

Motion for Rehearing Granted;
Opinion of March 31, 2011, Withdrawn; Petition for Writ of Mandamus
Conditionally Granted and Substitute Opinion filed May 19, 2011.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-10-01187-CV
____________
 
IN RE G. CHRISTIAN CORCORAN AND PEGGY CORCORAN, Relators
 
 
 

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
125th District Court
Harris County, Texas
Trial Court No. 2009-41594
 
 
 

SUBSTITUTE
 OPINION
We grant relators’ motion for rehearing, withdraw our opinion of March 31, 2011, and substitute this opinion
on rehearing.          
In this original proceeding, G. Christian Corcoran and Peggy
Corcoran, relators, seek a writ of mandamus ordering respondent, the Honorable
Shearn Smith, sitting for the Honorable Kyle Carter in the 125th District Court
of Harris County, Texas, to vacate his order signed August 3, 2009, granting an
Agreed Mutual Temporary Injunction.   Further, relators request we direct the
Honorable Kyle Carter, presiding judge of the 125th District Court of Harris
County, Texas, to vacate his order signed October 14, 2009, granting sanctions
against relators.  We conditionally grant the
writ.
Relators contend the order granting the
Agreed Mutual Temporary Injunction is void as a result of
the absence of a trial setting. We agree.  “Every order granting a temporary
injunction shall include an order setting the cause for trial on the merits
with respect to the ultimate relief sought.” Tex. R. Civ. P. 683.  “This provision
is mandatory; a failure to include a trial setting is grounds for voiding the
injunction.”  Kaufmann v. Morales, 93 S.W.3d 650, 656 (Tex. App. –
Houston 14th Dist. 2002, no pet.).  See also In re Garza, 126
S.W.3d 268 (Tex. App. – San Antonio 2002, orig. proceeding).
We therefore conditionally grant the petition for a writ of
mandamus and direct the Honorable Shearn Smith, sitting for the Honorable Kyle
Carter in the 125th District Court of Harris County, Texas, to vacate his order
signed August 3, 2009, granting the Agreed Mutual Temporary Injunction.  The
writ will issue only if the Honorable Shearn Smith fails to act in accordance
with this opinion.
            Relators
also contend the Order Granting Plaintiff’s Motion for Contempt, signed October
14, 2009, must be vacated.  We agree.  A trial court that holds a party in
contempt for violating a void order necessarily abuses its discretion.  See
In re Garza, 126 S.W.3d at 272 (citing Ex parte Shaffer, 649 S.W.2d
300, 301-02 (Tex.1983)). Here, the trial court held relators in contempt for
violating a void order. As such, the trial court abused its discretion, and relators
are entitled to relief. 
            We
therefore conditionally grant the petition for a writ of mandamus and direct
the Honorable Kyle Carter to vacate his order signed October 14, 2009, granting
sanctions.  The writ will issue only if the Honorable Kyle Carter fails to act
in accordance with this opinion.
Because we have found the order void, it will not support the award of
sanctions or attorney fees. See Ex parte Sealy, 870 S.W.2d 663,
667 (Tex. App. – Houston [1st Dist.] 1994, orig. proceeding); and Keene Corp
v. Gardner, 837 S.W.2d 224, 232 (Tex. App. – Dallas 1992, writ denied).  We
therefore order the Joneses and their attorney to refund to the Corcorans any
monies they paid under the trial court’s void order. 
                                                                                                                        
                                                                                    
                                                                        /s/ 
    William J. Boyce
                                                                                    Justice
 
 
Panel
consists of Justices Boyce, Christopher, and Jamison.

