Rehearing Denied July 17, 2019
APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT, [NO. 04CV-16-1752],
HONORABLE BRAD KARREN, JUDGE
Friday,
Eldredge & Clark, LLP, Little Rock, by: Elizabeth R. Murray,
H. Wayne Young, Jr., and Joshua C. Ashley, for appellant.
Cullen
& Co., PLLC, Little Rock, by: Tim J. Cullen, for appellee.
OPINION
KENNETH
S. HIXSON, Judge
Page 720
This
is the second appeal in this litigation between appellant
David Box and his former employer, appellee J.B. Hunt
Transport, Inc. (hereinafter "J.B. Hunt"). The
first appeal was an interlocutory appeal wherein Box
challenged the trial courts order granting J.B. Hunts
motion for an injunction and temporary restraining order. The
temporary order was based on three agreements containing
confidentiality, noncompete, and restricted stock provisions
executed between the parties during Boxs employment, and the
order 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 Boxs separation from J.B. Hunt. In Box
v. J.B. Hunt Transport, Inc., 2017 Ark.App. 605, 533
S.W.3d 603 (Box I ), we held that the trial court
abused its discretion in granting J.B. Hunts motion for an
injunction and a temporary restraining order because, inter
alia, J.B. Hunt failed to demonstrate a likelihood of success
on the merits, and we reversed and remanded.
After
we reversed and remanded, Box filed a motion for damages and
attorneys fees against J.B. Hunt. Box sought damages
incurred as a result of the injunction and attorneys fees
for prevailing on the injunction issue. J.B. Hunt filed a
motion to strike Boxs motion, arguing that the trial court
lacked jurisdiction to act on Boxs motion because, while the
appeal in Box I was pending, J.B. Hunt voluntarily
dismissed its underlying complaint against Box. J.B. Hunt
asserted that the case was closed and that because more than
ninety days had elapsed since the trial courts order of
dismissal, the case had been fully and finally dismissed. The
trial court agreed with J.B. Hunt and entered an order
finding that it lacked subject-matter jurisdiction to rule on
Boxs motion for damages and attorneys fees pursuant to Rule
60(c) of the Arkansas Rules of Civil Procedure.
Box now
brings this second appeal in the matter, challenging the
trial courts order wherein the trial court found that it
lacked jurisdiction to rule on Boxs motion for damages and
attorneys fees. On appeal, Box argues that the trial court
erred as a matter of law in dismissing for lack of
subject-matter jurisdiction and that the trial court
disregarded our mandate in Box I, thus depriving Box
of his statutory right to seek damages and attorneys fees
associated with the wrongful injunction. We agree that the
trial court erred in finding that it lacked subject-matter
jurisdiction to rule on Boxs motion. Therefore, we reverse
and remand.
The
relevant facts and procedural history are as follows. Box was
employed by J.B. Hunt from 2000 until he resigned on October
27, 2016. For the last five years of his employment there,
Box worked as a director of transportation in J.B. Hunts
integrated capacity solutions division in Memphis, Tennessee.
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.
The
litigation began on November 22, 2016, when J.B. Hunt filed a
complaint for breach of contract against Box. J.B. Hunt
alleged that by accepting employment with Hub Group, Box had
violated various noncompete and confidentiality agreements
executed during his employment with J.B.
Page 721
Hunt. Generally, J.B. Hunt claimed that Boxs employment with
Hub Group was the same or substantially similar to his
employment with J.B. Hunt and that performing his
responsibilities at Hub Group may result in Box disclosing
trade secrets or confidential information of J.B. Hunt that
would afford Hub Group an unfair competitive advantage. J.B.
Hunt requested an order permanently enjoining Box from
disclosing any of J.B. Hunts confidential information and
trade secrets, and temporarily enjoining him from employment
with Hub Group.
On
November 23, 2016, which was one day after it filed its
complaint, J.B. Hunt filed a motion for an injunction and
temporary restraining order. On February 14, 2017, the trial
court entered an order granting J.B. Hunts motion for an
injunction and temporary restraining order, finding that
irreparable harm would result in the absence of an injunction
or restraining order, and that J.B. Hunt had demonstrated a
likelihood of success on the merits of its breach-of-contract
complaint. Based on these findings, the trial court enjoined
Box from disclosing confidential information and trade
secrets and from employment with Hub Group through October
27, 2017. The trial court also awarded J.B. Hunt attorneys
fees and costs. The court had not yet determined the amount
of attorneys fees or costs when Box appealed from the
interlocutory order entered on February 14, 2017, as he was
permitted to do under Arkansas Rule of Appellate
Procedure-Civil 2(a)(6), resulting in the first appeal to
this court.[1]
After
the record for the interlocutory appeal was lodged by Box in
this court and after briefs were filed, on September 26,
2017, J.B. Hunt filed a motion to voluntarily dismiss its
complaint in the circuit court pursuant to Arkansas Rule of
Civil Procedure 41(a). The trial court entered an order
dismissing J.B. Hunts complaint without prejudice on the
same day. Subsequently, J.B. Hunt filed a motion to dismiss
the appeal before this court. J.B. Hunt argued that the
appeal in Box I should be dismissed for two reasons.
First, it asserted that it had 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 contended that because its original claims
were dismissed without prejudice, the provisional remedy
based on those claims, i.e., the temporary restraining order
and preliminary injunction, had been dissolved. J.B. Hunt
also noted in its motion that Box had not filed a
counterclaim. Second, J.B. Hunt argued that the appeal should
be dismissed as moot because the temporary restraining order
by its terms expired on October 27, 2017, which was just two
days after the case was scheduled to be orally argued before
our court, making a decision prior to expiration of the
temporary order practically impossible.
In
Box I, before addressing the merits of the
interlocutory appeal, we first addressed the motion to
dismiss appeal filed by J.B. Hunt. We denied J.B. Hunts
motion to dismiss the appeal. We stated that when the record
was filed with our court, there had been no such order of
dismissal entered, and that it was therefore not part of our
record.[2] Because we will not consider a
document not in the record, we stated that J.B. Hunts
argument that the appeal should be dismissed because it
voluntarily dismissed its action below was not before
Page 722
us. We also concluded that the expiration of the temporary
order did not moot our review of the order. We noted that in
the order being appealed, the trial court awarded attorneys
fees and costs to J.B. Hunt, which was one of the issues Box
raised on appeal. In addition, citing Arkansas Rule of Civil
Procedure 65(c) and Ark. Code Ann. § 16-113-405(a)(1) (Repl.
2016), we noted that 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. For
those reasons, we concluded that our decision in Box
I would likely have practical legal effects. Finally, we
stated that even were we to agree that a decision rendered on
appeal would not affect the rights of the parties, the appeal
fell under an exception to the mootness doctrine because it
involved issues that were capable of repetition but evaded
review. For those reasons, we reached the merits of the
appeal in Box I .
Upon
deciding the merits in Box I, we examined each of
the relevant agreements executed by the parties during Boxs
employment with J.B. Hunt as applied to the facts presented
below. We held that the trial court abused its discretion in
granting J.B. Hunts motion for an injunction and restraining
order because J.B. Hunt failed to demonstrate a likelihood of
success on the merits, and that the trial court made
insufficient findings and conclusions to support its
order.[3] Therefore, we reversed and remanded.
After
we delivered Box I on November 8, 2017, J.B. Hunt
filed a petition for rehearing with this court and a petition
for review with the supreme court, both of which were denied.
Our mandate was issued on January 25, 2018. On the same day
the mandate was issued, Box filed a motion to recall the
mandate for recovery of additional costs. We granted Boxs
motion and issued an amended mandate on February 21, 2018.
On
February 21, 2018, the same day our amended mandate issued in
Box I, Box filed in the trial court a motion for
damages and attorneys fees. Box alleged that he incurred
damages as a result of the dissolved preliminary injunction,
including lost income, lost stock opportunities, lost 401(k)
matching funds, higher medical-insurance costs, and emotional
distress. Box claimed entitlement to these damages pursuant
to Ark. Code Ann. § 16-113-405(a)(1) (Repl. 2016), which
provides:
Upon the dissolution in whole or in part of any injunction or
restraining order of any and every kind and nature
whatsoever, the circuit court wherein the injunction or
restraining order was pending may assess and render against
principal and sureties on the injunction bond a valid
judgment for any and all ...