                                                                            ACCEPTED
                                                                        04-15-00360-CV
                                                            FOURTH COURT OF APPEALS
                                                                 SAN ANTONIO, TEXAS
                                                                    7/8/2015 4:20:26 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
                                     07/08/15 4:20:26 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
            ____________________________

                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
                      IDENTIFY OF PARTIES AND COUNSEL
Party                                           Counsel
Andy Sanchez, Appellant                   Richard L. Ellison
                                          Broadway Bank Building
                                          500 Main St., Suite J
                                          Kerrville, TX 78028
                                          Tel. 830-792-5601
                                          Fax. 830-792-5602
                                          rellison@richellison.com


John H. Miller, Jr. Co., Inc., Appellee   Stephen B. Schulte
                                          820 Main St. Suite 100
                                          Kerrville, TX 78028
                                          Tel. 830-258-4222
                                          Fax. 830-715-9292

                                          sschulte@schultepc.com




                                            i
                        TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL …………………………………………………… i
TABLE OF CONTENTS …………………………………………………………………… ii
INDEX OF AUTHORITIES ………………………………………………………………… iii
STATEMENT OF THE CASE ………………………………………………………………. 1
ISSUES PRESENTED ……………………………………………………………………... 2
STATEMENT REGARDING ORAL ARGUMENT……………………………………………..2
STATEMENT OF FACTS ………………………………………………………………….. 2
SUMMARY OF THE ARGUMENT ………………………………………………………….4
ARGUMENT ……………………………………………………………………………... 5
STANDARD FOR REVIEW ………………………………………………………………... 5
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED AN INJUNCTION
WITHOUT SETTING A BOND ……………………………………………………………..5
THERE WAS NO EVIDENCE TO SUPPORT THE INJUNCTION ……………………………...6
PRAYER AND CONCLUSION …………………………………………………………......
          __________________________________________________
                              APPENDIX
                                                                TAB
July 7, 2014 Temporary Injuction – Amended ………………………………………. A
May 19, 2015 Order ……………………………………………………………………B




                                  ii
                        TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL …………………………………………………… i
TABLE OF CONTENTS …………………………………………………………………… ii
INDEX OF AUTHORITIES ………………………………………………………………… iii
STATEMENT OF THE CASE ………………………………………………………………. 1
ISSUES PRESENTED ……………………………………………………………………... 2
STATEMENT REGARDING ORAL ARGUMENT……………………………………………..2
STATEMENT OF FACTS ………………………………………………………………….. 2
SUMMARY OF THE ARGUMENT ………………………………………………………….4
ARGUMENT ……………………………………………………………………………... 5
STANDARD FOR REVIEW ………………………………………………………………... 5
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED AN INJUNCTION
WITHOUT SETTING A BOND ……………………………………………………………..5
THERE WAS NO EVIDENCE TO SUPPORT THE INJUNCTION ……………………………...6
PRAYER AND CONCLUSION …………………………………………………………......
          __________________________________________________
                              APPENDIX
                                                                TAB
July 7, 2014 Temporary Injuction – Amended ………………………………………. A
May 19, 2015 Order ……………………………………………………………………B




                                  ii
TO THE HONORABLE COURT OF APPEALS:

        Comes now, Andy Sanchez, Appellant, and submits his brief.1

                                         STATEMENT OF THE CASE

        Appellee sued Appellee for alleged violation of a noncompete agreement, seeking

monetary damages and injunctive relief. The trial court, Hon. Rex Emerson of the 198th Judicial

District Court in Kerr County, signed an order that temporarily enjoined Appellant from

engaging in the business of selling cars in Kerr and adjoining counties for two years. The

temporary injunction expired on its own terms on August 7, 2014. Appellee did nothing to

extend the original injunction or to obtain a new one for over eight months.

        Appellee filed a motion to hold Appellant in contempt of court for violating the

temporary injunction that had expired over eight months earlier. Overruling Appellant’s

objection, the trial court signed an order on May 19, 2015 that denied the motion for contempt,

but held that the temporary injunction had not expired, and was still in effect (CR 33). The order

did not require Appellee to post a bond.

        Appellant timely filed his notice of interlocutory appeal on June 8, 2015 (CR 35).

                          STATEMENT REGARDING ORAL ARGUMENT

        Appellant believes this case can be resolved on the written briefs.

                                              ISSUES PRESENTED

Issue 1: Is the May 19, 2015 Order that purports to continue the original temporary injunction
void for failure to require the plaintiff to post a bond?



1
  The clerk’s record will be cited by the abbreviation “CR,” followed by page numbers (e.g., CR 10). The reporter’s
record will be cited by the abbreviation “RR,” followed by page and line numbers (e.g., RR 2, 8).



                                                         1
Issue 2: Did the trial court abuse its discretion by ordering a temporary injunction that has no
evidence to support it?

                               STATEMENT OF FACTS

       Andy Sanchez (“Sanchez” or “Appellant”) was employed by John W. Miller, Jr.

Co., Inc., (“Miller” or “Appellee”), as the general manager in Miller’s car dealership in

Kerrville, Texas. In 2012 they entered into a Noncompetition Agreement that was

contained in a Stock Purchase Agreement. They restated and reconfirmed the

Noncompetition Agreement in a 2013 Stock Repurchase Agreement and CPI/Commis-

sion Adjustment Agreement.

       In April, 2014 Sanchez’s employment with Miller terminated. Miller initiated this

lawsuit in June 12, 2014, claiming that Sanchez breached the Noncompetition Agree-

ment. Miller sued for monetary damages and injunctive relief. Sanchez answered the

lawsuit.

       After an evidentiary hearing, Hon. Rex Emerson entered an order on June 25,

2014 granting Miller’s application for a temporary injunction. On July 7, 2014 the trial

court signed a Temporary Injunction – Amended, which replaced the June 25 order (CR

16). The Temporary Injunction prohibited Sanchez from dealing directly or indirectly in

the automobile sales business, retail or wholesale, in Kerr and adjoining counties for two

years. Paragraph 4 set the case for trial on August 7, 2014, and added that “the order

expires at that time or until further order of the Court.”. Paragraph 5 provided that

“Plaintiff’s bond shall remain on file” (CR 16). The Temporary Restraining Order set a

bond of $100, and Appellant posted a cash bond.



                                              2
       Sanchez filed his answer and counterclaim, and made a jury demand on July 3,

2014. After Sanchez’s counsel informed the Court of the demand, the Court, on its own

initiative, removed the case from the August 7, 2014 docket because it was not a jury trial

date (see CR 33). There was no written order continuing the case, or extending the

temporary injunction, and it expired by its own terms on August 7, 2014. Appellant did

not take any steps to secure a new trial setting.

       On April 20, 2015, Miller filed a Motion for Contempt, alleging that Sanchez had

violated the Temporary Injunction – Amended (CR 18). The trial court heard the motion

on May 6, 2015. Sanchez objected to the continuance of the injunction, on the grounds

that there was nothing to continue, as the temporary injunction expired on Aug. 7, 2014.

On May 19, 2015 the trial court signed an order denying Miller’s motion for contempt

because the language of the Temporary Injunction was ambiguous such that Sanchez’s

post injunction conduct could not be punished by contempt (CR 33-34).

       In Paragraph 4 of the May 19, 2015 order, the Court ruled that the July 7, 2014

Temporary Injunction remained in full force and effect and would remain so until final

trial or further order of the Court (CR 33-34). The order did not require Miller to post a

bond. The word “bond” does not even appear in the order (CR 33-34).

       Sanchez timely filed his Notice of Interlocutory Appeal on June 8, 2015 (CR 35).


                          SUMMARY OF THE ARGUMENT

       The Temporary Injunction - Amended signed on July 7, 2014 by the trial court, in

Paragraph 4, set the case for trial on Aug. 7, 2014, and provided that this “order expires at



                                              3
that time or until further order of the Court” (CR 16). The case did not go to trial on that

date, and the court did not enter any order extending the injunction.

       Miller failed to ask for a trial setting, or to ask the trial to extend the temporary

injunction. It did nothing until it filed its motion for contempt on April 20, 2015 (CR 18).

During the hearing on that motion, Sanchez objected that the temporary injunction had

expired on Aug. 7, 2014.

       The trial court abused its discretion in its May 19, 2015 Order by ruling that the

temporary injunction had remained in force after Aug. 7, 2014 and that it would continue

in effect (CR 33-34). There was no evidence presented to support the issuance of a

temporary injunction. Furthermore, that Order failed to require Appellee to post a bond.

Therefore, the May 19, 2015 Order purporting to impose a temporary injunction is void

and should be vacated. Tex. R. Civ. P. 684; Quest Comms. V. AT&T Corp., 24 S.W.3d

334, 337 (Tex. 2000).

                                       ARGUMENT

A.    Standard for Review.

       In the appeal of a temporary injunction, the appellate court reviews the trial court’s

decision for an abuse of discretion. Texas Foundries, Inc. v. Int’l Moulders & Foundry

Workers’ Un., 248 S.W.2d 460, 462 (Tex. 1952).

B.     The Trial Court abused its discretion when it ordered an injunction without
       setting a bond.

       The trial court erred on May 19, 2015 in finding that the temporary injunction

remained in effect beyond its expressly stated expiration date of Aug. 7, 2014.



                                               4
The temporary injunction signed by the trial court on July 7, 2014 specifically 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” (CR 16).

       As noted in the May 19, 2015 Order (CR 33), when Sanchez filed his jury

demand, the trial court removed the case from the trial docket. There was no written

order continuing the trial or extending the injunction. Therefore, the injunction expired by

its own terms on Aug. 7, 2014. There was nothing for the trial court to extend when it

signed the May 19, 2015 Order purporting to continue the temporary injunction (CR 33).

Thus the May 19, 2015 order has to stand on its own, and it had to include a provision

requiring the plaintiff to post a bond. Tex. R. Civ. P. 684. The Order failed to meet that

requirement. Therefore, it was void and unenforceable. Tex. R. Civ. P. 684; Quest

Comms. V. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000).

       In Quest, the Court stated that the Texas Rules of Civil Procedure require that an

order granting a temporary injunction set the cause for trial on the merits and fix the

amount of security to be given by the applicant. See TEX. R. CIV. P. 683, 684. These

procedural requirements are mandatory, and an order granting a temporary injunction that

does not meet them is subject to being declared void and dissolved. Id. at 337. The

requirement of the filing of a bond is a condition precedent to issuance of a temporary

injunction. Lancaster v. Lancaster, 291 S.W.2d 303, 308 (Tex. 1956). The facial validity

of an injunction will be contingent on compliance by the court and moving party with the

prerequisites of Rule 684. Id.




                                              5
       The May 19, 2015 Order was a new temporary injunction, that failed to require

Appellant to post a bond (CR 33). Therefore, it was and is void and should be dissolved.

C.     The trial court abused its discretion because there was no evidence to support
       the injunction.

       The original injunction expired on Aug. 7, 2014 (CR 16). Appellant did nothing to

have it reinstated and took no action at all for over eight months, when it filed its Motion

for Contempt on April 20, 2015 (CR 18). At the May 6, 2015 hearing Appellant failed to

present evidence to show that it didn’t have an adequate remedy at law, a requirement for

a temporary injunction. McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984). The

trial court abused its discretion by imposing a new temporary injunction with no evidence

to support it.

                             PRAYER AND CONCLUSION

       Appellant respectfully asks the Court to rule that the May 19, 2015 Order

imposing a temporary injunction is void for lack of the condition precedent of requiring

the plaintiff to post a bond, and for no evidence to support it, and order the injunction

dissolved.

                                           Respectfully submitted,

                                           /S/ Richard L. Ellison
                                           SBOT 06580700
                                           Broadway Bank Bldg.
                                           500 Main St. Suite J
                                           Kerrville, Texas 78028
                                           Telephone: (830) 792-5601
                                           Facsimile: (830) 792-5602
                                           rellison@richellison.com

                                           ATTORNEY FOR APPELLANT
                                           ANDY SANCHEZ


                                              6
                                 CERTIFICATE OF SERVICE

        I hereby certify that on July 8, 2015 I filed this brief electronically with the Clerk of the
Court of Appeals, who will serve a copy on Appellee’s counsel, and that I delivered a copy
electronically to Appellee’s counsel by personal delivery of certified mail/return receipt
requested Stephen B. Schulte, 820 Main St., Suite 100, Kerrville, Texas 78028.

                                                      /S/ Richard L. Ellison




                                                 7
APPENDIX A
APPENDIX B
