                                                                            ACCEPTED
                                                                        04-15-00360-CV
                                                            FOURTH COURT OF APPEALS
                                                                 SAN ANTONIO, TEXAS
                                                                   8/25/2015 3:39:53 PM
                                                                         KEITH HOTTLE
                                                                                 CLERK


           APPEAL NO. 04-15-00360-CV
                                            FILED IN
                                     4th COURT OF APPEALS
     IN   THE COURT OF APPEALS FOR THESAN ANTONIO, TEXAS
                                     8/25/2015 3:39:53 PM
FOURTH    SUPREME JUDICIAL DISTRICT OF  TEXAS
                                       KEITH E. HOTTLE
              SAN ANTONIO, TEXAS             Clerk




                  ANDY SANCHEZ
                          Appellant,

                          vs.

          JOHN H. MILLER, JR. CO., INC.
                   Defendant-Appellee.


            Appealed from the District Court of
                    Kerr County, Texas
                   198th Judicial District
              Trial Court Cause No. 14467B
               The Honorable Rex Emerson
            ____________________________

            REPLY BRIEF OF APPELLANT


                                RICHARD L. ELLISON
                                Broadway Bank Building
                                500 Main St. Suite J
                                Kerrville, Texas 78028
                                830.792.5601
                                Texas Bar No.: 06580700
                                rellison@richellison.com
                                Attorney for Andy Sanchez
                                Defendant-Appellant
                             TABLE OF CONTENTS
TABLE OF CONTENTS …………………………………………………………………… i
INDEX OF AUTHORITIES ………………………………………………………………… i
ARGUMENT ……………………………………………………………………………... 1
PRAYER AND CONCLUSION …………………………………………………………...... 2
CERTIFICATE OF SERVICE ………………………………………………………………. 3
            __________________________________________________
                            INDEX OF AUTHORITIES
TEXAS RULE OF CIV. P. 684 ……………………………………………………………. 1
Bishop v. Clawson, 2012 WL 19668 (Tex.App.-2012 n.w.h.) ………………………… 2
Del Valle I.S.D. v. Lopez, 845 S.W.2d 808 (Tex.1992) ……………………..………… 2
Ex Parte Jordan, 142 S.W.3d 586, 590 (Tex.1990) …………………………………… 1
Ex Parte Lesher, 651 S.W.3d 586, 590 (Tex.1983) ……………………………………. 1
Letson v. Barnes, 979 S.W.2d 414 (Tex.App.-Amarillo 1998, pet.
denied)……………..……………………………………………………………………. 2
Ludewig v. Houston Pipeline Co., 737 S.W.2d 15 (Tex.App.-Corpus Christi
1987 n.w.h.) ……………………………………………………………………………. 1




                                         i
TO THE HONORABLE FOURTH COURT OF APPEALS:

        Appellant Andy Sanchez respectfully files this brief in reply to Appellee’s Brief.

                                       ARGUMENT

A.      The original Temporary Injunction-Amended expired Aug. 7, 2014.

     The trial court signed the Temporary Injunction – Amended on July 7, 2014.

Paragraph 4 stated “Plaintiff’s application for a permanent injunction is set for trial on

August 7, 2014 at 9:00 a.m…. This Order expires at that time or until further order of the

Court.” The case did not go to trial and the trial court did not sign any order that extended

it. The temporary injunction expired by its own terms on Aug. 7, 2014. The trial court

may have intended that the original injunction would remain in effect after that date, but

that is not what it ordered.

B.      The May 20, 2015 Order failed to require a bond.

     There was no injunction in place from Aug. 7, 2014 until May 20, 2015 when the trial

court signed the Order stating in Paragraph 4 “The Court confirms that the July 7, 2014

Temporary Injunction remains in full force and effect and orders that it is in full force and

effect until final trial of this matter or further order of the Court.” The Order did not

require Miller to post a bond, as required by Tex. R. Civ. P. 684. The Order was void

when signed. Ex parte Jordan, 142 S.W.3d 586, 590 (Tex.1990); Ex parte Lesher, 651

S.W.2d 734, 736 (Tex.1983).




                                               1
C.      The Order could not “relate back” to an expired injunction.

     Appellee cites no authority that support its argument that the Order could “relate

back” to an expired injunction. As stated, the trial court may have intended that the

original injunction would remain in effect after that date, but that is not what it ordered.

     In Ludewig v. Houston Pipeline Co., 737 S.W.2d 15 (Tex.App. – Corpus Christi 1987

n.w.h.) there is no indication that the original injunction had expired before the trial court

amended it.

     In Bishop v. Clawson, 2012 WL 19668 (Tex.App. – 2012 n.w.h.), a memorandum

opinion, the trial court issued an injunction, then vacated it, then reinstated it. Again,

there is no indication that the original injunction had expired on its own terms. Further,

there is no indication that the reinstated injunction failed to require a bond, as in the

instant case. In Del Valle I.S.D. v Lopez, 845 S.W.2d 808 (Tex.1992) the only issue was

whether there was an appealable order.

D.      There is no evidence to support the May 20, 2015 Order.

        Appellee offered no evidence at the May 6, 2015 hearing. Whether the original

Injunction was supported by evidence, it expired on Aug. 7, 2014, and Appellee waited

nine months to do anything, then presented no evidence at the hearing. An injunction

cannot be upheld without evidence. Letson v. Barnes, 979 S.W.2d 414, 417 (Tex.App. –

Amarillo 1998, pet. denied).




                                               2
                             CONCLUSION AND PRAYER

       The original injunction expired on its own terms on Aug. 7, 2014. Appellee failed

to do anything to extend or reinstate it for seven months. Then, it presented no evidence,

and obtained a new injunction that failed to require a bond. The new injunction was an

appealable order, and Appellant timely appealed. For these reasons, Appellant prays that

this Court order the injunction dissolved.

                                    Respectfully submitted,

                                    RICHARD L. ELLISON, P.C.
                                    Broadway Bank Building
                                    500 Main St., Suite J
                                    Kerrville, Texas 78028
                                    Tel. (830) 792-5601
                                    Fax. (830) 792-5602
                                    rellison@richellison.com

                                    By: /s/ Richard L. Ellison
                                      SBOT: 06580700

                                    ATTORNEY FOR APPELANT
                                    ANDY SANCHEZ


                                    Certificate of Service

       I certify that on the 25th day of August, 2015 I filed this brief with the Clerk of
court via the Prodoc efiling system, who will served a true and correct copy via fax to
Appellee counsel Stephen B. Schulte.

                                    /s/ Richard L. Ellison




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