 
 




                                        In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-17-00485-CV
                             _________________


                       IN RE CHRISTOPHER P. LIMA

________________________________________________________________________

                             Original Proceeding
                  258th District Court of Polk County, Texas
                          Trial Cause No. CIV30380
________________________________________________________________________

                          MEMORANDUM OPINION

      Christopher P. Lima petitioned for a writ of habeas corpus and alternative

mandamus relief. He contends he cannot be held in contempt for violating an agreed

temporary injunction order because fatal defects in the order make it unenforceable.

We conclude that neither habeas nor mandamus is required because Lima is not in

custody and no contempt judgment and order of commitment has been reduced to

writing. Accordingly, we deny relief.




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                                    Background

      Amanda Rushing Price filed a suit for a permanent injunction against

Christopher P. Lima. In addition to seeking a permanent injunction, Price requested

that during the pendency of the suit Lima be enjoined from communicating with,

harassing, or coming within 500 feet of Price and her family. On January 6, 2017,

the trial court signed an agreed temporary injunction that mutually restrained the

parties from communicating, harassing, making derogatory comments, or coming

within 500 feet of the other party and their family. The temporary injunction order

neither set nor expressly waived a bond, and no trial date was set in the order. No

accelerated appeal was taken from the temporary injunction order.

      On September 26, 2017, Price filed a motion to hold Lima in contempt for

two violations of the temporary injunction. Price alleged that on July 28, 2017, Lima

harassed Price “in person and received a citation from Polk County Sheriff’s Office,

Citation No. 031236, for ‘Disorderly Conduct - Abusive Language’ and entered a

plea of no contest to the same on August 18, 2017.” Price alleged, “[t]his interaction

on behalf of Mr. Lima was with no legitimate purpose and was meant only to harass.”

Price also alleged that on August 20, 2017, Lima “posted false and misleading

information in a Facebook ‘Rant’ that pertained to [Price] and was intended to hold

[Price in] a false light.” Price alleged, “[t]his post was placed with no legitimate

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purpose and was meant only to harass and/or annoy [Price].” On September 28,

2017, the trial court issued an order for Lima to appear before the trial court and

respond to the motion for enforcement on October 24, 2017, at 1:30 pm. On October

26, 2017, the trial court signed an order requiring that Lima appear and respond to

the motion for enforcement on December 11, 2017, at 9:00 am.

      The trial court held the contempt hearing on December 11, 2017. Lima’s

counsel attended the hearing, but Lima failed to appear personally. Price testified

that on July 24, 2017, Lima drove past her house and shouted obscenities.

Additionally, Price testified that Lima’s Facebook postings included statements

calling her a squatter and accusing her of having an affair with her realtor. At the

conclusion of the hearing, the trial court found that Lima violated the temporary

injunction and orally pronounced punishment at a fine of $500 for each violation and

one weekend in jail, commencing on December 22, 2017, at 6:00 pm until December

24, 2017, at 6:00 pm. Also, the trial court found that Lima “should pay the legal fees

and expenses in regard to this matter[.]”

      On December 19, 2017, Lima filed a petition for a writ of habeas corpus. The

appendix filed with the petition lacked a written judgment of contempt and order of

commitment. Lima did not provide proof of his confinement. Lima amended his

petition to add an alternative request for mandamus relief. On December 21, 2017,

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we stayed enforcement of the trial court’s order of December 11, 2017, in Cause No.

CIV30380, and requested a response from the real party in interest. It appears no

written judgment of contempt or order of commitment was signed by the trial court

and nothing in the record before us establishes that Lima has been taken into custody.

                                     Arguments

      Lima presents four issues in his petition. First, he contends the judgment of

contempt is void, beyond the power of the trial court, and violates due process

because the temporary injunction the trial court found Lima violated was void

because it did not include a trial date and required no bond be posted. Second, he

complains that he was tried in absentia. Third, Lima contends the trial court lacks

the authority to award Price attorney’s fees in connection with the judgment of

contempt. Fourth, Lima argues that the trial court abused its discretion by ruling that

Lima should be incarcerated while he was not physically present in court and based

upon a void temporary injunction.

      In her response, Price argues that the contempt judgment is not void because

it was based upon a Rule 11 agreement between the parties. She contends Lima

waived a trial setting and the necessity of a bond by presenting to the trial court for

signature an agreed temporary injunction that neither set the case for trial nor ordered

a bond. Price contends that because Lima was duly served with a citation and order

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to appear, he was not tried in absentia. Finally, Price contends attorney’s fees may

be awarded on equitable grounds or pursuant to enforcement of the Rule 11

agreement as a contract.

                               Temporary Injunction

      A temporary injunction that fails to set the cause for trial on the merits “is

subject to being declared void and dissolved.” InterFirst Bank San Felipe, N.A. v.

Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986). Likewise, a temporary injunction

that fails to set a bond is subject to being declared void and dissolved. Qwest

Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000). InterFirst and

Qwest were accelerated appeals from the granting of temporary injunctions. Lima

did not appeal from the temporary injunction. Therefore, we must determine whether

Lima is entitled to extraordinary relief in this original proceeding.

                                   Habeas Corpus

      Before we decide whether Lima is entitled to habeas relief, we must determine

whether he is “restrained in his liberty . . . by virtue of an order, process, or

commitment issued by a court or judge because of the violation of an order,

judgment, or decree previously made, rendered, or entered by the court or judge in

a civil case.” See Tex. Gov’t Code Ann. § 22.221(d) (West Supp. 2017).




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              In this case, the trial court announced its decision from the bench but did not

promptly reduce its decision to a written judgment, issue an order of commitment,

or have Lima taken into custody.1 The sole purpose of a habeas corpus proceeding

is to determine whether the relator has been unlawfully restrained. In re Spates, No.

14-14-00603-CV, 2014 WL 4262197, at *2 (Tex. App.—Houston [14th Dist.] Aug.

28, 2014, orig. proceeding) (mem. op.). Habeas relief is not available where the

relator “is not currently confined, is not released on bond pending review of his

petition, is not on probation, and did not provide evidence that a capias has issued.”

Id. Lima is not currently confined, no capias has issued, he is not released on bond,

and he is not subject to a community supervision order. We conclude that Lima has

not established his entitlement to habeas relief.




                                                            
        “[D]ue process requires both a written judgment of contempt and a written
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order of commitment, although the trial court may cause a contemnor to be detained
for a short reasonable time while the judgment of contempt and an order of
commitment are prepared for the court’s signature.” Ex parte Price, 741 S.W.2d 366,
368 (Tex. 1987). “Even when a written judgment or order of contempt is signed, a
written order of commitment delivered to the sheriff or other appropriate officer is
necessary to legally imprison a person.” Ex parte Barnett, 600 S.W.2d 252, 256
(Tex. 1980). Furthermore, “a trial court has no authority to verbally order a person
confined for contemptuous acts committed outside the presence of the court and,
thereafter, unduly delay signing a contempt judgment and commitment order.” Ex
parte Calvillo Amaya, 748 S.W.2d 224, 224 (Tex. 1988). A three-day delay is not a
reasonable time to reduce the oral pronouncement to a written judgment. Id.
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                                     Mandamus

      In the absence of physical restraint, a person may seek mandamus relief from

a contempt judgment. See Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995) (orig.

proceeding). Furthermore, an appellate court may consider granting mandamus

relief from “an oral order if the court’s ruling is a clear, specific, and enforceable

order that is adequately shown by the record.” In re Bledsoe, 41 S.W.3d 807, 811

(Tex. App.—Fort Worth 2001, orig. proceeding).

      To support his argument that he is entitled to relief, Lima cites In re Garza,

126 S.W.3d 268, 271 (Tex. App.—San Antonio 2003, orig. proceeding [mand.

denied]). In Garza, the trial court held a party in contempt for violating a void

temporary injunction. Id. at 270, 273. Mandamus conditionally issued to require the

trial court to vacate the judgment of contempt. Id. However, an oral contempt order

is not enforceable unless it is reduced to a written judgment within a reasonable time.

Ex parte Calvillo Amaya, 748 S.W.2d 224, 224 (Tex. 1988). Because an oral finding

of contempt is ineffective unless it is reduced to a written judgment, we conclude

that mandamus is not available to compel the trial court to vacate its oral order

finding Lima in contempt.

      Lima has not shown that he filed a motion to dissolve the injunction with the

trial court, and his counsel did not challenge the validity of the agreed temporary

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injunction during the contempt hearing. Lima apparently argues that the agreed

temporary injunction is void for the first time in this proceeding. “Due to the

extraordinary nature of the remedy, the right to mandamus relief generally requires

a predicate request for action by the respondent, and the respondent’s erroneous

refusal to act.” In re Coppola, No. 16-0723, 2017 WL 6390965 at *3 (Tex. Dec. 15,

2017) (orig. proceeding). Likewise, the mandamus record does not contain a written

order awarding attorney’s fees for violating the temporary injunction order. Relator

has not shown that mandamus relief from an order awarding attorney’s fees is

required at this time. Thus, Lima has not established that he is entitled to mandamus

relief. Accordingly, we lift our stay order and deny the petition.

      PETITION DENIED.



                                                            PER CURIAM


Submitted on January 2, 2018
Opinion Delivered February 1, 2018

Before Kreger, Horton, and Johnson, JJ.




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