FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-16-1752]
HONORABLE BRAD KARREN, JUDGE, REVERSED AND REMANDED
Friday, Eldredge & Clark, LLP, by: Elizabeth Robben
Murphy, H. Wayne Young, and Marshall Ney, for appellant.
& Co., PLLC, by: Tim J. Cullen, for appellee.
KENNETH S. HIXSON, Judge
David Box, a former employee of appellee J.B. Hunt Transport
(hereinafter "J.B. Hunt"), brings this
interlocutory appeal from the trial court's order
granting J.B. Hunt's motion for an injunction and
temporary restraining order. In the order, the trial court
enjoined Box from disclosing confidential information and
trade secrets to Hub Group, Inc. (hereinafter "Hub
Group"), and from employment with Hub Group for a period
of one year from Box's separation from J.B. Hunt. The
temporary order was based on three agreements containing
confidentiality, noncompete, and restricted stock provisions
executed between the parties during Box's employment.
raises six arguments for reversal of the trial court's
order. Box argues that (1) the trial court erroneously relied
on recitals in the agreements; (2) J.B. Hunt failed to prove
a likelihood of success of demonstrating that Box breached
any agreement; (3) the trial court's order made no
findings that any agreement complied with Arkansas law; (4)
the trial court erroneously applied Act 921 of 2015
retroactively; (5) the trial court improperly awarded J.B.
Hunt attorney's fees and costs; and (6) the trial court
made improper and premature rulings in anticipation of a jury
trial. We agree that the trial court erred in granting the
preliminary injunction and temporary restraining order
because J.B. Hunt failed to demonstrate a likelihood of
success on the merits and the trial court made insufficient
findings and conclusions to support the injunction and
restraining order. Therefore, we reverse and remand.
threshold matter, we address J.B. Hunt's motion to
dismiss Box's appeal, which was filed while the appeal
was pending and passed until the case was submitted. In its
motion to dismiss, J.B. Hunt asserts that it recently
exercised its right in the court below to a voluntary
dismissal of its underlying complaint against Box under
Arkansas Rule of Civil Procedure 41(a). J.B. Hunt further
asserts that the trial court entered an order dismissing its
complaint without prejudice. J.B. Hunt argues that because
its original claims have been dismissed without prejudice,
the provisional remedy based on the claims, i.e., the
temporary restraining order and preliminary injunction, have
been dissolved. That being so, J.B. Hunt contends that this
appeal is moot because any decision rendered would have no
practical legal effect on an existing legal controversy.
general rule, appellate courts will not review issues that
are moot. Allison v. Lee Cnty. Election Comm'n,
359 Ark. 388, 198 S.W.3d 113 (2004). Here, however, we cannot
agree that the order of dismissal referenced by J.B. Hunt in
its motion to dismiss rendered this appeal moot. At the time
the record was filed with our court, there had been no such
order of dismissal entered, and it is therefore not part of
the record. We will not consider a document not in the
record. Potter v. City of Tontitown, 371 Ark. 200,
264 S.W.3d 473 (2007). Therefore, J.B. Hunt's argument
that the appeal should be dismissed because it dismissed its
action pursuant to Arkansas Rule of Civil Procedure 41(a) is
not before us.
observe that, as an alternative reason to dismiss the appeal,
J.B. Hunt asserts that the temporary restraining order
expires by its terms on October 27, 2017, and that this case
was submitted to our court with oral arguments scheduled for
October 25, 2017, making a decision prior to expiration of
the temporary order practically impossible. However, we do
not agree that the expiration of the temporary order moots
our review of the order. In the order being appealed, the
trial court awarded attorney's fees and costs to J.B.
Hunt, which is one of the issues Box raises on appeal. In
addition, in the temporary restraining order the trial court
ordered J.B. Hunt to post security in an amount sufficient to
pay the damages sustained by Box should he be found to have
been wrongfully enjoined or restrained. This provision in the
trial court's order is expressly authorized by Arkansas
Rule of Civil Procedure 65(c). See also Ark. Code
Ann. § 16-113-405(a)(1) (Repl. 2016). For these reasons,
our decision in this case will likely have practical legal
even were we to agree that a decision rendered on appeal
would not affect the rights of the parties to this appeal, we
conclude that this appeal would fall under an exception to
the mootness doctrine. One of the recognized exceptions to
the mootness doctrine involves issues that are capable of
repetition but that evade review. Poland v. Poland,
2017 Ark.App. 178, 518 S.W.3d 98. Any appeal from a temporary
order restraining an employee from working for a competitor
would likely evade review upon expiration of the temporary
order before the appeal could be heard by the appellate
court. Furthermore, one of the agreements upon which the
trial court based its temporary restraining order and
preliminary injunction provides that a violation of the
agreement could trigger a two-year remedy and hence, J.B.
Hunt could refile its motion and receive another temporary
restraining order for another year without review. Therefore,
the trial court's action would evade review and the
aggrieved party would not receive the appellate review to
which it is entitled. For these reasons, we deny J.B.
Hunt's motion to dismiss and reach the merits of
record shows that Box was employed by J.B. Hunt from 2000
until he resigned on October 27, 2016. From 2004 to 2011, Box
was a regional operations manager in the intermodal
division. From 2011 until his separation from
employment on October 27, 2016, Box worked as a director of
transportation in J.B. Hunt's integrated capacity
solutions division in Memphis, Tennessee. Box's job as a
director of transportation was a brokerage position working
with customers in a sales capacity. After leaving his
employment with J.B. Hunt, Box accepted a position with
another transportation company, Hub Group, as a regional vice
president of operations in the Memphis region. This position
was in Hub Group's intermodal division.
November 22, 2016, J.B. Hunt filed a complaint against Box
for breach of contract related to the employment, alleging
that by accepting employment with Hub Group, Box had violated
several agreements executed during his employment with J.B.
Hunt. The first of these agreements was a Confidentiality
Agreement signed by Box in 2004, which provided in pertinent
3.CONFIDENTIAL INFORMATION. Employee recognizes, acknowledges
and agrees that Company operates on a nationwide basis, and
that, by reason of Employee's employment with Company,
Employee will acquire information concerning Company methods,
processes, operations, marketing programs, computer programs,
future plans and customers, and other proprietary or
otherwise sensitive information. This information
("Confidential Information") is a valuable asset of
Company and affects the successful operation of Company's
business. If known to Company's suppliers, customers or
competitors, such Confidential Information would give such
parties a competitive advantage.
4. TRADE SECRETS. In general, a Company trade secret is
information (including a formula, pattern, compilation,
program, device, method, technique or process) that derives
independent economic value, actual or potential, from being
. . . .
Furthermore, Employee recognizes, acknowledges and agrees
that some Confidential Information may be trade secret
protected by the Arkansas Trade Secrets Act, codified at Ark.
Code Ann § 4-75-601, et seq.
5. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Employee
agrees, as a condition of employment and in consideration for
continued employment, as well as other consideration
conferred on him/her by Company, that, except as necessary to
perform Employee's duties and responsibilities to
Company, while employed, Employee will not discuss, disclose,
describe, reproduce or use in any manner the Company's
6 OBLIGATIONS OF EMPLOYEE AFTER TERMINATION OF EMPLOYMENT.
Employee recognizes, acknowledges and agrees that this
provision shall survive the termination whether voluntary or
involuntary of Employee's employment. Employee agrees
that this Confidentiality Agreement precludes him/her from
discussing, disclosing, describing, reproducing or using in
any manner the Company's trade secrets after
Employee's employment with Company has ended for as long
as the information is a trade secret. Employee agrees that
this Confidentiality Agreement precludes Employee from
discussing, disclosing, describing, reproducing or using in
any manner the Company's Confidential Information which
is not a trade secret for a period of one (1) year following
7. REMEDIES. It is further understood that a breach of this
Agreement shall entitle Company or Employee, in addition to
other legal and equitable remedies available, to apply to any
court of competent jurisdiction to enjoin any violation of
this Agreement. Employee agrees to the entry of a Temporary
Restraining Order or a Preliminary Injunction against
Employee precluding violation of this provision pending a
resolution of any dispute that may arise regarding this
Agreement. Employee recognizes, acknowledges and agrees that
if Employee's knowledge and skills are inextricably
connected to Company's trade secrets and his/her
subsequent employment poses a substantial risk that
Company's trade secrets will be discussed, disclosed,
described, considered, reproduced or otherwise utilized, such
inevitable disclosure will justify an injunction against
Employee's competitive employment.
also signed a Noncompete and Nonsolicit Agreement in 2013,
which provides in pertinent part:
2. DEFINITIONS. As used herein.
. . . .
b. "Competing Services" are understood to be
services, as an employee, officer, director, owner,
consultant or otherwise: (i) rendered on behalf of a
Competing Business that are the same as or substantially
similar in purpose or function to the services Employee
supervised or provided to the Company in the preceding two
years, or (ii) rendered in any position or capacity in which
he/she may inevitably disclose, utilize or consider
Confidential information gained through his/her employment
with Company which would give a Competing Business, customer
or other business an unfair competitive advantage.
. . . .
d. "Confidential Information" has the same meaning
as it does in the Confidential Information and Proprietary
Interests Agreement that Employee has also agreed to and that
is ancillary to this Agreement-namely, an item of information
or a compilation of information, in any form (tangible or
intangible), related to Company's business that the
Company has not intentionally made public or authorized
public disclosure of and that is not readily available to the
public through proper means in the same form or compilation,
inclusive of but not limited to trade secrets.
. . . .
4. NONCOMPETE. During employment with the Company and for a
period of one (1) year thereafter, Employee will not,
directly or indirectly, provide, supervise, or manage
Competing Services in a Prohibited Territory without the
advance written consent of the Company in order to help
ensure that the Company's trade secrets and other
interests are adequately protected.
Box signed three similar Restricted Stock Agreements in 2013,
2014, and 2015, which provide in pertinent part:
11. PROTECTIVE ...