Opinion issued April 20, 2017




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-16-00967-CV
                           ———————————
              TRUE BLUE ANIMAL RESCUE, INC., Appellant
                                       V.
                        WALLER COUNTY, Appellee


                   On Appeal from the 506th District Court
                            Waller County, Texas
                      Trial Court Case No. 16-10-23953


                         MEMORANDUM OPINION

      In this interlocutory appeal, appellant True Blue Animal Rescue, Inc.

challenges the trial court’s denial of its application for a temporary injunction

against appellee Waller County. Because True Blue did not meet its burdens to

plead a cause of action against Waller County and to produce some evidence
establishing a probable right to relief, we affirm the denial of a temporary

injunction.

                                   Background

      Waller County seized 34 horses from Kathie Digilio, alleging that she had

treated them cruelly. The horses were placed in the care of True Blue Animal

Rescue, Inc.

      After the seizure of the horses, Waller County brought divestiture

proceedings against Digilio under Texas Health and Safety Code Chapter 821, in a

Waller County justice court. While the divestiture proceedings were pending,

Waller County and Digilio entered into an agreement whereby some of the horses

would be returned to her, and she would pay $30,000 to True Blue for the care of

the horses. The justice court issued an order in accordance with this agreement.

      True Blue filed suit against Waller County, complaining that the justice

court’s order was improper. In its petition, True Blue requested that the trial court

grant a temporary injunction against Waller County, enjoining enforcement of the

order. True Blue’s petition also included a claim, in the alternative, for breach of

contract against Waller County. This contract claim stemmed from Waller

County’s alleged breach of an agreement between it and True Blue regarding

possession of the horses and payment for their care and treatment.




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      The trial court issued a temporary restraining order, enjoining Waller County

“from transferring any of the 34 horses involved in the Digilio seizure . . . so that

the status quo may be observed” and so that True Blue could assert its “rights

regarding the horses and the payment of its incurred costs of care for the horses.”

The trial court granted three extensions of the temporary restraining order.

Following the third extension, the court held a temporary-injunction hearing.

During the hearing, the court and parties discussed several disputed procedural

issues, including True Blue’s standing to sue, whether the State of Texas should

have been the proper defendant instead of Waller County, and whether mandamus

against the justice court was a more appropriate remedy for True Blue’s

complaints. The trial court made an oral “finding” that True Blue’s petition did

“not state a claim” that it could “grant relief on from True Blue’s standpoint.”

After the hearing, the trial court issued an order denying the application for a

temporary injunction, without stating its reasons.

      True Blue has appealed the denial of its application for a temporary

injunction.

                                      Analysis

      True Blue contends that the trial court erred by denying its application for a

temporary injunction. “In general, a temporary injunction is an extraordinary

remedy and does not issue as a matter of right.” Walling v. Metcalfe, 863 S.W.2d


                                          3
56, 57 (Tex. 1993). The purpose of a temporary injunction 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). The status quo is “the last, actual,

peaceable, non-contested status which preceded the pending controversy.” In re

Newton, 146 S.W.3d 648, 651 (Tex. 2004). To obtain a temporary injunction, the

applicant ordinarily must plead and prove three specific elements: (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. Butnaru, 84 S.W.3d at

204. With regard to proving a probable right to the relief sought, the applicant is

not required to prove that it will prevail on final trial. Instead, the only question

before the trial court is whether the applicant is entitled to preservation of the

status quo pending trial. INEOS Grp. Ltd. v. Chevron Phillips Chem. Co., 312

S.W.3d 843, 848 (Tex. App.—Houston [1st Dist.] 2009, no pet.). The party

applying for a temporary injunction has the burden of production, which is the

burden of offering some evidence that establishes a probable right to recover. See

Millwrights Local Union No. 2484 v. Rust Eng’g Co., 433 S.W.2d 683, 685–87

(Tex. 1968); Intercontinental Terminals Co. v. Vopak N. Am., Inc., 354 S.W.3d

887, 891 (Tex. App.—Houston [1st Dist.] 2011, no pet.). If an applicant does not

discharge its burden, it is not entitled to such extraordinary relief. See Millwrights,

433 S.W.2d at 685–87; Intercontinental Terminals, 354 S.W.3d at 891.


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      The decision to grant or deny a temporary injunction lies in the discretion of

the trial court, and the court’s ruling is subject to reversal only for an abuse of that

discretion. INEOS Grp., 312 S.W.3d at 848. A trial court abuses its discretion in

granting or denying a temporary injunction when it misapplies the law to the

established facts. Id. We review the evidence submitted to the trial court in the

light most favorable to its ruling, drawing all legitimate inferences from the

evidence, and deferring to the trial court’s resolution of conflicting evidence. Id.

Our review is limited to determining whether the trial court abused its discretion;

we do not reach the merits of the underlying case. Davis v. Huey, 571 S.W.2d 859,

861–62 (Tex. 1978); INEOS Grp., 312 S.W.3d at 848. When, as in this case, no

findings of fact or conclusions of law are filed, the trial court’s order must be

upheld on any legal theory supported by the record. See, e.g., Intercontinental

Terminals, 354 S.W.3d at 898.

      On appeal, True Blue raises several arguments as to why the district court

erred by denying its application for a temporary injunction. These arguments

primarily address various reasons which True Blue posits the trial court might have

relied upon erroneously to justify denying a temporary injunction. True Blue also

provides arguments regarding why the justice court’s order was incorrect. None of

True Blue’s arguments, however, address the burdens it had to meet in order to

demonstrate it was entitled to an injunction.


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          True Blue has not shown that it pleaded a cause of action against Waller

County. In fact, True Blue contends that it has abandoned the only cause of action

it asserted against Waller County, its claim for breach of contract, and on appeal it

does not rely upon such a claim to justify its request for temporary injunctive

relief.

          Further, True Blue does not point to, or provide any argument regarding,

evidence adduced in the trial court indicating its probable right to relief against

Waller County. True Blue does argue that Waller County is the appropriate

defendant because the requested relief arises out of events involving the Waller

County District Attorney’s Office and a Waller County justice of the peace. But

True Blue fails to identify any evidence or provide any legal argument that would

indicate why Waller County would be responsible for the actions of those actors.

          True Blue also contends that the trial court erred, during the temporary

injunction hearing, by excluding uncertified copies of orders issued by the justice

court. We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). We will not reverse the

denial of a temporary injunction unless “the trial court’s erroneous evidentiary

ruling probably caused the rendition of an improper judgment.” See Horizon/CMS

Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see also ICON Benefit

Adm’rs II, L.P., v. Abbott, 409 S.W.3d 897, 906 (Tex. App.—Austin 2013, pet.


                                          6
denied); TEX. R. APP. P. 44.1(a)(1). True Blue does not argue that the excluded

orders would have demonstrated a probable right of relief against Waller County.

Even assuming that the trial court erred by excluding the orders, any such error

was harmless because True Blue still would have failed to meet its burdens to

show its entitlement to a temporary injunction. See TEX. R. APP. P. 44.1(a); ICON

Benefit Adm’rs II, 409 S.W.3d at 906–07.

      Because True Blue did not discharge its burdens to plead a cause of action

and demonstrate a probable right to relief against Waller County, it was not

entitled to a temporary injunction. See Millwrights, 433 S.W.2d at 685–87;

Intercontinental Terminals, 354 S.W.3d at 891. Accordingly, the trial court did not

abuse its discretion by denying True Blue’s application for a temporary injunction.

                                   Conclusion

      We affirm the trial court’s denial of the requested temporary injunction.



                                             Michael Massengale
                                             Justice

Panel consists of Justices Jennings, Higley, and Massengale.




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