily business operations.

1
Zinc Point also sued Defendants Adolfo Rafael Vivas and his son, Adolfo
Pedro Vivas, but they are not parties to this appeal. In this opinion, references to
“Vivas” are references to Adolfo Rafael Vivas, unless otherwise specified.
2
Because Zinc Point has not filed a cross-appeal from the partial denial of its
motion for temporary injunction, we do not address that portion of the order in this
appeal.
2
According to the petition, in late 2021 and early 2022 Vivas told another Zinc

Point employee that Vivas intended to “destroy[,]” “tank[,]” and “force Zinc Point

to fail[,]” because he was unhappy with Zinc Point’s CEO. In September of 2022

Vivas indicated he was resigning as COO, and in October 2022 Vivas indicated he

wanted to sell his interest in Zinc Point and Vivas intended to sell products from

Servicios to competitors or customers of Zinc Point. Zinc Point alleged in its petition

that in November 2022 it obtained information that “Vivas, while a Director and

COO [of Zinc Point], devoted substantial time and resources, including Zinc Point

resources, to establish Unio Global Trade, LLC, a competitor of Zinc Point[]” and

that Vivas had “conducted dealings contrary to the interests of Zinc Point and for the

benefit of himself, Unio Global, and Still American.” That same month, Zinc Point’s

shareholders voted to remove Vivas as a director of Zinc Point. According to Zinc

Point’s petition, one of its representatives learned in December 2022 from Unio

Global’s registered agent that Unio Global had become the exclusive dealer of

products from Servicios. Zinc Point alleged that, while Vivas was still COO of Zinc

Point, he “was using Zinc Point[’s] resources to launch and bolster business for Unio

Global[,]” as evidenced by a FedEx document that listed Zinc Point’s warehouse

address for shipment, but the document was addressed to Unio Global. According to

Zinc Point’s petition, 15 million primers were shipped to Zinc Point but Vivas told

Zinc Point only 10 million were received, and then Vivas diverted 5 million primers

3
from Zinc Point to his own clients for Unio Global. Zinc Point alleged that Unio

Global, Michael Vogel, and his wife Marcela, are assisting Vivas by working with

him to sell primers to Zinc Point’s customers and vendors and that the Defendants

were using Zinc Point’s warehouse address to ship primers it intended to use for

Unio Global’s business. According to the petition, Vivas, on behalf of his new

company Still American, contracted with Steel Components to provide primers,

which ultimately caused Steel Components to end its relationship with Zinc Point,

and Vivas did so when Vivas was still a director and COO of Zinc Point. Zinc Point

also alleged that Vivas requested funds and misled Zinc Point to believe that the

funds were for paying an Amut North America invoice on behalf of Servicios for the

benefit of Zinc Point, but Zinc Point later learned that the funds were used for

products or services between Amut North America and Still American.

Zinc Point alleged in its petition that Vivas stole money from Zinc Point to

fund his own competing business ventures by loaning Servicios $500,000 in March

2022 and Vivas then lied to Zinc Point by representing that Zinc Point had owed

Servicios the $500,000. According to the petition, Vivas is in possession of 11.5

million primers purchased by Unio Global that “will presumably be sold to Zinc

Point customers[,]” and Unio Global obtained possession of these primers through

the use of the business relationship Vivas established with Servicios while Vivas

“was a director of Zinc Point and/or using the $400,000 he took from Zinc Point as

4
part of an intended buyout with Zinc Point where [] Vivas never fully performed his

obligations under the agreement.”

Zinc Point sued Vivas for breach of fiduciary duty and for violations of the

Texas Theft Liability Act, and Zinc Point sued all Defendants for tortious

interference with prospective relations and civil conspiracy. Zinc Point sought

damages, attorney’s fees, and pre- and post-judgment interest.

Zinc Point also sought a temporary restraining order, temporary injunction,

and permanent injunction prohibiting Defendants from accessing Zinc Point’s funds

and resources. According to Zinc Point, Defendants’ conduct has caused and

continues to cause Zinc Point irreparable and imminent injury that cannot be

quantified and for which there is no adequate remedy at law; Zinc Point’s business

will be destroyed, its continued ability to remain in business would be threatened,

and the status quo will be destroyed before a resolution to the dispute can be obtained

if injunctive relief is not granted; money damages are not sufficient as relief; and

based on the evidence in the record there is a substantial likelihood that Zinc Point

will prevail on the merits as to its causes of action against Defendants. Zinc Point

alleged that the harm faced by Zinc Point if the injunction is not granted outweighs

the harm that would be sustained by Defendants if the injunctive relief is granted,

the requested injunctive relief is narrow in scope, and granting injunctive relief

5
would not adversely affect public policy or public interest. Zinc Point requested

entry of a restraining order and temporary and permanent injunction:

a. Appointing an adequate receiver to take possession and control of
Unio Global;
b. Granting Zinc Point’s request for expedited discovery and
preservation;
c. Prohibiting Defendants from contacting any of Zinc Point’s
customers, vendors, employees, or affiliates; and
d. Prohibiting Defendants from importing from any of Zinc Point’s
vendors[];
e. Prohibiting Defendants from selling 11.5 million primers in
Defendants’ possession that rightfully belong to Zinc Point;
f. Prohibiting Defendants from selling, shipping, or moving any
products that belong to Zinc Point to any party other than Zinc Point.

Attached as exhibits to Zinc Point’s petition were Unio Global’s filings with the

Texas Secretary of State’s Office, correspondence and invoices from FedEx Freight

addressed to “Uni Global[,]” a temporary injunction in a related case3, and a sworn

verification of Walter Baronowski stating he had personal knowledge of certain

portions of the petition.

The trial court, after examination of Zinc Point’s pleadings, issued a

Temporary Restraining Order and set a temporary injunction hearing to determine

whether the trial court should issue a temporary injunction to prevent the Defendants

during the lawsuit from:

3
Prior to the filing of this appeal, a temporary injunction for a related case,
trial cause number 22-10-14637-CV, was granted and that case has been
consolidated with this case. According to Appellants, the consolidation of the related
district court actions has no effect on this appeal.
6
1. Selling primers to Zinc Point[]’s customers and vendors []; and/or
2. Using Zinc Point[]’s warehouse address and/or Federal Express
account to ship primers not for the benefit of Zinc Point []; and/or
3. Importing from any of Zinc Point[]’s vendors []; and/or
4. Selling any or all of the 11.5 million of Zinc Point[]’s primers in
their possession.

Evidence at the Temporary Injunction Hearing

Testimony of Michael Vogel

Michael Vogel (hereinafter “Vogel”) testified that he is a founder and the

registered agent of Unio Global, and he also operates and owns Vogel Digital

Marketing, a marketing agency. Vogel testified that he and others formed Unio

Global. According to Vogel, Unio Global was “purely a trading company” that did

not produce anything, and that the entity was “formed for the sole purpose of acting

as an import/export agent for a multitude of products[]” and to find products in high

demand “and match them against procuring [foreign or domestic] products[.]” Prior

to forming Unio Global, Vogel was not involved in selling, importing, or purchasing

primers. Vogel testified that he had never worked with Zinc Point, Walter

Baronowski, or Vivas (Vogel’s uncle4), and that Vivas’s son (Vogel’s cousin) was

a member and manager for Unio Global who provided the company with

“procurement[,] logistic support[,] and some sales[.]” Vogel’s wife, Marcela, was

one of Unio Global’s members and she worked in a clerical capacity for Unio Global.

4
Vogel later clarified that although he refers to Vivas as his “uncle,” Vivas is
Vogel’s father’s first cousin.
7
According to Vogel, Unio Global brought in Gerardo Krautmann, an employee of

Servicios, as a manager consultant for Unio Global because Unio Global and

Servicios had a relationship where Servicios would purchase and then supply Unio

Global with products and Unio Global would help pay for equipment and products

for Servicios. According to Vogel, at the time that Vivas was working with Zinc

Point, Vogel discussed with Vivas that Vogel was forming Unio Global. Vogel

testified that although he never worked with Zinc Point, he had prepared a proposal

for marketing for Zinc Point that never materialized, his only contact with Zinc Point

was Vivas (his uncle), and his basic understanding of Zinc Point was that it was a

company owned by Vivas that manufactured ammunition. According to Vogel,

Vivas introduced Vogel to Servicios for the sale of primers, and after that

introduction and a few months before the hearing, Unio Global obtained a license

through ATF to import ammunition and ammunition components. Vogel testified

that Vivas also referred Unio Global to FAMAE, the Chilean government’s

manufacturing company for weapons and ammunition, around March of 2022 and

that at the time Vogel understood from Vivas that Zinc Point was a purchaser of

FAMAE products, but Vogel said he was not aware that Zinc Point was a supplier

to FAMAE. Shortly after Unio Global was formed, Vogel prepared bids as part of

“a competitive bidding process” to supply FAMAE with primers and other products,

and FAMAE selected Unio Global for a small purchase around August of 2022.

8
Vogel testified that he was introduced to Jones Securities through Servicios, and he

did not know Jones Securities LLC was a customer of Zinc Point. Vogel testified

that he was not aware that Unio Global was working with Zinc Point customers and

suppliers, and that he only recently learned that Servicios was a supplier of primers

to Zinc Point. According to Vogel, Unio Global would purchase primers from

Servicios that were imported by Still American. Vogel testified that he initially

communicated to others that Unio Global had an exclusive relationship with

Servicios, but after he received official confirmation otherwise in October of 2022,

Unio Global desisted in making those representations. Vogel testified that he was

aware that Vivas had an ATF license as well and that at some point Vivas had a

dispute with the other owners of Zinc Point, but Vogel was not aware at the time he

formed Unio Global that Vivas had signed a non-competition agreement with Zinc

Point or that Vivas had a dispute at that time with any of Zinc Point’s owners. Vogel

testified that Unio Global sold primers up until the trial court entered the temporary

restraining order against Unio Global. According to Vogel, to his knowledge Unio

Global never used Zinc Point’s address (500 Highway 19 in Huntsville, Texas) as

Unio Global’s address and never had items sent there, and Unio Global did not have

a FedEx account.

Vogel testified that in September of 2022, Unio Global had two transactions

to purchase small pistol primers from RUAG, who was introduced to Unio Global

9
through Vivas. According to Vogel, each transaction was for a purchase of 5 million

primers manufactured by Servicios and that the shipments were made from Zinc

Point’s warehouse. Vogel explained that the “shipments” were actually pallets that

the client, RUAG, arranged to pick up at Unio Global and that RUAG would provide

the bill of lading. Vogel testified that the only person from Zinc Point that he

involved in the transaction was Vivas, whom Vogel believed was the owner of Zinc

Point. According to Vogel, it was his understanding that for the first 5 million

primers, Servicios made the connection for the primers to be brought in and

Servicios negotiated the sale to RUAG who was going to pick up the product, but

that Unio Global was to serve as the commercial entity that would actually sell the

5 million primers at the previously arranged price of $40 per thousand and “realize

the sale.” For the second 5 million primers, the transaction was different than the

first in that Unio Global was able to set a higher price and negotiate with RUAG to

accept a slightly higher price, $43.25 per thousand. According to Vogel, Unio

Global’s relationship with Servicios is predicated on the services they provide to

Servicios by Unio Global purchasing the primers from Servicios for $23 per

thousand, Servicios invoices Unio Global for $15 per thousand, the balance is held

by Unio Global to procure product for Servicios to send to Servicios. Vogel testified

that through referrals from Servicios, Unio Global was able to build a list of potential

customers and on a few instances when Vogel followed up on those leads, he learned

10
that the potential customers had been customers of Zinc Point. According to Vogel

when he entered into transactions on behalf of Unio Global to sell Servicios primers

to customers he did not do so with any desire to interfere with any relationship

between Zinc Point and any customer.

Vogel testified that at the time of trial, Unio Global had in its inventory 6.5

million primers that it had paid for and acquired from Servicios at a price of $23 per

thousand. Upon the entry of the temporary restraining order and in order to comply

with the order, Unio Global cancelled the sale of a pallet of 1.5 million of primers to

Jones Securities that had been paid for but not picked up yet, and Unio Global

refunded that sale. Another transaction for 1.5 million primers sold to Southern

Specialties, a company not referred by Vivas to Unio Global, was also cancelled due

to the temporary restraining order. Unio Global also had a shipment of 15 million

primers that were coming from Servicios at the time of the entry of the temporary

restraining order.

Vogel denied that he told Sonny Hildreth that Unio Global was the sole

supplier for Servicios, and Vogel testified that he knew through discussions with

Servicios that Unio Global was not an exclusive distributor. According to Vogel,

Hildreth seemed suspicious when he presented himself as the person picking up the

primers on behalf of Jones Securities, and he was evasive and not very

knowledgeable about bills of lading or Jones Securities. Vogel denied that he had

11
ever told Unio Global’s customers not to buy products from Zinc Point or Baron

Global and that no one has asked him to do so.

Testimony of Claude “Sonny” Hildreth

Sonny Hildreth, a private investigator and retired FBI agent, testified that he

was hired by Zinc Point’s counsel to pick up a load of primers in Magnolia, and Zinc

Point’s counsel provided Hildreth with Michael Vogel’s name and an address and

phone number. Hildreth contacted Vogel using an alias and arranged a time and date

for Hildreth to pick up 1.5 million small caliber primers under the guise of picking

them up on behalf of Jones Securities, and Hildreth confirmed the address for the

facility where he was to pick them up. According to Hildreth, he arrived at the

address, a gated warehouse, on December 12, 2022, and Vogel arrived and unlocked

the gate. Hildreth testified that he provided Vogel with a bill of lading that Vogel

had asked him to bring, but that Hildreth was unaware of who created the bill of

lading that he brought to Vogel. Hildreth testified that he asked Vogel if he had the

remainder of the 14 million primers that had at one time been discussed with Charles

Jones (of Jones Securities), and Vogel told Hildreth that after that pickup of the 1.5

million primers there would only be 11 million left. According to Hildreth, he was

told the 1.5 million primers he was picking up were manufactured by Servicios and

Hildreth told Vogel that Charles Jones was surprised by this because when he had

attempted to buy directly from Servicios he was told that he would have to go

12
through Zinc Point and Vivas because Zinc Point was the sole company that handled

the product. Hildreth testified that Vogel told Hildreth that Vogel’s company, Unio

Global Trading, was now the exclusive distributor for the product in the United

States. Hildreth testified that as for the remaining 11 million primers, Vogel told him

that Vogel was the exclusive dealer, that he was moving his facility from that

location to another location, and that Unio Global planned on getting a shipment

every three weeks from Servicios. According to Hildreth, the 1.5 million primers he

picked up he understood had been purchased by Jones Securities, and he took them

to Zinc Point in Huntsville, Texas. Hildreth testified that he did not know what the

arrangement was between Jones Securities and Zinc Point regarding the 1.5 million

primers he picked up, he did not know how Jones had paid for the primers, and he

believed that he was legally picking up product and delivering it.

Testimony of Jeff Vincent

Jeff Vincent testified that he is an employee of Zinc Point at 500 State

Highway 19 in Huntsville, and that Vivas and Baronowski own an interest in Zinc

Point. According to Vincent, Vivas hired him about three years earlier when Vincent

had been previously unemployed, and he worked for Zinc Point in Mineral Wells,

and Vincent continued to work for Zinc Point when the company moved to Cleburne

and then Huntsville. Vincent testified he worked closely with Vivas because it was

just the two of them when the company started out and that Vivas treated him well.

13
According to Vincent, he only interacted with Baronowski two or three times a year

because Baronowski lived in Miami. Vincent testified that on Vivas’s last day at the

facility in Huntsville, he told Vincent and a couple of other employees that he was

going to “basically just kind of retire,” and he told Vincent to “just stick in there and,

you know, see what happens[]” regarding Vincent’s future. Vincent testified that he

has never met Vogel or Vogel’s wife, and that he has only met Vivas’s son twice in

a social context.

Vincent testified that he recognized the document admitted as Exhibit 3 as a

FedEx document that was kept in Zinc Point’s files that he had signed, and that the

document was for the shipment of 5 million primers. The first page of Exhibit 3 was

a “Past Due Statement” from FedEx for a freight bill # 9634711240 owed by “Uni

Global” at the address 500 Highway 19 in Huntsville, Texas for shipment on

September 12, 2022 and listed the shipper as “Uni Global” and the consignee of the

shipment as “RUAG Ammotec USA” at an address in Savannah, Georgia. The third

page of Exhibit 3 was a “Past Due Invoice” for the same shipment and the invoice

listed primers as the items shipped. The fifth page of Exhibit 3 is a FedEx “Weight

Validation Certificate” for the same shipment and lists the shipper as “Uni Global”

with the same Huntsville address but lists the consignee as “Norma Precision” in

Savannah, Georgia. The sixth page of Exhibit 3 is a FedEx “Bill of Lading” for the

FedEx shipment of two pallets of primers; it lists the shipper as “Unio Global” and

14
the name “Michael” in the “Attn to” line; it lists the consignee as “Norma Precision,

Inc.” in Savannah, Georgia; and lists the freight charges to be paid by Norma

Precision. At the bottom of the Bill of Lading is a shipper certification signed by

“Jeff Vincent” on 09/12/22. The seventh page of Exhibit 3 is a Fed Ex “Bill of

Lading” for the same shipment but is marked in handwriting as “Corrected BOL”

and lists similar information as the prior Bill of Lading but instead lists the freight

charges to be paid by RUAG, and it lists under the freight “2 Pallets 5,000,000

pieces[.]” The eighth and ninth pages of Exhibit 3 are the FedEx “Delivery Receipt”

for the shipment and that was signed as received on September 14, 2022.

Vincent testified that typically either Baronowski, Vivas, or a man named

Tarek would inform Vincent of a shipment, one of them would provide Vincent with

a bill of lading so he could prepare the shipment to go out, and the customer hired a

freight provider to come pick up the primers from the warehouse. Vincent testified

that Exhibit 3 listed Unio Global as the shipper and that Vivas had directed Vincent

to ship the products. Vincent testified that Vivas had not explained Vivas’s

connection with Unio Global, that Vincent trusted Vivas to only direct him to ship a

shipment for Zinc Point, and that Vincent has since discovered that this shipment

was not a Zinc Point shipment but was instead a shipment from Unio Global to

Norma Precision, Inc., who was one of Zinc Point’s previous customers. According

to Vincent, this was the only shipment with Unio Global’s name on it that Vivas

15
asked Vincent to ship. Vincent testified that his role was to gather the primers that

were to leave the Zinc Point warehouse and make them available for pick-up by

FedEx Freight, but that he was not involved in contacting FedEx Freight to arrange

for pick-up or arrange for Zinc Point to pay for FedEx to pick up the freight. He

testified he had not seen the corrected Bill of Lading for the shipment, and he also

had no knowledge of whether Zinc Point funds were used to deliver the primers to

Zinc Point’s warehouse. According to Vincent, he had no idea who arranged for

FedEx Freight to pick up the primers and that typically the customer, and not Zinc

Point, would arrange for that. Vincent testified that, to his knowledge, he has never

been involved with another transaction with Unio Global and he was not familiar

with Michael Vogel. Vincent testified that in the summer of 2022, Vivas discussed

with him another business Vivas was forming, and Vivas mentioned the possibility

of Vincent coming to work for Vivas.

Testimony of Ben Sessions

Ben Sessions testified that he is the vice president of operations for Zinc Point,

that he started out as an independent consultant for the company in 2021 and became

an employee of the company in April of 2022. According to Sessions, he is the only

employee of the twenty-or-so employees that does not have a non-disclosure

agreement with Zinc Point. Sessions testified that he has known Vivas since the

inception of Zinc Point in Florida six years ago, when Sessions was introduced to

16
the company through his friend, Baronowski. According to Sessions, Vivas was in

charge of the manufacturing and the ATF side of the business. Sessions testified that

once he started working full-time at the Huntsville factory in May of 2022, he would

not see Vivas on a consistent daily basis, but Vivas had full access to the warehouse.

Sessions testified that in September of 2022 he met with Vivas for a lunch

meeting at a restaurant in The Woodlands, Texas, to try to broker a separation

agreement between Baronowski and Vivas because Vivas was leaving Zinc Point.

Sessions testified that Vivas suggested that Zinc Point would not last longer than six

to eight months because Baronowski was mismanaging the business and as a result

the company would be basically decimated. Sessions testified that Vivas told him

that he did not want to be hindered by the non-compete agreement he had with Zinc

Point, that he wanted to do business anywhere and sell anything he wanted, and he

suggested that he would give Sessions his shares of the company if Sessions could

broker a deal that would release Vivas from the non-compete agreement. According

to Sessions, he told Vivas how the separation of Zinc Point’s two partners would be

extremely detrimental to the company, the two partners, and others. Sessions

testified that Vivas responded that Vivas did not have any assets to go after, he had

transferred money to other people, and that Baronowski would be the only person to

bear the full weight of the separation. Sessions testified that after the lunch when he

was on his way to drop off Vivas at home, Vivas told him about a business that was

17
going to be substantial and make a lot of money and that if Sessions would agree to

join the business, then Vivas would tell him who the other business partners were

and what the other business was. According to Sessions, he did not agree to join the

new business, so Vivas never told him about the new business or its partners.

Sessions testified that Vivas’s access to the warehouse ended on September

9, 2022, when Vivas handed Sessions his car, keys, and a cut up credit card a week

before Sessions’s last interaction with Vivas at the factory. According to Sessions,

this was around the same time as when Vivas was taken off Zinc Point’s payroll and

when Vivas separated from Zinc Point.

Sessions testified that at some point he received Zinc Point’s checkbook back

from Vivas, and checks 1809 through 1815 and their corresponding check stubs were

missing. The only missing check that Zinc Point recovered was a check to

Intermodal, admitted as Exhibit 7, that Sessions testified was written in Vivas’s

handwriting, and Vivas had noted on the reference line of the check that the payment

was for “Lost two shipments from Servicios, Invoice # 304556” and then something

illegible. Sessions testified that the check appeared to be a payment for shipments

from Servicios, that the only “Servicios” that he was aware of Zinc Point doing

business with was Servicios & Aventuras, and that Zinc Point was able to stop

payment on that check. According to Sessions, to his knowledge Zinc Point was

unable to recover or stop payment on the other missing checks. According to

18
Sessions, Servicios has not done any business with Zinc Point in the past few weeks

before the hearing, but prior to that Servicios had provided primers to Zinc Point.

Testimony of Walter Baronowski

Walter Baronowski testified that his background is in finance and banking,

and he became involved in the ammunition business in 2015. According to

Baronowski, he was convicted of a felony for not informing the FBI of a rebate

between an agent and a client and, although the felony had nothing to do with the

ammunition business, his felony record impeded his ammunition business because

he could not obtain an ATF license and financing and he had to focus on activities

for the business that did not require a license through the ATF. Baronowski testified

that he had to rely on third parties to stand in as a registered party because of his

felony record. Baronowski testified that he owns ninety percent of Zinc Point and

one hundred percent of Baron Global, and that KPMG advised the creation of Baron

Global. Baronowski testified that Zinc Point is a “warehouse and fulfillment

business[]” that “stores and ships goods,” and Baron Global “handles the marketing,

the distribution, and the procurement, from a sales standpoint, but utilizes Still

American to actually do all licensed activities.” Still American obtained primers

primarily from Servicios, but also from Steel Components, FAMAE, and other

companies, and then Still American provided those primers to Zinc Point.

Baronowski testified that Zinc Point also bought products from Norma Precision and

19
bought from and sold products to Jones Securities. According to Baronowski, Zinc

Point’s relationships with the companies supplying the primers, especially Servicios,

were invaluable.

Baronowski testified that when he partnered with Vivas in 2016 to form Zinc

Point, Vivas was someone he had thought of like a father for a long time and trusted

and Vivas was Chief Operating Officer and in charge of manufacturing at Zinc

Point’s warehouse. At one point, Vivas brought Vogel to Zinc Point’s attention and

Vivas thought that Zinc Point should use Vogel’s marketing company to provide

marketing services for Zinc Point and later Baron Global, and Vivas never told

Baronowski that Vogel was a relative of Vivas’s. Baronowski testified that Vivas

agreed to sign “a non-compete, a non-circumvent, a non-solicitation.” A copy of the

non-compete agreement executed by Vivas and Baronowski was admitted at the

injunction hearing, and Baronowski testified that the agreement protected Zinc

Point’s confidential data such as customers and vendors, the way in which the

product is manufactured and sourced, pricing and contact information, and its

employees from being induced to leave the company.

Baronowski testified that in March of 2022, he discussed with Vivas buying

him out of the business. According to Baronowski, the terms of the agreement were

that he would pay Vivas $1.5 million the first year and $2 million over the next two

years in exchange for Vivas helping to transition his position to a third party while

20
Vivas would maintain his license and continue to import product. Baronowski paid

Vivas $400,000 as part of the negotiation and the agreement was that Vivas would

retire but would assist Zinc Point for two years. A copy of the last version of the

separation agreement between Baronowski and Vivas was admitted into evidence,

and Baronowski testified that Vivas did not do what he agreed to.

According to Baronowski, Vivas never mentioned Unio Global during the

negotiation, and Baronowski first heard of Unio Global when Baronowski’s

associate, Tarek, was informed by one of Zinc Point’s vendors that another company

was selling Servicios primers. When Tarek inquired into the other company, he

determined that the company “was [Vivas’s son] and Michael Vogel.” Baronowski

testified that he and Tarek looked at Vivas’s emails and they discovered Vivas had

contacted Vogel previously on behalf of Zinc Point and Baron Global for marketing,

and Baronowski and Tarek “put two and two together.” According to Baronowski,

he was shocked when he saw the document at the injunction hearing that indicated

Unio Global was created in February of 2022. Baronowski testified that Vivas

stopped being paid from Zinc Point’s payroll at Vivas’s request on September 9,

2022.

Baronowski testified that in the months prior to the injunction hearing, the

relationship between Zinc Point and Servicios was “severely crippled[]” because

Zinc Point’s clients have moved to Unio Global. Baronowski testified that Zinc

21
Point’s relationship with FAMAE had been damaged, but not to the extent of the

damage to Zinc Point’s relationship with Servicios, and Baronowski had learned that

FAMAE was holding product that Zinc Point had paid for until Zinc Point’s counsel,

Vivas, or Still American directed it to be delivered.

According to Baronowski, in late August and early September of 2022, Zinc

Point was in “extremely short supply[]” of primers and were expecting shipments to

come in. Baronowski testified that when the shipments came in, Vivas told them that

only 10 million had come in, which was an insufficient amount to fill the orders.

Baronowski testified that “[o]riginally we were told that 15 were, and we were not

informed of this other shipment that was mentioned earlier. I was under the

assumption previous to today that only 5 million primers had been moved, not 10.”

Baronowski testified that in his petition he alleged the specific quantity of Servicios

primers that were diverted from the Zinc Point factory by Unio Global to a vendor

which resulted in a loss to Zinc Point because Baron Global would have been able

to sell those primers, and Baronowski testified that Unio Global was still in

possession of 11.5 million primers when Hildreth went there. According to

Baronowski, during that time, Zinc Point was unable to meet its customer obligations

and was unable “to produce 9mm for a number of months because of what [Vivas]

did.” Baronowski testified that the last time Zinc Point received primers from

Servicios was the primers Hildreth purchased, and Servicios would now only sell to

22
Zinc Point if Vivas “signed off on it[]” which he has not. According to Baronowski,

his purchase price for primers from Servicios and the profit margin was known by

Vivas and was supposed to be confidential to Zinc Point, and knowledge of that

information would allow a competitor to undercut Zinc Point and did so to Zinc

Point’s detriment. Baronowski testified that the primers have been sold for as much

as $100 per thousand and were being sold for around $60 or $70 per thousand at the

time that Unio Global got involved, and that the lost sales were a result of Vogel

dropping the price in an effort to compete and take Zinc Point’s customers.

Baronowski testified that, although Zinc Point and Baron Global sold other

products, the majority of the profitability came from the sale of primers which was

the business with Servicios. Baronowski testified that as a result of the competition

by Unio Global, Zinc Point’s business has “been decimated[,]” Zinc Point’s online

traffic has dropped about sixty or seventy percent, Zinc Point had previously been

averaging $50,000 a day in revenue but currently was only averaging between

$5,000 and $10,000 a day, there have been layoffs, product quality has decreased,

complaints against the company have increased, orders have had to be canceled

(specifically having to do with the primers shipment that Vivas diverted from the

company in September of 2022), and the organization has suffered from a number

of issues.

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The Temporary Injunction

After the hearing, the trial court issued the following temporary injunction

until a judgment rendered becomes final or until further order of the trial court:

It is ordered that Adolfo Rafael Vivas, Michael Vogel, Unio
Global Trade LLC, and Marcela Vogel, their assigns, and all persons or
entities acting in concert with or at the direction of them or any of them:
1. Shall not use Zinc Point[]’s warehouse, its warehouse
address, and/or its Federal Express account for any
purpose; and
2. Shall not sell, transfer, or convey any or all of the 11.5
million primers in their possession located possibly in
Magnolia, Texas.

In its order, the trial court found the following, in pertinent part:

[] Elements for Temporary Injunction
The Court finds that Zinc Point [] has valid causes of action
against Adolfo Rafael Vivas, Michael Vogel, Unio Global [], and
Marcela Vogel, that it has a probable right of recovery on its causes of
action, and that it faces a probable, imminent and irreparable harm in
the absence of this Temporary Injunction insofar as it appears that:
• Adolfo Rafael Vivas, who is Zinc Point[]’s 10% minority owner,
Chief Operating Officer, and second highest ranking executive
began diverting business opportunities and inventory of Zinc
Point [].
• Adolfo Rafael Vivas was assisted by Michael Vogel and Marcela
Vogel in this endeavor in order to insulate himself from direct
responsibility.
• In furtherance of this campaign:
• Michael Vogel formed Unio Global [] to serve as the entity
through which the trades would be conducted and utilized
leads provided by Adolfo Rafael Vivas to create business
opportunities which would, otherwise, have belonged to
Zinc Point [];
• Adolfo Rafael Vivas provided not only customer contacts
to Michael Vogel, but also used Zinc Point[]’s inventory

24
its storage/warehouse space, and its address in order to
provide materials to customers of Zinc Point [] under Unio
Global [];
• Adolfo Rafael Vivas moved all of his assets in order to
make himself judgment proof, while predicting that Zinc
Point [] would go out of business in a matter of months as
a result of this scheme; and
• Michael Vogel acting for Unio Global [] took possession
of 14 million primers, 1.5 million of which were intended
to be delivered to Jones Security, LLC, but were actually
delivered to a private investigator in Magnolia, Texas who
then returned them to Zinc Point[]’s location in Huntsville,
Texas.[5]
• Adolfo Rafael Vivas began this campaign with Michael Vogel
and Marcela Vogel while he was acting Chief Operating Officer.
That is, Adolfo Rafael Vivas was using Zinc Point[]’s resources
for Unio Global Trade LLC’s benefit and to Zinc Point[]’s harm
all while still acting Chief Operating Officer of Zinc Point [].
The irreparable harm is that Zinc Point [] will be and has been divested
of its property and with the stated goal to end its existence, the current
path if not interrupted by this Temporary Injunction will lead to the
irreparable harm of Zinc Point [] ceasing operations. Indeed, layoffs
have begun in order to keep Zinc Point [] afloat. Further, even if
damages were available, Adolfo Rafael Vivas has been moving and
hiding his assets in order to avoid judgment collection.

Issues on Appeal

Appellant argues in four issues that the trial court abused its discretion in

granting the temporary injunction. The four issues as stated by Appellant are as

follows:

1. Did the trial court abuse its discretion in granting Zinc Point’s
request for a temporary injunction against Appellants where the

5
In the footnote in the original, the trial court explained that, “Mathematically,
12.5 million would be left, but when asked about the math, Zinc Point [] insisted that
the amount was actually 11.5 million.”
25
evidence proffered at the hearing demonstrates that Appellee has an
adequate remedy at law?

2. Did the trial court abuse its discretion in enjoining Appellants from
selling, transferring, or conveying certain products in their
possession where the injunction was based on a finding that the
products belonged to Zinc Point, which finds no support in the
evidence presented at the temporary injunction hearing?

3. Did the trial court abuse its discretion in enjoining Appellants from
selling, transferring, or conveying certain products in their
possession where there was no plausible connection between the
trial court’s prohibitory injunction and the stated irreparable harm,
Zinc Point’s ability to continue its business?

4. Did the trial court abuse its discretion in granting Zinc Point’s
request for a temporary injunction against Appellants where no
evidence was proffered at the temporary injunction hearing that
Appellants acted with a conscious desire to prevent a relationship
from occurring between Zinc Point and its customers or prospective
customers or that interference was certain or substantially certain to
occur as a result of Appellants’ conduct?

Standard of Review and Applicable Law

“A temporary injunction’s purpose is to preserve the status quo of the

litigation’s subject matter pending a trial on the merits.” Butnaru v. Ford Motor Co.,

84 S.W.3d 198, 204 (Tex. 2002) (citations omitted). To obtain a temporary

injunction, an applicant must show: (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. Id.; see also Abbott v. Anti-Defamation League Austin, Sw., &

Texoma Regions, 610 S.W.3d 911, 916 (Tex. 2020). The party seeking a temporary

injunction bears the burden of production to offer some evidence establishing a
26
probable right to relief. In re Tex. Nat. Res. Conservation Comm’n, 85 S.W.3d 201,

204 (Tex. 2002) (citing Camp v. Shannon, 348 S.W.2d 517, 519 (Tex. 1961)). The

party must show that it is entitled to preservation of the status quo pending trial on

the merits. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993).

The decision to grant or deny a temporary injunction rests within the trial

court’s sound discretion. Butnaru, 84 S.W.3d at 204; Se. Tex. Veterinary Clinics,

PLLC v. Wilcox, No. 09-21-00083-CV, 2022 Tex. App. LEXIS 5791, at **19-20

(Tex. App.—Beaumont Aug.11, 2022, no pet.) (mem. op.). We may not overrule a

trial court’s decision unless the trial court acted unreasonably, or in an arbitrary

manner, without reference to guiding rules or principles, and we cannot substitute

our judgment for that of the trial court. Butnaru, 84 S.W.3d at 211. In reviewing the

evidence from a temporary injunction hearing, and when a trial court has not been

requested to enter findings of fact or conclusions of law, we view the evidence

submitted to the trial court in the light most favorable to the trial court’s order

drawing all legitimate inferences from the evidence, and we indulge every

reasonable inference in favor of the trial court’s order. Se. Tex. Veterinary Clinics,

PLLC, 2022 Tex. App. LEXIS 5791, at **19-20 (citing Crosstex NGL Pipeline, L.P.

v. Reins Rd. Farms-1, Ltd., 404 S.W.3d 754, 757 (Tex. App.—Beaumont 2013, no

pet.)); see also CRC-Evans Pipeline Int’l, Inc. v. Myers, 927 S.W.2d 259, 262 (Tex.

App.—Houston [1st Dist.] 1996, no writ). Our review of the trial court’s decision is

27
limited to the validity of its temporary injunction order; otherwise, we do not

consider the merits of the underlying case. Davis v. Huey, 571 S.W.2d 859, 861-62

(Tex. 1978); see also Henry v. Cox, 520 S.W.3d 28, 33-34 (Tex. 2017). However, a

temporary injunction will be dissolved if it is based on an erroneous application of

the law to the facts. See Dall. Gen. Drivers, Warehousemen and Helpers v. Wamix,

Inc., of Dall., 295 S.W.2d 873, 879 (Tex. 1956). A trial court abuses its discretion

when it acts arbitrarily and unreasonably, without reference to guiding rules or

principles, or misapplies the law to the established facts of the case. Se. Tex.

Veterinary Clinics, PLLC, 2022 Tex. App. LEXIS 5791, at *20 (citing Pressley v.

Casar, 567 S.W.3d 327, 333 (Tex. 2019); Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985)). If some evidence reasonably supports the trial

court’s decision, the trial court does not abuse its discretion. Butnaru, 84 S.W.3d at

211; Se. Tex. Veterinary Clinics, PLLC, 2022 Tex. App. LEXIS 5791, at *20. “An

abuse of discretion does not exist where the trial court bases its decisions on

conflicting evidence.” Davis, 571 S.W.2d at 862.

Analysis

In Appellants’ first issue, they argue that the evidence at the hearing

established that Zinc Point has an adequate remedy at law. In Appellants’ second

issue, they argue that no evidence at the hearing supported the trial court’s finding

that the 11.5 million primers it prohibited Appellants from selling, transferring, or

28
conveying, belonged to Zinc Point and that Zinc Point “had been divested of its

property[.]” In Appellants’ third issue, they argue that there is “no plausible

connection” between the trial court’s temporary injunction enjoining Appellants

from selling, transferring, or conveying the 11.5 million primers and Zinc Point’s

stated irreparable harm.

In a temporary injunction proceeding, whether a party has suffered an

irreparable injury and whether the party has an adequate remedy at law are issues

that are intertwined. Rollins v. Universal Coin & Bullion, Ltd., No. 09-06-150-CV,

2006 Tex. App. LEXIS 8764, at *13 (Tex. App.—Beaumont Oct. 12, 2006, no pet.)

(mem. op.) (citing Wright v. Sport Supply Grp., Inc., 137 S.W.3d 289, 294 (Tex.

App.—Beaumont 2004, no pet.)). “An injury is irreparable if the injured party cannot

be adequately compensated in damages or if the damages cannot be measured by

any certain pecuniary standard.” Butnaru, 84 S.W.3d at 204. Disruption of business

can be irreparable harm. Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d

215, 228 (Tex. App.—Fort Worth 2009, pet. denied) (also explaining that “assigning

a dollar amount to such intangibles as a company’s loss of clientele, goodwill,

marketing techniques, and office stability, among others, is not easy[]”); David v.

Bache Halsey Stuart Shields, Inc., 630 S.W.2d 754, 757 (Tex. App.—Houston [1st

Dist.] 1982, no writ) (“This harm would not only disrupt the organized business

dealings of Bache but would also threaten customer confidence in Bache’s handling

29
of their private affairs, and probably cause Bache to lose not only customers but

profits as well.”).

We conclude there is some evidence of irreparable harm and an inadequate

remedy at law in the record before us. For example, the trial court heard Baronowski

testify that in late August and early September of 2022, Zinc Point was in “extremely

short supply” of primers and were expecting shipments to come in. Baronowski

testified that when the shipments came in, Vivas told them that only 10 million had

come in, which was an insufficient amount to fill the orders. Baronowski testified

that “[o]riginally we were told that 15 were, and we were not informed of this other

shipment that was mentioned earlier. I was under the assumption previous to today

that only 5 million primers had been moved, not 10.”

Baronowski testified that in his petition he had alleged the specific quantity

of Servicios primers that were diverted from the Zinc Point factory by Unio Global

to a vendor which resulted in a loss to Zinc Point because Baron Global would have

been able to sell those primers, and Baronowski testified that Unio Global was still

in possession of 11.5 million primers when Hildreth went there. According to

Baronowski, during that time, Zinc Point was unable to meet its customer obligations

and was unable “to produce 9mm for a number of months because of what [Vivas]

did.” Baronowski testified that, although Zinc Point and Baron Global sold other

products, the “majority of the profitability” came from the sale of primers which was

30
the business Zinc Point had with Servicios. Baronowski testified that as a result of

the competition by Unio Global, Zinc Point’s business has “been decimated[,]” Zinc

Point’s online traffic has dropped about sixty or seventy percent, Zinc Point had

previously been averaging $50,000 a day in revenue but currently was only

averaging between $5,000 and $10,000 a day, there have been layoffs, product

quality has decreased, complaints against the company have increased, orders have

had to be canceled (specifically having to do with the primers shipment that Vivas

diverted from the company in September of 2022), and the organization has suffered

from a number of issues.

This testimony is some evidence to support the trial court’s conclusion that,

absent a temporary injunction, there will be irreparable harm, and Zinc Point will be

and has been divested of its property and that the current path would lead to Zinc

Point ceasing operations. Viewing the evidence in the light most favorable to the

trial court’s ruling, as we must, we cannot say it abused its discretion in determining

that Zinc Point met its burden of showing an imminent and irreparable injury in the

absence of a temporary injunction and that it had no adequate remedy at law. See

Henry, 520 S.W.3d at 34; Butnaru, 84 S.W.3d at 204; Davis, 571 S.W.2d at 862. We

overrule issues one, two, and three.

In Appellants’ fourth issue, they assert that the evidence does not support that

Zinc Point has a probable right to recover on its claims against Appellants.

31
Specifically, Appellants argue that (1) the evidence at the hearing establishes that

after May 2021 the sales with which Appellants allegedly interfered were sales of

Baron Global and not Zinc Point, and (2) there was no evidence presented at the

hearing supporting the trial court’s finding that Appellants consciously wanted to

prevent relationships between Zinc Point and its customers or potential customers or

that such interference was substantially certain to be caused by Appellants’ conduct.

To show a probable right to relief, an applicant need not show that it will

prevail at trial. Butnaru, 84 S.W.3d at 211 (citing Sun Oil Co. v. Whitaker, 424

S.W.2d 216, 218 (Tex. 1968)). Instead, to show a probable right of recovery, the

applicant must plead a cause of action and present some evidence that tends to

support it. Camp, 348 S.W.2d at 519; Rocklon, LLC v. Paris, No. 09-16-00070-CV,

2016 Tex. App. LEXIS 11393, at *6 (Tex. App.—Beaumont Oct. 20, 2016, no pet.)

(mem. op.) (citing Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 857 (Tex.

App.—Fort Worth 2003, no pet.)); T-N-T Motorsports, Inc. v. Hennessey

Motorsports, Inc., 965 S.W.2d 18, 23-24 (Tex. App.—Houston [1st Dist.] 1998, pet.

dism’d).

Here, Zinc Point brought claims against Appellants for tortious interference

with prospective relations and civil conspiracy. The trial court heard the testimony

of Baronowski as previously discussed above, it also heard testimony regarding

Vivas, his son, and others in forming Unio Global and in conducting business

32
directly in competition with Zinc Point despite entering into a non-compete

agreement with Zinc Point, it heard Vogel’s testimony regarding Unio Global’s

possession of primers that Baronowski testified belonged to Zinc Point, Vogel’s

testimony regarding contacting and transacting with Zinc Point’s customers, and

Hildreth’s testimony regarding him picking up primers from Vogel under the guise

of Jones Securities that Zinc Point alleged belonged to Zinc Point, and the trial court

was also presented with FedEx records related to Unio Global shipments of primers

for “Uni Global” using Zinc Point’s warehouse address. Viewing this evidence in

the light most favorable to the trial court’s injunction order, we conclude Zinc Point

put on some evidence tending to support at least one of its claims against Appellants.

Based on Zinc Point’s allegations and this evidence, the trial court could have

reasonably concluded that Zinc Point had a probable right to recovery. See Butnaru,

84 S.W.3d at 211. We overrule issue four.

To summarize, we conclude that there is some evidence to support the trial

court’s decision to issue the temporary injunction and we cannot say that the trial

court abused its discretion in granting the temporary injunction. See id. at 204, 211;

Se. Tex. Veterinary Clinics, PLLC, 2022 Tex. App. LEXIS 5791, at **19-20. Having

overruled Appellants’ issues, we affirm the trial court’s order.

33
AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on March 13, 2024
Opinion Delivered April 18, 2024

Before Golemon, C.J., Johnson and Wright, JJ.

34