                                                                                       ACCEPTED
                                                                                   03-15-00085-CV
                                                                                           5176028
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                               5/6/2015 2:03:07 PM
                                                                                 JEFFREY D. KYLE
                         No. 03-15-00085-CV                                                 CLERK

                 _______________________________________
                                                             FILED IN
                     In the Third Court of Appeals    3rd COURT OF APPEALS
                                                          AUSTIN, TEXAS
                            Austin, Texas             5/6/2015 2:03:07 PM
                 _______________________________________JEFFREY D. KYLE
                                                              Clerk

              Michael J. DeLitta and DelCom Properties, LLC,
                                                     Appellants,
                                    v.
                             Nancy Schaefer,
                                                   Appellee.
                 _______________________________________

                          BRIEF OF APPELLEE
                 _______________________________________

    Donald R. Taylor                         Lisa Bowlin Hobbs
      State Bar No. 19688800                   State Bar No. 24026905
      dtaylor@taylordunham.com                 Lisa@KuhnHobbs.com
    Stacey Reese (Of Counsel)                Kurt Kuhn
      State Bar No. 24056188                   State Bar No. 24002433
      stacey@reeselawpractice.com              Kurt@KuhnHobbs.com
    TAYLOR DUNHAM & RODRIGUEZ LLP            KUHN HOBBS PLLC
    301 Congress Avenue, Suite 1050          3307 Northland Drive, Suite 310
    Austin, Texas 78701                      Austin, Texas 78731
    (512) 473-2257                           (512) 476-6003
    (512) 478-4409 (fax)                     (512) 476-6002 (fax)

                                             Howard F. Carter, Jr.,
                                               State Bar No. 03916500
                                               sam@scarterlawfirm.com
                                             HOWARD F. CARTER, JR., P.C.
                                             5600 Tennyson Parkway, Suite 160
                                             Plano, Texas 75024
                                             (972) 455-2001
                                             (972) 455-2015 (fax)


                           COUNSEL FOR APPELLEE

May 6, 2015                              Oral Argument Conditionally Requested
                                                    TABLE OF CONTENTS


Table of Contents ...................................................................................................................... ii 
Index of Authorities ................................................................................................................. iv 
Statement of the Case ............................................................................................................ viii 
Statement Regarding Oral Argument .................................................................................... ix 
Issues Presented......................................................................................................................... x 
Statement of Facts ..................................................................................................................... 1 
           A.         The parties enter into a highly negotiated and agreed temporary
                      injunction. ........................................................................................................... 1 
           B.         For months, DeLitta acknowledges the binding force of the agreed
                      injunction and even seeks enforcement of its terms. ................................... 1 
           C.         DeLitta retains new counsel who attempts to declare the agreed
                      injunction void.................................................................................................... 3 
           D.         When the trial court enforces the Agreed Order as both an
                      injunction and a Rule 11 agreement, DeLitta seeks review from this
                      Court, without success. ..................................................................................... 4 
           E.         Undeterred, DeLitta tries to take another bite at the apple in the
                      trial court. ............................................................................................................ 5 
Summary of Argument ............................................................................................................. 6 
Argument .................................................................................................................................... 7 

I.         On appeal from a denial of a motion to dissolve, an appellate court has
           no jurisdiction to review the validity of the original temporary injunction. ......... 7 

II.        Litigants should be able to dispense with the formal requirements of Rule
           683 and enter into an agreed temporary injunction without fear that one
           party to the agreed order will later attempt to declare the order void................. 10 
           A.         Neither this Court nor the Texas Supreme Court has held an agreed
                      injunction void for failure to strictly comply with Rule 683, yet
                      other appellate courts are split on the issue. ................................................ 11 


                                                                       ii
          B.         The cases DeLitta cites are distinguishable. ................................................. 15 
          C.         Cases that appear to prohibit agreed temporary injunctions
                     misconstrue Texas Supreme Court precedent and are not soundly
                     reasoned............................................................................................................. 17 
          D.         DeLitta is estopped from now challenging the Agreed Order
                     because he agreed to its issuance and has himself sought to enforce
                     it. ......................................................................................................................... 22 

III.      The trial court was within its discretion to deny DeLitta’s motion because
          the Agreed Order is enforceable as a Rule 11 Agreement. ................................... 24 
          A.         The Texas Supreme Court allows enforcement of litigation-related
                     agreements under Rule 11 even when the agreement might not
                     otherwise be enforceable as an agreed judgment. ....................................... 25 
          B.         The Agreed Order meets all the elements of an enforceable Rule
                     11. ....................................................................................................................... 27 
Conclusion ................................................................................................................................ 28 
Certificate of Compliance ...................................................................................................... 30 
Certificate of Service ............................................................................................................. 30 




                                                                       iii
                                             INDEX OF AUTHORITIES
CASES 
Brazzel v. Murray,
       481 S.W.2d 801 (Tex. 1972) .......................................................................................21
C.W. 100 Louis Henna, Ltd. v. El Chico Rest. of Tex., L.P.,
      295 S.W.3d 748 (Tex. App.—Austin 2009, no pet.) ..............................................25
Carle v. Carle,
        234 S.W.2d 1002 (Tex. 1950) .....................................................................................23
Certain Underwriters at Lloyd’s v. Bristol-Myers Squibble Co.,
       No. 09-97-00540 CV, 1998 WL 429096 (Tex. App.—Beaumont July 30,
       1998, no writ) (unpublished op.) (per curiam) .......................................................... 9
Chambers v. Rosenberg,
     916 S.W.2d 633 (Tex. App.—Austin 1996, writ denied) (per curiam) ......... 13, 14
Cisneros v. Cisneros,
       787 S.W.2d 550 (Tex. App.—El Paso 1990 no writ) ...................................... 15, 16
Claxton v. Fork Water Control & Improvement Dist. No. 1,
       220 S.W.3d 537 (Tex. App.—Texarkana 2007, pet. denied).......................... 15, 16
Cleere v. City of Mesquite,
        594 S.W.2d 831 (Tex. App.—Dallas 1980, no writ)...............................................12
CMH Homes v. Perez,
    340 S.W.3d 444 (Tex. 2011) ......................................................................................... 7
Comm’n for Lawyer Discipline v. Schaefer,
     364 S.W.3d 831 (Tex. 2012) .......................................................................................20
Conlin v. Haun,
       419 S.W.3d. 682 (Tex. App. Houston [1st Dist.] 2013, no pet.) .................. passim
Cummings v. Powell,
     8 Tex. 80 (1852) .................................................................................................... 19, 20
David Jason W. & Pydia, Inc. v. State,
       212 S.W.3d 513 (Tex. App.—Austin 2006, no pet.) ..............................................13
Deen v. Kirk,
       508 S.W2d 70 (Tex. 1974) ..........................................................................................22


                                                               iv
DeLee v. Allied Fin. Co.,
      408 S.W.2d 245 (Tex. Civ. App.— Dallas 1966, no writ) .....................................23
Desai v. Reliance Mach. Works, Inc.,
       813 S.W.2d 640 (Tex. App.—Houston [14th Dist.] 1991, no writ)................ 9, 10
Dunman v. Hartwell,
     9 Tex. 495 (1853) .........................................................................................................22
Emerson v. Fires Out, Inc.,
      735 S.W.2d 492 (Tex. App.—Austin 1987, no writ) ..............................................13
Ex Parte Coffee,
      328 S.W.2d 283 (Tex. 1959) .......................................................................................21
Ex Parte Kimberlin,
      126 Tex. 60 (1935) .......................................................................................................21
Fortis Benefits v. Cantu,
        234 S.W.3d 642 (Tex. 2007) ................................................................................ 25, 28
Gray Wireline Serv., Inc. v. Cavanna,
      374 S.W.3d 464 (Tex. App.—Waco 2011, no pet.) ......................................... 15, 16
Henke v. Peoples State Bank of Halletsville,
      6 S.W.3d 717 (Tex. App.—Corpus Christi 1999, dis’d w.o.j.) .......... 12, 13, 14, 22
Hernandez v. Telles,
      663 S.W.2d 91 (Tex. App.—El Paso 1983, no writ) ..............................................14
In re Corcoran,
       343 S.W.3d 268 (Tex. App.—Houston [14th Dist.] 2011, orig.
       proceeding) ...................................................................................................................17
In re Garza,
       126 S.W.3d 268 (Tex. App.—San Antonio 2003, orig. proceeding) ...... 17, 18, 20
In re Graybar Elec. Co.,
       No. 13-08-00341-CV (consolidated), 2008 WL 3970865 (Tex. App.—
       Corpus Christi Aug. 26, 2008, orig. proceeding) (mem. op.) .................................. 9
In re Kahn,
       No. 09-14-00028-CV, 2014 WL 199024 (Tex. App.—Beaumont Jan. 16,
       2014, orig. proceeding) (mem. op.) ...........................................................................16



                                                                   v
In re Krueger,
       No. 03-12-00838-CV, 2013 WL 2157765 (Tex. App.—Austin May 16,
       2013, orig. proceeding) (mem. op.) ...........................................................................17
In re U.S. Silica Co.,
       157 S.W.3d 434 (Tex. 2005) (orig. proceeding) (per curiam) ................................20
Interfirst Bank San Felipe, N.A. v. Paz Constr. Co.,
         715 S.W.2d 640 (Tex. 1986) (per curiam) ................................................... 11, 18, 19
K-Mart Corp. v. Honeycutt,
      24 S.W.3d 357 (Tex. 2000) (per curiam) ..................................................................25
Mapco, Inc. v. Forrest,
      795 S.W.2d 700 (Tex. 1990) (orig. proceeding) (per curiam) ................................20
Murphy v. McDaniel,
      20 S.W.3d 873 (Tex. App.—Dallas 2000, no pet.) ........................................ 8, 9, 24
Padilla v. LaFrance,
        907 S.W.2d 454 (Tex. 1995) ................................................................................ 26, 27
Parham Family Ltd. P ’ship v. Morgan,
      434 S.W.3d 744 (Tex. App.-Houston [14th Dist.] 2014, no pet.) ........................17
Poole v. U.S. Money Reserve Inc.,
        No. 09-08-137-CV, 2008 WL 4735602 (Tex. App.—Beaumont, Oct. 30,
        2008, no pet.) ................................................................................................... 12, 15, 17
Qwest Commc’ns Corp. v. AT&T Corp.,
      24 S.W.3d 334 (Tex. 2000) (per curiam) ..................................................... 11, 18, 19
Roccaforte v. Jefferson Cnty.,
       341 S.W.3d 919 (Tex. 2011) .......................................................................................22
Schlumberger Tech. Corp. v. Swanson,
      959 S.W.2d 171 (Tex. 1997) .......................................................................................14
Scott-Richter v. Taffarello,
       186 S.W.3d 182 (Tex. App.—Fort Worth 2006, pet. denied) ..............................25
State v. Ruiz Wholesale Co.,
        901 S.W.2d 772 (Tex. App.—Austin 1995, no writ) ................................................ 9




                                                                 vi
Tex. Dep’t of Transp. v. City of Sunset Valley,
      8 S.W.3d 727 (Tex. App.—Austin 1999, no pet.)..................................................... 7
Tex. State Bank v. Amaro,
       87 S.W.3d 538 (Tex. 2002) .........................................................................................23
Tober v. Turner of Tex., Inc.,
       668 S.W.2d 831 (Tex. App.—Austin 1984, no writ) ...................................... passim
Uvalde Country Club v. Martin Linen Supply Co.,
       690 S.W.2d 884 (Tex. 1985) .......................................................................................22
Wood v. HSBC Bank USA, N.A.,
      439 S.W.3d 585 (Tex. App.—Houston [14th Dist] 2014, pet. filed) ...................19
RULES 
TEX. R. APP. P. 24.1 ................................................................................................................22
TEX. R. CIV. P. 11 ....................................................................................................................27




                                                                  vii
                                 STATEMENT OF THE CASE

Nature of the Case:           The underlying suit is a business dispute between business
                              partners Michael DeLitta1 and Nancy Schaefer over the
                              ownership of Axiom Medical Consulting, LLC (“Axiom”).
                              To preserve their disputed rights and interests in the
                              company during the course of the litigation, the parties
                              entered into a highly negotiated and agreed temporary
                              injunction, which was signed by the trial court on October
                              29, 2013 (the “Agreed Order”).2

                              Despite agreeing to the injunction, and later seeking
                              enforcement of its terms, DeLitta eventually sought relief
                              from the restraints on his conduct. His tactics resulted in
                              several appellate proceedings, all of which failed.3

                              Undeterred, on October 22, 2014, DeLitta made yet another
                              attempt to renege, this time by filing a Motion to Dissolve
                              and Declare Temporary Injunction Void.4

Trial Court:                  The Honorable Amy Meachum, 201st District Court, Travis
                              County, Texas.

Trial Court Disposition:      The trial court signed an order denying DeLitta’s motion on
                              January 16, 2015.5 The order does not state the reasons for
                              its issuance.




1
  Appellants in this appeal are Michael J. DeLitta and DelCom Properties, LLC only and will be
referred to in this brief as simply “DeLitta.”
2
  Exh. A to Brief of Appellant; see also CR115–23
3
  See No. 03-14-00423-CV (original proceeding seeking to declare injunction void, denied on July 11,
2014); No. 03-14-00426-CV (appeal of an order enforcing the terms of the injunction dismissed for
lack of jurisdiction on November 6, 2014). DeLitta also appealed an order appointing a receiver over
Axiom, No. 03-13-000425-CV, which was dismissed for failure to prosecute on October 17, 2014.
4
  CR329–48
5
  CR379–81


                                                viii
                    STATEMENT REGARDING ORAL ARGUMENT
      Appellee does not believe oral argument is necessary for the Court to fully

understand and properly resolve this appeal. This is an interlocutory appeal from an

order denying Appellants’ Motion to Dissolve and Declare Temporary Injunction Void.

The relevant facts are undisputed, and the law is not difficult to grasp. However, to the

extent that the Court has remaining questions after reviewing the briefing, Appellee

would gladly participate in any oral argument to answer those questions.




                                           ix
                                 ISSUES PRESENTED
1. Does this Court have jurisdiction to review an interlocutory order signed in October
2013—over 15 months before this appeal was perfected—when the sole complaint on
appeal concerns the validity of the original injunction, not a trial court’s failure to
dissolve based on changed circumstances?

2. The parties negotiated an agreed temporary injunction to govern their conduct
through trial, signed the temporary injunction with the notation “agreed as to form and
substance,” and submitted it to the judge for approval.

   a. Does omitting the reasons for issuance make an agreed temporary injunction
      void when all the parties understand that the injunction was issued because it was
      agreed?

   b. Does a subsequent agreed continuance of the trial date stated in the injunction
      make an injunction retroactively void?

   c. Does a party waive the right to challenge a temporary injunction for failing to
      comply with Rule 683 by agreeing to the injunction in the first instance, by not
      appealing it, and/or by themselves seeking to enforce it?

3.    May a trial court refuse to dissolve an agreed temporary injunction because the
agreed order meets all the requirement of Texas Rule of Civil Procedure 11 and is thus
enforceable in contract?




                                           x
                               STATEMENT OF FACTS
      This is a business dispute over the ownership of Axiom Medical Consulting,

LLC.6 Schaefer and DeLitta are two managers and members of Axiom who each

control 50% of the company.7 The relationship between the two deteriorated and, in

October 2013, Schaefer filed suit seeking to confirm her ownership in Axiom and, to

maintain her status quo within the company, obtained a temporary restraining order.8

A.    The parties enter into a highly negotiated and agreed temporary
      injunction.
      Before the restraining order dissolved, the parties requested the trial court

approve a highly negotiated consent order and agreement which was entitled a

“temporary injunction” (the “Agreed Order”).9 The Agreed Order was signed on

October 29, 2013.10 It prohibited the parties from undertaking certain acts and also

obligated the parties to file a joint motion for appointment of a provisional member to

break deadlock between Schaefer and DeLitta.11

B.    For months, DeLitta acknowledges the binding force of the agreed
      injunction and even seeks enforcement of its terms.
      The parties proceeded for over eight months in this litigation under the terms of

the Agreed Order and in full acknowledgement of its binding force. For example,

months after its issuance, on March 13, 2014, DeLitta filed a motion titled “Motion to

6
  CR134–36
7
  CR132
8
  CR3
9
  CR115
10
   CR121
11
   CR122

                                          1
Enforce, Modify and/or Dissolve Certain Provisions of the Temporary Injunction.”12

As the title implies, the motion sought to enforce certain provisions of the injunction.

The motion was heard, along with a competing enforcement motion by Schaefer,13 on

April 14, 2014—after the April 7, 2014 trial date set in the Agreed Order.14 Ultimately,

DeLitta’s motion was denied and Schaefer’s motion granted.15 The order was signed

April 21, 2014.16

       Around the same time, DeLitta filed a “Joint Application for TRO and Motion

to Rescind the Order Appointing a Provisional Member.”17 The motion sought to limit

the powers of the provisional member who was appointed and selected under the terms

of the Agreed Order. By filing this motion, DeLitta again acknowledged the binding

force of the Agreed Order. The application and motion were denied.18

       No interlocutory appeals were taken from any of these orders. DeLitta never

challenged the validity of the injunction or sought to declare the injunction void through

these motions. DeLitta likewise never appealed the trial court’s orders denying their

request to alter or dissolve portions of the original injunction.




12
   See SuppCR21
13
   SuppCR100
14
   Compare SuppCR121 (noting date of hearing) and CR121 (Agreed Order setting trial date)
15
   SuppCR121–23
16
   SuppCR123
17
   SuppRR60–70
18
   SuppCR120

                                               2
C.      DeLitta retains new counsel who attempts to declare the agreed injunction
        void.
        The dispute between Schaefer and DeLitta continued to escalate through the

Spring of 2014. Despite repeated judicial refusal to modify or dissolve the terms of the

injunction, DeLitta still snubbed the agreed terms. Schaefer filed a second motion to

enforce on May 16, 2014, this time seeking the appointment of a receiver over certain

aspects of the company’s financial operations, as well as enforcement of the Agreed

Order.19

        Shortly before the day of the hearing on Schaefer’s motion, new counsel

appeared20 and, the day of the hearing, filed a written response in opposition to the

motion to enforce and motion for contempt.21 The response argued (for the first time)

that the original injunction was “void,” “expired as a matter of law,” and thus could not

form the basis of a contempt order.22 The response contained no allegation of changed

circumstances that would justify re-litigation of issues.23

        Following an evidentiary hearing, the trial court signed an order enforcing the

Agreed Order on June 19, 2014.24 The order expressly found it was being enforced, not

just as a temporary injunction, but also as a Rule 11 agreement.25 The court found that

19
   SuppCR124
20
   CR641
21
   SuppRR37
22
   Id.
23
   SuppRR37–47
24
   SuppCR191–93
25
   SuppCR192 (finding that the Agreed Order “is an agreed order approved as to ‘form and content’
by all parties, signed by the court and filed in the clerk’s office” and “is enforceable as a court order
and as a Rule 11 agreement between the parties”)

                                                   3
DeLitta had willfully violated the Agreed Order through several specifically enumerated

acts.26    Further, although it “had the authority to enforce the Agreed order by

contempt,” it “declin[ed] to do so.”27 The trial court reiterated, however, that “all parties

[shall] strictly abide by the terms of the” Agreed Order.28 The Court also, by separate

order, appointed a partial receiver over Axiom.29

D.        When the trial court enforces the Agreed Order as both an injunction and
          a Rule 11 agreement, DeLitta seeks review from this Court, without
          success.
          Three appeals followed. DeLitta filed two interlocutory appeals: one appeal of

the June 19, 2014 enforcement order30 and one appeal of the order appointing the

receiver.31 DeLitta also filed a petition for writ of mandamus, seeking to vacate the

October 2013 agreed temporary injunction.32

          None of the appeals were successful. The Court denied the mandamus petition33

and dismissed the interlocutory appeal of the enforcement order for want of

jurisdiction.34 DeLitta abandoned the receivership appeal.35




26
   Id.
27
   Id.
28
   Id. (emphasis in original)
29
   SuppCR194–98
30
   No. 03-14-00426-CV
31
   No. 03-14-00425-CV
32
   No. 03-14-00423-CV
33
   See No. 03-14-00423-CV (Order dated July 11, 2014)
34
   No. 03-14-00426-CV (Order and Judgment dated Nov. 6, 2014)
35
   The Court dismissed the appeal for failure to prosecute on October 17, 2014. See No. 03-14-00425-
CV.

                                                 4
E.     Undeterred, DeLitta tries to take another bite at the apple in the trial court.
       Three appellate losses did not deter DeLitta. By December, he was back before

another Travis County district judge seeking to dissolve the Agreed Order.36 Essentially

cutting and pasting from his failed briefing to this Court, DeLitta argued that the Agreed

Order was void because it did not comply with the mandatory requirements of Texas

Rules of Civil Procedure 683 and 684.37 DeLitta’s motion was silent to the fact that the

Agreed Order had already been determined to be an enforceable Rule 11 agreement.38

Nor did the motion contain any allegations of changed circumstances that would justify

re-litigation of the various issues.39

       The trial court denied DeLitta’s motion on January 16, 2015, without stating the

reasons.40 This appeal followed.41




36
   See RR (transcript of Dec. 15, 2014, hearing on DeLitta’s Motion to Dissolve and Declare Temporary
Injunction Void, which was filed on Oct. 22, 2014).
37
   CR329–37
38
   See generally id.
39
   SuppRR37–47
40
   CR379
41
   CR632

                                                 5
                               SUMMARY OF ARGUMENT
      DeLitta voluntarily agreed to restraints on his conduct, by signing a highly

negotiated Agreed Temporary Injunction under the notation “agreed as to form and

content,” while Schaefer pursued her claims concerning the ownership of Axiom. He

sought the benefit of the Agreed Order, when it behooved him to do so, by twice

moving to enforce the terms of the order. Yet he has spent the majority of the last year

hoping desperately that the judiciary will allow him to renege on his promise. No judge

has let him off the hook yet. Nor should this Court.

      DeLitta’s main argument is that the Agreed Order is void for failing to state the

reasons for its issuance, a requirement for court-imposed temporary injunctions under

Texas Rule of Civil Procedure 683. This argument makes no sense. A party should not

be able to “void” an order for failing to state the reason for its issuance when the reason

the trial court entered the order was because the parties asked it to.

      DeLitta insists the Agreed Order is void because, otherwise, he loses under a

myriad of equitable principles. His consent to the order removed any alleged error in

it. He has twice pursued the benefits of the injunctive terms, so he is estopped from

challenging the order now. And he waited too long to appeal.

      But the Court need not reach any of these issues. The trial court previously

enforced the Agreed Order as a Rule 11 Agreement.               Rule 11 agreements are

enforceable in contract even if they would not be enforceable as a judgment. The trial

court’s refusal to dissolve the Agreed Order may be affirmed on this ground alone.


                                            6
                                       ARGUMENT
I.    On appeal from a denial of a motion to dissolve, an appellate court has no
      jurisdiction to review the validity of the original temporary injunction.
      The Court should dismiss this interlocutory appeal for lack of jurisdiction.

Appellate courts consider their interlocutory jurisdiction “narrow” and thus “strictly

apply statutes granting interlocutory appeals.” CMH Homes v. Perez, 340 S.W.3d 444,

447 (Tex. 2011); see also Tex. Dep’t of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 730

(Tex. App.—Austin 1999, no pet.).

       Here, DeLitta seeks review of an agreed injunction issued October 23, 2013—

well over a year before this appeal was perfected on February 4, 2015. Unlike most

interlocutory appeals of an order refusing to dissolve a temporary injunction, DeLitta

did not allege changed circumstances that warrant the injunction’s dissolution.

Therefore, DeLitta does not seek review of the exercise of discretion to dissolve an

injunction. Instead, DeLitta seeks review of the original injunction itself. This Court

simply has no jurisdiction to review that order.

       The Court decided the issue just over 30 years ago in Tober v. Turner of Texas, Inc.,

668 S.W.2d 831 (Tex. App.—Austin 1984, no writ). The trial court in Tober signed a

temporary injunction on October 11, 1982. Id. at 833. The following month, on

November 16, 1982, and after the time for filing an interlocutory appeal for immediate

review of the injunction, Tober (the party restrained) sought to “set aside” the

temporary injunction. Id. Soon thereafter, on December 1, 1982, the trial court signed



                                             7
an order overruling Tober’s motion (apparently treating it as a motion to dissolve the

temporary injunction). Id.

      Tober appealed, purporting to challenge both the December 1 order and the

original November 16 injunction. Id. This Court, construing its jurisdiction narrowly,

rebuffed Tober’s tactic. The Court started by noting that Tober did not timely perfect

an appeal from the original injunction and, as such, the Court had no jurisdiction to

review it. Id. at 833–34. The Court also refused to consider any issues that touched on

the propriety of the initial grant of the injunction. Id. at 834. Doing so, it reasoned,

would allow a party to circumvent Section 51.014:

      If a litigant is permitted, upon motion to dissolve, to again challenge the
      original temporary injunction grant, without an allegation of changed
      conditions, then the litigant could accomplish indirectly what he could not
      directly do . . . thereby render meaningless the appellate timetable
      applicable to accelerated appeals. . . . [A] litigant, after unsuccessfully
      opposing a temporary injunction, could wait for an indefinite period to
      perfect an appeal of the grant of the temporary injunction (by filing a
      subsequent motion to dissolve, which raises the points of error which
      could have, and should have, been raised in a direct appeal of the order
      granting temporary injunction).

Id. at 835. The Court was adamant: “[a] motion to dissolve may not be used as a means

of evading or expanding the rules applicable to appealing interlocutory orders.” Id.

Thus, unless a temporary injunction order is timely appealed, appellate courts “must

presume the trial court’s initial decision to grant the temporary injunction was proper.”

Murphy v. McDaniel, 20 S.W.3d 873, 879 (Tex. App.—Dallas 2000, no pet.).




                                           8
        The Tober Court does not convey a single justification for its ruling; it teeters

between viewing the issue an equitable one and a jurisdictional one.42 But other

decisions make clear the issue is one of jurisdiction:

         “[W]here the time to review the order granting the temporary injunction has
        expired . . . [w]e do not have jurisdiction to consider the propriety of the trial
        court’s decision to grant the temporary injunction.” Murphy v. McDaniel, 20
        S.W.3d at 879.
         “An interlocutory order that is not timely appealed is not reviewable by this
        Court. . . . [Appellants’] failure to perfect an interlocutory appeal from [the
        temporary injunction] order precludes this Court from reviewing its validity.”
        State v. Ruiz Wholesale Co., 901 S.W.2d 772, 775 (Tex. App.—Austin 1995, no
        writ).
         “[A]ppellees did not perfect an appeal from the initial order, and the time limit
        for doing so has long since expired. Accordingly, we have no jurisdiction to
        review the validity of the trial court’s . . . order granting the temporary
        injunction.” Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640, 641 (Tex. App.—
        Houston [14th Dist.] 1991, no writ).43


42
   Compare 668 S.W.2d at 834 (“By failing to perfect an appeal from the grant of the temporary
injunction, Tober has now, upon appeal of the motion to dissolve, waived the right to complain of
the specified alleged errors.”) with id. at 835 (“A motion to dissolve may not be used as a means of
evading or expanding the rules applicable to appealing interlocutory orders. A statute authorizing an
appeal from an interlocutory order must be given a strict construction since the statute is in derogation
of the general rule that only final judgments and orders are appealable.”); see also id. at 836 (“[O]ur
holding does not here turn solely upon jurisdiction, but is also grounded upon Tober’s failure to prove
that the trial court abused its discretion in overruling the motion to dissolve.”).
43
   See also In re Graybar Elec. Co., No. 13-08-00341-CV (consolidated), 2008 WL 3970865, *13 (Tex.
App.—Corpus Christi Aug. 26, 2008, orig. proceeding) (mem. op.) (mandamus consolidated with
interlocutory appeals) (refusing to consider challenge under Rule 683 brought more than 20 days after
temporary injunction entered); Certain Underwriters at Lloyd’s v. Bristol-Myers Squibble Co., No. 09-97-
00540 CV, 1998 WL 429096, at *1 (Tex. App.—Beaumont July 30, 1998, no writ) (unpublished op.)
(per curiam) (dismissing appeal because no jurisdiction to review temporary injunction that allegedly
fails to set forth reasons for issuance where time to appeal long passed). But see Conlin v. Haun, 419
S.W.3d 682, 685 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (recognizing that Tober holds that an
appellate court should not, on appeal from a motion to dissolve a temporary injunction, review the
validity of the trial court’s original decision to grant the injunction in the first instance, but then,
confusingly, determining the validity of the injunction anyway).

                                                   9
          DeLitta’s sole complaint in this appeal concerns the validity of the original

injunction. But, as this Court expressed in Tober, to permit DeLitta to have unlimited

opportunity to “challenge the original temporary injunction grant[] without an

allegation of changed conditions,” would allow them to “accomplish indirectly what

[he] could not directly do . . . thereby render meaningless the appellate timetable

applicable to accelerated appeals.” 668 S.W.2d at 835. The Court’s jurisdiction to

review the validity of the agreed temporary injunction has long ago expired. See Desai,

813 S.W.2d at 641. This appeal should be dismissed for lack of jurisdiction.

II.       Litigants should be able to dispense with the formal requirements of Rule
          683 and enter into an agreed temporary injunction without fear that one
          party to the agreed order will later attempt to declare the order void.
          DeLitta argues that the October 2013 Agreed Temporary Injunction is void

because it does not state the reasons for its issuance and because the trial date stated in

the Agreed Order has now expired.44 It is “irrelevant,” DeLitta asserts, that the

injunction was agreed to.45

          The ramifications of DeLitta’s position, if accepted by this Court, are

momentous. Agreed temporary injunctions are entered in Texas state courts almost

daily. The reason for their issuance need not be stated; they are issued because they

are agreed. And rarely would opposing counsel agree to an injunction that stated any




44
     Br. at 12-14
45
     Br. at 15

                                            10
other reason for its issuance, as certainly it is not good strategy to concede that the

proponent of the temporary injunction will otherwise suffer harm at your hands.

      Texas law has run amuck on this point. A careful study of supreme court

precedent will lead the Court to the logical holding that parties can agree to a temporary

injunction that does not meet all the requirements of Rule 683 and, once agreed, the

parties waive their right to challenge the propriety of the injunction absent fraud,

collusion, or misrepresentation.

A.    Neither this Court nor the Texas Supreme Court has held an agreed
      injunction void for failure to strictly comply with Rule 683, yet other
      appellate courts are split on the issue.
      The requirements of Texas Rule of Civil Procedure 683 are, Schaefer concedes,

“mandatory and must be strictly followed” when a court enters a contested temporary

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

curiam); Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.

1986) (per curiam). But the Texas Supreme Court has never intimated that parties

cannot agree to the entry of a temporary injunction that does not fully comport with

Rule 683.

      DeLitta cites several appellate court decisions for the controversial proposition

that “Rule 683’s mandatory requirements are, in fact, mandatory—and cannot be




                                           11
waived.”46 But he sweeps under the rug the split of authority on the issue—perhaps a

sign that he does not want to defend the cases he cites.

       A persuasive case on all fours is Cleere v. City of Mesquite, 594 S.W.2d 831 (Tex.

App.—Dallas 1980, no writ). The parties agreed to the entry of an injunction. Years

later, on appeal, the party restrained by the temporary injunction argued it was void for

failing to comply with Rule 683. As here, the party complained the agreed injunction

did not state the reasons for its issuance. The Dallas court was unpersuaded:

       Although the reasons are not specified in the order, this defect does not
       invalidate the injunction under the circumstances shown here. The
       purpose of the requirement for reasons is to inform the violator of why
       he is enjoined. When a party agrees to an injunction, he is in no position
       to complain that he was not informed of the reasons.

Id. at 833 (citations omitted). In other words, a party cannot void an order for failing

to state the reasons for its issuance when the reason the order was entered was simply

because the parties asked it to. By agreeing to an injunction, and joining in the motion

to enter it, as DeLitta did here, any complaints about the injunction are waived.

       Another court of appeals likewise found waiver in Henke v. Peoples State Bank of

Halletsville, 6 S.W.3d 717, 719 (Tex. App.—Corpus Christi 1999, dis’d w.o.j.). The

parties in that case, as here, agreed to a temporary injunction. One party challenged the

agreed order on appeal. The court did not take the bait. It relied on solid precedent



46
  Br. at 15 (emphasis in original) (citing Poole v. U.S. Money Reserve Inc., No. 09-08-137-CV, 2008 WL
4735602 (Tex. App.—Beaumont, Oct. 30, 2008, no pet.); Conlin v. Haun, 419 S.W.3d. 682, 686-87
(Tex. App. Houston [1st Dist.] 2013, no pet.)).

                                                 12
that “a party may not appeal from or attack a judgment to which he has agreed, absent

allegation and proof of fraud, collusion, or misrepresentation.” Id. at 720.

          This Court has recognized the split of authority on this issue47 and even has

precedent on both sides of the issue. In Emerson v. Fires Out, Inc., the issue arose, not in

the context of an agreed injunction, but in the context of simple error preservation. 735

S.W.2d 492 (Tex. App.—Austin 1987, no writ). The temporary injunction did not

provide reasons for its issuance, in violation of Rule 683, but the appellant had not

objected to the omission in the trial court. This Court held that error was waived. Id.

at 493.       It explained that “[p]rinciples of sound judicial administration support

application of the waiver rule” in this context:

          It serves no good purpose to permit appellants to lie in wait and present
          this error in form for the first time on appeal. On proper request, the
          district court could easily have added to the judgment a description of the
          specific harm avoided by granting the temporary injunction. Appellants
          would then have obtained proper notice of the district court’s reasoning
          and appellate review would have been facilitated.

Id. at 494.

          Yet, more recently, in the context of related Rule 684, the Court reached the

opposite result. A temporary injunction was entered in Chambers v. Rosenberg without

ordering a bond, in violation of Rule 684. 916 S.W.2d 633 (Tex. App.—Austin 1996,

writ denied) (per curiam). The failure to require a bond, the Court held, made the

injunction void, not just voidable. Id. at 635. Contrary to its prior decision in Emerson


47
     David Jason W. & Pydia, Inc. v. State, 212 S.W.3d 513, 520 n.4 (Tex. App.—Austin 2006, no pet.).

                                                    13
(a decision not mentioned in Chambers), the Court found that “the strong theme of

literal construction of the rule convinces us that we should construe the rule literally in

this case.” Id. Notably, however, the Court recognized that “none of the cited cases

explicitly concerns an agreed order.” The Court was nevertheless “persuaded” to hold

the injunction void “because the parties here did not explicitly waive the protection of

a bond.” Id.

       Despite its equivocal precedent on the issue, this Court has never addressed the

precise rationale of Henke: “a party may not appeal from or attack a judgment to which

he has agreed, absent allegation and proof of fraud, collusion, or misrepresentation.”

See 6 S.W.3d at 720. Henke was correct to apply this general rule in the context of agreed

temporary orders. After all, Texas law strongly favors and encourages voluntary and

orderly dispute resolution. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex.

1997). “The law has always favored the resolution of controversies through

compromise and settlement rather than through litigation and it has always been the

policy of the law to uphold and enforce such contracts if they are fairly made and are

not in contravention of some law or public policy.” Hernandez v. Telles, 663 S.W.2d 91,

93 (Tex. App.—El Paso 1983, no writ). Agreements should be encouraged, particularly

early in litigation, to open the door to communication and, hopefully, compromise.

Nothing in Rules 683 or 684 governing the scope or form of temporary injunctions

overrides this policy favoring compromise. The Court should reconcile its conflicting



                                            14
precedent in favor of voluntary dispute resolution and hold that parties may agree to

dispense with the procedural protections of Rules 683 and 684.

B.     The cases DeLitta cites are distinguishable.
       DeLitta cites three cases for the proposition that “Rule 683’s mandatory

requirements cannot be waived.”48 These cases are distinguishable from this case.

       Most significantly, neither Poole nor Gray Wireline involve an injunction that was

entered into voluntarily. Gray Wireline does not appear to involve an agreed injunction

at all. 374 S.W.3d at 467. And the party seeking relief in Poole agreed to the injunction

“as to form” only. 2008 WL 4735602, at *11 (“Agreed as to Form Only”).

       Here, however, the parties signed the temporary injunction with the notation

“agreed as to form and content.”49 This distinction is significant. Approving a judgment

“as to form” is a “professional courtesy”—“a usual and harmless procedure.” Cisneros

v. Cisneros, 787 S.W.2d 550, 552 (Tex. App.—El Paso 1990, no writ). “Approval as to

substance,” on the other hand, means the signatory agrees that all the essential

requirements have been met. Claxton v. Fork Water Control & Improvement Dist. No. 1,

220 S.W.3d 537, 544 (Tex. App.—Texarkana 2007, pet. denied). A party who approves

the substance of an order is precluded from later arguing that statutory requirements have

not been met. Cisneros, 787 S.W.2d at 552 (counsel’s approval of form of judgment



48
   Br. at 15-16 (citing Conlin v. Haun, 419 S.W.3d. 682 (Tex. App.—Houston [1st Dist.] 2013, no pet.);
Gray Wireline Serv., Inc. v. Cavanna, 374 S.W.3d 464 (Tex. App.—Waco 2011, no pet.); Poole v. U.S. Money
Reserve Inc., No. 09-08-137-CV, 2008 WL 4735602 (Tex. App.—Beaumont, Oct. 30, 2008, no pet.)).
49
   CR121 (emphasis added)

                                                  15
precluded former husband from asserting that judgment did not meet statutory

requirements for child support).

          The signature on the temporary injunction by DeLitta’s attorney signifies that all

essential requirements are met. Claxton, 220 S.W.3d at 544; Cisneros, 787 S.W.2d at 552.

His complaint here that the injunction omitted one requirement—the reasons for its

issuance—is belied by the signatures on the document and thus has no merit.

          Conlin and Gray Wireline involve the trial court’s failure to provide a trial date on

the agreed injunction itself. See Conlin, 419 S.W.3d. at 687; Gray Wireline, 374 S.W.3d at

472. Here, in contrast, the agreed injunction did set a trial date.50 Thus, the agreed

injunction is not “void on its face,” as found in other cases. See Gray Wireline, 374

S.W.3d at 472.

          DeLitta twists these cases to apply to the facts here by arguing that, because the

Agreed Order “no longer carries an effective trial date,” it is somehow retroactively

void—a “nullity” at its very issuance. DeLitta cites no cases to support this nonsensical

position. Several Texas cases undercut DeLitta’s argument. For example, in In re Kahn,

the Beaumont court of appeals held that a trial court may hold a litigant in contempt

after the trial date set in the original temporary injunction when the original trial date is

later continued. No. 09-14-00028-CV, 2014 WL 199024, at *1 (Tex. App.—Beaumont

Jan. 16, 2014, orig. proceeding) (mem. op.). A Houston court of appeals has come to



50
     CR121 (setting case for trial on April 7, 2014)

                                                       16
a similar conclusion. Parham Family Ltd. P ’ship v. Morgan, 434 S.W.3d 774 (Tex. App.—

Houston [14th Dist.] 2014, no pet.) (rejecting the argument that a temporary injunction

expired because the order stated it was set for trial on a particular date but was later

continued several times). If an injunction immediately became a “nullity” upon the

passing of the stated trial date, as DeLitta argues here, these cases would have come out

differently.51

C.     Cases that appear to prohibit agreed temporary injunctions misconstrue
       Texas Supreme Court precedent and are not soundly reasoned.
       To the extent Conlin or Poole can be read to broadly support DeLitta’s proposition

that “Rule 683’s mandatory requirements cannot be waived,” they were wrongly

decided. Both cases rely on a single case from San Antonio. In re Garza, 126 S.W.3d

268 (Tex. App.—San Antonio 2003, orig. proceeding).52 Garza reaches the radical result

that a party can agree to be bound by a temporary injunction and then, later, seek the

aide of the appellate courts to renege on that agreement when the party no longer

desires to be bound by its terms. The reasoning the Garza court offers to support this

view of Texas law is questionable, at best.



51
   DeLitta suggests he never agreed to the terms of the Agreed Order beyond the original April 7,
2014. But DeLitta asked for the agreed injunction to be enforced after the April 7 trial date.
SuppCR121. Thus, the trial court was reasonable in rejecting any factual argument that DeLitta did
not intend to be bound throughout the entirety of this litigation.
52
   See Poole, 2008 WL 4735602, at *11–12 (relying on Garza); Conlin, 419 S.W.3d at 686 (relying on
Garza and In re Corcoran, 343 S.W.3d 268, 269 (Tex. App.—Houston [14th Dist.] 2011, orig.
proceeding), which also had followed Garza). This Court has also cited Garza favorably in a
memorandum opinion. See In re Krueger, No. 03-12-00838-CV, 2013 WL 2157765, at *9 n.7 (Tex.
App.—Austin May 16, 2013, orig. proceeding) (mem. op.).

                                               17
           It is worth noting, as an initial matter, that Garza would have come out differently

had it been presented in this Court. This Court would likely follow Tober v. Turner of

Texas, 668 S.W.2d 831 (Tex. App.—Austin 1984, no writ) and its progeny. As explained

previously,53 this line of cases holds that unless the original temporary injunction is

timely appealed, an appellate court—on review of a subsequent order related to the

original injunction—will presume that the trial court’s initial decision to grant the

temporary injunction was proper and will not consider any issues that could have been

raised in a prior appeal. Tober, 668 S.W.2d at 835; see also Desai, 813 S.W.2d at 641 (no

jurisdiction to review original temporary injunction that failed to include trial date). In

Garza, the allegedly void injunction had been entered two years prior, with no appeal

taken. 126 S.W.3d at 270. The objection that the injunction was void was not raised

until the denial of a second round of competing motions to dissolve and for contempt.

Id. Thus, pursuant to Tober, this Court would likely have denied the Garza petition on

this ground alone.

           But Garza is wrong for other reasons too. Garza held that a temporary injunction

that does not comply with Rules 683 and 684 is void, not voidable, and, as such, a party

does not waive its right to attack the injunction—even if the party agreed to its issuance.

In reaching this conclusion, the Garza court relied heavily on two per curiam opinions

from the Texas Supreme Court: Qwest, 24 S.W.3d at 334; Interfirst, 715 S.W.2d at 641.



53
     See infra, Sec. I.

                                                18
       Importantly, however, neither Qwest nor Interfirst concerned an agreed temporary

injunction. Interfirst is a two-paragraph opinion that mentions nothing about the entry

of the injunction. In Qwest, the parties reached a tentative agreement concerning the

injunction at the entry hearing, which they then read into the record, but “[u]ltimately,

the parties could not agree to the terms of the written order to be submitted to the trial

court.” 23 S.W.3d at 335. So neither opinion addressed whether parties may agree to

dispense with the requirements of Rule 683 and 684. In fact, the Qwest court stated that

the “single issue in this petition is whether the trial court’s interlocutory order is a

temporary injunction.” Id. Anything the Court wrote about the voidability of an

injunction was not relevant to the “single issue” before it and was thus dicta.

       Equally critical is the actual language used in Qwest and Interfirst. In both cases,

the court stated that an order that does not adhere to the requirements of the injunction

rules “is subject to being declared void and dissolved.” Qwest, 24 S.W.3d at 337; Interfirst,

715 S.W.2d at 641. If an order is “subject to being declared void,” it is voidable. “[T]he

key distinction between a void act and a voidable act . . . is a party’s ability—either

through its own action or through the judicial process—to disaffirm, ratify, or confirm

a voidable act.” Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585, 591 (Tex. App.—

Houston [14th Dist] 2014, pet. filed). In other words, a voidable order is “subject to

being declared void,” upon an affirmative act by a party or court. See Cummings v. Powell,

8 Tex. 80, 80 (1852) (“[A] voidable act is one which is obligatory upon others until

disaffirmed by the party with whom it originated, and which may be subsequently

                                             19
ratified or confirmed.”). A void order, on the other hand, “is entirely null, not binding

on either party and not susceptible of ratification.” Id.

       The Garza court rejected this argument, emphasizing the Court’s explanation in

Qwest that, in InterFirst, the court “declared the temporary injunction void.” Garza, 126

S.W.3d at 273. But, even assuming this dicta has any meaning, the declaration in

InterFirst does not answer the question of whether a non-compliant temporary

injunction is void or voidable. The declaration in InterFirst was made because a party,

at that point, had challenged the order. The voidable order, when challenged (or

“disaffirmed,” to use the Cummings language), was, at that moment, declared void.

      Texas supreme court cases actually deciding the issue of whether an order is void

or merely voidable are far more instructive than Qwest and InterFirst, which do not.

These cases emphasize that void orders are “rare.” Comm’n for Lawyer Discipline v.

Schaefer, 364 S.W.3d 831, 836 (Tex. 2012); In re U.S. Silica Co., 157 S.W.3d 434, 438–39

(Tex. 2005) (orig. proceeding) (per curiam). A judgment or order is void only when it

is apparent that the court rendering it had no jurisdiction of the parties, no jurisdiction

of the subject matter, no jurisdiction to enter the judgment or order, or no capacity to

act as a court. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig. proceeding)

(per curiam). The high court has applied this principal in the context of allegedly

erroneous temporary injunctions and emphasized: “[I]t is evident that the writ was not

wholly void for want of jurisdiction, but at most was only voidable as to some of the

acts sought to be restrained. . . . If the district had jurisdiction of the parties and the

                                            20
matter adjudicated, the injunction cannot be said to be absolutely void.” Ex Parte

Kimberlin, 126 Tex. 60, 66 (1935).

       The same is true of an injunction issued without precise compliance with Rule

683. Judgments which are rendered without observance of statutory requirements

which are purely procedural are not void, however irregular or erroneous they may be.

Id. (“Absent one of those rare circumstances that makes the [order] void, the mere fact

that an action by a court [ ] is contrary to a statute, constitutional provision or rule of

civil or appellate procedure makes it ‘voidable’ or erroneous.”); see also Brazzel v. Murray,

481 S.W.2d 801, 803 (Tex. 1972); Ex Parte Coffee, 328 S.W.2d 283, 234 (Tex. 1959)

(“Judgments which are rendered without observance of statutory requirements which

are purely procedural are not void, however irregular or erroneous they may be.”).

       Thus, contrary to the holding in Garza, non-compliance with Rule 683 makes an

injunction voidable, not void. The Rule 683 requirements are “purely procedural.”

Those requirements do not affect the jurisdiction of the court over the parties or the

subject matter. Thus, an order that does not strictly comply with Rule 683 is “subject

to being declared void,” if “disaffirmed,” but is not void when entered. As a voidable

order, a defective temporary injunction is subject to all equitable principles, including

estoppel and waiver.

       Garza led multiple courts astray in concluding otherwise, and this Court should

not follow its sister courts down this flawed path. Of course, litigants can agree to

dispense with procedural protections afforded by the Texas Rules of Procedure,

                                             21
including those in Rule 683. They do so every day—from the beginning of a suit54 to

the end.55 And Texas’ policy favors doing so. The procedural requirements governing

temporary injunctions are not special and should not be treated any differently than

Texas’ other procedural requirements and protections.

D.      DeLitta is estopped from now challenging the Agreed Order because he
        agreed to its issuance and has himself sought to enforce it.
        Because any deficiencies in the form of the temporary injunction make the

injunction simply voidable, and not void, DeLitta’s complaints are subject to general

principles of equity and error preservation. See Roccaforte v. Jefferson Cnty., 341 S.W.3d

919, 923 (Tex. 2011). The equitable principles that apply to bar DeLitta’s objections to

the Agreed Order are myriad.

        First and foremost, DeLitta agreed to the temporary injunction. A party may not

appeal from or attack a judgment to which he has agreed, absent allegation and proof

of fraud, collusion, or misrepresentation. Henke, 6 S.W.3d at 720. As the Texas

Supreme Court succinctly stated: “consent takes away error.” Dunman v. Hartwell, 9

Tex. 495, 496 (1853). “Having consented to the action of the court in entering” the

temporary injunction, DeLitta “waive[d] all errors committed or contained in the

judgment, thus leaving nothing which could properly be considered by an appellate



54
   For example, issuance, service, and return of citation are mandatory and the failure to strictly comply
with the governing procedural rules “renders the attempted service of process invalid and of no
effect.” Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Yet parties
can agree to waive service. Deen v. Kirk, 508 S.W2d 70, 71 (Tex. 1974).
55
   Parties may also agree to waive a supersedeas bond. See TEX. R. APP. P. 24.1(a)(1).

                                                   22
court, except want of jurisdiction.” See DeLee v. Allied Fin. Co., 408 S.W.2d 245, 247

(Tex. Civ. App.— Dallas 1966, no writ).

        This is particularly true when, as here, the party objecting to the temporary

injunction twice acknowledged its binding effect. The parties proceeded for over eight

months in this litigation under the terms of the Agreed Order and in full

acknowledgement of its binding force. “A litigant cannot treat a judgment as both right

and wrong.” Carle v. Carle, 234 S.W.2d 1002, 1004 (Tex. 1950). Rather, a party who

accepts the benefits of a judgment is estopped from challenging the judgment by appeal.

See Tex. State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002).

        DeLitta, just a few months after entry of the injunction, sought to enforce some

provisions of the injunction56—those still desirable to him. This motion was heard

(along with a competing motion by Schaefer) on April 14, 2014—after the April 7, 2014

trial date set in the Agreed Order.57 Around the same time, DeLitta also sought to limit

the powers of the provisional member who was appointed and selected under the terms

of the agreed temporary injunction.58 This Court should refuse to allow DeLitta to treat

the temporary injunction “as both right and wrong.” Having pursued the benefits of

injunctive terms when it suited him, he is now estopped from challenging the judgment

here.



56
   SuppCR21
57
   Compare SuppCR121 (noting date of hearing) and CR121 (Agreed Order setting trial date)
58
   SuppRR60–70

                                              23
        Finally, as previously explained,59 a party waives any challenge to a temporary

injunction by not appealing the injunction when it is first signed. See Tober, 668 S.W.2d

at 834. “A motion to dissolve may not be used as a means of evading or expanding the

rules applicable to appealing interlocutory orders.” Id. Thus, unless a temporary

injunction order is timely appealed, appellate courts “must presume the trial court’s

initial decision to grant the temporary injunction was proper.” Murphy v. McDaniel, 20

S.W.3d at 879. DeLitta’s sole complaint on appeal concerns the validity of the original

injunction. But the injunction issued in October 2013. The 20 day window to challenge

the injunction has long since passed. DeLitta waived his right to challenge the

temporary injunction in this late appeal.

III.    The trial court was within its discretion to deny DeLitta’s motion because
        the Agreed Order is enforceable as a Rule 11 Agreement.
        Conspicuously missing from DeLitta’s brief is the fact that the trial court had

previously enforced the Agreed Order as a valid and binding Rule 11 agreement. On

June 19, 2014, the trial court signed an order enforcing the Agreed Order.60 The order

expressly found it was being enforced, not just as a temporary injunction, but also as a

Rule 11 agreement.61 The court’s order emphasized that “all parties [shall] strictly abide

by the terms of the” Agreed Order.62


59
   See infra, Sec. I
60
   SuppCR193
61
   SuppCR192 (finding that the Agreed Order “is an agreed order approved as to ‘form and content’
by all parties, signed by the court and filed in the clerk’s office” and “is enforceable as a court order
and as a Rule 11 agreement between the parties”)
62
   Id. (emphasis in original)

                                                   24
        The trial court was correct to do so. The parties’ agreement meets all the

requirements of Rule 11 and is thus a valid agreement, even if it does not meet the

requirements of a valid temporary injunction under Rule 683. As such, the trial court

had a ministerial duty to enforce the Agreed Order as a Rule 11 agreement. See Fortis

Benefits v. Cantu, 234 S.W.3d 642, 651 (Tex. 2007); Scott-Richter v. Taffarello, 186 S.W.3d

182, 189 (Tex. App.—Fort Worth 2006, pet. denied) (“A trial court has a ministerial

duty to enforce a valid Rule 11 agreement.” (internal citations omitted)). Dissolving the

Agreed Order would have been a breach of that obligation. Thus, the trial court’s order

should be affirmed on this basis. See generally K-Mart Corp. v. Honeycutt, 24 S.W.3d 357,

360 (Tex. 2000) (per curiam) (an appellate court may affirm on any meritorious ground);

C.W. 100 Louis Henna, Ltd. v. El Chico Rest. of Tex., L.P., 295 S.W.3d 748, 753 (Tex.

App.—Austin 2009, no pet.) (same).63

A.      The Texas Supreme Court allows enforcement of litigation-related
        agreements under Rule 11 even when the agreement might not otherwise
        be enforceable as an agreed judgment.
        Even if the agreed temporary injunction is unenforceable as a judgment, it is

undoubtedly enforceable in contract. Padilla v. LaFrance is dispositive. 907 S.W.2d 454

63
  The trial judge that signed the June 19 order was not the same judge. But the trial court knew that
the Agreed Order had been enforced previously as a Rule 11 agreement. CR372-76 (arguing the trial
court had a ministerial duty to enforce the Agreed Order as a Rule 11). Under the central docket
system, trial judges are reluctant to overrule prior rulings of their colleagues. See TRAVIS CO. DIST.
CT. L.R. 1.4 (“A request to be heard on a motion for new trial or any other motion challenging a prior
ruling, except one by default, must be presented to the judge who made the ruling, including a visiting
judge.”),       available      at      https://www.traviscountytx.gov/images/courts/docs/local_rules
_civildistrict.pdf (last visited April 29, 2015). Thus, the trial court was within its discretion to deny
DeLitta’s motion on this purely procedural ground. Tober, 668 S.W.2d at 835 (trial court has no duty
to reconsider the propriety of the granting of a temporary injunction).

                                                  25
(Tex. 1995). Padilla was a personal injury case. Id. at 455. Through a series of

communications, the parties appeared to reach a settlement agreement. Id. at 455–56.

When the plaintiff refused to accept payment, the defendant filed a counterclaim in the

pending action seeking enforcement of the settlement agreement. Id. at 457. Both sides

moved for summary judgment on the counterclaim. Id. The trial court found that the

series of emails did not constitute an enforceable agreement under Rule 11 and granted

summary judgment for the plaintiff.

      The Texas Supreme Court reversed. It first found that, contrary to the trial

court’s ruling, the parties did have an enforceable agreement under Rule 11. Id. at 461.

It then addressed the plaintiffs’ argument that the settlement agreement, if one was

reached, was unenforceable because the plaintiffs withdrew consent before judgment

was rendered. Absent consent, the plaintiffs argued, a trial court has no authority to

render an agreed judgment. Id.

      The Texas Supreme Court disagreed. The agreement, the Court said, was

enforceable in contract even if it would not meet the requirements of an agreed

judgment. Id. It explained:

      The LaFrances . . . confuse the requirements for an agreed judgment with
      those for an enforceable settlement agreement. Although a court cannot
      render a valid agreed judgment absent consent at the time it is rendered,
      this does not preclude the court, after proper notice and hearing, from
      enforcing a settlement agreement complying with Rule 11 even though
      one side no longer consents to the settlement. The judgment in the latter
      case is not an agreed judgment, but rather is a judgment enforcing a
      binding contract.


                                          26
Id.

      Like the plaintiffs in Padilla, DeLitta “confuse[s] the requirements” for a

temporary injunction for those of an enforceable Rule 11 agreement. See id. at 461.

DeLitta assumes that if he attacks one the other falls. But Padilla holds otherwise.

Padilla instructs that one can fail as a judgment (there, for lack of consent) and still be

enforceable in contract. Under the same reasoning, if the Agreed Order meets the

requirements of Rule 11, it is enforceable as a Rule 11 agreement, even if it would

otherwise fail as a temporary injunction.

B.    The Agreed Order meets all the elements of an enforceable Rule 11.
      The October 2013 Agreed Order meets all the requirements of Rule 11 and is

thus enforceable as a Rule 11 agreement. Rule 11 provides:

      Unless otherwise provided in these rules, no agreement between attorneys
      or parties touching any suit pending will be enforced unless it be in writing,
      signed and filed with the papers as part of the record, or unless it be made
      in open court and entered of record.

TEX. R. CIV. P. 11.

      A trial court must enforce any agreement that meets the elements of Rule 11.

Fortis Benefits, 234 S.W.3d at 651 (“As this is a valid pretrial agreement under Rule 11,

the trial court had a duty to enforce its terms.”). Those elements are quite simple:

            The agreement must be between attorneys or parties and touching
             on a pending lawsuit;
            The agreement must be in writing;
            The agreement must be signed; and
            The agreement must be made a part of the record.


                                            27
       The October 2013 order meets these requirements. Nancy Schaefer filed suit on

October 9, 2013,64 and the parties agreed to the injunctive provisions on October 29,

2013,65 while the suit was still pending.66 The agreement touched on the lawsuit in that

the 9 pages of agreed terms were intended to govern the parties’ conduct as it relates to

Axiom (the company which is the subject matter of the lawsuit) during the litigation.67

The agreement was in writing.68 It was signed—“agreed as to form and content”—by

all the party attorneys: Howard Carter and Mark Stromberg, attorneys for plaintiff, as

well as Teresa De Ford, attorney for the Axiom defendants, and Joe Griffin, attorney

for Michael J. DeLitta and DeLCom Properties, LLC.69 It was filed in the court’s record

on the same day as it was signed by the parties.70

       The October 2013 order meets all the requirements of Rule 11. Accordingly, it

is an enforceable agreement. The Axiom defendants “entered into and [are] bound by

the specific language in the Rule 11 agreement.” Fortis Benefits, 234 S.W.3d at 651. The

Court can affirm the trial court’s refusal to dissolve the Agreed Order on this ground.

                                         CONCLUSION
       For these reasons, Appellee asks that the Court to affirm the trial court’s order.

Appellee seeks any other relief to which she may be entitled.

64
   CR3
65
   CR121
66
   CR2 (docket sheet)
67
   See CR115–23
68
   Id.
69
   CR121
70
   Compare CR115 (filestamp) with CR121 (date of signature)

                                                28
Dated: May 6, 2015                      Respectfully submitted,

                                        /s/Lisa Bowlin Hobbs

 Donald R. Taylor                        Lisa Bowlin Hobbs
   State Bar No. 19688800                  State Bar No. 24026905
   dtaylor@taylordunham.com                Lisa@KuhnHobbs.com
 Stacey Reese (Of Counsel)               Kurt Kuhn
   State Bar No. 24056188                  State Bar No. 24002433
   stacey@reeselawpractice.com             Kurt@KuhnHobbs.com
 TAYLOR DUNHAM & RODRIGUEZ LLP           KUHN HOBBS PLLC
 301 Congress Avenue, Suite 1050         3307 Northland Drive, Suite 310
 Austin, Texas 78701                     Austin, Texas 78731
 (512) 473-2257                          (512) 476-6003
 (512) 478-4409 (fax)                    (512) 476-6002 (fax)


                                         Howard F. Carter, Jr.,
                                           State Bar No. 03916500
                                           sam@scarterlawfirm.com
                                         HOWARD F. CARTER, JR., P.C.
                                         5600 Tennyson Parkway, Suite 160
                                         Plano, Texas 75024
                                         (972) 455-2001
                                         (972) 455-2015 (fax)

                       COUNSEL FOR APPELLEE




                                   29
                           CERTIFICATE OF COMPLIANCE
      Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this brief contains 7,691
words. This is a computer-generated document created in Microsoft Word, using 14-
point typeface for all text, except for footnotes which are in 12-point typeface. In
making this certificate of compliance, I am relying on the word count provided by the
software used to prepare the document.

                                                /s/ Lisa Bowlin Hobbs
                                                Lisa Bowlin Hobbs




                              CERTIFICATE OF SERVICE
        I hereby certify that on May 6, 2015, I served a copy of this Brief of Appellee on
counsel of record electronically, in accordance with the Court’s rules on electronic
filing, as listed below:

Douglas R. Drucker                                                            via e-Service
Kirby D. Hopkins
DRUCKER | HOPKINS LLP
21 Watery Avenue, Suite 300
The Woodlands, TX 77380
Counsel for Appellants Michael J. DeLitta and DelCom Properties, LLC

Eric J. Taube                                                                 via e-Service
HOHMANN, TAUBE & SUMMERS LLP
100 Congress Avenue, 18th Floor
Austin, Texas 78701
Counsel for the Axiom entities and Receiver/Provisional Member Jeff Compton



                                                /s/ Lisa Bowlin Hobbs
                                                Lisa Bowlin Hobbs




                                           30
Brazzel v. Murray, 481 S.W.2d 801 (1972)




                                                        481 S.W.2d 801
                                                    Supreme Court of Texas.

                                                 John BRAZZEL, Petitioner,
                                                           v.
                                              Sid MURRAY et al., Respondents.

                         No. B—3103.      |    April 12, 1972.    |   Rehearing Denied June 7, 1972.

The 105th District Court, Nueces County, Horace S. Young, J., dismissed plaintiff's suit on ground that there was no mandate
filed after the Court of Civil Appeals had reversed a judgment in plaintiff's favor, and plaintiff appealed. The Corpus Christi
Court of Civil Appeals, Thirteenth Supreme Judicial District, Nye, C.J., affirmed, 472 S.W.2d 814, and application for writ of
error was granted. The Supreme Court, McGee, J., held that where mandate was on file with trial court from date of original
mandate until date original mandate was recalled, it was, although unauthorized for failure to comply with requirement that
costs be paid prior to issuance of mandate, valid until recalled; thus, where at no time had there been period of 12 months in
which no mandate had been filed with trial court, as required by procedural rule as prerequisite to dismissal, dismissal of case
for want of a valid mandate was error.

Reversed and remanded for new trial.



 West Headnotes (4)


 [1]    Judgment        Errors and Irregularities
        Judgments which are rendered without observance of statutory requirements which are purely procedural are not void
        however irregular or erroneous they may be, but merely voidable.

        4 Cases that cite this headnote


 [2]    Appeal and Error         Making and Issuance
        Civil procedural rules dealing with issuance of return of the mandate subsequent to judgment of remand in the Court
        of Civil Appeals are procedural and not necessary to the jurisdiction of the trial court. Rules of Civil Procedure, rules
        443–445.

        5 Cases that cite this headnote


 [3]    Appeal and Error         Operation and Effect
        Where mandate was on file with trial court from date of original mandate until date original mandate was recalled,
        it was, although unauthorized for failure to comply with requirement that costs be paid prior to issuance of mandate,
        valid until recalled; thus, where at no time had there been period of 12 months in which no mandate had been filed with
        trial court, as required by procedural rule as prerequisite to dismissal, dismissal of case for want of a valid mandate
        was error. Rules of Civil Procedure, rules 443, 445.

        2 Cases that cite this headnote


 [4]    Appeal and Error         Operation and Effect



               © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Brazzel v. Murray, 481 S.W.2d 801 (1972)


        Until mandate was recalled by Court of Civil Appeals which had issued it erroneously before collection of appellate
        costs, mandate was lawful order upon which all parties could rely and was not void ab initio. Rules of Civil Procedure,
        rules 443, 445.

        4 Cases that cite this headnote




Attorneys and Law Firms

*801 William Emerson Wright, Houston, for petitioner.

Wood, Burney, Nesbitt & Ryan, Allen Wood, Corpus Christi, for respondents.

Opinion

*802 McGEE, Justice.

This case involves the effect of the erroneous issuance of a mandate by the Clerk of the Court of Civil Appeals, the costs of
court having not been paid at the time and subsequent dismissal of the cause purportedly under Rule 445, Texas Rules of Civil
Procedure (T.R.C.P.).

The original suit was filed by John Brazzel on January 4, 1964, against Sid Murray and others. The trial court rendered judgment
upon the jury verdict for Brazzel on July 28, 1967. The Court of Civil Appeals (Waco Court) reversed the trial court judgment
and remanded the cause for new trial with costs assessed against Brazzel on February 6, 1969. 438 S.W.2d 382. Judgment
became final November 26, 1969 when Brazzel's application for writ of error was overruled by this Court.

The Clerk of the Waco Court issued the mandate to the trial court on December 4, 1969, although Brazzel had failed to pay the
costs at that time as ordered by the judgment of the Waco Court and as required by Rule 443, T.R.C.P., which provides:
          'On the rendition of a final judgment or decree in the Court of Civil Appeals, the clerk of said court shall
          not issue and deliver the mandate of the court nor certify the proceedings to the lower court until all costs
          accruing in the case in such appellate court have been paid, subject to the provisions of Rule 444.'



Rule 444, T.R.C.P., provides for the filing of affidavits of inability to pay the costs as required in Rule 443, T.R.C.P.

Murray subsequently filed a motion in the Waco Court to recall the mandate because of the non-payment of the costs. This
motion was granted, and the mandate was recalled on January 22, 1971, and returned to the Waco Court, whereupon the Clerk
issued a certificate on February 18, 1971, which stated: ‘Except for the Mandate of this Court issued December 4, 1969, no
mandate in the above has been taken out.’

Murray filed a motion to dismiss the cause in the trial court on February 17, 1971. On March 4, 1971 the trial court entered its
order of dismissal relying upon Rule 445, T.R.C.P., which provides as follows:
'In cases which have been reversed and remanded by a Court of Civil Appeals, If no mandate shall have been taken out and filed
in the court where the cause originated within one year after the motion for rehearing is overruled or final judgment rendered,
Then upon the filing in the court below of a certificate of the clerk of the Court of Civil Appeals where the cause was pending
That no mandate has been taken out, the case shall be dismissed from the docket.' (Emphasis added)


On appeal from the order of dismissal, the Court of Civil Appeals (Corpus Christi Court) held that the original mandate, having
been mistakenly issued by the Waco Court, was void Ab initio and the wording of the Clerk's certificate need not state that




               © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Brazzel v. Murray, 481 S.W.2d 801 (1972)


‘no mandate has been taken out’ within one year of final judgment and affirmed the judgment of the trial court. 472 S.W.2d
814. With these holdings we disagree.

Petitioner's application for writ of error was granted on the following points:
'1. The Court of Civil Appeals erred in holding, that the mandate, ‘having been mistakenly issued,’ was void Ab initio.

'2. The Court of Civil Appeals erred in affirming dismissal under Rule 445, T.R.C.P., as a valid mandate was on file with the
trial court from final remand until dismissal.

'3. The Court of Civil Appeals erred in affirming dismissal in the absence of compliance with the requirements of Rule 445,
T.R.C.P., that the Clerk certify *803 that ‘no mandate has been taken out’ within one year of final judgment.'


Points one and two will be treated together and are considered controlling; thus, point three is not discussed.
 [1] The distinction between a Void and Voidable judicial act is clearly set out in Murchison v. White, 54 Tex. 78 (1880)
as follows:
'A void act is one entirely null within itself, not binding on either party, and which is not susceptible of ratification or
confirmation. Its nullity cannot be waived.

'A voidable act is one which is not absolutely void within itself, but which is binding until disaffirmed, and which may be made
finally valid by failure within the proper time to have it annulled, or by subsequent ratification or confirmation.'


In Murchison, the Court found the judgment fraudulently obtained in the probate proceedings to be voidable, not void, holding
the judgment of a court having jurisdiction, if so irregularly or erroneously rendered as to make it liable to be vacated by a direct
proceeding for this purpose, or to be reversed on appeal or writ of error, is nevertheless valid until thus vacated or reversed.
Other early Texas cases which uphold this distinction stated in Murchison are Wheeler v. Ahrenbeak, 54 Tex. 535 (1881);
Cummings v. Powell, 8 Tex. 80 (1852); Burditt v. Howth, 45 Tex. 466 (1876); Fitch v. Boyer, 51 Tex. 336 at 344 (1876);
Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66 (1920).


In similar situations in which a collateral attack is brought against a judgment, the judgment has been held to be voidable and
not void. Moore v. Hanscom, 101 Tex. 293, 108 S.W. 150 (1908); White v. White, 142 Tex. 499, 179 S.W.2d 503 (1944). In
Ex Parte Coffee, 160 Tex. 224, 328 S.W.2d 283 (1959), this Court held that judgments which are rendered without observance
of statutory requirements which are purely procedural are not void, however irregular or erroneous they may be.
 [2] The Texas Rules of Civil Procedure dealing with the issuance and return of the mandate subsequent to judgment of
remand in the Court of Civil Appeals are procedural and not necessary to the jurisdiction of the trial court. Continental Casualty
Company v. Street, 364 S.W.2d 184 (Tex.1963). In Continental, the case had been retried and judgment entered before the
mandate was taken out. This second judgment of the trial court upon remand was held not to be a void judgment.

 [3] From December 4, 1969, the date of the original mandate, until February 12, 1971, the date the original mandate was
recalled, a mandate was on file with the trial court in this cause. It was an unauthorized mandate, but was valid until recalled.
In any event, Petitioner still had an additional year to pay the costs and obtain the issuance of a mandate after the date of recall
of the mandate. At no time has there been a period of twelve months in which no mandate has been filed with the trial court,
as required by Rule 445, T.R.C.P., as a basis for dismissal.

 [4] The Corpus Court erred in holding that the mandate was void Ab initio. Until the mandate was recalled by the Waco Court
which had issued it erroneously before collection of appellate costs, the mandate was a lawful order of the Court upon which
all parties could rely. Murchison v. White, supra.




                © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                               3
Brazzel v. Murray, 481 S.W.2d 801 (1972)




The judgments of the courts below are reversed and the cause remanded to the trial court for new trial.

End of Document                                                   © 2014 Thomson Reuters. No claim to original U.S. Government Works.




               © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
C.W. 100 Louis Henna, Ltd. v. El Chico Restaurants of..., 295 S.W.3d 748 (2009)




                                                     295 S.W.3d 748
                                                 Court of Appeals of Texas,
                                                          Austin.

                              C.W. 100 LOUIS HENNA, LTD., Appellant,
                                               v.
              EL CHICO RESTAURANTS OF TEXAS, L.P., and El Chico Restaurants, Inc., Appellees.

                                          No. 03–08–00555–CV.         |   Aug. 27, 2009.

Synopsis
Background: Landlord brought action against tenant, alleging breach of commercial ground lease in tenant's failure to repair
damages to air conditioning units that had been subject to copper vandals and hail damage. The District Court, Williamson
County, 277th Judicial District, Ken Anderson, J., entered summary judgment in favor of tenant. Landlord appealed.



[Holding:] The Court of Appeals, Bob Pemberton, J., held that air conditioning units were trade fixtures and not improvements
such that tenant was under no obligation to repair units upon expiration of lease.


Affirmed.



 West Headnotes (10)


 [1]    Appeal and Error         Particular orders or rulings reviewable in general
        Appeal and Error         Rendering Final Judgment
        Where the parties file cross-motions for summary judgment on overlapping issues, and the trial court grants one motion
        and denies the other, the appellate court should review the summary-judgment evidence supporting both motions and
        render the judgment that the trial court should have rendered.

        Cases that cite this headnote


 [2]    Appeal and Error         Reasons for Decision
        If the district court did not specify the ground on which it relied in granting summary motion, the appellate court may
        affirm the summary judgment if any ground is meritorious.

        1 Cases that cite this headnote


 [3]    Estates in Property       Ground rents
        Fixtures       Trade fixtures
        Air conditioning units that were purchased and installed by tenant for purpose of running restaurant within leased
        premises were trade fixtures, and not improvements, such that tenant was not responsible for repairing the units upon
        expiration of lease; parties' commercial ground lease unambiguously manifested the drafters' intent that the units
        tenant was to install on the building would be temporary additions to the realty to aid tenant in operating a restaurant



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C.W. 100 Louis Henna, Ltd. v. El Chico Restaurants of..., 295 S.W.3d 748 (2009)


        there, which tenant would continue to own at the lease's conclusion, and not “Improvements” that it was required to
        maintain or repair for the landlord's benefit.

        2 Cases that cite this headnote


 [4]    Contracts       Construction as a whole
        Contracts       Language of contract
        When courts construe a written contract, the primary concern is to ascertain and give effect to the intentions the parties
        have objectively manifested in that instrument; to that end, courts construe the contract in its entirety, considering
        each part in relation to every other part so that the effect of each part on others may be determined and that no part
        will be rendered meaningless.

        1 Cases that cite this headnote


 [5]    Contracts       Language of Instrument
        Contract terms are given their plain, ordinary, and generally accepted meanings unless the contract itself shows them
        to be used in a technical or different sense.

        1 Cases that cite this headnote


 [6]    Contracts       Subject, object, or purpose as affecting construction
        Contracts       Extrinsic circumstances
        In determining the meaning of contract terms, courts may consider the context of the circumstances existing at the
        time the contract was executed and the particular business activity sought to be served.

        Cases that cite this headnote


 [7]    Contracts       Existence of ambiguity
        Contracts       Ambiguity in general
        If courts can give the contract a definite or certain legal meaning, it is unambiguous and it will be construed as a
        matter of law; if, on the other hand, the contract is subject to two or more reasonable interpretations, it is ambiguous,
        which creates a fact issue as to the parties' intent.

        Cases that cite this headnote


 [8]    Contracts       Ambiguity in general
        Whether a contract is ambiguous is a question of law.

        Cases that cite this headnote


 [9]    Fixtures      Trade fixtures
        As between a landlord and his tenant, the term “trade fixtures” refers to and means such articles as may be annexed to
        the realty by the tenant to enable him properly or efficiently to carry on the trade, profession, or enterprise contemplated
        by the tenancy contract or in which he is engaged while occupying the premises, and which can be removed without
        material or permanent injury to the freehold.




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C.W. 100 Louis Henna, Ltd. v. El Chico Restaurants of..., 295 S.W.3d 748 (2009)




        1 Cases that cite this headnote


 [10]   Fixtures       Trade fixtures
        Landlord and Tenant             Improvements by landlord and covenants therefor
        For purposes of distinguishing between trade fixtures and improvements to rental property, improvements made by
        a landlord are made to enhance the value of the estate, and to be permanent, whereas those made by the tenant are
        temporary and made for purposes of his trade.

        2 Cases that cite this headnote




Attorneys and Law Firms

*750 Forest D. Cook, Austin, TX, for Appellant.

Joel R. White, Austin, TX, for Appellees.

Before Justices PATTERSON, PEMBERTON and WALDROP.



                                                           OPINION

BOB PEMBERTON, Justice.

This is an appeal from a final summary judgment, on cross-motions, in a dispute between a landlord, appellant C.W. 100 Louis
Henna, Ltd. (Henna), a tenant, appellee El Chico Restaurants of Texas, L.P. (El Chico), and the tenant's guarantor, El Chico
Restaurants, Inc., over the proper construction of their commercial ground lease. The principal issue concerns whether air-
conditioning units that El Chico installed on a building that the lease required it to construct are “improvements” that the lease
obligated El Chico to maintain and deliver to Henna in good condition upon the lease's expiration, as Henna contends, or are
trade fixtures that are excluded from the lease's definition of “improvements,” as appellees argue. We agree with appellees that
the air-conditioning units are trade fixtures and not “improvements” as a matter of law. Because this is one of the grounds on
which the district court could have relied in granting summary judgment for appellees, we will affirm the judgment.



                                                        BACKGROUND

The material underlying facts are undisputed. On September 24, 1996, El Chico and Henna's predecessor, Boardwalk Center,
Ltd., entered into a ground lease of a parcel of land located in Round Rock that Boardwalk owned and was developing as
part of a new retail shopping center. On the same day, El Chico Restaurants, Inc. signed an agreement to guarantee El Chico's
obligations under the ground lease.

Among its other obligations under the ground lease, El Chico was required to construct a building on the parcel it was leasing
(defined as the “Land”) within the permissible building area reflected in the project's site plan and “pursuant to plans and
specifications approved in writing by Landlord [Boardwalk].” The lease defined this “building and other improvements and
appurtenances that may hereafter be erected” on the Land as the “Improvements” and defined the Land and Improvements
collectively as the “Premises.” The referenced “plans and specifications” included or depicted two 12.5–ton 1 air conditioning
units and two 10–ton units (the “HVAC units”), which were to be installed on top of the building.



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C.W. 100 Louis Henna, Ltd. v. El Chico Restaurants of..., 295 S.W.3d 748 (2009)




The lease authorized El Chico to use the Premises to operate a “restaurant, a related cocktail lounge, such other uses as are
incidental to the operation thereof and for any other lawful purpose,” subject to its complying with “all applicable governmental
and regulatory requirements and regulations.” The lease was to run for an initial term expiring on the tenth anniversary of the
“Rent Commencement Date”—a date tied to when El Chico opened for business on the Premises—subject to El *751 Chico's
right to renew the lease for up to four additional terms of five years each. While the lease was in effect, El Chico would own the
Improvements “hereafter constructed or placed on the Land during the Term,” but El Chico had “no right to demolish, remove or
alter the Improvements without Landlord's prior written consent.” El Chico was further required to carry specified insurance on
the Premises and “take good care of the Improvements during the Term, including repairs to the interior, exterior and structure,
it being understood that Landlord shall not be required to maintain the Premises or make any repairs to the Improvements during
the Term.” At the end of the lease, El Chico was required to “deliver up the Land with the Improvements then situated thereon in
good repair and condition, loss by fire or other casualty, condemnation, act of God, ordinary wear and tear, decay, depreciation
and obsolescence being excepted,” whereupon the Improvements were to “be and become the property of Landlord ... without
compensation therefor.” However, paragraph 12 of the lease provided that “trade and business fixtures ... shall not be deemed
to be part of the Premises but shall remain the property of Tenant.”

The “Rent Commencement Date” was in April 1997, which meant that the ten-year initial lease term ran until April 2007. The
record reflects that, in April 2006, Boardwalk conveyed its interest in the Premises and the ground lease to Henna Blvd., L.L.C.,
which then assigned these interests to Henna. Around the same time, El Chico gave written notice to Henna Blvd., L.L.C. that El
Chico had ceased doing business in the Premises and that it would permit the lease to expire at the end of the initial term without
renewing it. In this document, El Chico also waived any rights it possessed under the lease that would have prevented Henna
Blvd., L.L.C. (or Henna, its successor) from marketing and selling or leasing the Premises, and El Chico agreed to execute a
document terminating the lease upon the landlord's request if the landlord succeeded in selling or leasing the Premises.

In June 2006, El Chico sold Henna “all furniture, fixtures and equipment (collectively, the ‘Assets') located, as of this date, in the
El Chico® restaurant at 100 Louis Henna Boulevard, Round Rock.” Henna acknowledged and agreed that it “ha[d] inspected
the Assets at the Premises and [was] acquiring the Assets in their ‘AS IS' condition.” Around the same time, El Chico and Henna
amended the ground lease to provide that effective June 23, 2006, Henna would assume responsibility for paying all charges for
utility services at the Premises, including the security alarm system, and for maintaining the grounds around the Improvements.
However, El Chico continued to make monthly rental payments through the end of the initial lease term in April 2007.

In January 2007, a few months before the lease's April expiration, Henna learned that the HVAC units on top of the restaurant
building had been vandalized by copper thieves and damaged by hail. Henna obtained an estimate of $38,496 to repair the
damage. A series of communications ensued between the parties or their agents in which it was disputed whether Henna or
El Chico was responsible for repairing and/or insuring against the damage to the HVAC units. Eventually, in August and
September of that year, counsel for Henna sent letters to both El Chico and, as guarantor, El Chico Restaurants, Inc., demanding
payment of the $38,496 estimated repair amount. In October, Henna sued these entities.

Henna alleged that appellees were obligated under the ground lease to insure or *752 repair the HVAC units and had failed to
perform. It asserted a cause of action for breach of contract and sought damages and attorney's fees. Henna filed a “traditional”
motion for partial summary judgment as to appellees' liability for breaching the lease. It attempted to conclusively establish each
of the elements of its breach-of-contract cause of action; namely, that: (1) a valid contract existed between the parties; (2) Henna
had performed or tendered performance; (3) appellees had breached the contract; and (4) Henna was damaged as a result of the
breach. See New York Life Ins. Co. v. Miller, 114 S.W.3d 114, 121 (Tex.App.-Austin 2003, no pet.). Appellees filed a response
and a “traditional” cross-motion in which they attempted to conclusively negate each of these elements, as well as Henna's
entitlement to attorney's fees. Regarding breach, the parties joined issue as to whether the HVAC units are Improvements that
appellees were obligated under the ground lease to repair or insure, as Henna argued, or are trade fixtures that were excluded
from that obligation, as appellees contended. The parties also joined issue as to whether Henna had complied with the default or
remedy provisions of the lease, whether Henna had incurred any damages, or whether Henna had any entitlement to attorney's



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C.W. 100 Louis Henna, Ltd. v. El Chico Restaurants of..., 295 S.W.3d 748 (2009)


fees. Following a hearing, the district court rendered final judgment denying Henna's summary-judgment motion and granting
appellees' motion without stating the specific grounds on which it relied. Henna thereafter filed a motion for new trial, which
the district court denied by written order following a hearing. This appeal ensued.



                                                            ANALYSIS

Henna brings twelve issues on appeal. It disputes whether appellees were entitled to prevail on any of the summary-judgment
grounds presented in their motion—specifically, whether appellees conclusively negated the elements of breach (points five
and six), Henna's performance (points seven and eight), damages (points nine and ten), or Henna's entitlement to attorney's fees
(point twelve). Henna also brings a corresponding set of points complaining that the district court erred in denying Henna's
summary-judgment motion. Henna asserts that it established each of the elements of its breach-of-contract cause of action as
a matter of law: breach (points one and two), performance (point three), and damages (point four), and that it was entitled to
attorney's fees (point eleven).


Standard of review
 [1] We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Summary judgment is proper when
there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c).
In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true proof favorable to
the non-movant, and we indulge every reasonable inference and resolve any doubt in favor of the non-movant. Randall's Food
Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). Where, as here, the parties file cross-motions for summary judgment
on overlapping issues, and the trial court grants one motion and denies the other, we should review the summary-judgment
evidence supporting both motions and “render the judgment that the trial court should have rendered.” FM Props. Operating
Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

 *753 [2] As the movant in a “traditional” summary-judgment motion challenging Henna's breach-of-contract cause of action,
appellees had the initial burden of conclusively negating at least one element of that cause of action (i.e., establishing one of
the grounds in their motion as a matter of law). See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d
746, 748 (Tex.1999). Assuming appellees met that burden as to at least one element, the burden shifted to Henna to present
summary-judgment evidence raising a genuine issue of material fact as to that element or elements. See M.D. Anderson Hosp.
& Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex.2000) (per curiam). Because the district court did not specify the ground on
which it relied in granting appellees' motion, we may affirm the summary judgment if any ground is meritorious. State Farm
Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

If the district court properly granted appellees' summary-judgment motion, it follows that it did not err in denying Henna's
motion on the same grounds. See FM Props. Operating Co., 22 S.W.3d at 872. If we conclude that the district court erred in
granting appellees' motion, then we consider whether it also erred in denying Henna's motion. To prevail on its motion, Henna
had the burden of establishing its entitlement to judgment as a matter of law by conclusively establishing each element of its
breach-of-contract cause of action. See Willrich, 28 S.W.3d at 23 (citing Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–
23 (Tex.1999); Oram v. General Am. Oil Co., 513 S.W.2d 533, 534 (Tex.1974) (per curiam)).


“Improvements” versus trade fixtures
 [3] Appellees' summary-judgment ground attacking the breach element of Henna's cause of action was premised on its
argument that, as a matter of law, the HVAC units were “trade or business fixtures” under paragraph 12 of the ground lease and
not “Improvements” that the lease required them to repair or insure. Henna challenges this legal conclusion in its fifth issue,
contending that the district court erred in granting summary judgment on this ground because the HVAC units were instead
“Improvements” as a matter of law, or that at least a fact issue remains as to the parties' intent. Similarly, in its first issue, Henna


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argues that because the HVAC units were “Improvements” as a matter of law, it established the breach element of its cause
of action as a matter of law. Our resolution of these issues turns on construction of the ground lease. See Tempo Tamers, Inc.
v. Crow–Houston Four, Ltd., 715 S.W.2d 658, 664 (Tex.App.-Dallas 1986, writ ref'd n.r.e.) (observing that such issues turn
on the parties' intent, which courts ascertain by looking to relevant provisions of a contract governing their use of the realty);
Jim Walter Window Components v. Turnpike Dist. Ctr., 642 S.W.2d 3, 4 (Tex.App.-Dallas 1982, writ ref'd n.r.e.) (“The intent
of the parties regarding the right to remove additions at the termination of a lease is to be determined from the provisions of
the lease agreement.”).

 [4] [5] [6] [7] [8] When we construe a written contract, such as the ground lease, our primary concern is to ascertain and
give effect to the intentions the parties have objectively manifested in that instrument. Frost Nat'l Bank v. L & F Distribs., Ltd.,
165 S.W.3d 310, 311–12 (Tex.2005) (per curiam); see Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex.2006) (“As with
any other contract, the parties' intent is governed by what they said, not by what they intended to say but did not.”). To that end,
we construe the lease in its entirety, considering each part in relation to every other part so that the effect of each *754 part
on others may be determined and that no part will be rendered meaningless. See City of Keller v. Wilson, 168 S.W.3d 802, 811
(Tex.2005); Valence Operating Co., 164 S.W.3d at 662. Contract terms are given their plain, ordinary, and generally accepted
meanings unless the contract itself shows them to be used in a technical or different sense. Valence Operating Co., 164 S.W.3d
at 662. In determining the meaning of contract terms, we may also consider the context of the circumstances existing at the
time the contract was executed and the particular business activity sought to be served. See Columbia Gas Transmission Corp.
v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996); Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987). If
we can give the contract a definite or certain legal meaning, it is unambiguous and we construe it as a matter of law. Willis
v. Donnelly, 199 S.W.3d 262, 275 (Tex.2006); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). If, on the
other hand, the contract is subject to two or more reasonable interpretations, it is ambiguous, which creates a fact issue as to the
parties' intent. Columbia Gas Transmission Corp., 940 S.W.2d at 589. Whether a contract is ambiguous is a question of law. Id.

At the center of the parties' competing contentions is paragraph 12 of the lease, which explicitly excludes “trade or business
fixtures” from “Improvements”:

  12. Equipment, Fixtures and Signs

     (a) Tenant shall have the right to erect, install, maintain and operate on the Premises such equipment, trade and business
        fixtures, signs (including, without limitation, pylon signage) and other personal property as Tenant may deem necessary
        or appropriate, and such shall not be deemed to be part of the Premises, but shall remain the property of Tenant. Any
        such installations shall be in accordance with applicable local codes and Tenant's pylon signage and monument signage,
        if applicable, shall be installed in those locations designated therefor as reflected in the Site Plan. At any time during the
        Term and within thirty (30) days after the expiration or termination of the Term, Tenant shall have the right to remove
        all or any part of Tenant's equipment, removable fixtures, signs (including, without limitation, its pylon signage, if any)
        and other personal property from the Premises, provided that Tenant repairs all damage to the Improvements caused by
        such removal. Any property remaining in the Improvements after such thirty (30) day period shall be deemed to have
        been abandoned by Tenant.

(Italics added.) Because the “Premises” from which “trade or business fixtures” are excluded are defined elsewhere in the lease
to mean the “Land” plus the “Improvements,” paragraph 12 means that anything constituting a “trade or business fixture” (or,
for that matter, anything constituting “such equipment, ... signs ... and other personal property as Tenant may deem necessary
or appropriate” to install or operate on the Premises) cannot be an Improvement.

 [9] [10] The ground lease does not contain a definition of trade or business fixtures. However, the term “trade fixture” has
acquired a well-established, commonly understood meaning in Texas law. As one of our sister courts has observed:

  The term “trade fixture” has been defined many times by the courts.... “It is now well settled that, as between a landlord and
  his tenant, the term ‘trade fixtures' refers to and means such articles *755 as may be annexed to the realty by the tenant



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  to enable him properly or efficiently to carry on the trade, profession, or enterprise contemplated by the tenancy contract
  or in which he is engaged while occupying the premises, and which can be removed without material or permanent injury
  to the freehold.”

Boyett v. Boegner, 746 S.W.2d 25, 27 (Tex.App.-Houston [1st Dist.] 1988, no writ) (quoting Granberry v. Texas Pub. Serv. Co.,
171 S.W.2d 184, 186 (Tex.Civ.App.-Amarillo 1943, no writ)). It is also well established that trade fixtures are distinguished
from “improvements” and other types of fixtures (i.e., personal property affixed to realty). “An improvement includes all
additions to the freehold except for trade fixtures which can be removed without injury to the property.” Sonnier v. Chisholm–
Ryder Co., 909 S.W.2d 475, 479 (Tex.1995); see also Reames v. Hawthorne–Seving, Inc., 949 S.W.2d 758, 761 (Tex.App.-
Dallas 1997, pet. denied) (“The class of improvements is considered to be broader than that of fixtures, which are items of
personalty that have become permanent parts of the realty to which they are affixed. Therefore, although all improvements are
not necessarily fixtures, any fixture, unless it is a trade fixture, is considered an improvement. A trade fixture is an item, which
can be removed without material or permanent injury to the freehold, that a tenant annexes to realty to enable the tenant to carry
on its business.” (Citations omitted.)). The rationale for these distinctions is that “[i]mprovements made by a vendor, mortgagor
or ancestor are made to enhance the value of the estate, and to be permanent; while those made by the tenant are temporary and
made for purposes of his trade.” Jim Walter Window Components, 642 S.W.2d at 5 (quoting Menger v. Ward, 28 S.W. 821,
823 (Tex.Civ.App.-San Antonio 1894), rev'd on other grounds, 87 Tex. 622, 30 S.W. 853 (1895)).

The drafters' use of “trade or business fixtures” within paragraph 12 without providing definitions of these terms that would
be unique to this agreement suggests their intent to employ the well-established definitions and concepts set out in case law.
After granting the tenant the right to install or maintain “equipment,” “trade or business fixtures,” “signs,” and “other personal
property,” paragraph 12 provides the tenant a corresponding right to remove all or part of its “equipment,” “removable fixtures,”
“signs,” and “other personal property from the Premises, provided that Tenant repairs all damage to the Improvements caused by
such removal.” This usage reflects that, consistent with the common meaning of trade fixtures in Texas law, “trade or business
fixtures” under the lease are considered to be removable personal property. Similarly, paragraph 12 excluded “trade or business
fixtures” from the lease's definition of “Improvements,” just as trade fixtures are excluded from improvements under Texas law.

Appellees conclusively established that the HVAC units at issue met the commonly understood definition of trade fixtures.
They presented uncontroverted summary-judgment evidence that the HVAC units were not attached to the building, but were
designed to be and were placed on curbs on the roof so they could be removed and replaced without injury to the building, and
that such units needed to be replaced periodically as they reached the end of their useful life cycles. Appellees likewise presented
undisputed evidence that the HVAC units here were approaching the end of their useful lives, and that the units ultimately were
replaced without injury to the building. Further, appellees presented uncontroverted summary-judgment evidence *756 that
the 45 tons of air-conditioning capacity provided by the HVAC units facilitated the building's use as a restaurant, but was many
times greater than that needed if the building were to be used for other retail or office use. Several Texas courts, addressing
similar facts, have held that air-conditioning units are trade fixtures as a matter of law. See Boyett, 746 S.W.2d at 27–28; White v.
Cadwallader & Co., 299 S.W.2d 189, 190–92 (Tex.Civ.App.-San Antonio 1957, writ ref'd n.r.e.); Moskowitz v. Calloway, 178
S.W.2d 878, 879–80 (Tex.Civ.App.-Texarkana 1944, writ ref'd w.o.m.); cf. Nine Hundred Main, Inc. v. City of Houston, 150
S.W.2d 468, 471–73 (Tex.Civ.App.-Galveston 1941, writ dism'd judgm't cor.) (distinguishing tenant-installed air-conditioning
system that had been constructed in a manner making it an integral part of the building).

Henna correctly observes that there is no rule or presumption in Texas law that air-conditioning units are always trade fixtures.
The issue, rather, turns on the parties' intent, which here we ascertain from the ground lease. See Tempo Tamers, Inc., 715 S.W.2d
at 664. Henna argues that portions of the ground lease outside paragraph 12 reflect the drafter's intent that the HVAC units be
considered “Improvements” under the lease and that this definition, not the commonly understood definitions of improvements
and trade fixtures, must control. See id. at 664–66 (example of case where lease language demonstrated that “the parties in this
case could not have reasonably intended that ‘trade fixtures' have the legal meaning ascribed to it by the courts”). Henna relies
on paragraph 1 of the lease, which defines “Improvements” as “any building and other improvements and appurtenances that
may hereafter be erected” on the Land, in conjunction with paragraph 5:



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            5. Construction. The Improvements shall be constructed and situated on the Land within the permissible
            building area reflected on the Site Plan and pursuant to plans and specifications approved in writing by
            Landlord; provided, however, that Tenant shall have the right to revise the permissible building area and
            the approved plans and specifications subject to Landlord's prior written consent, which consent shall
            not be unreasonably withheld or delayed. Notwithstanding anything contained herein to the contrary,
            however, Landlord hereby consents to and approves of the prototypical plans and specifications which
            are being used by Tenant on the Effective Date of this Lease and hereby agrees that Tenant shall have the
            right to construct the Improvements without any further consent by Landlord so long as the Improvements
            are constructed generally in accordance with such prototypical plans....

Henna presented uncontroverted summary-judgment evidence that the “plans and specifications” referenced in paragraph
5 included a drawing of a four-unit, 45–ton HVAC system like that El Chico later installed. Thus, Henna reasons, the
“Improvements [that] shall be constructed ... pursuant to plans and specifications” under paragraph 5 included the HVAC units
that El Chico later installed.

Based on this premise, Henna argues that paragraph 5 evinces the drafters' agreement and intent to impose an obligation on El
Chico to include the HVAC units at issue when constructing the building. Henna also relies on paragraphs 6 and 30 of the ground
lease for a similar proposition. Paragraph 6 authorized El Chico to use the Premises “for the operation of a restaurant ... and
for any other lawful purpose, subject, however, to ... all applicable governmental and regulatory requirements and restrictions.”
Similarly, *757 paragraph 30 provided that, during the lease term, “Tenant ... shall conform to and comply with all ordinances,
regulations and laws (federal, state, or municipal) ... affecting the Premises....” Henna presented summary-judgment evidence
that El Chico had obtained a certificate of occupancy for its restaurant from the City of Round Rock based on the plans and
specifications. From this, Henna reasons that El Chico had obligations under paragraphs 6 and 30 to install the HVAC units
in order to comply with this “regulatory requirement.”

The existence of these agreements and obligations on the part of El Chico to install the HVAC units when constructing
its restaurant building, Henna further reasons, distinguishes the HVAC units from a trade fixture, which, Henna asserts, is
characterized by a tenant's unilateral decision to affix personalty to an existing building that the tenant has leased. Relatedly,
Henna argues that the HVAC units were part of the consideration the landlord bargained to obtain under the ground lease. In sum,
Henna urges that “[t]he decision to originally incorporate the HVAC system was neither unilateral nor voluntary; rather, such
decision was bilateral, between El Chico and its landlord, as well as required under the plans and specifications incorporated into
the ground lease, itself, of course, the product of arms-length negotiation between the parties, a factual distinction absolutely
determinative in the present appeal.”

The chief flaw in Henna's reasoning is its foundational premise that the ground lease's definition of “Improvements”
encompassed the HVAC units because the plans and specifications called for two 12–ton units and two 10–ton units like El Chico
installed. Contrary to Henna's argument, paragraph 5 does not purport to incorporate into the lease's “Improvements” definition
whatever property might have been depicted in the plans and specifications. Paragraph 5 requires that “[t]he Improvements
shall be constructed ... pursuant to [the] plans and specifications,” which means that the Improvements must be constructed
in a manner carrying out or in conformity with the plans and specifications. 2 It does not follow from this requirement that
any piece of property depicted in the plans and specifications, even if otherwise considered a trade fixture, equipment, or other
personal property, would be an Improvement. For example, appellees presented summary-judgment evidence that the plans
and specifications also included depictions of El Chico's walk-in coolers, freezers, tables and chairs, and other trade fixtures
or restaurant equipment. If, as Henna argues, paragraph 5 means that all property depicted in the plans and specifications is
an “Improvement” that El Chico could not remove without the landlord's approval, it would conflict with paragraph 12, which
grants El Chico the right to “remove all or any part of Tenant's equipment, removable fixtures, signs ... and other personal
property from the Premises, provided that Tenant repairs all damage to the Improvements caused by such removal.” We must
instead construe these provisions in relation to one another so as to give both effect. See Valence Operating Co., 164 S.W.3d
at 662. Consequently, we cannot conclude that the drafters intended paragraph 5 to mean that all property depicted in the plans


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and specifications is “Improvements” that El Chico could not remove and that the landlord would own after the lease expired.
In short, paragraph 5 does *758 not mean that the HVAC units are “Improvements” under the ground lease.

We are similarly unpersuaded by Henna's argument that the HVAC units cannot be trade fixtures because the drafters anticipated
at the inception of the ground lease that El Chico would install such units when constructing the restaurant building. Henna
is correct that the reported Texas cases holding that air-conditioning units are trade fixtures have involved units that a tenant
installed in a preexisting building during a lease term—not, as here, a ground lease where the parties contemplated that the tenant
would construct a building and install the units. See Boyett, 746 S.W.2d at 27–28; White, 299 S.W.2d at 190–92; Moskowitz, 178
S.W.2d at 879–80. Although Henna is correct as a factual matter, we disagree that the legal principle governing these decisions
turns solely on whether or when the tenant and/or landlord anticipated that the units would be installed. The critical issue, rather,
is whether the parties intended the air-conditioning units to be permanent additions to the building, for the landlord's ownership
and benefit as part of the realty, or temporary additions to aid the tenant, El Chico, while it was operating a restaurant in the
building. See Jim Walter Window Components, 642 S.W.2d at 5 (quoting Menger, 28 S.W. at 823). We ascertain such intent, as
Henna has acknowledged, from the terms of the ground lease. Id. at 4 (“The intent of the parties regarding the right to remove
additions at the termination of a lease is to be determined from the provisions of the lease agreement.”); see Tempo Tamers,
Inc., 715 S.W.2d at 664.

The drafters' use of “trade or business fixtures” in paragraph 12 of the ground lease, as discussed, manifests their intent to
incorporate the commonly understood meaning of trade fixtures under Texas law. Paragraph 5 of the lease does not reflect
a contrary intent, nor do paragraphs 6 and 30, the other provisions on which Henna relies. As appellees observe, Henna's
arguments concerning the restaurant's certificate of occupancy are simply inapposite. The fact that El Chico submitted the plans
and specifications to the City of Round Rock when obtaining a certificate of occupancy permitting it to operate a restaurant
in the building has no bearing on whether the drafters intended the HVAC units or other property depicted in the plans and
specifications to be “Improvements” or trade fixtures.

Appellees conclusively established that the HVAC units are trade fixtures under the established definition of that term in Texas
law. Paragraph 12 explicitly excludes “trade or business fixtures” from the “Premises” and, thus, the “Improvements” under
the lease. In other words, the ground lease unambiguously manifests the drafters' intent that the HVAC units El Chico was
to install on the building would be temporary additions to the realty to aid El Chico in operating a restaurant there, which El
Chico would continue to own at the lease's conclusion, and not “Improvements” that it was required to maintain or repair for
the landlord's benefit. We are bound to give effect to this unambiguous language as the controlling indicator of the bargain the
drafters intended to strike. See Willis, 199 S.W.3d at 275; J.M. Davidson, Inc., 128 S.W.3d at 229.

In a final argument, Henna asserts that El Chico “didn't consider the HVAC system a fixture” in its June 2006 sale of “all
furniture, fixtures and equipment” to Henna because the HVAC units did not appear in the list of property attached to the
bill of sale. Henna suggests this evidence raises an inference that, as late as June 2006, El Chico intended or understood that
the HVAC units were not trade fixtures. We disagree. First, even assuming that *759 “fixtures” as used in the bill of sale
would have included trade fixtures, the record does not support Henna's factual premise that El Chico excluded the HVAC units
from that category of property—the bill of sale explicitly covers “all furniture, fixtures and equipment, whether or not listed
in Exhibit ‘A.’ ” Second, and more importantly, even if this evidence supported an inference as to El Chico's subjective intent
or understanding regarding whether the HVAC units were trade fixtures, it would be incompetent to raise a fact issue as to the
parties' intent in the face of the unambiguous ground lease. See Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32
(1958) (parol-evidence rule is a limitation of substantive contract law and not merely a rule of evidence).

Henna's breach-of-contract claims are predicated on the legal conclusion that the HVAC units were “Improvements” under
the ground lease. Because the HVAC units were not “Improvements” as a matter of law, the district court properly granted
summary judgment for appellees on the ground that Henna cannot prove breach. Accordingly, we overrule Henna's fifth point
of error and its corresponding first point of error.




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Because this ground alone is sufficient to support summary judgment, see S.S., 858 S.W.2d at 380, we need not reach Henna's
contentions regarding other grounds and elements. See Tex.R.App. P. 47.1.



                                                             CONCLUSION

We affirm the district court's judgment.



Footnotes
1      A “ton” is a measure of air conditioning power. It refers to the cooling power of one ton of ice melting in a 24–hour period. Webster's
        Third New International Dictionary 2407 (1986).
2       “Pursuant to” is defined as “in conformance to or agreement with” or “according to.” Webster's Third New International Dictionary
        1848 (1986).


 End of Document                                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     10
Carle v. Carle, 149 Tex. 469 (1950)
234 S.W.2d 1002



                                                         149 Tex. 469
                                                    Supreme Court of Texas.

                                                          CARLE et al.
                                                              v.
                                                            CARLE.

                         No. A-2892.         |   Nov. 29, 1950.    |   Rehearing Denied Jan. 10, 1951.

Ollie Mae Carle sued Louis M. Carle for divorce, partition of certain real properties, and attorney's fees. From parts of a judgment
of the District Court of Bexar County, defendants appealed to the El Paso Court of Civil Appeals of the Eighth Supreme Judicial
District, which dismissed the appeal in part and reversed the judgment and remanded the case in part, 234 S.W.2d 907, and on
motions for rehearing, 234 S.W.2d 916, reversed the judgment and rendered judgment in part and certified four questions to the
Supreme Court. The Supreme Court, Hickman, C. J., held that the Court of Civil Appeals did not err in holding that appellant
was estopped from complaining of a portion of the judgment declaring two properties to be plaintiff's separate properties, but
erred in holding that defendant was not estopped from complaining of a portion declaring another property plaintiff's separate
property.

One question answered in the negative, two questions answered in the affirmative, and another question not answered.

Appellee's second motion in the Court of Civil Appeals for rehearing, 235 S.W.2d 924, was granted in part and the judgments
of such court set aside the part, and the motion was overruled and the judgments adhered to in other respects, in conformity
with the answers to the certified questions.



 West Headnotes (6)


 [1]     Appeal and Error         Payment of or on Judgment
         Generally, a litigant voluntarily accepting benefits of judgment cannot appeal therefrom, unless reversal thereof cannot
         possibly affect his right to such benefits.

         118 Cases that cite this headnote


 [2]     Appeal and Error         Acceptance of sum absolutely due or admitted to be due
         A litigant accepting only benefits which adverse party concedes or is bound to concede are due such litigant under
         judgment is not estopped from prosecuting appeal involving only his right to further recovery.

         123 Cases that cite this headnote


 [3]     Divorce       Estoppel
         The Court of Civil Appeals did not err in holding that divorced husband, accepting half of community money, used
         in paying obligations against certain real properties from divorced wife's interest in community estate, could not
         complain of portion of judgment, declaring such properties wife's separate properties, on appeal therefrom, but erred
         in holding that husband was estopped from complaining of portion declaring another property wife's separate property,
         as benefit to him under judgment would be affected, if he succeeded in appeal and established his claim that property
         was community on another trial, while wife's right to partition of property might be prejudiced. Rev.St.1925, art. 4638.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Carle v. Carle, 149 Tex. 469 (1950)
234 S.W.2d 1002


        29 Cases that cite this headnote


 [4]    Divorce       Discretion of court in general
        Divorce       Equity and proportionality in general
        The statute providing that court granting divorce shall also decree and order division of parties' estate as court deems
        just and right vests discretion in court to determine proper division of community estate and does not require court,
        as matter of law, to divide such estate equally between parties. Rev.St.1925, art. 4638.

        25 Cases that cite this headnote


 [5]    Divorce       Balance and effect of allocation or other award
        The fact that divorce decree, requiring husband to pay all of wife's attorney's fees, may result in award to him of
        smaller part of community estate than that awarded wife, does not alone condemn decree, as attorney's fee is merely
        a factor to be considered by court in making equitable division of estate, considering parties' conditions and needs
        and all surrounding circumstances. Rev.St.1925, art. 4638.

        78 Cases that cite this headnote


 [6]    Husband and Wife          Community and Separate Debts
        The Court of Civil Appeals erred in holding that attorney's fee, charged by decree granting wife divorce solely against
        husband's interest in community estate divided between parties by decree, was chargeable as matter of law against
        community estate as whole. Rev.St.1925, art. 4638.

        4 Cases that cite this headnote




Attorneys and Law Firms

*470 **1002 Dibrell & Gardner, James F. Gardner and Sam J. Dotson, all of San Antonio, for appellants.

Conger, Baskin & Casseb, Paul E. Casseb, San Antonio, for appellee.

Opinion

HICKMAN, Chief Justice.

The certificate from the Court of Civil Appeals, 8th District, at El Paso recites:
 **1003 ‘This was an action for divorce instituted by Ollie Mae Carle against her husband, Louis M. Carle. She sought the
divorce and a partition of certain properties in the city of San Antonio; part of it she alleged was her separate property and
the remainder community property of herself and her husband. She likewise sought to recovery attorney's fees in the sum of
$6500.00 against defendant. Plaintiff recovered as her separate property (1) the residence at 344 Park Drive, San Antonio,
Texas, and the household furnishings located therein; (2) the service station property together with fixtures and equipment
thereon at 5401 South Flores Street, San Antonio, Texas; (3) the property located at 605 Guadalupe Street in San Antonio. The
judgment provided as to the property located at 344 Park Drive that it was subject to an offset in favor of defendant in the sum
of $7,000.00. Under the verdict it was found $14,000.00 of community funds had been used to pay off indebtedness against the
property at Park Drive; $900.00 was likewise found to have been paid out of the community funds on the furnishings in this
house adjudged to plaintiff; obligations in the sum of $500.00 on the property at 5401 South Flores Street was found to have



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Carle v. Carle, 149 Tex. 469 (1950)
234 S.W.2d 1002

been paid out of community funds. These respective amounts, to-wit, $7,000.00, $450.00 and $250.00 were charged against
plaintiff's interest in the community property. The balance of the property involved was held to be community property and
a commissioner was appointed to sell same under the direction of the court and divide the proceeds in accordance with the
judgment under the direction of the court. Defendant perfected an appeal from parts of this judgment. He appealed from that
part of the judgment declaring the three pieces of property hereinbefore described as *471 the separate property of his wife,
from that portion of the judgment allowing his wife the recovery of an attorney's fee of $6500.00 and charging the same against
his interest in the community property.

‘Appellee has filed a supplemental transcript herein which in substance shows that the commissioner under the direction and
authority of the court has sold all community property in accordance with the judgment, has disposed of all the money arising
therefrom except the sum of $2666.79 which under the order of the court he paid into the registry of the court, and was
discharged. Some of these distributions were requested by the defendant. The attorney's fees in the sum of $6500.00 have been
paid and same were charged against the interest of defendant in the community. The charges made in favor of the community
estate for indebtedness paid on obligations against property adjudged to plaintiff as her separate property have been paid to
defendant, that is, one-half thereof has been charged as against plaintiff's interest in the community estate and paid to the
defendant in the sum of $7700.00.

‘In our original disposition of the case we held that the accepting by defendant of the offsets adjudged in his favor as to the
property located at 5401 South Flores Street and at 344 Park Drive, each of which piece of property was adjudged to be separate
property of plaintiff, estopped him from complaining of the trial judge's judgment decreeing same to be the separate property of
plaintiff. To this view in ruling on the motion for a rehearing we still adhere. Further, in regard to the property at 605 Guadalupe
Street as to which appellee (plaintiff) has filed a motion for rehearing, we still adhere to the view expressed in the original
opinion that defendant is not estopped from claiming that same is community property. In regard to the fee for $6500.00 allowed
to plaintiff we granted defendant's motion for rehearing and rendered judgment charging said fee to the community estate of
plaintiff and defendant. For further facts we refer to our original opinion and our opinion on our holding granting the motion
for rehearing, and likewise as to our reasons for the disposition made of the respective matters in controversy.’


The first and second questions certified are:
‘Question No. 1. Did we err in holding that defendant was not entitled to complain on appeal of that portion of the **1004
judgment decreeing the property at 344 Park Drive as the separate property of plaintiff and that portion of the judgment decreeing
 *472 the property at 5401 South Flores Street as the separate property of plaintiff on account of the fact that he accepted
and collected from plaintiff's interest in the community estate one-half of the community money used in paying obligations
against said property?’

‘Question No. 2. Did we err in holding that defendant by his action subsequent to the rendition of the judgment had not estopped
himself from complaining of the court's action in decreeing the property at 605 Guadalupe Street as the separate property of
plaintiff?’

 [1] [2] A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment,
he cannot afterward prosecute an appeal therefrom. That is the general rule which appears to be universally recognized. It was
announced by this court in the early case of Matlow v. Cox, 25 Tex. 578. The rule is based on the principle of estoppel. It,
however, is subject to the exception that ‘* * * where the reversal of a judgment cannot possibly affect an appellant's right to
the benefit secured under a judgment, then an appeal may be taken, * * *.’ 2 Am.Jur., Appeal and Error, Sec. 215. Numerous
authorities, approaching the exception from a slightly different angle, define it, in effect, in this language: Where an appellant
accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment he is not estopped to
prosecute an appeal which involves only his right to a further recovery. Embry v. Palmer, 107 U.S. 3, 2 S.Ct. 25, 27 L.Ed. 346;
Hodges v. Smith, 34 Tex.Civ.App. 635, 79 S.W. 328, error dismissed; Tyler v. Shea, 4 N.D. 377, 61 N.W. 468, 50 Am.St.Rep.
660; Bass v. Ring, 210 Minn. 598, 299 N.W. 679, 169 A.L.R. 980.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Carle v. Carle, 149 Tex. 469 (1950)
234 S.W.2d 1002

 [3] The exception is narrow. Whether or not this case falls within it must be determined from answers to these questions:
Could a reversal of the portions of the judgment referred to in these two certified questions possibly affect appellant's right to
the benefits secured by him under the judgment? And would appellee be compelled to concede upon another trial that appellant
has the right to retain those benefits regardless of the outcome of the litigation?


As we understand the facts stated in the certificate and in the opinion of the Court of Civil Appeals, 234 S.W.2d 907, appellee
instituted this suit in which she claimed that the property mentioned in these questions belonged to her in her separate right. The
appellant claimed that it belonged to *473 the community estate. His claim was denied and he seeks to have that portion of
the judgment revised. As the matter now stands, appellant has been awarded and has voluntarily accepted $7,700.00 in cash on
the basis of a holding by the trial court that the property belongs to appellee as her separate estate, a part of which was charged
with an indebtedness of $15,400.00 in favor of the community. Should the judgment be reversed and the cause remanded to the
trial court it would become its mandatory duty to divide the estate of the parties. Article 4638, R.S.1925. If upon another trial it
should be adjudged that the property is community property, the court, for instance, might deem it just and right to award one
of these lots to one party and the other two lots to the other party. Clearly, the court would have the authority to to so under the
article of the statutes above mentioned by making provisions for adjudicating equities. In order to restore the status quo so the
court could partition it in the manner indicated it would be necessary for appellant to restore the amount ($7,700.00) received
by him under the original judgment. The amount of the community funds remaining undistributed is much less than that sum. It
appears, then, that if appellant should be successful in his appeal and then successful upon another trial in establishing his claim
that the property is community, the benefit secured by him under the judgment appealed from would necessarily be affected.
Besides, the right of appellee to a partition of the property might well be prejudiced. She certainly would **1005 not concede
that appellant would be entitled to retain the money paid him on the ground that the property is not community while pressing
his claim that it is community. We accordingly answer the first question, ‘No,’ and the second question, ‘Yes.’

Questions 3 and 4 are as follows:
‘Question No. 3. Did we err in holding on rehearing that defendant by his action subsequent to the rendition of the judgment had
not estopped himself from complaining of the court's action in charging the attorney's fees against his half of the community
estate?’

‘Question No. 4. Did we err in holding on rehearing that the attorney's fee charged by the trial court solely against the defendant's
interest in the community estate was as a matter of law chargeable against the community estate as a whole?’

 [4] [5] [6] We first consider question No. 4. The decisions of various courts of civil appeals with respect to this question
cannot well be harmonized. *474 As we view the problem, it is not a correct approach to its solution to classify the wife's
attorney's fees as a necessity, and then apply the rule that necessities are primarily the obligations of the community and
secondarily of the husband's separate estate. That reasoning fails to take into account Article 4638, supra, which provides: ‘The
court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the
court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be
construed to compel either party to divest himself or herself of the title to real estate.’


That statute clearly vests discretion in the trial court in determining the proper division of the community estate of the parties.
The court is not required, as a matter of law, to divide that estate equally between them. In practical effect, a decree that the
husband pay all of the wife's attorney's fees may be to award him less of the community estate than that awarded to the wife,
but that alone does not condemn it. The attorney's fee is but a factor to be considered by the court in making an equitable
division of the estate, considering the conditions and needs of the parties and all of the surrounding circumstances. We answer
question No. 4, ‘Yes.’

In view of our answer to question No. 4, question No. 3 becomes immaterial.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Carle v. Carle, 149 Tex. 469 (1950)
234 S.W.2d 1002


Parallel Citations

234 S.W.2d 1002

End of Document                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        5
Certain Underwriters at Lloyd's v. Bristol-Myers Squibb Co., Inc., Not Reported in...




                                                    1998 WL 429096
                                      Only the Westlaw citation is currently available.

                    NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TX R RAP RULE
                     47.7, UNPUBLISHED OPINIONS HAVE NO PRECEDENTIAL VALUE BUT
                     MAY BE CITED WITH THE NOTATION “(not designated for publication).”

                                            Court of Appeals of Texas, Beaumont.

                         CERTAIN UNDERWRITERS AT LLOYD'S, et al., Appellants
                                                  v.
               BRISTOL-MYERS SQUIBB CO., INC. and MEDICAL ENGINEERING CORP., Appellees

                                            NO. 09-97-540 CV         |    July 30, 1998

On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-145,672-F

Before WALKER, C.J., BURGESS and STOVER, JJ.



                                                            OPINION

PER CURIAM.

 *1 Certain Underwriters at Lloyd's, London, and other British and European insurance companies (referred to collectively as
BES) are plaintiffs in an action against Bristol-Myers Squibb Co., Inc. and Medical Engineering Corp (referred to collectively
as Bristol-Myers).

The underlying suit arises from a contract BES entered into with Bristol-Myers to provide comprehensive general liability
insurance. BES attempted to rescind the contract and in response Bristol-Myers sued. One of the conditions of coverage is
a mandatory arbitration clause. Bristol-Myers sought and was granted an anti-suit injunction designed to prevent BES from
commencing arbitration.

BES filed a Motion to Compel Arbitration and to Dissolve the Anti-Suit Injunction, which the trial court denied December 5,
1997. BES then filed an interlocutory appeal from the denial of the motion to dissolve the anti-suit injunction. 1


The order of the trial court granting the anti-suit injunction forming the basis of this appeal was signed January 27, 1995. 2 BES'
notice of appeal was filed December 23, 1997 (amended notice of appeal was filed December 26, 1997). “An interlocutory
order that is not timely appealed is not reviewable by this Court.” State v. Ruiz Wholesale Co., 901 S.W.2d 772, 775 (Tex.App.-
Austin 1995, no writ)(citing Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640, 641 (Tex.App.-Houston [14th Dist.] 1991,
no writ); Cellular Mktg., Inc. v. Houston Cellular Tel. Co., 784 S.W.2d 734, 735 (Tex.App.-Houston [14th Dist.] 1990, no
writ); Tober v. Turner of Texas, Inc., 668 S.W.2d 831, 833-34 (Tex.App.-Austin 1984, no writ)). BES argues none of the four
circumstances permitting entry of an anti-suit injunction in Texas are present and that the trial court failed to set forth specific
reasons for issuance of an injunction. However, BES' failure to perfect an interlocutory appeal from that order precludes this
Court from reviewing its validity.

BES did not perfect an appeal from the initial order, and the time limit for doing so has long since expired. TEX. R. APP. P.
26.1(b); TEX. R. APP. P. 28.1. Accordingly, we have no jurisdiction to review the validity of the trial court's January 27, 1995,
order. TEX. R. APP. P. 42.3(a).



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Certain Underwriters at Lloyd's v. Bristol-Myers Squibb Co., Inc., Not Reported in...




APPEAL DISMISSED.



Footnotes
1      BES filed separately a petition for writ of mandamus asking this court to direct the trial court to order arbitration. In re Certain
        Underwriters at Lloyd's, et. al., No. 09-98-001-CV (Tex.App.-Beaumont July 30, 1998, n.w.h.)(orig.proceeding)(not designated for
        publication).
2       Extending the trial court's December 16, 1994, injunction.


End of Document                                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       2
Chambers v. Rosenberg, 916 S.W.2d 633 (1996)




                                                     916 S.W.2d 633
                                                 Court of Appeals of Texas,
                                                          Austin.

                                             Russell CHAMBERS, Appellant
                                                         v.
                                             Ronald ROSENBERG, Appellee.

                No. 03–95–00325–CV.          |   Feb. 7, 1996.    |   Rehearing Overruled March 20, 1996.

Motion was filed to hold respondent in contempt for allegedly violating terms of agreed temporary injunction and agreed final
judgment and permanent injunction. The 250th Judicial District Court, Travis County, B.F. Coker, J., entered order denying
motion for contempt, and ruled that agreed temporary injunction was void ab initio for lack of bond. Appeal was taken. The
Court of Appeals held that even agreed temporary injunction was void ab initio for lack of bond, in case in which parties had
not explicitly waived protection of bond.

Affirmed.



 West Headnotes (6)


 [1]    Contempt        Decisions reviewable
        Denial of motion for contempt is not “final order” from which appeal will lie.

        4 Cases that cite this headnote


 [2]    Appeal and Error        Injunction
        Trial court's declaration that agreed temporary injunction was void ab initio was judgment from which appeal would
        lie.

        2 Cases that cite this headnote


 [3]    Injunction      Necessity and waiver in general
        Requirement that, prior to issuance of temporary restraining order or temporary injunction, applicant must execute
        and file with clerk a bond to adverse party is to be strictly construed. Vernon's Ann.Texas Rules Civ.Proc., Rule 684.

        6 Cases that cite this headnote


 [4]    Injunction      Necessity and waiver in general
        Temporary orders or injunctions filed without bond are void, not merely voidable. Vernon's Ann.Texas Rules
        Civ.Proc., Rule 684.

        2 Cases that cite this headnote


 [5]    Injunction      Necessity and waiver in general




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Chambers v. Rosenberg, 916 S.W.2d 633 (1996)


        Even agreed temporary injunction, which was entered with consent of parties, was void ab initio for lack of bond,
        where parties did not explicitly waive protection of bond. Vernon's Ann.Texas Rules Civ.Proc., Rule 684.

        2 Cases that cite this headnote


 [6]    Judgment        Effect of Invalidity
        Judgment        Judgment void on its face in general
        Judgment which discloses its invalidity on its face is nullity and may be disregarded anywhere, at any time.

        1 Cases that cite this headnote




*634 Appeal from the District Court of Travis County, 250th Judicial District, No. 443,045; B.F. (Bill) Coker, Judge Presiding.

Attorneys and Law Firms

Douglass D. Hearne, Jr., Hearne & Eppright, Austin, for Appellant.

Ronald Rosenberg [No Appellee's Brief filed], Austin, Pro Se.

Before CARROLL, C.J., and JONES and B.A. SMITH, JJ.

Opinion

PER CURIAM.

Russell Chambers appeals from the trial court's denial of his motion for contempt by Ronald Rosenberg. Chambers contends
that Rosenberg's actions violated an agreed temporary injunction and an agreed final judgment and permanent injunction. The
trial court held that the temporary injunction was void ab initio because no bond was executed. The court found that the final
judgment was vague, ambiguous, overly broad, and unenforceable, but did not find it void; the court simply denied the motion
for contempt. We will affirm the order of the trial court.

 [1] We cannot review the denial of the motion for contempt of the agreed final judgment and permanent injunction. The denial
of a motion for contempt is not appealable because it is not a final order. Norman v. Norman, 692 S.W.2d 655, 655 (Tex.1985);
Velez v. DeLara, 905 S.W.2d 43, 46 (Tex.App.—San Antonio 1995, no writ). We therefore overrule points three and four by
which Chambers complains of the court's assessment of the final judgment.

 [2] [3] [4] [5] We can review the declaration that the agreed temporary injunction was void ab initio because of the lack
of a bond. The supreme court has construed strictly the requirement of Texas Rule of Civil Procedure 684 that, before a trial
court issues a temporary restraining order or temporary injunction, the applicant shall execute and file with the clerk a bond to
the adverse party. Goodwin v. Goodwin, 456 S.W.2d 885, 885 (Tex.1970) (holding that the failure of the applicant to file a bond
before the issuance of the temporary injunction renders the injunction void ab initio ); Lancaster v. Lancaster, 155 Tex. 528, 291
S.W.2d 303, 308 (1956) (holding that bond provisions of Rule 684 are mandatory *635 and that an injunction issued without
a bond is void); see also Ex parte Jordan, 787 S.W.2d 367, 368 (Tex.1990) (holding temporary restraining order void for lack
of requirement of separate bond); Ex parte Lesher, 651 S.W.2d 734, 735–36 (Tex.1983) (holding temporary restraining order
void because court waived bond); but see Ludewig v. Houston Pipeline Co., 737 S.W.2d 15, 16 (Tex.App.—Corpus Christi.
1987, no writ) (holding that errors other than jurisdiction render the judgment voidable within the standard appellate timetable).
The court has held that temporary orders filed without the bond are void, not merely voidable. Goodwin, 456 S.W.2d at 885;
Lesher, 651 S.W.2d at 735–36. Though none of the cited cases explicitly concerns an agreed order, we find the strong theme of
literal construction of the rule convinces us that we should construe the rule literally in this case; we are particularly persuaded


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Chambers v. Rosenberg, 916 S.W.2d 633 (1996)


to do so because the parties here did not explicitly waive the protection of a bond. The temporary injunction was void for lack
of a bond. We overrule point two.

 [6] Chambers contends by point one that the trial court exceeded its jurisdiction in improperly setting aside the consent
agreements. Our affirmance of the conclusion that the temporary injunction was void, however, defeats this claim. The supreme
court has held that a judgment which discloses its invalidity on its face is a nullity and may be disregarded anywhere at any
time. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961). Though courts generally apply this rule only for jurisdictional
defects, the supreme court's insistence that temporary injunctions issued without bonds are void convinces us that the trial
court correctly disregarded the temporary injunction here. The trial court did not set aside the final judgment and permanent
injunction. We overrule point one.

We do not reach point five, which concerned the scope of the temporary injunction. We need not consider the scope of a void
order.

We affirm the order of the trial court.



End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
Cisneros v. Cisneros, 787 S.W.2d 550 (1990)




                                                    787 S.W.2d 550
                                                Court of Appeals of Texas,
                                                         El Paso.

                                           Thomas CISNEROS, III, Appellant,
                                                           v.
                                            Elva Alice CISNEROS, Appellee.

                                      No. 08–89–00245–CV.           |   March 28, 1990.

Former wife sued former husband for child support arrearages. The 312th District Court, Harris County, Robert S. Webb, III,
J., entered judgment for former wife and former husband appealed. The Court of Appeals, Koehler, J., held that: (1) dissolution
decree provision calling for automatic increase in child payments beginning in the second year was valid, and (2) counsel's
approval of form of judgment precluded former husband from asserting that judgment did not meet statutory requirements for
child support order.

Affirmed.



 West Headnotes (3)


 [1]    Child Support        Other Particular Defenses or Grounds for Reduction of Arrearages
        Provisions in dissolution decree that child support payments would increase beginning with the “first payment due in
        the second year” was not too ambiguous to support a judgment award for arrearages.

        3 Cases that cite this headnote


 [2]    Child Support        Contracts Relating to Support
        Child Support        Automatic or Built-in Adjustments
        Provision in dissolution decree calling for automatic increase in amount of child support payments starting the second
        year of such payments was valid; increase had been agreed upon by parties to dissolution agreement and court had
        found agreement to be in best interests of child.

        2 Cases that cite this headnote


 [3]    Child Support        Estoppel and Waiver
        Approval by attorney for former husband of the substance of a judgment requiring him to pay an increased amount of
        child support starting in the second year of the payments precluded challenge to judgment as not complying with the
        specific statutory requirements for judgments covering past due child support. V.T.C.A., Family Code § 14.33(a).

        9 Cases that cite this headnote




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Cisneros v. Cisneros, 787 S.W.2d 550 (1990)




Attorneys and Law Firms

*550 Bruce A. Baughman, Baytown, for appellant.

Ron Hayes, John R. Coe, Houston, for appellee.

Before OSBORN, C.J., and WOODARD and KOEHLER, JJ.



                                                           OPINION

KOEHLER, Justice.

This is an appeal from a judgment awarding $3,500.00 in child support arrearages following a non-jury hearing. We affirm.

Appellant brings three points of error, complaining (1) that the original divorce decree being too ambiguous to be enforced
by contempt is also too ambiguous to support a judgment for arrearages, (2) that the provision in the decree for an automatic
increase in child support in the second year is unenforceable, and (3) that the judgment for arrearages, being an enforcement
order, does not meet the requirements of Section 14.33 of the Family Code and is therefore unenforceable.

The parties were divorced on January 19, 1982. Appellee was named managing conservator of the only child of the marriage.
In the decree, the court found that the parties had entered into a written agreement containing provisions for conservatorship
and child support, which were found to be “in the best interest of the child.” Appellant, as possessory conservator, was ordered
to make child support payments of $300.00 per month beginning on February 1, 1982. The decree then provided that:

            Beginning with the first payment due in the second year of such support payments, said support shall
            automatically, without further action from the Court, increase to the sum of THREE HUNDRED FIFTY
            AND NO/100 ($350.00) DOLLARS per month,....

Originally brought as a contempt motion, Appellee pled, and the evidence supported a finding, that Appellant had failed to make
the additional $50.00 monthly payment *551 commencing with the payment due on February 1, 1983 and extending for each
month through December 1988. At a pretrial hearing, upon a suggestion by the court that the order pertaining to the automatic
increase was too ambiguous to be enforceable by contempt, Appellee amended her pleadings by requesting a judgment for
the arrearages, in addition to enforcement by contempt. However, at the commencement of the hearing, Appellee waived the
contempt action, requesting relief only by way of a money judgment for the arrearage.

 [1] Although it is not necessary for a resolution of this appeal, we do not conclude that the quoted portion of the decree was
ambiguous. While it undoubtedly could have been made clearer, it would be difficult to construe “beginning with the first
payment due in the second year of such support payments” to mean any date other than February 1, 1983. Had the first payment
under the decree been due on December 1, 1982 instead of February 1, 1982, it would have made no sense to argue that the first
payment in the second year could have meant January 1, 1983 or some date other than December 1, 1983. But assuming that
there was some ambiguity, the worst that could have been contended was that the increased payments were to begin with the
payment due on January 1, 1983. Appellee sought a judgment for the arrearages commencing with the payment due February 1,
1983 and waived enforcement by contempt. The fact there may have been some ambiguity as to whether the increased payment
should start on January 1 or February 1, 1983 would not make the order void for vagueness for payments due from February 1,
1983 forward. Furthermore, since the provisions in the decree relating to conservatorship and child support were based on the
written agreement of the parties, the ambiguity in this case would be susceptible to interpretation by the trial court after hearing
the evidence as in the case of an agreed judgment. Richey v. Bolerjack, 594 S.W.2d 795 (Tex.Civ.App.—Tyler 1980, no writ);
Johnson v. Johnson, 572 S.W.2d 364, 366 (Tex.Civ.App.—Amarillo 1978, no writ). This is particularly true where, as in this
case, the petitioner is not seeking enforcement by contempt or summary process. Point of Error No. One is overruled.



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Cisneros v. Cisneros, 787 S.W.2d 550 (1990)




 [2] Appellant cites several cases for the proposition that if a support order is void for purposes of contempt, it is also void for
the purpose of a motion to reduce the arrearage to judgment. Howard v. Texas Department of Human Resources, 677 S.W.2d
667 (Tex.App.—Dallas 1984, no writ). In that case, the court, after holding that a contempt order, void because based on an
ambiguous support order, could not be taken as a conclusive adjudication of the arrearage in a subsequent action to reduce the
arrearage to judgment, remanded the case for a determination of the amount of the child support arrearage not ruled out by the
ambiguity. In Marichal v. Marichal, 768 S.W.2d 383 (Tex.App.—Houston [14th Dist.] 1989, writ denied), the child support
provision was not based on the agreement of the parties and the decree failed to order the obligor to pay any child support. In
Templet v. Templet, 728 S.W.2d 844 (Tex.App.—Beaumont 1987, no writ), in an opinion lacking any factual recitation on the
age of the children and whether or not the child support order was based on the agreement of the parties, it was held that an
ambiguous, indefinite and uncertain order would not support a judgment for child support arrearages and furthermore, that the
obligor was no longer under any obligation to continue the support payments, presumably because the youngest of two children
had reached the age of eighteen years.

In his second point, Appellant contends that the provision for automatic increase in child support is unenforceable, citing as
authority In the Interest of J.M. and G.M., 585 S.W.2d 854 (Tex.Civ.App.—San Antonio 1979, no writ), and Doss v. Doss,
521 S.W.2d 709 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). While a court may not arbitrarily impose automatic or
formula increases in child support, if the parties agree on an automatic increase in child support upon the happening of a certain
event and the court has found that the *552 agreement is in the best interest of the child, the parties may be ordered to perform
in accordance with that agreement and upon their failure to do so, the child support order as set forth in the decree may be
enforced by all available remedies, including contempt. Doss, 521 S.W.2d at 713. Tex.Fam.Code Ann. sec. 14.06 (Vernon
1986). In the instant case, the parties had agreed in writing to provisions for child support and the court had found the agreement
to be in the child's best interest. Appellant does not now claim, nor did he present any evidence in the trial court, that the child
support order did not reflect the agreement of the parties. Point of Error No. Two is overruled.

 [3] In Appellant's final point of error, he challenges the judgment for past due child support as not meeting the requirements
of Tex.Fam.Code Ann. sec. 14.33(a) (Vernon Supp.1990). That section in part states:

             (a) Contents. An enforcement order shall contain findings setting out in ordinary and concise language the
             provisions of the final order, decree, or judgment for which enforcement was sought, the acts or omissions
             that are the subject of the order, the manner of noncompliance, and the relief awarded by the Court.

At the conclusion of the hearing, the court on the record made its order, which we conclude was in sufficient detail to comply
with Section 14.33(a). The trial judge said:

  The Court finds that a judgment in the amount of $3,500 is hereby had against Mr. Thomas Cisneros, III in favor of Mrs.
  Elva Cisneros for the ordered payments of $50 per month commencing February 1st of '83 through February 15th of '89; and
  in accordance with the divorce decree ... through the Harris County Probation Department, Child Support Division at 1115
  Congress in Houston, Texas. Judgment is here now had in the amount of $3,500 for which let execution issue. Each party
  will pay their own costs of Court and attorney fees incurred in this cause.

The attorney for Appellant was in effect ordered to prepare the judgment, presumably in accordance with the court's oral order.
Had she done so, the judgment in our opinion would have sufficiently met the requirements of Section 14.33(a). All of the cases
cited by Appellant in support of his third point involved contempt and commitment situations, which admittedly and obviously
require more specificity as to acts or omissions leading to the contempt than would a judgment for unpaid support. Under
Tex.R.App.P. 81 (formerly Tex.R.Civ.P. 434), the normal course on this point would be to reform the judgment to conform to
the judge's oral order and then affirm the judgment as reformed.

However, such action is not indicated since the judgment may be affirmed for another reason. After its preparation, the judgment
was then approved not only as to form (a usual and harmless procedure), but as to substance as well by the attorneys representing



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Cisneros v. Cisneros, 787 S.W.2d 550 (1990)


both parties. Approval as to form is a matter of professional courtesy not necessary to a valid judgment. Such approval (as to
form) does not waive any error in the proceedings or incident to the judgment itself. Sandoval v. Rattikin, 395 S.W.2d 889
(Tex.Civ.App.—Corpus Christi 1965, writ ref'd n.r.e.), cert. denied, 385 U.S. 901, 87 S.Ct. 199, 17 L.Ed.2d 132 (1966); 4
R. McDonald, Texas Civil Practice sec. 17.09.4 (Rev.1984). But approval as to substance is something else. Approval of the
substance of a judgment is tantamount to an agreement by the signatory that the judgment meets all of its essential requirements.
By Appellant's approval of the substance of the judgment, we hold that Appellant has waived any error in the judgment not
complying with the requirements of Section 14.33(a). Point of Error No. Three is accordingly overruled.

Judgment of the trial court is affirmed.



End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  4
Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006)




                                                        220 S.W.3d 537
                                                    Court of Appeals of Texas,
                                                           Texarkana.

                                Ray and Carol CLAXTON, Appellant,
                                                v.
           (UPPER) LAKE FORK WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1, Appellee.

                  No. 06–06–00095–CV. | Submitted Dec. 18, 2006. | Decided Dec. 19, 2006.
              |    Opinion Granting Rehearing May 2, 2007. | Rehearing Overruled May 22, 2007.

Synopsis
Background: Following judgment favoring plaintiffs, in a dispute against water improvement district concerning lake drainage,
district filed motion for new trial. After granting new trial, the 62nd Judicial District Court, Hopkins County, Scott McDowell,
J., granted district's motion for summary judgment. Plaintiffs appealed. The Court of Appeals dismissed the appeal for want
of jurisdiction.



Holdings: On rehearing, the Court of Appeals, Morriss, C.J., held that:

[1] allegedly incorrect signing date recited in original judgment in favor of plaintiffs was a clerical error that could be corrected
by judgment nunc pro tunc;

[2] originally recited signing date was not binding on the parties as part of any agreement; and

[3] sufficient evidence established that the originally recited signing date was erroneous.


Appeal reinstated.



 West Headnotes (26)


 [1]     Courts       Acts and proceedings without jurisdiction
         The failure of a jurisdictional requirement deprives a court of the power to act, other than to determine that it has
         no jurisdiction.

         Cases that cite this headnote


 [2]     Courts       Acts and proceedings without jurisdiction
         Once a court determines that it has no jurisdiction, its only legitimate choice is to dismiss.

         Cases that cite this headnote


 [3]     Appeal and Error         Time for filing
         New Trial       Commencement of time



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        Judgment, which disposed of all claims and parties in lawsuit, stated that it was final judgment, and was approved
        both as to form and substance by counsel for two remaining parties, was final on date it was signed, thus commencing
        time to file motion for new trial or notice of appeal. Rules App.Proc., Rule 26.1; Vernon's Ann.Texas Rules Civ.Proc.,
        Rule 329b(d).

        3 Cases that cite this headnote


 [4]    Motions        Entry nunc pro tunc
        Motions        Amendment of orders
        An order nunc pro tunc, correcting only a true clerical error, may be granted by a trial court at any time, even after
        it has lost jurisdiction over the case.

        Cases that cite this headnote


 [5]    Courts       Acts and proceedings without jurisdiction
        Judicial action taken after the court's jurisdiction over a cause has expired is a nullity.

        Cases that cite this headnote


 [7]    Appeal and Error         Consent of parties
        Appeal and Error         Waiver of objections
        Stipulations       Matters which may be subject of stipulation
        Appellate jurisdiction cannot be created by consent, stipulation of the parties, or waiver, either by the court or by
        litigants.

        2 Cases that cite this headnote


 [8]    Appeal and Error         Determination of questions of jurisdiction in general
        Lack of appellate jurisdiction is fundamental error, which can be raised by the court sua sponte.

        Cases that cite this headnote


 [9]    Judgment        Clerical errors
        Judgment        Allowing amendment nunc pro tunc
        Allegedly incorrect signing date recited in original judgment was a clerical error, not a judicial error, and thus could
        be corrected by judgment nunc pro tunc. Vernon's Ann.Texas Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [10]   Judgment        Authority of Court, Judge, or Judicial Officer
        Judicial errors in a judgment may not be corrected after the expiration of a court's plenary jurisdiction. Vernon's
        Ann.Texas Rules Civ.Proc., Rule 329b(f).

        Cases that cite this headnote


 [11]   Judgment        Clerical errors


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        Judgment        Allowing amendment nunc pro tunc
        A “clerical error” that may be corrected by judgment nunc pro tunc is an error which does not result from judicial
        reasoning or determination. Vernon's Ann.Texas Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [12]   Judgment        Judicial errors
        Judgment        Allowing amendment nunc pro tunc
        For purposes of determining whether an error may be corrected by judgment nunc pro tunc, a “judicial error” is one
        which occurs in the rendering, as opposed to the entering, of a judgment. Vernon's Ann.Texas Rules Civ.Proc., Rule
        316.

        Cases that cite this headnote


 [13]   Judgment        Allowing amendment nunc pro tunc
        A judgment nunc pro tunc may be issued to correct the recited signing date of an order if the original recited date is
        shown to have been incorrect. Vernon's Ann.Texas Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [14]   Motions       Entry nunc pro tunc
        Motions       Amendment of orders
        An order nunc pro tunc may not be used to backdate the signing of a written order that was not in fact signed earlier.
        Vernon's Ann.Texas Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [15]   Judgment        Opening or vacating judgment
        Originally recited signing date in an agreed judgment was not binding on the parties as part of their agreement, and
        thus the signing date could be corrected nunc pro tunc, though judgment had been approved by the parties as to form
        and substance; the recited date of signing was not a material part of any agreement, as demonstrated by the fact that the
        parties overlooked the incorrect recited date until appellate court pointed it out four years later. Vernon's Ann.Texas
        Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [16]   Judgment        Defects and objections
        Approval as to form of a judgment does not waive any error in the proceedings or incident to the judgment itself.

        2 Cases that cite this headnote


 [17]   Judgment        Consent of Parties
        An agreed judgment means essentially the same thing as a judgment by consent.

        Cases that cite this headnote




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 [18]   Judgment        Consent of Parties
        A “judgment by consent” is a judgment in which the terms are settled and agreed to by the parties and which is entered
        of record by authorization of the trial court.

        1 Cases that cite this headnote


 [19]   Judgment        Affidavits and other evidence
        Factually and legally sufficient evidence supported trial court's finding that signing date recited in original judgment
        was erroneous, such that it could be corrected by judgment nunc pro tunc; no party treated defendant's motion for
        new trial as untimely, even though it clearly was untimely based on recited date of signing, and transcript of hearing
        that occurred after the recited signing date indicated that the proposed judgment had not yet been signed. Vernon's
        Ann.Texas Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [20]   Judgment        Affidavits and other evidence
        For a judgment nunc pro tunc to be properly granted, the evidence must be clear and convincing that a clerical error
        was made. Vernon's Ann.Texas Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [21]   Judgment        Affidavits and other evidence
        Evidence that a clerical error was made in a judgment, warranting correction by judgment nunc pro tunc, may come
        from a number of sources, including oral testimony, written documents, previous judgments, docket entries, or the
        trial judge's personal recollection. Vernon's Ann.Texas Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [22]   Appeal and Error         Amendment or vacation of judgment
        If the trial judge corrects a judgment nunc pro tunc, a presumption arises that his personal recollection supports the
        finding of clerical error in the judgment. Vernon's Ann.Texas Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [23]   Appeal and Error         Amendment or vacation of judgment
        Recitations in a nunc pro tunc judgment alone may provide sufficient evidence that the court relied upon its recollection
        of the facts at the time the original judgment was rendered, that such recollection raises the presumption of the court's
        finding that clerical error had occurred in the entry of the judgment, and that the nunc pro tunc judgment correctly
        reflects the judgment rendered. Vernon's Ann.Texas Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [24]   Judgment        Affidavits and other evidence
        Judgment        Allowing amendment nunc pro tunc




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        The trial judge's recollection of the facts at the time the original judgment was rendered has the dignity and force of
        evidence, for purposes of determining whether there is sufficient evidence that a clerical error was made, warranting
        correction by judgment nunc pro tunc. Vernon's Ann.Texas Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [25]   Appeal and Error        Amendment or vacation of judgment
        Even though it is presumed that the trial judge's personal recollection supports the finding of a clerical error in the
        original judgment, the record from the hearing on the motion for judgment nunc pro tunc may negate any such
        presumption through evidence to the contrary. Vernon's Ann.Texas Rules Civ.Proc., Rule 316.

        Cases that cite this headnote


 [26]   Judgment        Mode of rendition
        Judgment        Necessity for entry
        Judgment        Time of taking effect
        A judgment routinely goes through three stages: (1) rendition, (2) signing, and (3) entry, and the judgment becomes
        effective once it is rendered.

        Cases that cite this headnote


 [27]   Judgment        Mode of rendition
        A judgment is “rendered” when the matter submitted to the court for adjudication is officially announced either orally
        in open court or by memorandum filed with the clerk.

        Cases that cite this headnote




Attorneys and Law Firms

*539 John T. Palter, Riney Palter, PLLC, Dallas, for appellant.

Buford A. Cates, Jr., Dallas, for Billy & Barbara Lynn.

Roland M. Ferguson, Sulphur Springs, for Upper Lake Fork Water Control & Improvement District No. 1.

Before MORRISS, C.J., ROSS and CARTER, JJ.



                                                       *540 OPINION

Opinion by Chief Justice MORRISS.

In this dispute concerning drainage of a lake, two different judgments were signed, the first apparently signed July 12,
2002, favoring Ray and Carol Claxton, and the second signed July 19, 2006, favoring (Upper) Lake Fork Water Control and
Improvement District No. 1. The Claxtons appeal from the 2006 judgment. Because we determine that the 2002 judgment
became the final judgment in this case, we dismiss the appeal for lack of jurisdiction.




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In order to explain our analysis, we provide a chronology of the lawsuit, including two substantial periods of inactivity.


June 1996 Claxtons seek injunction against District.

11/4/1996 (Upper) Lake Fork, as third party plaintiffs, add Billy and Barbara Lynn as third party defendants.

3/26/1997 Claxtons add the Lynns as defendants.

6/19/1997 Claxtons seek summary judgment against all defendants.

6/18/2002 Claxtons file motion for partial summary judgment.

7/12/2002 Judgment signed. Court grants partial summary judgment, Claxtons nonsuit all claims against Lynns, and all other
claims against District, and District nonsuits all third party claims against the Lynns. Decretal language in judgment specifically
renders judgment on all of the above and states that the judgment is final, that this is the final judgment, and that all relief not
expressly granted is denied. The judgment is signed as “approved as to form and substance” by counsel for Claxtons and District.

9/6/2002 Judgment filemarked.

10/3/2002 District files motion for new trial.

11/15/2002 Order filed granting new trial.

8/22/2005 Claxtons again nonsuit Lynns.

9/1/2005 Claxtons file second motion for partial summary judgment against District, essentially same as original motion.

3/24/2006 District files motion for summary judgment.

3/27/2006 Claxtons file third motion for partial summary judgment against District, essentially the same as first and second
motions.

7/19/2006 Final judgment signed.

  1) Claxtons' third motion for partial summary judgment denied.

   2) District's motion for summary judgment granted.
 [1] [2] The question confronting us is jurisdiction. The failure of a jurisdictional requirement deprives a court of the power
to act (other than to determine that it has no jurisdiction). Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d
351, 359 (Tex.2004). And once a court determines that it has no jurisdiction, its only legitimate choice is to dismiss. State of
Tex. v. Morales, 869 S.W.2d 941, 949 (Tex.1994).

The judgment containing a signature date of July 12, 2002, disposes of all claims and parties in this lawsuit, and not only states
that it is the final judgment, but was approved both as to form and substance by counsel for the two remaining parties. It appears,
from its face, that it was therefore final on that date. All of the relevant timetables begin to run on the date that a judgment is
signed. A motion for new trial must be filed within thirty days of that date. TEX.R. CIV. P. 329b. The date on which a notice
of appeal must be filed is also calculated based on the date on which the judgment is signed. TEX.R.APP. P. 26.1.

 *541 [3] If the July 12, 2002, judgment was the final judgment in this case, as it says it is, then we must determine whether
the case was timely appealed with reference to that date. Using that date, only one result is possible—the notice of appeal filed
September 18, 2006, was untimely and could not establish our jurisdiction.




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We contacted the parties in connection with this issue, and have received briefing setting out their positions. Essentially, the
Claxtons agree that the 2002 judgment is final, and now ask us to dismiss their appeal for want of jurisdiction.

The District takes the position that we should disregard the notation on the judgment as to the date it was signed, because it
was actually signed on the date it was ultimately filed. The extensive record provided contains nothing to support that position,
other than the District's pleadings. The trial court's order granting the District's motion for new trial states that the prior agreed
judgment “entered on September 6, 2002 (but bearing the erroneous date of July 12, 2002) should be, and it is hereby in all
things, vacated and set aside.”

 [4] Even if the trial court had the jurisdiction to grant the motion for new trial—which on its face it did not—and assuming
that some error exists in the face of a judgment signed as correct in form and substance by all counsel, and even if this were a
document properly rendering a new judgment, it does not state the correct date on which the judgment was signed, and could
not be used by this Court to establish a signing date different from that on the face of the judgment. 1

The question of our jurisdiction to hear an appeal of this case then depends on the determination of which of the two signed
judgments is the valid one. There can only be one final judgment. TEX.R. CIV. P. 301. A trial court retains plenary power to
grant a new trial or to vacate, modify, correct, or reform a judgment within thirty days after the judgment is signed. TEX.R.
CIV. P. 329b(d); First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex.1984). After the expiration of those thirty days, the trial
court has no authority to set aside a judgment except by bill of review as provided by law. TEX.R. CIV. P. 329b(d); Thursby
v. Stovall, 647 S.W.2d 953, 954 (Tex.1983).

 [5] [6] The trial court lost its plenary power to vacate the judgment August 11, 2002. The trial court therefore had no jurisdiction
to enter the November 15, 2002, order granting a new trial some 126 days after the signing of the first judgment. State ex. rel.
Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995). Judicial action taken after the court's jurisdiction over a cause has expired
is a nullity. Id.

 [7] [8] Even if both parties agreed that a different date actually existed, we are constrained by the rules to determine our
jurisdiction by reference to the date on which the judgment was signed—a party cannot confer or waive jurisdiction by consent or
agreement. Stine v. State, 908 S.W.2d 429 (Tex.Crim.App.1995). Appellate jurisdiction cannot be created by consent, stipulation
of the parties, or waiver, either by the court or by litigants. Welder v. Fritz, 750 S.W.2d 930 (Tex.App.-Corpus Christi 1988, no
writ). Jurisdiction is fundamental and cannot be ignored by this Court or waived by the parties. In re Marriage of Johnson, 595
S.W.2d 900, 902 (Tex.Civ.App.-Amarillo 1980, writ dism'd w.o.j.). Further, lack of appellate jurisdiction *542 is fundamental
error, which can be raised by the court sua sponte. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex.1990).

We have no option in this case but to recognize the state of the record before us and to act accordingly.

The appeal is dismissed for want of jurisdiction.



                                                  OPINION ON REHEARING

In a protracted legal battle in Hopkins County pitting Ray and Carol Claxton against the (Upper) Lake Fork Water Control and
Improvement District No. 1, the District first lost. A considerable time later, the trial court—after granting a new trial to the
District—ultimately changed course and found for the District.

Our initial opinion dismissed the Claxtons' appeal for lack of jurisdiction. We based that dismissal on apparently jurisdictional
facts revealed by the appellate record, starting with the earlier judgment—against the District—which recited a signing date of
July 12, 2002. We concluded then that the District's subsequently filed, and granted, motion for new trial had been filed too
late to give the trial court any power to grant it. The result of our ruling was that the later, and ultimate, trial court judgment


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—dated July 19, 2006, and favoring the District—was without effect, since our ruling was that the 2002 judgment—favoring
the Claxtons—had become the final judgment. After our initial opinion was issued, the District obtained from the trial court
a January 16, 2007, judgment nunc pro tunc changing the signing date recited in the 2002 judgment from July 19, 2002, to
September 6, 2002. 2 If that nunc pro tunc change is effective, the District's 2002 motion for new trial was timely and therefore
the 2006 judgment favoring the District is the final judgment of the trial court. Because we reach just that result in this opinion,
we reinstate the appeal.

In its motion for rehearing, the District urges us to find valid the changes made by the nunc pro tunc judgment and thus recognize
the later trial court judgment favoring the District. In their response, the Claxtons argue that, for a few reasons, we should
disregard the nunc pro tunc judgment and recognize the 2002 judgment as the final judgment of the trial court. We disagree
because (1) the 2002 judgment's originally recited date of signing was a clerical error, (2) the originally recited signing date is
not binding as part of any agreement of the parties, and (3) the date change is supported by the record.


(1) The 2002 Judgment's Originally Recited Judgment Date Was a Clerical Error
 [9] The Claxtons assert that the nunc pro tunc date change was substantive or judicial in nature, and was thus not authorized.
We conclude otherwise.

 [10] Clerical mistakes in a judgment may be corrected by the judge in open court, and judgment nunc pro tunc rendered by
the trial court, according to the truth or justice of the case. TEX.R. CIV. P. 316. This may be done even after the expiration
of the court's plenary power. TEX.R. CIV. P. 329b(f). Judicial errors, however, may not be corrected after the expiration of a
court's plenary jurisdiction. *543 Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986).

 [11] [12] A clerical error is an error which does not result from judicial reasoning or determination. Andrews v. Koch, 702
S.W.2d 584, 585 (Tex.1986). A judicial error is one which occurs in the rendering, as opposed to the entering, of a judgment.
Escobar, 711 S.W.2d at 231; Delaup v. Delaup, 917 S.W.2d 411, 413 (Tex.App.-Houston [14th Dist.] 1996, no writ).


One type of situation exists when a judgment is substantively incorrect because of a mistake of counsel. 3 In that situation, the
judgment is not erroneous, it does not provide different relief from that requested or pronounced in open court—it is simply not
the relief anticipated by the parties. When such a mistake is made and memorialized accurately by the trial court, any change is
judicial in nature. It may be a mistake, but it is not the result of a clerical error: thus, a nunc pro tunc judgment is not available.

A different situation is presented where a written judgment is ultimately signed that differs from the terms of the judgment
as pronounced by the court. 4 In that situation, a nunc pro tunc judgment is available, because the written judgment does not
comport with the prior rendering.

 [13] [14] This case presents a third nunc pro tunc situation. It is an error that does not substantively alter the relief provided
by the judgment. A judgment nunc pro tunc may be issued to correct the recited signing date of an order if the original recited
date is shown to have been incorrect. See Traylor Bros., Inc. v. Garcia, 949 S.W.2d 368, 369 (Tex.App.-San Antonio 1997, no
writ). Consistent with the definition of the term, however, an order nunc pro tunc may not be used to backdate the signing of a
written order that was not in fact signed earlier. In re Taylor, 113 S.W.3d 385, 393 (Tex.App.-Houston [1st Dist.] 2003, orig.
proceeding); see Jauregui Partners, Ltd. v. Grubb & Ellis Commercial Real Estate Servs., 960 S.W.2d 334, 337 (Tex.App.-
Corpus Christi 1997, writ denied). In other words, it cannot be used as a fiction to alter signing dates—it must reflect reality. 5

In the present case, after conducting a hearing and reviewing the contemporaneous documents, the trial court concluded the
indicated date was incorrect. In its order, the trial court stated that it did not actually sign the judgment on that earlier date, but
signed it approximately two months later. 6




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Accordingly, for the preliminary purposes of determining our jurisdiction over this appeal, we conclude that the correction was
clerical in nature and that the remedy of judgment nunc pro tunc was available. 7


 *544 (2) The Originally Recited Judgment Date Is Not Binding as Part of Any Agreement
 [15] The Claxtons argue that, because the July 2002 judgment was an agreed judgment, as shown by counsel's signature
agreeing as to form and substance, the District could not now attack the judgment's terms, including the date of signature.

 [16] After its preparation, the judgment was then approved not only as to form (a usual and harmless procedure), but as
to substance as well by the attorneys representing both parties. Approval as to form is a matter of professional courtesy not
necessary to a valid judgment. Approval as to form does not waive any error in the proceedings or incident to the judgment
itself. Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App.-Corpus Christi 1965, writ ref'd n.r.e.). Approval as to substance is
something else. Approval of the substance of a judgment has been described as tantamount to an agreement by the signatory
that the judgment meets all of its essential requirements. Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex.App.-El Paso 1990,
no writ).

 [17] [18] An agreed judgment means essentially the same thing as a judgment by consent. A judgment by consent is a
judgment in which the terms are settled and agreed to by the parties and which is entered of record by authorization of the trial
court. Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871 (1939); Johnson v. Rancho Guadalupe, Inc., 789 S.W.2d 596, 603
(Tex.App.-Texarkana 1990, writ denied).

While the 2002 judgment may have been an agreed or consent judgment, we find no reason to conclude the recited date of
signing was actually a material part of any agreement of the parties. The best witness that the parties did not consider the
judgment's recited signing date as material to their agreement is the uniform manner in which all parties overlooked the July
2002 recited date until this Court pointed it out in 2006.

Additionally, the signing dates recited in judgments are intended to reflect reality, not some different agreement of the parties.
“Judges, attorneys and clerks are directed to use their best efforts to cause all judgments ... to be reduced to writing and signed
by the trial judge with the date of signing stated therein.” TEX.R. CIV. P. 306a(2). The rule contemplates that each judgment
should accurately reflect the date it was actually signed by the court; it does not seem to contemplate allowing parties to include
an agreed date of signing into the terms of consent judgments.

We decline to treat the originally recited judgment signing date as part of any agreement of the parties.


(3) The Date Change Is Supported by the Record
 [19] The Claxtons also argue that the nunc pro tunc judgment is unsupported by the record. They assert that the information
available to the trial court was insufficient to allow it to determine that the date of signing was erroneous.

 [20] For a judgment nunc pro tunc to be properly granted, the evidence must be clear and convincing that a clerical error
 *545 was made. Avila v. Lone Star Radiology, 183 S.W.3d 814, 821 (Tex.App.-Waco 2005, no pet.); Barton v. Gillespie,
178 S.W.3d 121, 127 (Tex.App.-Houston [1st Dist.] 2005, no pet.); In re Broussard, 112 S.W.3d 827, 833 (Tex.App.-Houston
[14th Dist.] 2003, orig. proceeding).

 [21] [22] [23] [24] That evidence may come from a number of sources, including oral testimony, written documents,
previous judgments, docket entries, or the trial judge's personal recollection. Riner v. Briargrove Park Prop. Owners, Inc., 976
S.W.2d 680, 683 (Tex.App.-Houston [1st Dist.] 1997, no writ). Further, “if [the trial judge] corrects the judgment nunc pro
tunc, a presumption arises that his personal recollection supports the finding of clerical error.” Pruet v. Coastal States Trading,
Inc., 715 S.W.2d 702, 705 (Tex.App.-Houston [1st Dist.] 1986, no writ). Moreover, recitations in a nunc pro tunc judgment
alone may,


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             provide sufficient evidence that the court relied upon its recollection of the facts at the time the original
             judgment was rendered, [that] [s]uch recollection raises the presumption of the court's finding that clerical
             error had occurred in the entry of the [judgment], and that the nunc pro tunc judgment correctly reflects
             the judgment rendered.

Id.; Thompson v. Tex. Dep't of Human Resources, 859 S.W.2d 482, 485 (Tex.App.-San Antonio 1993, no writ). The trial judge's
recollection of facts has the dignity and force of evidence. Ft. Worth & D.C. Ry. Co. v. Roberts, 98 Tex. 42, 81 S.W. 25, 26
(1904); Blum v. Neilson, 59 Tex. 378 (1883); Wood v. Paulus, 524 S.W.2d 749, 756 (Tex.Civ.App.-Corpus Christi 1975, writ
ref'd n.r.e.).


 [25] Even though it is presumed that the trial judge's personal recollection supports the finding of a clerical error, 8 the
record from the hearing on the motion for judgment nunc pro tunc may negate any such presumption through evidence to the
contrary. In re Fuselier, 56 S.W.3d 265, 268 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding). This is consistent with the
requirements of Rule 316 of the Texas Rules of Civil Procedure, which requires that such clerical mistakes may “be corrected
by the judge in open court according to the truth....” See TEX.R. CIV. P. 316. Though a fairly loose version of evidence is
allowed, with cases relying on the judge's recollections and on the argument of counsel, nevertheless, that evidence must be
sufficiently clear and convincing to allow the trial court to conclude that clerical error exists.

In this case, the record now contains a transcription of a brief hearing held January 17, 2007. At the hearing, the trial court
reviewed the court's files and examined the transcript of the September 2002 hearing.

The trial court stated in its January 16, 2007, order that it decided to grant the judgment nunc pro tunc based on its review of
the “Court's official file (including the official transcript of the proceedings occurring on 09/06/02 in open court)....” 9


The District argues that the trial court's determination is supported by the record because the earlier date was logically absurd. 10
It bases this conclusion on several *546 factors. One is the obvious fact that no party treated the motion for new trial as being
untimely—even though, based on the stated date of signing, it clearly was. All parties simply continued filing pleadings as
though the motion for new trial was timely. As the District points out, no party resisted the 2002 motion for new trial based on
a lack of jurisdiction, and, before this Court reviewed the record and recognized the problem, this issue was never raised.

Certainly, a party cannot confer or waive jurisdiction either by consent or agreement. Stine v. State, 908 S.W.2d 429 (Tex.1995).
The mere fact that the parties behaved as though the trial court retained jurisdiction over the case does not confer jurisdiction
to the court. But the behavior by both counsel and trial court on such an absolutely basic concept supports a conclusion that
everyone involved knew the 2002 judgment was not actually signed on the earlier date. The District argues that the sole
explanation for the behavior of all involved was clearly that the judgment was not signed until the later date. 11

Foolish or perfunctory behavior by counsel or court is a staple of appeals. Although we would prefer to think that such errors
would not occur, they do. Counsel for the District has directed us to no specific portion of the reporter's record from the
September 2, 2002, hearing to support the argument that the evidence clearly supports the court's decision. Given the brevity of
the record, however, we have nonetheless reviewed the transcription of that hearing to see if it supports the court's ruling. It does.


 [26]     [27] The September hearing commenced with only one attorney present, representing the Lynns. 12 The court
acknowledged that the District and the Claxtons had sent in an agreed order granting the motion for summary judgment. The
trial court then questioned the Lynns' counsel at length about any ability they might have to complain about the judgment in
the absence of any affirmative cross-pleadings against either the Claxtons or the District. The Lynns' counsel repeatedly asked
the court not to enter the order just because the two parties agreed to it. On page seven of the record, counsel stated,




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    [A]s I understand it, Your Honor, we're a party until you sign an order granting a nonsuit. And if you've not signed that,
    we're a party. And being a party, we would like the opportunity to address the Court to tell the Court why it shouldn't enter
    this order....
    (Emphasis added.) On page twelve of the record, counsel stated, “I would like for the Court to know that by the order that's
    submitted to you, if you sign it, you will be ordering....” (Emphasis added.) At the end of the hearing, the trial court stated
    that it would grant the nonsuit and then “will enter the agreed order between the two remaining parties.” That dialogue *547
   seems to demonstrate that the judgment was indeed signed in September, not July. 13
In the January 16, 2007, nunc pro tunc hearing, the trial court reviewed the transcription of the prior hearing, heard argument
by counsel, and reviewed a letter dated September 3, 2002, that appears to be a transmittal letter accompanying a delivery of
the 2002 judgment to the trial court just before the September 6 hearing.

The trial court did not state either in writing or orally that it was relying on its personal recollection to determine that an error
existed, and the discussion between counsel and court at the hearing suggests to the contrary. In that situation, we will not
conclusively presume that it was doing so, especially in light of the five-year delay between the judgment and the judgment
nunc pro tunc. See Pruet, 715 S.W.2d 705; Thompson, 859 S.W.2d at 485.

The same judge was involved, however, and he determined that the error existed. It is reasonable to assume he recalled the
context of the September 2002 hearing, at least once his recollection was refreshed in 2006. The language used in the 2002
hearing is best understood as indicating that the proposed judgment had not been signed to that point. That conclusion is
further supported by the transmittal letter reviewed by the court. There is factually and legally sufficient evidence to support
the rendition of the judgment nunc pro tunc.

Because the nunc pro tunc change in the recited judgment date was valid, the District's subsequent motion for new trial was
timely. Therefore, the subsequent, 2006, judgment was effective and became the final judgment of the trial court.

We grant the District's motion for rehearing and reinstate the appeal.



Footnotes
1      An order nunc pro tunc, correcting only a true clerical error, may be granted by a trial court at any time, even after it has lost jurisdiction
         over the case. America's Favorite Chicken v. Galvan, 897 S.W.2d 874 (Tex.App.-San Antonio 1995, writ denied).
2        The new judgment, at its beginning, states that the motion for summary judgment came on for hearing September 6, 2002—a date
         contrary to the notation originally made on the trial court docket—and contains a corrected signature date of September 6, 2002.
         Except for those details, the nunc pro tunc judgment is a complete duplicate of the prior judgment, including the original typographical
         errors. It was filed with the district clerk January 16, 2007.
3        Dikeman v. Snell, 490 S.W.2d 183, 185–86 (Tex.1973).
4        See Andrews, 702 S.W.2d at 585; Delaup, 917 S.W.2d 411; Petroleum Corp. v. First Nat'l Bank, 622 S.W.2d 152 (Tex.App.-Fort
         Worth 1981, writ ref'd n.r.e.).
5        Typical clerical changes to judgments that have been upheld include corrections of the date of judgment, Nolan v. Bettis, 562 S.W.2d
         520, 523 (Tex.Civ.App.-Austin 1978, no writ), correction of a party name, Carlyle Real Estate Ltd. Partnership–X v. Leibman, 782
         S.W.2d 230, 233 (Tex.App.-Houston [1st Dist.] 1989, no writ), and correction of a numerical error, Escobar, 711 S.W.2d at 232.
6        “Dates contained in judgments have been held on many occasions to be the type of errors that are correctable by judgment nunc
         pro tunc.” Ortiz v. O.J. Beck & Sons, Inc., 611 S.W.2d 860, 863 (Tex.Civ.App.-Corpus Christi 1980, no writ); see Traylor Bros.,
         Inc., 949 S.W.2d at 369.
7        The Claxtons assert that there were also judicial changes in the 2002 judgment. Certainly, a judgment nunc pro tunc may alter
         nothing other than clerical matters. But, even if the corrected 2002 judgment differs from the original one in judicial matters, any
         such differences are irrelevant at this stage. The 2002 judgment was entirely superseded by the 2006 judgment, if the 2006 judgment
         was effective to do so. The only currently relevant part of the 2002 judgment is the date it was signed. That date determines whether
         the 2006 judgment was effective.



                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                            11
Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006)


8     Davis v. Davis, 647 S.W.2d 781, 783 (Tex.App.-Austin 1983, no writ); Bockemehl v. Bockemehl, 604 S.W.2d 466, 469 (Tex.Civ.App.-
      Dallas 1980, no writ).
9     Both parties have attached copies of the fifteen-page transcription to their briefs, and it has now been provided to the Court as a
      supplemental record.
10    The District also posits a physical impossibility argument—that it was impossible for the July 12 date to be the correct one because
      the District would have been required to file its motion for new trial on a date before the September 6, 2002, hearing—the date on
      which the judgment was actually signed. This argument is circular. The “impossibility” is based on the assumption that the later date
      is correct, which is the issue the District is trying to prove by showing impossibility.
11    The alternative, according to the District's brief, was that this is the only rational explanation for what would otherwise be
      “outrageously irresponsible (if not downright dumb) behavior by both the Trial Court and the parties' counsel. .... in completely
      ignoring the procedural provisions of Rule 329b.”
12    The Lynns were defendants in the case, but all claims against them were disposed of by nonsuit, as reflected in the judgment.
13    A potential problem with this evidence lies in the fact that “entering” a judgment and “signing” a judgment are by no means
      synonymous concepts. We also recognize that the terms are unfortunately often loosely used by attorneys and judges. A judgment
      routinely goes through three stages: (1) rendition, (2) signing, and (3) entry. Gen. Elec. Capital Auto Fin. Leasing Servs., Inc. v.
      Stanfield, 71 S.W.3d 351, 354 (Tex.App.-Tyler 2001, pet. denied); In re Wilburn, 18 S.W.3d 837, 840 (Tex.App.-Tyler 2000, pet.
      denied); Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex.App.-Waco 1988, no writ). The judgment becomes effective
      once it is “rendered.” Stanfield, 71 S.W.3d at 354; Wilburn, 18 S.W.3d at 840. A judgment is “rendered” when the matter submitted to
      it for adjudication is officially announced either orally in open court or by memorandum filed with the clerk. Samples Exterminators
      v. Samples, 640 S.W.2d 873, 875 (Tex.1982); Wilburn, 18 S.W.3d at 840.
          In this case, we conclude that, although the language was inaccurately used, court and counsel were actually discussing “signing”
          rather than “entering” the judgment. So taken, the transcription supports the court's ultimate conclusion that it signed the judgment
          on the later date.


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Cleere v. City of Mesquite, 594 S.W.2d 831 (1980)




                                                      594 S.W.2d 831
                                          Court of Civil Appeals of Texas, Dallas.

                                               D. C. CLEERE, Appellant,
                                                          v.
                                          CITY OF MESQUITE, Texas, Appellee.

                                                No. 20176.     |   Feb. 19, 1980.

Owner appealed from an order of the 162nd District Court, Dallas County, Dee Brown Walker, J., which denied his petition for
declaratory relief with respect to a 1974 order requiring him to remove automobile parts from his premises. The Court of Civil
Appeals, Humphreys, J., held that agreed order, which required owner to remove automobile parts from his premises, was a
valid permanent injunction notwithstanding facts that such order did not explicitly use words “restrain” or “enjoin” with respect
to the activities prohibited and fact that reasons for injunction were not specified in the order; inasmuch as owner agreed to an
injunction, he could not complain that he was not informed of the reasons.

Affirmed.



 West Headnotes (2)


 [1]    Injunction       Real property in general
        Agreed order, which required owner to remove automobile parts from his premises, was a valid permanent injunction
        notwithstanding facts that such order did not explicitly use words “restrain” or “enjoin” with respect to the activities
        prohibited and fact that reasons for injunction were not specified in the order; inasmuch as owner agreed to an
        injunction, he could not complain that he was not informed of the reasons. Rules of Civil Procedure, rule 683.

        1 Cases that cite this headnote


 [2]    Injunction       Form and requisites
        Purpose of requirement that every order granting an injunction set forth reasons for its issuance is to inform a violator
        of why he is enjoined. Rules of Civil Procedure, rule 683.

        1 Cases that cite this headnote




Attorneys and Law Firms

*832 Robert C. Cox, William Chris Wolffarth, Erhard, Cox, Ruebel & Rector, Dallas, for appellant.

Elland Archer, City Atty., Mesquite, for appellee.

Before GUITTARD, C. J., and AKIN and HUMPHREYS, JJ.




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Cleere v. City of Mesquite, 594 S.W.2d 831 (1980)




Opinion

HUMPHREYS, Justice.

This is an appeal from an order denying declaratory relief to appellant, D. C. Cleere. Cleere petitioned the court to declare that a
1974 order requiring him to remove automobile parts from his premises is not an injunction and that it is null and void because
it does not meet the requirements of Tex.R.Civ.P. 683. We affirm.

The order here resulted from an action in 1974 by the City of Mesquite, to enjoin Cleere from operating an automobile repair
garage, selling automobile parts, and operating a wrecking yard on his premises. The 1974 order was an agreed order, prohibiting
appellant from storing at his residence automobiles and automobile parts. In 1979, the city filed a contempt proceeding against
Cleere, alleging a violation of this order. Cleere counter-claimed for a declaration pursuant to Tex.Rev.Civ.Stat.Ann. art. 2524-1
(Vernon 1965) that the order was not a valid injunction. The court found that he was not in contempt, but that the agreed order
was “in force and effect as a permanent injunction.”

 [1] Cleere argues that the court erred in refusing to review the 1974 order under the Declaratory Judgment Act, which allows
an interested person to have his rights construed under a written contract, and that the court erred in finding the agreed order
was a permanent injunction. We conclude that the court had no power to review its previous order. Any attack on the injunction
in this proceeding is a collateral attack and cannot succeed unless the injunction is void. The court may determine, however,
whether the order is a valid permanent injunction. The question then is whether the court's finding that this is a valid permanent
injunction was error.

The agreed order decrees as follows:

  IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Defendant is to remove all junk automobile cars,
  transmissions and junk automobile parts from his premises; that the Defendant is not to allow said automobiles on his property
  for a period longer than 24 hours, nor is he to store for commercial purposes any automobile transmissions or other junk
  automobile parts; that if said parts or transmissions are stored for personal use, they must be stored in a building on Defendant's
  property.

  IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there will be no work on automobiles on Defendant's
  premises located at 1123 Peachtree Road, Mesquite, Texas, except for work on the automobiles of Defendant's immediate
  family, no unloading of automobile parts and transmissions except for the personal use of the Defendant and his immediate
  family, and shall not allow impact wrenches or other noisy equipment to be used on his property after 10:00 o'clock p. m.

Cleere argues that this order is not a valid injunction because it does not explicitly use the words “restrain” or “enjoin” with
respect to the activities prohibited. We do not agree. Admittedly the restraining language *833 is unusual, but its intent to
impose a permanent restraint is evident.

 [2] Cleere also complains that the order does not comply with Tex.R.Civ.P. 683. That rule requires every order granting an
injunction to set forth the reasons for its issuance, be specific in terms and describe the acts sought to be restrained in detail.
Cleere contends that this order sets forth no reasons for its issuance and is not specific in its terms. Although the reasons are
not specified in the order, this defect does not invalidate the injunction under the circumstances shown here. The purpose of
the requirement for reasons is to inform the violator of why he is enjoined. Board of Equalization of City of Plano v. Wells,
473 S.W.2d 88, 91 (Tex.Civ.App. Dallas 1971, no writ). When a party agrees to an injunction, he is in no position to complain
that he was not informed of the reasons.

Furthermore, we hold that the order is sufficiently definite in its terms to apprise Cleere of the acts he can and cannot undertake.
The only indefiniteness suggested by appellant is that he cannot tell from the order what is commercial use and what is personal




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Cleere v. City of Mesquite, 594 S.W.2d 831 (1980)


use. While there may be a fact question in the future as to whether a certain use was commercial or personal, these terms are
not so vague as to render the order unenforceable.

Affirmed.



End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
CMH Homes v. Perez, 340 S.W.3d 444 (2011)
54 Tex. Sup. Ct. J. 1098



                                                     340 S.W.3d 444
                                                  Supreme Court of Texas.

                                             CMH HOMES, et al., Petitioners,
                                                        v.
                                               Adam PEREZ, Respondent.

                           No. 10–0688.      |   Argued Feb. 3, 2011.      |   Decided May 27, 2011.

Synopsis
Background: Mobile home buyer brought action against seller, alleging violations of Texas Deceptive Trade Practices Act
and fraud. The 229th Judicial District Court, Duval County, Alex W. Gabert, J., granted buyer's motion to compel arbitration
and appointed arbitrator. Seller filed interlocutory appeal challenging the appointment, and requesting in the alternative that
its appeal be treated as a mandamus petition. The San Antonio Court of Appeals, 328 S.W.3d 592, dismissed appeal for want
of jurisdiction. Seller petitioned for review.



Holdings: The Supreme Court, Wainwright, J., held that:

[1] interlocutory appeal from an order appointing an arbitrator was not permitted;

[2] order appointing an arbitrator was not an order directing arbitration to proceed; and

[3] seller's interlocutory appeal from order appointing an arbitrator could be considered as a petition for writ of mandamus.


Judgment of Court of Appeals reversed and remanded.



 West Headnotes (15)


 [1]    Courts       Appellate jurisdiction of Supreme Court in general
        Supreme Court has jurisdiction to determine whether the court of appeals correctly decided its jurisdiction.

        Cases that cite this headnote


 [2]    Appeal and Error         Cases Triable in Appellate Court
        Supreme Court reviews the court of appeals' determination of its jurisdiction de novo.

        Cases that cite this headnote


 [3]    Appeal and Error         Necessity of final determination
        Unless a statute authorizes an interlocutory appeal, appellate courts generally only have jurisdiction over final
        judgments.

        25 Cases that cite this headnote



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
CMH Homes v. Perez, 340 S.W.3d 444 (2011)
54 Tex. Sup. Ct. J. 1098


 [4]    Appeal and Error          Interlocutory and Intermediate Decisions
        Courts strictly apply statutes granting interlocutory appeals because they are a narrow exception to the general rule
        that interlocutory orders are not immediately appealable.

        30 Cases that cite this headnote


 [5]    Alternative Dispute Resolution          Decisions reviewable; finality
        Interlocutory appeal from an order appointing an arbitrator was not permitted. 9 U.S.C.A. § 16; V.T.C.A., Civil
        Practice & Remedies Code § 51.016.

        5 Cases that cite this headnote


 [6]    Alternative Dispute Resolution          Decisions reviewable; finality
        Order appointing an arbitrator was not an order “directing arbitration to proceed,” within meaning of section of the
        Federal Arbitration Act specifying the orders from which an appeal could not be taken, even though order was issued
        in response to motion requesting that trial court compel arbitration, where order did not explicitly grant the motion to
        compel and did not explicitly compel the parties to arbitrate their dispute, both parties agreed to arbitrate their dispute,
        the open question remaining was who would serve as the arbitrator, and the purpose of the order was to answer that
        question. 9 U.S.C.A. § 16(b)(2).

        19 Cases that cite this headnote


 [7]    Alternative Dispute Resolution          Decisions reviewable; finality
        Order appointing an arbitrator remained interlocutory and could not be appealed under section of the Federal
        Arbitration Act authorizing review of a final decision with respect to an arbitration, where trial court did not enter a
        dismissal or otherwise dispose of all parties and claims. 9 U.S.C.A. § 16(a)(3).

        5 Cases that cite this headnote


 [8]    Alternative Dispute Resolution          Decisions reviewable; finality
        Just as all interlocutory arbitration orders are not subject to appeal under the Texas Arbitration Act, the Legislature, in
        enacting statute permitting a party to appeal an interlocutory order under the same circumstances that an appeal from
        a federal district court's order would be permitted by section of the Federal Arbitration Act (FAA) governing appeals,
        did not intend to make all interlocutory orders under the FAA appealable, only those permitted by section of the FAA
        governing appeals. 9 U.S.C.A. §§ 1 et seq., 16; V.T.C.A., Civil Practice & Remedies Code §§ 171.098 et seq., 51.016.

        23 Cases that cite this headnote


 [9]    Mandamus           Form, requisites, and sufficiency in general
        Seller's impermissible interlocutory appeal from order appointing an arbitrator would be considered as a petition for
        writ of mandamus, where seller invoked the court of appeals' appellate jurisdiction by specifically requesting that its
        appeal be treated as a mandamus petition; nothing in the procedures for interlocutory appeals and mandamus actions
        prevented the appeal from being treated as a petition for writ of mandamus, and judicial efficiency militated against
        requiring seller to file a separate original proceeding.

        23 Cases that cite this headnote



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
CMH Homes v. Perez, 340 S.W.3d 444 (2011)
54 Tex. Sup. Ct. J. 1098


 [10]   Mandamus           Modification or vacation of judgment or order
        Mandamus           Nature of acts to be commanded
        Mandamus           Civil proceedings other than actions
        Mandamus is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal, as when a party
        is erroneously denied its contracted-for arbitration rights under the Federal Arbitration Act. 9 U.S.C.A. § 1 et seq.

        8 Cases that cite this headnote


 [11]   Appeal and Error          Nature of remedy by dismissal
        State policy as embodied in the appellate rules disfavors disposing of appeals based upon harmless procedural defects.

        4 Cases that cite this headnote


 [12]   Appeal and Error          Time for filing
        Appeal and Error          Advancement of cause
        Appeals from interlocutory orders are accelerated, and an accelerated appeal is perfected by filing a notice of appeal
        within 20 days of the order. Rules App.Proc., Rule 26.1(b).

        Cases that cite this headnote


 [13]   Courts      In issuance of writs
        Because mandamus is controlled largely by equitable principles, there is no fixed deadline for filing original
        proceedings in the Rules of Appellate Procedure.

        Cases that cite this headnote


 [14]   Mandamus           Time to Sue, Limitations, and Laches
        An appeal complying with the rules governing an accelerated appeal would generally be timely for mandamus
        purposes.

        1 Cases that cite this headnote


 [15]   Alternative Dispute Resolution         Remedies and Proceedings for Enforcement in General
        The interests of promoting the policy considerations of rigorous and expedited enforcement of arbitration agreements
        would not be served by letting a technicality rule the day.

        Cases that cite this headnote




Attorneys and Law Firms

*446 Brendan K. McBride, The McBride Law Firm, Rio Grande City, David L. Rumley, Wigington Rumley Dunn LLP,
Corpus Christi, and Baldemar Gutierrez, Law Offices of Baldemar Gutierrez, Alice, for Adam Perez.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          3
CMH Homes v. Perez, 340 S.W.3d 444 (2011)
54 Tex. Sup. Ct. J. 1098


Scott A. Brister, Lino Mendiola, Andrews & Kurth L.L.P., Austin, Jorge C. Rangel, The Rangel Law Firm, P.C., Corpus Christi,
for CMH Homes, Inc.

Augustin Rivera Jr., Dunn Weathered Coffey Rivera & Kapertism, P.C., Corpus Christi, for Bruce Robin Moore, Jr.

Opinion

Justice WAINWRIGHT delivered the opinion of the Court.

Once more, this Court is presented with a question of the availability of judicial review of an interlocutory arbitration order.
In this consumer dispute, CMH Homes, Inc. and Adam Perez agreed to submit their claims to arbitration but could not agree
on an arbitrator. Because of this disagreement, the trial judge intervened and appointed an arbitrator to preside over their
dispute. CMH Homes filed an interlocutory appeal challenging this appointment, requesting in the alternative that its appeal
be treated as a mandamus petition. The court of appeals determined it was without jurisdiction and dismissed the appeal. We
agree with the court of appeals' determination that Texas Civil Practice and Remedies Code section 51.016 does not allow
an interlocutory appeal of an order appointing an arbitrator. However, under these circumstances, CMH Homes's appeal may
properly be considered as a petition for writ of mandamus. We remand for the court of appeals to consider this appeal as a
petition for writ of mandamus.



                                                        I. Background


                                                   A. Facts and Procedure

On October 2, 2002, Adam Perez purchased a manufactured home from CMH Homes, with the help of salesman Bruce Robinson
Moore Jr. Vanderbilt Mortgage and Finance provided financing for the purchase. The retail installment contract between CMH
Homes and Perez contained an arbitration clause which provides:

            All disputes, claims or controversies arising from or relating to this contract ... shall be resolved by
            mandatory binding arbitration by one arbitrator selected by Seller with Buyer's consent.


 *447 On November 2, 2009, Perez sued CMH Homes, Inc., Vanderbilt Mortgage and Finance, Inc., and Bruce Robinson Moore
Jr. (hereinafter “CMH Homes”) for fraud and violations of the Texas Debt Collection Act in the financing of his manufactured
home. Perez filed a motion to compel arbitration on January 13, 2010. Although the parties agreed that the contract was governed
by the Federal Arbitration Act and agreed to submit to arbitration, they could not agree to an arbitrator. After two months of
disagreement, with both parties suggesting arbitrators in various correspondence, Perez's attorney declared an impasse. 1 On
March 8, 2010, after a hearing, the trial court issued an order appointing Gilberto Hinojosa as arbitrator. Although the order
was titled “Order on Plaintiff's Motion to Compel Arbitration,” the only directive in the order was to name an arbitrator to
preside over the dispute.

CMH Homes filed an interlocutory appeal pursuant to Texas Civil Practice and Remedies Code section 51.016, challenging the
court's appointment of Gilberto Hinojosa as arbitrator. CMH Homes did not file a separate mandamus petition, but asked the
court of appeals in the alternative to consider its appeal as a mandamus proceeding. See CMH Homes, Inc. v. Perez, 328 S.W.3d
592, 594 (Tex.App.-San Antonio 2010, pet. granted). The court of appeals determined that interlocutory appeal was unavailable
under Civil Practice and Remedies Code section 51.016 and dismissed the appeal for want of jurisdiction. Id. at 593.



                                           B. Jurisdiction and Standard of Review



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           4
CMH Homes v. Perez, 340 S.W.3d 444 (2011)
54 Tex. Sup. Ct. J. 1098

 [1] [2] This court has jurisdiction to determine whether the court of appeals correctly decided its jurisdiction. See Badiga
v. Lopez, 274 S.W.3d 681, 682 n. 1 (Tex.2009) (citing Tex. Dep't of Crim. Justice v. Simons, 140 S.W.3d 338, 343 n. 13
(Tex.2004)). We review the court of appeals' determination of its jurisdiction de novo. Villafani v. Trejo, 251 S.W.3d 466,
467 (Tex.2008).

 [3]     [4] Unless a statute authorizes an interlocutory appeal, appellate courts generally only have jurisdiction over final
judgments. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001); see also Jack B. Anglin Co., Inc. v. Tipps, 842
S.W.2d 266, 272 (Tex.1992) (“Interlocutory orders may be appealed only if permitted by statute.” (citations omitted)). We
strictly apply statutes granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory
orders are not immediately appealable. See, e.g., Tex. A & M Univ. Sys. v. *448 Koseoglu, 233 S.W.3d 835, 841 (Tex.2007);
Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.2001) (citation omitted).



                                                          II. Discussion

First, we must determine whether the court of appeals lacked jurisdiction under Texas Civil Practice and Remedies Code
section 51.016 of an interlocutory appeal of an order appointing an arbitrator. If section 51.016 does not provide jurisdiction,
we then decide whether the court of appeals should have considered CMH Homes's interlocutory appeal as a petition for writ
of mandamus.



                                 A. Texas Civil Practice and Remedies Code Section 51.016

 [5] Prior to the Legislature's 2009 amendment to the Texas Arbitration Act (TAA), parties seeking to appeal an order
refusing to compel arbitration would commonly file two separate appellate proceedings. Under the TAA, a party could bring
an interlocutory appeal of an order denying arbitration. See TEX. CIV. PRAC. & REM.CODE § 171.098. Under the Federal
Arbitration Act (FAA), a party could only challenge an order denying arbitration by mandamus. Jack B. Anglin, 842 S.W.2d at
271–72. As a result, parallel proceedings were the norm in Texas arbitration disputes where parties were unsure which arbitration
act applied. Although “unnecessarily expensive and cumbersome,” such parallel proceedings were required. Id. at 272. Twice,
this Court requested that the Legislature “consider amending the Texas Act to permit interlocutory appeals of orders issued
pursuant to the Federal Act.” Id.; In re D. Wilson Constr. Co., 196 S.W.3d 774, 780 n. 4 (Tex.2006) (quoting Jack B. Anglin,
842 S.W.2d at 272). In response, the Legislature added section 51.016 to the Civil Practice and Remedies Code in 2009. Act
of May 27, 2009, 81st Leg., R. S., ch. 820, §§ 1, 3, 2009 Tex. Gen. Laws 2061 (codified at TEX. CIV. PRAC. & REM.CODE
§ 51.016). This is our first opportunity to construe the scope of the Legislature's remedial action.

 [6] Section 51.016 provides that a party may appeal a judgment or interlocutory order “under the same circumstances that
an appeal from a federal district court's order or decision would be permitted by 9 U.S.C. Section 16.” TEX. CIV. PRAC. &
REM.CODE § 51.016. Section 16 of the FAA provides:

  (a) An appeal may be taken from—

     (1) an order—

       (A) refusing a stay of any action under section 3 of this title,

       (B) denying a petition under section 4 of this title to order arbitration to proceed,

       (C) denying an application under section 206 of this title to compel arbitration,

       (D) confirming or denying confirmation of an award or partial award, or



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CMH Homes v. Perez, 340 S.W.3d 444 (2011)
54 Tex. Sup. Ct. J. 1098


       (E) modifying, correcting, or vacating an award;

     (2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this
        title; or

     (3) a final decision with respect to an arbitration that is subject to this title.

  (b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order—

     (1) granting a stay of any action under section 3 of this title;

     (2) directing arbitration to proceed under section 4 of this title;

      *449 (3) compelling arbitration under section 206 of this title; or

     (4) refusing to enjoin an arbitration that is subject to this title.

9 U.S.C. § 16. Civil Practice and Remedies Code section 51.016 expressly incorporates federal law. Thus, an interlocutory
appeal in this case is permitted only if it would be permitted under the same circumstances in federal court under section 16.
See Little v. Tex. Dep't of Crim. Justice, 148 S.W.3d 374, 381–82 (Tex.2004) (examining federal law when interpreting state
statute that incorporated federal statute).
In considering the scope of section 16's jurisdictional grant, we first determine the nature of the order being appealed. The order
at issue is entitled “Order on Plaintiff's Motion to Compel Arbitration” and appoints Gilberto Hinojosa as arbitrator. Although
Perez's motion to compel arbitration did not request that the trial court appoint an arbitrator, Perez submitted letters to the court
administrator declaring an impasse and requesting the trial judge appoint an arbitrator.

At first glance, this order may appear to fit within section 16(b)(2) as an order “directing arbitration to proceed.” 9 U.S.C. §
16(b)(2). The “Order on Plaintiff's Motion to Compel Arbitration” was issued in response to Perez's motion requesting that the
trial court compel arbitration. But the substance of the order is the appointment of Gilberto Hinojosa as arbitrator. See Del Valle
Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex.1992) (“[I]t is the character and function of an order that determine its
classification.”). While it may be argued that by appointing an arbitrator the order implicitly compels the parties to arbitration,
the order does not explicitly grant Perez's motion to compel and does not explicitly compel the parties to arbitrate their dispute.
There is no question that both parties agreed to arbitrate their dispute; the open question remaining was who would serve as
the arbitrator. The purpose of the order was to answer that question.

Section 5 of the FAA explicitly permits a trial court to appoint an arbitrator under certain circumstances. 9 U.S.C. § 5. Where
the parties have previously agreed to a method for selecting an arbitrator, the parties must follow that method. Id. However,
if the agreed upon method breaks down and there is a lapse in appointing an arbitrator, the parties may petition the trial court
to appoint an arbitrator. Id.

 [7] An order appointing an arbitrator under section 5 is neither listed in section 16(a) (where appeals may be taken) nor in
section 16(b) (where appeals may not be taken). 9 U.S.C. § 16(a), (b). Even though section 16 is silent on the matter, CMH
Homes argues that an appeal of an order appointing an arbitrator is “permitted by Section 16” because some federal circuit
cases may have entertained interlocutory appeals regarding appointment of arbitrators pursuant to section 5. 2 However, none
of the cited cases mentions whether the appeal is interlocutory and all but one of the cited cases fails to specifically discuss
its jurisdictional basis or cite section 16. 3 Nat'l Am. Ins. Co. v. Transamerica *450 Occidental Life Ins. Co., 328 F.3d 462
(8th Cir.2003) (affirming the district court's selection of an arbitrator pursuant to section 5); ACEquip Ltd. v. Am. Eng'g Corp.,
315 F.3d 151 (2d Cir.2003) (same); see also The Stop & Shop Supermarket Co. LLC v. United Food & Commercial Workers
Union Local 342, 246 Fed.Appx. 7 (2d Cir.2007) (same). The one exception, Universal Reinsurance, specifically establishes
its jurisdiction “pursuant to 9 U.S.C. § 16(a)(3), which authorizes review of ‘a final decision with respect to an arbitration....’



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CMH Homes v. Perez, 340 S.W.3d 444 (2011)
54 Tex. Sup. Ct. J. 1098

” Universal Reinsurance Corp. v. Allstate Ins. Co., 16 F.3d 125, 126 (7th Cir.1994). Neither CMH Homes nor Perez has
suggested that this appeal was anything other than interlocutory. Because the trial court did not enter a dismissal or otherwise
dispose of all parties and claims, the order remains interlocutory and cannot be appealed under section 16(a)(3). 4 See In re Gulf
Exploration, LLC, 289 S.W.3d 836, 839 (Tex.2009) ( “[T]here can be an appeal if the underlying case is dismissed.” (citing
Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86–87, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000))). Although we presume
a court always evaluates its jurisdiction before deciding a matter, these cases do not indicate whether their jurisdictional basis
was section 16, and if so, whether the basis was section 16(a)(3) for final orders. 5 The only federal circuit case that speaks
directly to the jurisdictional issue is O.P.C. Farms Inc. v. Conopco Inc., which held that under section 16, the trial court's order
appointing an arbitrator was not a final decision and was thus unappealable. 6 *451 154 F.3d 1047, 1048–49 (9th Cir.1998).
The court explained: “[T]he only basis for an appeal ... that could even be plausibly argued is § 16(a)(3). It is, however, clear
that the appointment of the third arbitrator is not the final decision in this case.... Consequently § 16 effectively deprives us
of jurisdiction.” Id.

The appellate jurisdiction of Texas courts in this case is based on federal law. The court of appeals had jurisdiction to consider the
trial court's order if “appeal ... would be permitted by 9 U.S.C. Section 16” in federal court. TEX. CIV. PRAC. & REM.CODE
§ 51.016. Because there is no apparent federal approach to judicial review under section 16 of orders appointing arbitrators,
we will not extrapolate jurisdiction from a dearth of federal authority to allow an interlocutory appeal where the law is unclear
and section 16 suggests otherwise.

Before the enactment of section 51.016, we specifically invited the Legislature “ ‘[i]n the interests of promoting the policy
considerations of rigorous and expedited enforcement of arbitration agreements, ... to consider amending the Texas Act to
permit interlocutory appeals of orders issued pursuant to the Federal Act.’ ” See In re D. Wilson, 196 S.W.3d at 780 n. 4
(quoting Jack B. Anglin, 842 S.W.2d at 272). While we agree the Legislature added section 51.016 to prevent unnecessary
parallel proceedings, this inconsistency generally arose when parties were unsure whether the TAA or the FAA applied to their
agreement. See Jack B. Anglin, 842 S.W.2d at 272 (“[L]itigants who allege entitlement to arbitration under the Federal Act, and
in the alternative, under the Texas Act, are burdened with the need to pursue parallel proceedings—an interlocutory appeal of
the trial court's denial under the Texas Act, and a writ of mandamus from the denial under the Federal Act.”). The Legislature in
enacting section 51.016 has remedied this particular situation and enacted a policy change that promotes efficiency and common
sense. See Sidley Austin Brown & Wood, LLP v. J.A. Green Dev. Corp., 327 S.W.3d 859, 862 (Tex.App.-Dallas 2010, no pet.);
Ranchers & Farmers Mut. Ins. Co. v. Stahlecker, No. 09–10–00286–CV, 2010 WL 4354020, at *1 (Tex.App.-Beaumont Nov.
4, 2010, no pet.) (mem.op.); In re Rio Grande Xarin II, Ltd., Nos. 13–10–00115–CV, 13–10–00116–CV, 2010 WL 2697145, at
*3–4 (Tex.App.-Corpus Christi–Edinburg July 6, 2010, pet. dism'd) (mem.op.); 950 Corbindale, L.P. v. Kotts Capital Holdings
Ltd. P'ship, 316 S.W.3d 191, 195 n. 1 (Tex.App.-Houston [14th Dist.] 2010, no pet.).

 [8] Here, however, the issue is not which Act applies, but whether this particular type of order is appealable. Just as all
interlocutory arbitration orders are not subject to appeal under the TAA, the Legislature in enacting section 51.016 did not
intend to make all interlocutory orders under the FAA appealable, only those permitted by section 16 of the FAA. 7 Our
interpretation does not promote parallel proceedings of arbitration orders under the TAA and FAA and does not frustrate *452
the Legislature's intent in enacting section 51.016.

The court of appeals below correctly determined it was without jurisdiction to hear an interlocutory appeal pursuant to section
51.016. The only remaining appellate option for the parties at this juncture is mandamus relief.



                                                           B. Mandamus




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CMH Homes v. Perez, 340 S.W.3d 444 (2011)
54 Tex. Sup. Ct. J. 1098

 [9] Because Civil Practice and Remedies Code section 51.016 does not allow an interlocutory appeal of this type of order,
CMH Homes requests in the alternative that we instruct the court of appeals to treat CMH Homes's appeal as a petition for writ
of mandamus to prevent form from overriding substance.

Before the adoption of section 51.016, this Court held in In re Louisiana Pacific Corp. that a trial court's order appointing an
arbitrator could be reviewed by mandamus. 972 S.W.2d 63, 64 (Tex.1998) (per curiam). The arbitration agreement in Louisiana
Pacific allowed each party to select an arbitrator. Id. at 63. After Louisiana Pacific withdrew its arbitrator due to the objection
of the other party, the trial court improperly appointed an arbitrator pursuant to section 5 of the FAA. Id. at 64. We conditionally
issued the writ “[b]ecause the terms of the contract and the FAA allow[ed] Louisiana Pacific to choose an arbitrator” before
the trial court intervened to name a replacement. Id. We explained the importance of contractual arbitrator selection: “Since
its inception, one of the central purposes of the FAA has been to allow the parties to select their own arbitration panel if they
choose to do so. ‘Toward this end, it is desirable that the arbitration panel consist of arbitrators chosen by each of the parties.’
” Id. at 65 (quoting Lobo & Co. v. Plymouth Navigation Co., 187 F.Supp. 859, 860 (S.D.N.Y.1960)).

 [10] Although this court decided Louisiana Pacific when FAA interlocutory orders could only be reviewed by mandamus,
the Legislature's addition of section 51.016 is of no effect here. As explained above, section 51.016 does not provide for
interlocutory appeal of an order appointing an arbitrator. There is still no remedy by appeal because the FAA does not provide
for the review of this type of order in state court. See id. at 65 (“Louisiana Pacific has no adequate remedy by appeal because
the FAA does not provide for review of the trial court's actions in state court.”). Moreover, “[m]andamus is proper to correct
a clear abuse of discretion when there is no adequate remedy by appeal, as when a party is erroneously denied its contracted-
for arbitration rights under the FAA.” In re D. Wilson, 196 S.W.3d at 780 (internal citation omitted); see also Jack B. Anglin,
842 S.W.2d at 272–73 (awarding mandamus relief where a party “would be deprived of the benefits of the arbitration clause it
contracted for, and the purpose of providing a rapid, inexpensive alternative to traditional litigation would be defeated”).

Perez argues mandamus review is inappropriate because CMH Homes failed to file a separate mandamus petition and, citing
Jack B. Anglin, contends that the court “may not enlarge [its] appellate jurisdiction absent legislative mandate.” 842 S.W.2d
at 272. However, CMH Homes invoked the court of appeals' original jurisdiction by specifically requesting that its appeal be
treated as a mandamus petition. See Warwick Towers Council of Co-Owners v. Park Warwick, L.P., 244 S.W.3d 838, 839
(Tex.2008) (“[T]he factor which determines whether jurisdiction has been conferred on the appellate court is not the form or
substance of the bond, certificate or affidavit, but whether the instrument was filed in a bona fide attempt to invoke *453
appellate court jurisdiction.” (internal quotations and citations omitted)); see also Linwood v. NCNB Tex., 885 S.W.2d 102, 103
(Tex.1994) (“The court of appeals ... has jurisdiction over the appeal if a party files an instrument in a bona fide attempt to
invoke the appellate court's jurisdiction.”); Grand Prairie Indep. Sch. Dist. v. S. Parts Imps., 813 S.W.2d 499, 500 (Tex.1991)
( “If the appellant timely files a document in a bona fide attempt to invoke the appellate court's jurisdiction, the court of appeals,
on appellant's motion, must allow the appellant an opportunity to amend or refile the instrument required by law or our Rules
to perfect the appeal.”).

 [11] Texas policy as “ ‘embodied in our appellate rules ... disfavors disposing of appeals based upon harmless procedural
defects.’ ” Higgins v. Randall Cnty. Sherif's Office, 257 S.W.3d 684, 688 (Tex.2008) (quoting Verburgt v. Dorner, 959 S.W.2d
615, 616 (Tex.1997)); see also TEX.R.APP. P. 44.3 (“A court of appeals must not affirm or reverse a judgment or dismiss an
appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the
defects or irregularities.”). This Court has previously treated a petition for review as a petition for writ of mandamus where the
appellant/relator specifically sought mandamus relief. Powell v. Stover, 165 S.W.3d 322, 324 n. 1 (Tex.2005). And it is our
practice when confronted with parallel mandamus and appeal proceedings “to consolidate the two proceedings and render a
decision disposing of both simultaneously.” In re Valero Energy Corp., 968 S.W.2d 916, 917 (Tex.1998).

 [12] [13] [14] [15] Moreover, nothing in the procedures for interlocutory appeals and mandamus actions prevents us from
treating this appeal as a petition for writ of mandamus. Appeals from interlocutory orders are accelerated, and an accelerated
appeal is perfected by filing a notice of appeal within twenty days of the order. See TEX.R.APP. P. 26.1(b). Because mandamus



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CMH Homes v. Perez, 340 S.W.3d 444 (2011)
54 Tex. Sup. Ct. J. 1098

is “controlled largely by equitable principles,” there is no fixed deadline for filing original proceedings in the Texas Rules of
Appellate Procedure. In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex.2009) (citations omitted). An appeal complying
with the rules governing an accelerated appeal would generally be timely for mandamus purposes. Additionally, briefs in
mandamus actions and interlocutory appeals have the same content and page length requirements. Compare TEX.R.APP. P.
38.1, .4 (stating contents of brief and page length requirement for appeal to the courts of appeals), with TEX.R.APP. P. 52.3, .6
(stating contents of brief and page length requirement for original proceedings at the supreme court and courts of appeals).
“[T]he interests of promoting the policy considerations of rigorous and expedited enforcement of arbitration agreements” would
not be served by letting a technicality rule the day. 8 Jack B. Anglin, 842 S.W.2d at 272.

We will not unnecessarily waste the parties' time and further judicial resources by requiring CMH Homes to file a separate
document with the title “petition for writ of mandamus” listed on the cover where the party has expressly requested mandamus
treatment of its appeal in an uncertain legal environment. See Wagner & Brown, Ltd. v. Horwood, 53 S.W.3d 347, 351
(Tex.2001) (rejecting an “approach [that] catapults form over substance to deny appellate review on the merits”). *454 Because
CMH Homes specifically requested mandamus relief in the court of appeals and preserved that issue in this Court, and because
judicial efficiency militates against requiring CMH Homes to file a separate original proceeding, we instruct the court of appeals
to consider this appeal as a petition for writ of mandamus. Today, we speak only to the propriety of mandamus review and not
to the propriety of mandamus relief in this particular case. Because the merits were not briefed to this Court, we do not decide
whether the trial judge improperly appointed an arbitrator.



                                                              III. Conclusion

We hold that Texas Civil Practice and Remedies Code section 51.016 does not permit interlocutory appeal from an order
appointing an arbitrator. However, this appeal may properly be considered as a petition for writ of mandamus, as CMH Homes
requested. The court of appeals erred in dismissing CMH Homes's appeal for lack of jurisdiction. Accordingly, we reverse and
remand to the court of appeals for further proceedings consistent with this opinion.


Parallel Citations

54 Tex. Sup. Ct. J. 1098


Footnotes
1      After receiving Perez's motion to compel arbitration, CMH Homes presented three names for consideration as potential arbitrators.
        Perez rejected the suggested arbitrators and presented CMH Homes with a proposed agreed order that compelled the parties to
        arbitration and left a blank for the court to appoint an arbitrator. CMH Homes did not agree to the proposed order and offered to submit
        two more arbitrator names for Perez's consideration. Instead, Perez sent a copy of the proposed order to the court and suggested three
        possible arbitrators for the court to appoint. In response, CMH Homes sent a letter to the court explaining that under the arbitration
        provision, CMH Homes, not Perez, has the right to designate the arbitrator and suggested two more arbitrators. The letter also indicates
        that the parties were considering one of the two arbitrators, Donato Ramos, but Perez was concerned about conflicts of interests
        because his attorneys had financial connections to Ramos. The court held a hearing on February 9, 2010 where the parties appeared
        to agree to the appointment of Ramos. However, when the parties could not agree to a waiver of conflicts for Ramos, the agreement
        fell apart. Perez notified the court that they could not reach an agreed waiver and again asked the court to appoint an arbitrator and
        re-submitted the three names previously suggested, including Gilberto Hinojosa.
2       CMH Homes relies upon the following cases: Nat'l Am. Ins. Co. v. Transamerica Occidental Life Ins. Co., 328 F.3d 462 (8th Cir.2003);
        ACEquip Ltd. v. Am. Eng'g Corp., 315 F.3d 151 (2d Cir.2003); Universal Reinsurance Corp. v. Allstate Ins. Co., 16 F.3d 125 (7th
        Cir.1994); ATSA of Cal., Inc. v. Cont'l Ins. Co., 754 F.2d 1394 (9th Cir.1985).
3       CMH Homes also cites the Ninth Circuit case ATSA of California, Inc. v. Continental Insurance Co., 754 F.2d 1394 (9th Cir.1985).
        But because this case was decided before section 16 was enacted, it does not interpret section 16.




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CMH Homes v. Perez, 340 S.W.3d 444 (2011)
54 Tex. Sup. Ct. J. 1098

4      In state court, cases are typically stayed pending arbitration rather than dismissed, as frequently is the case in federal court. In In
       re Gulf Exploration, LLC, we explained:
             Arbitrability is often the only issue in federal court because nondiverse parties may prevent removal of the underlying case from
             state court; in such cases, even a stay order will be considered final if the federal action is effectively over. But in the state courts,
             disputes about arbitrability and the merits must usually proceed in a single court under rules of dominant jurisdiction.
             Accordingly, a stay is generally the only appropriate order for a state court with jurisdiction of all issues. Indeed, the Texas
             Arbitration Act states that “[a]n order compelling arbitration must include a stay” of the underlying litigation. During arbitration,
             a court order may be needed to replace an arbitrator, compel attendance of witnesses, or direct arbitrators to proceed promptly;
             after arbitration, a court order is needed to confirm, modify, or vacate the arbitration award. Consequently, dismissal would
             usually be inappropriate because the trial court cannot dispose of all claims and all parties until arbitration is completed.
          289 S.W.3d 836, 840–41 (Tex.2009) (citations omitted).
5      The appellants in National American and ACEquip represented to the circuit courts that the order being appealed was final. See
       Appellant's Brief at 3, ACEquip Ltd. v. Am. Eng'g Corp., 315 F.3d 151 (2d Cir.2003); Appellant's Brief at 1, Nat'l Am. Ins. Co. v.
       Transamerica Occidental Life Ins. Co., 328 F.3d 462 (8th Cir.2003). The appellees did not challenge this assertion in ACEquip, see
       Brief of Plaintiff–Appellee, ACEquip Ltd. v. Am. Eng'g Corp., 315 F.3d 151 (2d Cir.2003), and appear not to have challenged the
       assertion in National American, see Reply Brief of Appellant, Nat'l Am. Ins. Co. v. Transamerica Occidental Life Ins. Co., 328 F.3d
       462 (8th Cir.2003). In both cases, the parties treated the order appointing an arbitrator as final, and the courts of appeals appear to
       have taken the parties at their word.
6      In its analysis, the court in O.P.C. Farms concluded that an order appointing an arbitrator is “embedded” in the case. O.P.C. Farms
       Inc. v. Conopco Inc., 154 F.3d 1047, 1049 (9th Cir.1998) (citation omitted). However, the United States Supreme Court eliminated
       the distinction between embedded and independent proceedings in Green Tree, which may raise questions about the precedential
       value of this case. See Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 87–89, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).
7      The language of section 51.016, and therefore FAA section 16, also indicates the Legislature did not intend to create a comprehensive
       appellate scheme making all FAA orders appealable through interlocutory appeal, but instead focused on denials of arbitration. See
       TEX. CIV. PRAC. & REM.CODE § 51.016; 9 U.S.C. § 16; In re Gulf Exploration, 289 S.W.3d at 839 (“[T]he FAA ‘generally
       permits immediate appeal of orders hostile to arbitration ... but bars appeal of interlocutory orders favorable to arbitration.’ ” (quoting
       Green Tree, 531 U.S. at 86, 121 S.Ct. 513)); see also May v. Higbee Co., 372 F.3d 757, 762 (5th Cir.2004) (noting the “general,
       congressionally mandated rule that anti-arbitration decisions are immediately appealable under § 16(a)(1)”).
8      Although we note that CMH Homes's petition was not certified at this Court as required by Texas Rule of Appellate Procedure 52.3(j),
       we are confident that CMH Homes will fully comply with Rule 52 on remand to the court of appeals.


End of Document                                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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Commission for Lawyer Discipline v. Schaefer, 364 S.W.3d 831 (2012)
55 Tex. Sup. Ct. J. 620



                                                     364 S.W.3d 831
                                                 Supreme Court of Texas.

                                COMMISSION FOR LAWYER DISCIPLINE, Petitioner,
                                                    v.
                                       Heather SCHAEFER, Respondent.

                                             No. 10–0609.       |   April 20, 2012.

Synopsis
Background: In attorney disciplinary proceeding, the Board of Disciplinary Appeals vacated unanimous finding of misconduct
and order of disbarment entered by evidentiary panel quorum. Commission for Lawyer Discipline appealed.



Holdings: On grant of rehearing, the Supreme Court held that:

[1] composition of evidentiary panel violated ratio requirement;

[2] improper evidentiary panel composition rendered panel's judgment voidable, rather than void;

[3] respondent attorney was required to exercise reasonable diligence to ascertain composition of evidentiary panel assigned to
her case and to object if composition requirements were not satisfied; and

[4] attorney waived claim of error with respect to composition of evidentiary panel.


Reversed; judgment of disbarment reinstated.



 West Headnotes (8)


 [1]    Attorney and Client        Trial or hearing
        Rules governing attorney disciplinary proceedings clearly, and repeatedly, mandate a two-to-one ratio of attorneys
        to public members on evidentiary panels. V.T.C.A., Government Code Title 2, Subtitle G App. A–1, Disciplinary
        Procedure Rules 2.02, 2.07, 2.17.

        Cases that cite this headnote


 [2]    Attorney and Client        Review
        Supreme Court would review de novo legal conclusions of Board of Disciplinary Appeals (BODA) concerning
        construction of the Rules of Disciplinary Procedure.

        Cases that cite this headnote


 [3]    Attorney and Client        Trial or hearing




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Commission for Lawyer Discipline v. Schaefer, 364 S.W.3d 831 (2012)
55 Tex. Sup. Ct. J. 620

        Composition of evidentiary panel in attorney disciplinary proceeding violated ratio requirement set forth in rules
        governing disciplinary proceedings, where one of the two public-member positions on the six-member evidentiary
        panel was vacant; two public members were required for panel having four attorney members. V.T.C.A., Government
        Code Title 2, Subtitle G App. A–1, Disciplinary Procedure Rules 2.02, 2.17.

        Cases that cite this headnote


 [4]    Attorney and Client        Trial or hearing
        Attorney and Client        Judgment or order
        Improper evidentiary panel composition did not deprive evidentiary panel of capacity to act on attorney disciplinary
        complaints, and consequently rendered the evidentiary panel's judgment voidable, rather than void. V.T.C.A.,
        Government Code Title 2, Subtitle G App. A–1, Disciplinary Procedure Rules 2.02, 2.17.

        Cases that cite this headnote


 [5]    Attorney and Client        Review
        Error in the composition of an evidentiary panel in an attorney disciplinary proceeding must be preserved by
        timely objection, as the attorney-to-public-member composition requirement does not undermine the capacity of
        an evidentiary panel or otherwise deprive it of jurisdiction to hear evidence and issue disciplinary orders. Rules
        App.Proc., Rule 33.1(a); V.T.C.A., Government Code Title 2, Subtitle G App. A–1, Disciplinary Procedure Rules
        2.02, 2.17.

        Cases that cite this headnote


 [6]    Attorney and Client        Trial or hearing
        Grievance Committee should timely advise respondent attorneys of the composition of the evidentiary panel from
        which the quorum was drawn to hear an attorney disciplinary case.

        Cases that cite this headnote


 [7]    Attorney and Client        Trial or hearing
        In attorney disciplinary proceeding, respondent attorney was required to exercise reasonable diligence to ascertain
        composition of evidentiary panel assigned to her case, and to object if composition requirements were not satisfied,
        where attorney was on notice that panel was incomplete. V.T.C.A., Government Code Title 2, Subtitle G App. A–
        1, Disciplinary Procedure Rules 2.02, 2.17.

        Cases that cite this headnote


 [8]    Attorney and Client        Review
        Attorney waived claim of error, in disciplinary proceedings, with respect to composition of evidentiary panel, where
        violation did not deprive panel of its capacity to select quorum, hear evidence, and issue judgment, and attorney
        neither objected to composition of panel nor filed timely post-judgment motion. V.T.C.A., Government Code Title
        2, Subtitle G App. A–1, Disciplinary Procedure Rules 2.07, 2.17.

        Cases that cite this headnote




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Commission for Lawyer Discipline v. Schaefer, 364 S.W.3d 831 (2012)
55 Tex. Sup. Ct. J. 620


Attorneys and Law Firms

 *833 Linda A. Acevedo, Chief Disciplinary Counsel, Cynthia W. Hamilton, Senior Appellate Disciplinary Counsel, Office
of the Chief Disc. Counsel, for Commission for Lawyer Discipline.

Heather Ann Badgett Schaefer, Plano, for Appellee.

Opinion

PER CURIAM.

District Grievance Committees appoint evidentiary panels for attorney disciplinary actions, and quorums of the evidentiary
panels hear and decide the actions. This case raises the question of whether a properly constituted quorum of an improperly
constituted evidentiary panel has the authority to act in an attorney disciplinary matter. Following a unanimous finding of
misconduct by an evidentiary panel quorum, an attorney appealed the panel's order of disbarment to the Board of Disciplinary
Appeals (BODA) on the ground that the evidentiary panel was not composed of the required ratio of public to attorney members.

The attorney failed to attend her hearing and filed no post-judgment motions with the evidentiary panel. BODA vacated the
panel's judgment and remanded for a new hearing because the evidentiary panel was improperly composed, even though
the quorum of panelists present for the hearing met the required ratio of lawyers to non-lawyers. BODA concluded the
panel-composition error voided the panel's judgment for lack of capacity. We agree with BODA that the composition of
evidentiary panels, a mandatory requirement, was not met here. However, we conclude that requirement is not jurisdictional
and the evidentiary panel's order was voidable, not void. Therefore, because no objection was lodged to the evidentiary panel's
composition, we reverse BODA's judgment.

Complaints of attorney misconduct are assessed by the Office of the Chief Disciplinary Counsel (CDC) of the State Bar of
Texas, which administers the attorney disciplinary system at the investigatory and trial levels. TEX.R. DISCIPLINARY P.
1.06(C), 5.01, .02. CDC investigates complaints to determine whether there is just cause that an attorney committed professional
misconduct. Id. at 1.06(U) & (V), 2.12, 5.02(C). Upon a determination of just cause by CDC, the accused attorney may have
her case heard in (1) district court, upon election, with or without a jury or (2) in an administrative proceeding by an evidentiary
panel of a State Bar of Texas District Grievance Committee (Grievance Committee) within the relevant geographic district. Id.
at 2.14, .15. The respondent attorney must be notified of the names and addresses of the evidentiary panel members assigned
to adjudicate the complaint. Id. at 2.06.

Grievance Committees “must consist of no fewer than nine members,” id. at 2.02, and “shall act through panels,” as assigned
by the Grievance Committee chairs. Id. at 2.07. “No panel may consist of more than one-half of all members of the [Grievance]
Committee or fewer than three members.” Id. The evidentiary panel hears evidence and adjudicates the grievance against an
attorney accused of professional misconduct. Id. at 2.17. A quorum consists of “a majority of the membership of the panel,” id.
at 2.07, and also must have “at least one public member for every two attorney members present.” Id.; see also In re Allison,
288 S.W.3d 413, 417 (Tex.2009).

In these administrative proceedings, the Commission for Lawyer Discipline (Commission), a permanent committee of the State
Bar, is the litigant opposing the accused *834 attorney. Id. at 4.01, .06(A). The Commission is the client of the CDC in
complaint proceedings not dismissed at summary disposition. Id. at 2.14(A), 5.02(G).

 [1] All panels of a Grievance Committee “must be composed of two-thirds attorneys and one-third public members.” Id.
at 2.02; see also id. at 2.07 (specifying that panels “must be composed of two attorney members for each public member.”).
Rule 2.17 repeats this standard specifically for evidentiary panels: “Each Evidentiary Panel must have a ratio of two attorney
members for every public member....” Id. at 2.17. The rules therefore clearly, and repeatedly, mandate a two-to-one ratio of
attorneys to public members on evidentiary panels.



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Commission for Lawyer Discipline v. Schaefer, 364 S.W.3d 831 (2012)
55 Tex. Sup. Ct. J. 620


CDC investigated three grievances filed against attorney Heather Schaefer and found just cause to have the grievances
adjudicated. See TEX.R. DISCIPLINARY P. 5.02(C), (G), (I) & (M) (laying out in relevant part the duties of the CDC in
disciplinary proceedings). As Schaefer did not elect to have the grievances heard in district court, CDC assigned them to
an evidentiary panel. Id. at 2.14, .15. The Chair of the relevant Grievance Committee, District 01A (Collin County, Texas),
appointed a six-person evidentiary panel to hear the case. Schaefer filed an eve-of-trial “emergency continuance” on the basis
of work conflicts, which the evidentiary panel denied. Schaefer did not attend her hearing. At the hearing in Schaefer's absence,
a quorum of evidentiary panel members unanimously found that Schaefer committed misconduct, and disbarred her in its
judgment.

Although the pre-hearing notices Schaefer received from the CDC showed a properly constituted evidentiary panel, the panel's
“Evidentiary Hearing Report” (hearing report), summarizing basic information about the hearing, including the identity of the
panelists present, listed the second public-member position on the six-person panel as “vacant.” The hearing was held February
20, 2009; the hearing report was sent to Schaefer on March 2, 2009; and the evidentiary panel's judgment was signed on March
3, 2009. The hearing report indicated that a quorum of four panel members, three attorneys and one public member, were
actually present to hear Schaefer's case. Schaefer did not object to the panel's composition at the hearing or subsequently in any
post-judgment motion. See TEX.R. DISCIPLINARY P. 2.22 (describing post-judgment motions).

Schaefer appealed to BODA, challenging the evidentiary panel's composition. On appeal, BODA vacated the disbarment
judgment and remanded for a new hearing, in part on the basis that the evidentiary panel did not have the capacity to act
because the panel was improperly composed. 1 BODA found that the evidentiary panel lacked the appropriate ratio of attorney
members to public members and, reasoning that such error was fundamental, concluded that evidentiary panels not satisfying
this requirement lack capacity to act as a court. Schaefer v. Comm'n for Lawyer Discipline of the State Bar of Tex., Bd. of
Disciplinary Appeals Case No. 44292 (Jan. 28, 2011) at 8, 14. The Commission appealed to this Court, challenging BODA's
interpretation of the Texas Rules of Disciplinary Procedure governing evidentiary-panel composition. We issued a *835
summary affirmance of BODA's judgment and later granted the Commission's motion for rehearing.

 [2] Appeals from determinations of BODA are generally reviewed under a substantial evidence standard. TEX.R.
DISCIPLINARY P. 7.11. Because the issue before us involves the interpretation of the Texas Rules of Disciplinary Procedure,
we review BODA's legal conclusions on the construction of the rules de novo. See In re Caballero, 272 S.W.3d 595, 599
(Tex.2008) (citing O'Quinn v. State Bar of Tex., 763 S.W.2d 397, 399 (Tex.1988) (observing that “our disciplinary rules should
be treated like statutes”)); MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 500 (Tex.2010) (noting that a “question of
statutory construction is a legal one which we review de novo”).

In In re Allison we recently addressed the public- and attorney-member ratio requirements in disciplinary hearings. 288 S.W.3d
413 at 415–17. In Allison, which focused on the quorum requirements of Rule 2.07, the evidentiary panel was properly
constituted with four attorney members and two public members, but the quorum hearing Allison's case consisted of three
attorneys and one public member. Id. at 414. Under the wording of 2.07, different from 2.02 and 2.17, we held that the quorum
that heard the disciplinary action satisfied the ratio requirement that it “ ‘include one public member for each two attorney
members.’ ” Id. at 417 (quoting TEX. GOV'T CODE § 81.072(j)); see also TEX.R. DISCIPLINARY P. 2.07. Schaefer's case
is different from Allison in that the evidentiary panel from which the quorum was drawn included only one public member and
four attorney members, although the quorum satisfied Allison 's three-attorney-to-one-public-member ratio under 2.07. See 288
S.W.3d at 417. Schaefer challenges the composition of the evidentiary panel.

 [3] [4] As observed above, “[e]ach Evidentiary Panel must have a ratio of two attorney members for every public member....”
TEX.R. DISCIPLINARY P. 2.17; see also 2.02 (requiring two-thirds of Grievance Committees be attorneys and one-third be
public members). This is compulsory language. One of the two public-member positions on the six-member evidentiary panel
was vacant. The evidentiary panel's composition therefore violated the ratio requirement of one public member for each two




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Commission for Lawyer Discipline v. Schaefer, 364 S.W.3d 831 (2012)
55 Tex. Sup. Ct. J. 620

attorney members. With four attorney members on the evidentiary panel, two public members would be required. Allison, 288
S.W.3d at 417. In Allison, we explained:

             [T]he factor-of-two rule applies only when there is an even number of attorneys. Thus, if there are four
             attorney members (two sets of two) a quorum would require two public members.

Id. The evidentiary panel failed to meet this requirement. BODA and the Commission disagree over whether this improper panel
composition deprived the evidentiary panel of capacity to act on the complaints, and consequently rendered the evidentiary
panel's judgment void, or merely voidable.

BODA concluded in its opinion that two of our precedents, Mapco, Inc. v. Forrest, 795 S.W.2d 700 (Tex.1990), and Tesco
American, Inc. v. Strong Industries, Inc., 221 S.W.3d 550 (Tex.2006), “affirm that, when a court rendering judgment has no
capacity to act as a court, the resulting judgment is void.” Schaefer, at 14. The Commission argues, however, that the Grievance
Committee's failure to abide by the panel composition requirements did not deprive the evidentiary panel of capacity, but merely
rendered the judgment voidable. Because Schaefer, who was not present at the hearing, did not object to the composition of
the evidentiary panel or *836 file a post-judgment motion challenging its composition, the Commission also contends that
any error was waived.

We construe the analogous precedents differently. Mapco concerned an appellate ruling in which one justice of a three-justice
panel retired before an opinion was issued, resulting in a one-one opinion and judgment, a departure from both statutory and
constitutional provisions requiring a “majority” of a panel for a decision on a case. Mapco, 795 S.W.2d at 702–03. We declined
to issue a general rule that a violation of a procedural rule, statute, or even a constitutional requirement rendered an appellate
judgment “void.” Id. at 703. Instead, such violations generally only result in a “voidable” or erroneous judgment. Id. Describing
the “rare circumstances” that would void a judgment, we observed that “[a] judgment is void only when it is apparent that the
court rendering the judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the
judgment, or no capacity to act as a court.” Id. (citations omitted).

Tesco concerned a judicial-disqualification challenge to a court of appeals decision. Tesco, 221 S.W.3d at 552–53. We held that
the justice authoring the unanimous opinion for the three-justice panel was disqualified due to an imputed conflict of interest. Id.
at 554. We also noted that the orders or judgments of disqualified trial judges are void. Id. at 555 (citing In re Union Pac. Res.
Co., 969 S.W.2d 427, 428 (Tex.1998); Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex.1982); Fry v. Tucker,
146 Tex. 18, 202 S.W.2d 218, 221 (1947); Postal Mut. Indem. Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482, 484 (1943); State v.
Burks, 82 Tex. 584, 18 S.W. 662, 662–63 (1891); Templeton v. Giddings, 12 S.W. 851, 852 (Tex.1889)). However, we held that,
in the appellate context, where multiple judges are empaneled, a judgment is merely voidable unless every judge on the panel
is disqualified. Id. at 555–56. We explained that, “ ‘[i]n general, as long as the court entering a judgment has jurisdiction of the
parties and the subject matter and does not act outside its capacity as a court, the judgment is not void.’ ” Id. at 556 (quoting
Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003)). We concluded that the judgment at issue was not void as the appellate court
had “jurisdiction of the parties and the subject matter, jurisdiction to enter judgment, and capacity to act as a court.” Id.

BODA's opinion distinguished Mapco and Tesco as involving appellate panels and analogized the evidentiary panel at issue
here to a trial court. Schaefer, at 14. For purposes of the applicable composition rules, the multi-member nature of an evidentiary
panel makes it analogous to the appellate courts in Mapco and Tesco. Accordingly, the evidentiary panel's judgment was not
void for lack of capacity. We therefore reverse BODA's judgment.

 [5] [6] [7] As the attorney-to-public-member composition requirement does not undermine the capacity of an evidentiary
panel or otherwise deprive it of jurisdiction to hear evidence and issue disciplinary orders, error must be preserved by timely
objection. See TEX.R.APP. P. 33.1(a); cf. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992)
(error preservation generally requires that the party make the trial court aware of the complaint, timely and plainly, and
obtain a ruling). BODA's opinion noted there is “some evidence” that Schaefer may not have been able to object to the
panel's composition, even had she appeared at the hearing. Schaefer, at 10. BODA observed that “the [evidentiary panel] chair


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Commission for Lawyer Discipline v. Schaefer, 364 S.W.3d 831 (2012)
55 Tex. Sup. Ct. J. 620

introduced only the members present on the record and did not name the absent members of the panel,” *837 thus creating
uncertainty as to whether the evidentiary panel lacked a necessary public member. Id. The Grievance Committee should timely
advise respondent attorneys of the composition of the evidentiary panel from which the quorum was drawn to hear the case. But
generally speaking, reasonable diligence by the attorney requires more than occurred here. Faced with an incomplete evidentiary
panel, the respondent attorney must inquire as to panel composition and object if the composition requirements are not satisfied.
Should an attorney fail to appear at an evidentiary hearing, she makes her task more difficult and should obtain the hearing
report and preserve error through a timely post-judgment motion. See TEX.R. DISCIPLINARY P. 2.22.

 [8] The evidentiary panel's composition violated the requirements of Rules 2.07 and 2.17 of the Texas Rules of Disciplinary
Procedure. That violation, however, did not deprive the evidentiary panel of its capacity to select a quorum, hear evidence,
and issue a judgment. Therefore, in the absence of a timely objection, error was waived. Accordingly, without hearing oral
argument, we reverse the Board of Disciplinary Appeals' judgment and reinstate the evidentiary panel's judgment of disbarment.
See TEX.R. DISCIPLINARY P. 7.11; TEX.R.APP. P. 60.2(c).



Parallel Citations

55 Tex. Sup. Ct. J. 620


Footnotes
1      The other bases for BODA's judgment were “issues of statewide public interest”: i.e., that (1) the attorney discipline system exists
        to protect the public, and (2) CDC's adherence to disciplinary rules is essential and must avoid even the appearance of impropriety.
        Schaefer v. Comm'n for Lawyer Discipline of the State Bar of Tex., Bd. of Disciplinary Appeals Case No. 44292 (Jan. 28, 2011) at
        8–11. We do not reach these issues.


End of Document                                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       6
Conlin v. Haun, 419 S.W.3d 682 (2013)
37 IER Cases 488



                                                        419 S.W.3d 682
                                                    Court of Appeals of Texas,
                                                      Houston (1st Dist.).

                                      Kevin CONLIN and Kathryn Conlin, Appellants
                                                          v.
                                       Darrell HAUN and Solarcraft, Inc., Appellees.

                                          No. 01–13–00329–CV.          |   Dec. 12, 2013.

Synopsis
Background: Following order for agreed temporary injunction in employer's suit against employees for alleged violation of
non-compete agreements that enjoined employees from competing with employer and enjoined employer's majority shareholder
from tampering with employer records and data, employees moved for dissolution of temporary injunction. The 434th District
Court, Fort Bend County, James H. Shoemake, J., denied employees' motion. Employees filed interlocutory appeal.



Holdings: The Court of Appeals, Rebeca Huddle, J., held that:

[1] employees did not waive arguments on appeal regarding trial court's compliance with requirements for issuing temporary
injunction, and

[2] agreed temporary injunction order was void for failure to set cause for trial.


Reversed and remanded with instructions.



 West Headnotes (5)


 [1]    Appeal and Error          Time for filing
        Employees did not waive arguments on appeal related to any errors made by trial court regarding compliance with
        requirements for issuing temporary injunction in employer's suit for alleged violation of non-compete agreements,
        even though employees did not file notice of appeal after trial court denied their first motion to dissolve temporary
        injunction; appeal was filed within 20 days of date of order orally denying employees' second motion to dissolve
        temporary injunction. V.T.C.A., Civil Practice & Remedies Code § 51.014(a)(4); Rules App.Proc., Rules 26.1(b),
        28.1(a); Vernon's Ann.Texas Rules Civ.Proc., Rule 683.

        1 Cases that cite this headnote


 [2]    Injunction       Form and requisites
        Injunction       Findings and conclusions
        Procedural requirements that order granting temporary injunction state reasons for its issuance and set cause for trial
        on the merits are mandatory, and order granting temporary injunction that does not meet them is subject to being
        declared void and dissolved. Vernon's Ann.Texas Rules Civ.Proc., Rule 683.




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Conlin v. Haun, 419 S.W.3d 682 (2013)
37 IER Cases 488


        3 Cases that cite this headnote


 [3]    Injunction       Authority and discretion of court
        Trial court has broad discretion to grant or deny motion to dissolve temporary injunction.

        1 Cases that cite this headnote


 [4]    Appeal and Error        Continuing, vacating, or dissolving
        On appeal of motion to dissolve temporary injunction, Court of Appeals' review is limited to narrow question of
        whether trial court abused its discretion in denying motion to dissolve.

        1 Cases that cite this headnote


 [5]    Injunction       Form and requisites
        Agreed temporary injunction order issued by trial court in employer's action against employees for violation of non-
        compete agreements was void for failure to set cause for trial on the merits, and thus injunction was required to
        be dissolved, despite contention that employees were estopped from complaining about order because they agreed
        to it; procedural requirement that order granting temporary injunction set cause for trial was mandatory. Vernon's
        Ann.Texas Rules Civ.Proc., Rule 683.

        3 Cases that cite this headnote




Attorneys and Law Firms

*683 Kenneth R. Jones, Law Office of Kenneth R. Jones, L.L.P., Houston, TX, for Appellants.

Lawrence Rothenberg, Houston, TX, for Appellees.

Panel consists of Chief Justice RADACK and Justices BLAND and HUDDLE.



                                                         OPINION

REBECA HUDDLE, Justice.

Appellants Kevin and Kathryn Conlin bring this interlocutory appeal of the trial court's order denying their Motion to Declare
Void or Alternatively, Dissolve Temporary *684 Injunction. 1 We conclude that the temporary injunction should have been
dissolved because it does not comply with Texas Rule of Civil Procedure 683, and accordingly, we reverse.



                                                        Background

Solarcraft, Inc., a company that designs and manufactures solar power products, was incorporated in March 1994, and initially
had two directors and shareholders: Kevin and Kathryn Conlin. In September 2005, Darrell Haun acquired 51% of the shares
of Solarcraft. Contemporaneously, the Conlins signed employment agreements with Solarcraft. The employment agreements
included a non-compete provision that provided “[f]or 3 years following termination of employment, Employee agrees not



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Conlin v. Haun, 419 S.W.3d 682 (2013)
37 IER Cases 488

to, directly or indirectly, engage in any business which is competitive with the business of Solarcraft in the United States of
America.”

In February 2009, Haun and Solarcraft, Inc. (collectively, “Haun”) sued the Conlins, alleging they violated their non-compete
agreements. Haun sought to enjoin the Conlins from competing with Solarcraft and from having access to Solarcraft facilities
and information. The trial court issued a temporary restraining order as requested by Haun on February 2, 2009.

On February 19, 2009, the trial court heard Haun's application for a temporary injunction. However, before the trial court ruled
on the application, the parties informed it that they had reached an agreement regarding temporary injunctive relief. On February
24, 2009, the trial court signed an order titled “Agreed Temporary Injunction,” which enjoined the Conlins from competing with
Solarcraft in various ways, and enjoined Haun from tampering with Solarcraft records and data, including financial records.
The order stated that it was effective “until the trial of this cause, or further order of this Court.” It contained a blank in which
the trial setting date could be written, but the blank was not filled in.

On July 23, 2009, the Conlins moved to dissolve the temporary injunction. They contended that the injunction should be
dissolved because (1) it was void under Texas Rule of Civil Procedure 683 because it failed to state the reasons for its issuance
and set a date for trial, and (2) Kathryn's three-year covenant not to compete had expired. The parties agree that the trial court
orally denied the motion on October 9, 2009, but the record contains no written order on this motion.

More than three years later, on February 27, 2013, the Conlins filed a second motion to dissolve the temporary injunction. The
Conlins argued, as they had in their 2009 motion to dissolve, that the agreed temporary injunction order was void under Texas
Rule of Civil Procedure 683 because it failed to state the reasons for its issuance and failed to set the case for trial. They also
argued that changed circumstances warranted the dissolution of the temporary injunction. Specifically, the Conlins argued that
because they were forcibly removed from Solarcraft on February 2, 2009, the three-year covenants not to compete expired, at
the latest, on February 2, 2012, and therefore there was no remaining basis for enjoining them from competing with Solarcraft.
In addition, the Conlins argued that they had sold all of their shares in Solarcraft to Haun on January 19, 2013, and they now
held no interests in Solarcraft. After a hearing on April 1, 2013, at which the trial court orally denied the Conlins' motion, the
trial court *685 signed a written order denying the motion to dissolve on April 15, 2013. The Conlins filed a notice of appeal
from the trial court's denial of the motion on April 8, 2013.



                                                            Discussion

The Conlins raise two issues on appeal. First, they argue that the agreed temporary injunction order is void for failure to state the
reasons for its issuance or set the cause for trial, as required by Texas Rule of Civil Procedure 683. Second, and alternatively,
they argue the trial court abused its discretion in refusing to modify or dissolve the temporary injunction because no basis for
the injunction remained after the Conlins' non-compete agreements expired and the Conlins sold their ownership interest in
Solarcraft.

Haun does not dispute that the temporary injunction order does not comply with the requirements of Rule 683. Instead, Haun
argues that (1) we lack jurisdiction because the Conlins failed to appeal within 20 days after the trial court denied the Conlins'
first motion to dissolve in 2009, and (2) the Conlins are estopped from challenging the temporary injunction order because they
agreed to it. We address Haun's challenge to our jurisdiction before turning to the merits.


A. Jurisdiction
 [1] Haun contends that the Conlins' appeal was untimely because their notice of appeal was not filed within 20 days of the date
the trial court denied their first motion to dissolve in 2009. He contends “[b]ecause they failed to timely appeal the denial of their
first Motion To Dissolve Temporary Injunction in October of 2009, the Conlins waived any errors regarding compliance with



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
Conlin v. Haun, 419 S.W.3d 682 (2013)
37 IER Cases 488

TRCP 683, as well as any other matters raised in this appeal that also existed at the time their first motion to vacate was denied.”
But Haun cites no authority—and we can find none—to support his contention that a party may appeal only from the denial
of his first motion to dissolve an injunction. The cases Haun cites do not support that contention. They merely stand for the
proposition that, when an appellate court reviews a trial court's order on a motion to dissolve a temporary injunction, it reviews
the trial court's decision to grant or deny the motion to dissolve, and not the trial court's original decision to grant a temporary
injunction. See BS & B Safety Sys., Inc. v. Fritts, No. 01–98–00957–CV, 1999 WL 447605, at *2 (Tex.App.-Houston [1st Dist.]
June 17, 1999, no pet.) (not designated for publication); Tober v. Turner of Tex., Inc., 668 S.W.2d 831, 834 (Tex.App.-Austin
1984, no writ); Marshall v. Good Times, Inc., 537 S.W.2d 536, 538 (Tex.Civ.App.-Fort Worth 1976, writ dism'd).

The interlocutory appeal of an order denying a motion to dissolve a temporary injunction is an accelerated appeal, and
accordingly, the notice of appeal must be filed within 20 days of the date of the order denying the motion. See TEX. CIV. PRAC.
& REM.CODE ANN. § 51.014(a)(4) (West Supp.2013); TEX.R.APP. P. 26.1(b), 28.1(a). Here, the Conlins filed their notice
of appeal on April 8, 2013, one week after the trial court orally denied the second motion and one week before the trial court
signed its order. The notice of appeal was timely filed, and accordingly, we have jurisdiction over the appeal. See TEX.R.APP.
P. 27.1(a) (“In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event
that begins the period for perfecting the appeal.”).


B. Failure to Comply with Rule 683


                                          1. Applicable Law and Standard of Review

 [2] Texas Rule of Civil Procedure 683 requires that an order granting a temporary *686 injunction state the reasons for its
issuance and set the cause for trial on the merits. See TEX.R. CIV. P. 683; Qwest Commc'ns Corp. v. AT & T Corp., 24 S.W.3d
334, 337 (Tex.2000). “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.” Qwest, 24 S.W.3d at 337; see InterFirst Bank San Felipe, N.A.
v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986) (stating that requirements of Rule 683 are mandatory and must be strictly
followed); In re Corcoran, 343 S.W.3d 268, 269 (Tex.App.-Houston [14th Dist.] 2011, orig. proceeding) (“Agreed Mutual
Temporary Injunction” order was void because it did comply with Rule 683); In re Garza, 126 S.W.3d 268, 273 (Tex.App.-
San Antonio 2003, orig. proceeding) (temporary injunction order that does not comply with Rule 683 is void); Kaufmann v.
Morales, 93 S.W.3d 650, 656 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (“This provision [in Rule 683] is mandatory; a
failure to include a trial setting is grounds for voiding the injunction.”).

 [3] [4] The trial court has broad discretion to grant or deny a motion to dissolve a temporary injunction. Tex. State Optical,
Inc. v. Wiggins, 882 S.W.2d 8, 11–12 (Tex.App.-Houston [1st Dist.] 1994, no writ) (citing Cellular Mktg. v. Houston Cellular
Tel. Co., 784 S.W.2d 734, 735 (Tex.App.-Houston [14th Dist.] 1990, no writ)). On appeal, our review is limited to the narrow
question of whether the trial court abused its discretion in denying the motion to dissolve. Cellular Mktg., 784 S.W.2d at 735.
A trial court abuses its discretion only if it reaches a decision so arbitrary and unreasonable that it amounts to a clear and
prejudicial error of law or if it clearly fails to correctly analyze or apply the law. Intercontinental Terminals Co. v. Vopak N.
Am., Inc., 354 S.W.3d 887, 892 (Tex.2011).



                                                           2. Analysis

Haun acknowledges that the temporary injunction order does not comply with Rule 683, but argues the Conlins are estopped
from challenging it because they agreed to it. The San Antonio court of appeals considered a nearly identical argument in In
re Garza, 126 S.W.3d 268 (Tex.App.-San Antonio 2003, orig. proceeding) and rejected it, holding that an agreed temporary
injunction order that does not comply with Rule 683 is “fatally defective and void” and that “a party who agrees to a void order
has agreed to nothing.” 126 S.W.3d at 271. Accordingly, the court held that the agreed temporary injunction order at issue in



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Conlin v. Haun, 419 S.W.3d 682 (2013)
37 IER Cases 488

that case was void. Id. at 273. In so holding, In re Garza explicitly rejected another case relied upon by Haun, Henke v. Peoples
State Bank of Hallettsville, 6 S.W.3d 717 (Tex.App.-Corpus Christi 1999, pet. dism'd w.o.j.), which held that, while failure to
comply with Rule 683 was fundamental error, the fact that the appealing party had agreed to the order meant the party was
estopped from challenging the order based on that error.

Haun argues that In re Garza “fails to follow one Texas Supreme Court case and clearly misinterprets another case” and “is
not binding on this Court.” The first Texas Supreme Court case Haun references, Reiss v. Reiss, 118 S.W.3d 439 (Tex.2003),
did not address the validity of temporary injunction orders in any way. The In re Garza court specifically considered whether
Reiss controlled and concluded it did not. 126 S.W.3d at 273. The second Texas Supreme Court case, Qwest Commc'ns Corp.
v. AT & T Corp., 24 S.W.3d 334 (Tex.2000), held that a temporary injunction order that does not comply with the mandatory
requirements of Rule 683 is *687 “subject to being declared void and dissolved.” Id. at 337. Haun argues this means that the
agreed order in this case is merely voidable, and not void, and that a party who has agreed to a voidable order may not attack
that order on appeal. The In re Garza court rejected this argument, holding that Qwest clearly stated that an order that failed
to comply with Rule 683 was void. In re Garza, 126 S.W.3d at 273.

 [5] Our sister court, the Fourteenth Court of Appeals, has followed In re Garza and held that an “Agreed Mutual Temporary
Injunction” order that did not comply with the mandatory requirements of Rule 683 was void and must be dissolved. See In re
Corcoran, 343 S.W.3d at 269. We likewise find In re Garza persuasive and follow it and In re Corcoran here. Accordingly,
the Conlins are not estopped from complaining about the “Agreed Temporary Injunction” order's failure to comply with the
mandatory requirements of Rule 683. Here, it is undisputed that the order does not set the case for trial. Accordingly, we
conclude the Agreed Temporary Injunction must be dissolved. See Intercontinental Terminals Co., 354 S.W.3d at 892; Qwest,
24 S.W.3d at 337; In re Corcoran, 343 S.W.3d at 269; In re Garza, 126 S.W.3d at 273; Kaufmann, 93 S.W.3d at 656.

We sustain the Conlins' first issue. Because we have concluded that the temporary injunction order must be dissolved, we do
not reach the Conlins' second issue.



                                                          Conclusion

We reverse the trial court's order denying the Conlins' motion to dissolve and remand with instructions to the trial court to
dissolve the temporary injunction. All pending motions are denied as moot.


Parallel Citations

37 IER Cases 488


Footnotes
1      See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(4) (West Supp.2013) (authorizing interlocutory appeal of order denying
       motion to dissolve temporary injunction).


End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  5
Cummings v. Powell, 8 Tex. 80 (1852)




                                                          8 Tex. 80
                                                    Supreme Court of Texas.

                                                       CUMMINGS
                                                           v.
                                                   POWELL AND OTHERS.

                                                                1852.

Opinion

 *80 A void act is one which is entirely null, not binding on either party and not susceptible of ratification; and a voidable act
is one which is obligatory upon others until disaffirmed by the party with whom it originated, and which may be subsequently
ratified or confirmed.

The difference between the Spanish and the common law, in respect to the terms “null” and “void” in their application to the
contracts of minors, &c., discussed.

The tendency of decisions, for a century at least, has been for the extension *81 of the rule that the acts of infants shall be
deemed voidable only, and subject to their election either to affirm or disallow them.

On examination of the authorities, and with due regard to the object to be attained by the privilege of the infant, viz, his
protection, we are justified in concluding that any delivery of a deed or thing granted which, if done by an adult, would pass
the title, will, if done by an infant, be voidable but not void; and that if the semblance of benefit be regarded as a criterion, the
more rational and consistent rule would be that the act should not be deemed void unless it was one of those which, as a general
principle, for the benefit of the infant had better be deemed void than voidable.

Quere? As to whether an infant's power of attorney is void or merely voidable.

The sale and delivery of chattels by a minor may be avoided while under age; but the sale of real estate by a minor cannot
be avoided on the ground of infancy merely until after he arrives at full age, although it seems he may enter and enjoy the
rents and profits.

No case has been cited in which an infant has by himself or guardian attempted, while within age, to recover lands passed from
him by an executed conveyance on the ground of infancy merely, and it is probable that none such can be shown.

Quere? Where an infant has sold real estate, and after arriving at full age wishes to avoid the sale, whether he ought not to give
notice of his intention to disaffirm before bringing suit.

Where it is sought to set aside a sale of real estate on the ground of infancy, there should be an offer to restore the purchase-
money. (Note 19.)

Error from Walker. The plaintiffs in error, viz, Elem and James Cummings, being minors, sued by their guardian for the
undivided two-thirds of a half league of land, alleging that they had been with their adult brother, William Cummings, joint
owners of the half league, and that in the year 1846 the defendant James Powell had fraudulently procured them to join with
their said brother in a sale of the said land to the said defendant, and that the latter had since sold portions of the same to the
other defendants who were holding, using, and cultivating the same.

They prayed that their deed to Powell, so far as it affected their interests, be declared void; that the deeds from Powell to his
co-defendants be set aside; that partition be made and *82 petitioners be put into quiet and peaceable possession of their
respective shares.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
Cummings v. Powell, 8 Tex. 80 (1852)




The defendants demurred generally, and filed other pleas not necessary to be noticed. The demurrer was sustained and the
petition dismissed.


 West Headnotes (6)


 [1]    Infants       Requisites, Validity, Operation, and Effect
        Infants       Avoidance and disaffirmance
        A minor's deed is merely voidable, and conveys title until disaffirmance upon reaching majority.

        13 Cases that cite this headnote


 [2]    Infants       Ratification and affirmance
        Under the laws of Spain a sale of a minor's real property becomes valid by assent and approbation of the minor after
        attaining adult age.

        5 Cases that cite this headnote


 [3]    Infants       Time for ratification or avoidance; lapse of time
        A deed of land executed by an infant cannot be avoided until he comes of age, although he may enter and take the
        profits in the meantime.

        Cases that cite this headnote


 [4]    Infants       Retention or return of property or consideration
        The return of the consideration is a condition precedent to the disaffirmance of a conveyance of land executed by
        an infant.

        1 Cases that cite this headnote


 [5]    Infants       Requisites, Validity, Operation, and Effect of Contracts
        A contract to an infant's prejudice is void. One to his benefit is good; but, if of an uncertain nature as to benefit or
        prejudice, it is voidable only, at the election of the infant.

        7 Cases that cite this headnote


 [6]    Infants       Goods, Property, and Merchandise
        The contract of an infant in relation to personal property may be avoided by him during his minority.

        Cases that cite this headnote




Attorneys and Law Firms

Yoakum and McCreary, for plaintiffs in error.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
Cummings v. Powell, 8 Tex. 80 (1852)




The ground taken by the defendants below and sustained by the court in dismissing the suit is, that the deed made by the minors
is not void but only such as may be avoided by them on attaining their majority.

But the guardian, we contend, is not bound to sit down and see his wards stripped of their possessions by their own deeds; but he
has the right, and it is his duty, to take care of their estate, and account for rents and profits. Hence the right to control and avoid
any of those acts which could dispossess them, and to sue for and recover their property; to eject trespassers, and do everything
for them which they could do to protect their own interests if they were of lawful age. The guardian is the legal representative
of the infant. Clerke says, speaking of infants, “His acts are either void or voidable. This distinction is not conclusively settled,
although the opinion of Lord Chief Justice Eyre is regarded with much satisfaction, that when the court could pronounce the
contract to be prejudicial to the infant, it was void; when beneficial, valid; when of dubious benefit or prejudice, voidable only
at his election.” (Rudiments and Practice, p. 57.) According to this view of the case, when the infant, by his legal representative,
elects to declare the deed void, will the court undertake to say, upon looking at the petition, that it is beneficial and valid? The
court below, having high chancery jurisdiction, will protect the rights of infants, being their guardian. But we think by the law
the deed to Powell is void and not voidable. Story says, “And in respect to the acts of infants of a more solemn nature, such
as deeds, gifts, and grants, this distinction *83 has been insisted on; that such as do take effect by delivery of his hand are
voidable; but such as do not so take effect are void.” (Eq. vol. 1, sec. 241; see authorities there cited, Zouch v. Parsons, 3 Burr.
R., 1794; Perkins, sec. 12; 8 Am. Jurist, 327, et seq.) Nor is it necessary to aver specific fraud. The act itself is a fraud. (1 Story's
Eq., sec. 242.) So far as the opinion of the civilians is of weight, they are decided on the point. Grotius places a contract with
an infant on the same footing with one made with a lunatic or an idiot. (De jure Belli. Grot., B. 2, ch. 11, sec. 5; so also the
Institute, Lib. 3, Tit. 20, secs. 8 and 10; Dig., Lib. 50, Tit. 17; Paudicts, B. 2, Tit. 38, p. 216, et seq.

In the different States many conflicting authorities are found. In Connecticut, unless the contracts have a semblance of advantage
to the infant, they are void, (4 Day, 59; 6 Conn., 494;) North Carolina, (1 Hayw. R., 143; Hoyle v. Stowe, 2 Dev. & Batt. R.,
320;) Maryland, (Fudge v. The State, 3 Gill. & Johns. R., 103; 11 Id., 314; Salmon v. Claggett, 3 Bland Ch. R., 125; (New
York, (Bool v. Mix, 17 Wend. R., 119;) but still the infant may enter and take profits; (Stafford v. Root, 9 Cowen, 626; Roof
v. Stafford, 7 Id., 22,) decided both ways.

An infant's legal representatives can avoid a deed made by the former. (Roberts v. Wiggin, 1 N. H. R., 73. Clerke lays down
the same rule. (Rud. and Practice, 57.

All the books say there must be an affirmance; and the most of them say it must be express. (19 Wend. R., 301; 14 Johns. R., 124.)

In the case of Wheaton v. East, (5 Yerg. R., 41,) the doctrine is laid down that the contract is voidable. Yet the court heard all
the proof to show the consideration; that it was fair and full; that the minor wanted but a few months of his majority when he
made the contract, and did not bring his suit for nearly four years after the sale.

The petition, in asking that the deed to Powell be declared void, and that they be remitted to the possession of the premises,
 *84 asks nothing inconsistent with either view of the law. They aver in their petition that Powell fraudulently procured them
to join with their brother William in the execution of the deed of the 15th May, 1846; that they were then, and still are, minors;
they aver no sale; no considerations; but charge that Powell fraudulently procured them to execute the deed.

The fact of their infancy is a badge of fraud. (1 Story's Eq., sec. 242, above cited.) The petition certainly shows sufficient on
its face to authorize the court below to hear the proof. Whether the deed be void or voidable the guardian can avoid it. Can he
do it in any other way than by asking the court in behalf of his wards to set it aside? Or can he be justified in submitting to
the adverse possession of the defendants, and permitting them to reap the fruits and destroy the lands and timber till his wards
come of age? Suppose his wards were to call him to account for the way he had managed their estate, would he be excused
by setting up this conveyance to Powell? The adoption of such a principle would release every guardian who chose to have
his ward's property wasted. (6 Rand. R., 556.)

If the guardian or his wards wished to disaffirm a sale made by his wards, a suit is conclusive evidence of that disaffirmance.
(Sellars v. Davis, 4 Yerg. R., 506.)


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Cummings v. Powell, 8 Tex. 80 (1852)




Perhaps there is not a case in the books where a guardian could be excused on such grounds. And the court below, sitting as a
court of equity, if it would not avoid the deed of the minors, should at least have remitted them to the possession and given it to
the guardian for the debts of the minors for necessaries, for expenses of guardianship, &c. But if he is estopped by their deed,
a guardian is liable to be defrauded by a stranger's meddling with the estate of his wards, and has no remedy.

HEMPHILL, CH. J.

The ground upon which the demurrer was supported below, and which has been urged, is that the *85 deed made by the minors
was not void, but voidable, and could be avoided by them only after attaining majority.

We will consider, in the first place, whether the deed be void or voidable. It is important to ascertain the exact signification of
these terms, as upon that depends the character of the act, and the rights, obligations, and liabilities of parties and of strangers to
the transaction. A void act, as defined in the latter cases and by approved authorities, is one which is entirely null, not binding
on either party, and not susceptible of ratification; and a voidable act is one which is obligatory upon others until disaffirmed
by the party with whom it originated and which may be subsequently ratified or confirmed. Such is the import of these terms;
but on examining the earlier cases it will be found that they were frequently confounded. The term void was frequently used
when it was intended to imply only that the act was not binding, or that its obligation might be avoided by the infants. (Bingham
on Infancy, p. 18.)

As questions growing out of the acts of minors, under our former laws, may and will arise, it may be well to remember that the
distinction between void and voidable, as recognized by the authorities at common law in relation to this special subject, is not
known to Spanish jurisprudence; at least a void act is not characterized by all of the same incidents.

For instance, one of the results of the nullity of an act of a minor at common law is stated to be its unsusceptibility of ratification.

No such consequence follows under the laws of Spain. If a sale, for instance, of a minor's real property be absolutely null for the
want of indispensable legal solemnities, it may, nevertheless, be either expressly or tacitly ratified. Whether the act be prima
facie good, the sale having been attended with all legal formalities, yet subject to avoidance on the ground of lesion, or whether
it be absolutely null for the want of any of these formalities, is immaterial. In either case it becomes valid by the assent and
approbation of the minor after attaining *86 adult age. (10 Mart. R., 276; Febrero, vol. 5, pp. 379-80.) The reason of the rule
is very satisfactory. The privilege for avoiding for lesion, or of considering the contract void when nullities have intervened, is
in either and in both cases for the benefit of the minor. His interests are consulted. The rule is designed for his protection, and
consequently he may waive or renounce his privilege when he deems it advantageous to his interest. (Febrero, vol. 5, p. 378.) It
is a general principle of the Spanish law that any person who has the capacity to dispose of his property by contract, will, &c.,
may by his voluntary act renounce a present or future right. (Febrero, vol. 2, p. 248.) There are some exceptions to this rule; as,
for instance, the right to a future succession cannot be alienated, as this might induce schemes to compass the death of the present
owner and affect the free exercise of his testamentary power. But, as a necessary result of the capacity conferred by law, a party
may renounce the privileges consequent upon the nullity of contracts or sales made by him during infancy. There are nullities,
however, which cannot be cured by ratification, as in the instances above cited, or where the stipulations are in derogation of
good morals or public order or policy; but nullities for the benefit of individuals may be renounced and the contracts validated
by their express or tacit confirmation. (3 Annual R., 328; Meares v. Robinson and Wife, decided at this term.)

These observations are made that there may be no misapprehension as to the force or precise meaning of the terms “void” or
“null,” when used with reference to the acts of minors as affected by the laws of Spain, and the modification of that meaning
when employed with reference to their acts under the common law.

Notwithstanding the many attempts of the bench, the profession, and jurists to elucidate the subject, yet the questions as to what
acts of minors shall be regarded as void and what voidable, and what the criterions by which the precise character of their acts
shall be determined, remain involved in doubt and difficulty. *87 Some of their contracts, as for instance, for necessaries, are
valid, and consequently binding on both parties. So far everything is clear. There is no doubt about the standard of validity. But
when these confines are passed, confusion, uncertainty, and conflict of opinion begin to prevail, and we are left in doubt, not


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Cummings v. Powell, 8 Tex. 80 (1852)


only as to what acts shall be regarded void and what voidable, but as to the grounds or tests by which they shall be adjudged
the one or the other.

The tendency of decisions, for a century at least, has been for the extension of the rule that the acts of infants shall be deemed
voidable only, and subject to their election either to affirm or disallow them. (2 Kent's Comm., 193.) Where a deed has been
delivered, its character of voidability has by some been placed on the ground of the solemnity of the instrument, and by others
that there is a semblance of benefit to the infant from the matter of the deed upon the face of it. In Zouch v. Parsons, 3 Burr,
1794, these points were discussed, and though this case has been questioned as authority in England, yet its doctrines have
been sanctioned in the various courts of the United States, and have received a more liberal extension in their decisions on the
subject-matter. In that case, in relation to the effect of the solemity of the instrument, the following rule from Perkins was cited
with approbation: “All such gifts, grants, or deeds made by infants, which do not take effect by delivery of his hand, are void;
but all gifts, grants, or deeds made by matter in deed, or in writing, which do take effect by delivery of his hand, are voidable
by himself, his heirs, and by those who have his estate.” And the court says that the words “which take effect” are an essential
part of the definition, and exclude letters of attorney or deeds which delegate a mere power and convey no interest; that there
was no difference between a feoffment and deeds which convey an interest, for the reason that the delivery of the deed must
be in the presence of the witnesses as much as the living assignee; the ceremony is as solemn; the presumption that the witness
would not attest, if they saw in him an infant, applies equally to both. *88 “Powers of attorney are an exception to the general
rule that the deeds of infants are only voidable, and a power to receive seizure is an exception to that. The end of the privilege
is to protect infants, and to that object all the rules and their exceptions must be directed.” But be the point as to the solemnity
of the delivery as it may, (and there were respectable sayings the other way,) the court held that it was not necessary to their
determination, for they were all of opinion that the consideration received and other circumstances of the transaction showed a
semblance of benefit to the infant sufficient to make it voidable only upon the matter of the conveyance.

Reeves, in his Treatise on Domestic Relation, expresses the rule in the following terms: “Purchases by an infant are voidable.
Conveyances are voidable only when they take effect by delivery; but if the infant's privilege will not be sufficiently protected
by considering them as voidable, they are void. Executory contracts are all voidable only. There is no contract executed or
executory but what is voidable only if the contract has taken effect by delivery, excepting cases of delegated powers.” (P. 254.)

This last position is questioned in 14 Mass., 462, and it was said that “no satisfactory reason can be assigned for the position
that a power of attorney, executed by an infant, was absolutely void, and that, perhaps, it might be assumed as a principle that
all simple contracts by infants which are not founded on an illegal consideration are, strictly, not void, but only voidable. They
remain a legal substratum for future assent, until avoided by the infant; and if, instead of avoiding, he confirm them when he
has a legal capacity to make a contract, they are, in all respects, like contracts by adults.”

The justness of the views presented in this opinion is very striking, and they apply with special force to the condition of property
in this State. The lands of individuals are frequently situate in counties remote from each other and from the residence of the
owner.

It is a matter of great convenience, if not of absolute necessity, *89 that sales should be effected by agents, and it seems quite
preposterous that a sale by a minor, which must necessarily or may most conveniently be made through the intervention of an
attorney in fact, should be void, but if made by himself would only be voidable. His infancy, instead of operating beneficially,
would, under such circumstances, be perverted to his injury. If the act be void, it is not binding on others; and if the property
depreciate after the sale, it might be thrown back upon his hands, and his infancy would then be turned against him, and, instead
of shielding himself, would protect others.

It is impracticable, under the circumstances, to review all or many of the decisions on the question now under discussion. The
subject is still involved in obscurity. The test of the character of the act, as dependent upon manual delivery of the deed, has
very little foundation in reason. It can afford but a very flimsey protection, which is the object of the rule; and it is repudiated by
Bingham in his admirable treatise on Infancy, p. 10; and he refers to an instance of an act by an infant which does not take effect
by delivery of his hand, but which is not void; and that is the case of a parol lease for years. Upon this the infant can recover
for rent in arrear, which he could not do if the act were void; and further, that this criterion comprehends only gifts, grants,



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Cummings v. Powell, 8 Tex. 80 (1852)


and deeds, and is not sufficiently extensive for general application. The remaining test, that there must be some semblance of
benefit to an infant, is apparently better adapted to the protection of the infant, and is better supported by the authorities.

The rule is expressed by Chief Justice Eyre, in Keane v. Boycott, (2 H. Bl. R.,) in the following terms: “When the court can
pronounce the contract to be to the infant's prejudice, it is void; and when to his benefit, as for necessaries, it is good; and when
the contract is of an uncertain nature, as to benefit or prejudice, it is voidable only, at the election of the infant.”

This is something better than the test arising from the solemnity *90 of the instrument. But there may be contracts which a
court may deem prejudicial to the infant, but which he, for good reasons, may know to be otherwise. And in such case, if the act
be void, its benefits cannot be made available at his election. It is not binding on the other party, and he may refuse compliance
with its obligations. Perhaps it would be more consonant with sound policy to hold that none of the acts of an infant should be
deemed void on the mere technical ground of infancy alone, but that they should be held binding on others, and voidable at the
election of the infant, unless they be such as by the policy of the law are deemed and held to be valid.

This is apart from cases where actual fraud exists or advantage is taken of the minor's imbecility. In all such the contracts
would be void; and so they would be where the consideration was illegal, or against public policy, or incompatible with the
confidential relations existing between the minor and others.

On examination of the authorities, and with due regard to the object to be attained by the privilege of the infant, viz, his
protection, we are justified in concluding that any delivery of a deed or thing granted, which, if done by an adult, would pass the
title, will, if done by an infant, render it voidable but not void; and that if the semblance of benefit be regarded as a criterion, the
more rational and consistent rule would be that the act should not be deemed void unless it was one of those which, as a general
principle, it would be better for the infant that they should be deemed void than voidable. As to what contracts of infants are
void and what voidable, see 4 Day R., 59; 6 Conn. R., 494; 1 Hayw. R., 143; 3 Gill & Johns. R., 314; 1 J. J. Marsh, R., 236; 5
Yerg. R., 41; 14 Mass. R., 462; 13 Id., 239; 7 Cow. R., 22; 9 Id., 126; 17 Wend. R., 119.

It is very clear, then, that this deed, having been delivered as deeds usually are delivered by adults, and having also a semblence
of benefit on the face of it to the infant, must be *91 regarded as not void, but only voidable; and the question then arises
whether it can be avoided, by guardian or by themselves, before their attaining full age.

Upon principle it would seem that if an act of an infant be only voidable and be binding upon the other party until it is avoided,
that the act of disaffirmance must be by the infant himself on attaining mature age. That it can be avoided at all is owing to
the want of legal discretion in the infant at the time of its execution; and this continues during his nonage, and renders his
affirmance or disaffirmance before majority of no avail.

In Oliver & Clapp v. Howdlet, (13 Mass. R., 237,) it was said by the court that they knew of no position of law which gave
the guardian of the minor authority to disaffirm purchases made by the minors; that the sales had the semblance of benefit
to the vendees, and that the authority of guardians extending only to such things as may be for the benefit and advantage of
their wards, they could not avoid contracts from which they derive benefit, for this, being injurious to the infant, would be a
violation of the guardian's duty.

The question under consideration has been discussed and elaborately investigated in the courts of New York.

In Roof v. Stafford, (7 Cowen, 179,) which was an action of trover brought for the recovery of a horse sold by a minor, the
plaintiff suing by guardian, the Supreme Court held that the contract was not voidable until the infant came of age. An extensive
review was taken of the authorities in relation to the time at which an infant can avoid a conveyance of his lands. In Zouch v.
Parsons (3 Burr. 1794,) it was said that an infant could not avoid such conveyance until arriving at twenty-one years of age.
This is said to follow, because, if it were otherwise, he might also bring a writ analogous to a dum fuit infra œtatem, and so
conclude his right upon the record. Other books give the same reason, and say the matter should remain open until he comes
of age and is legally capable of thinking over what he has done. (4 Cruise's Dig., 17 Deeds, § 12.) These *92 and other books
advance the doctrine in qualified terms, (Co. Lit., 302; 8 Taunt., 40, 41, 42; Com. Dig., ENFANT, (C. 4,) stating that the infant
may avoid when he comes of age.


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Cummings v. Powell, 8 Tex. 80 (1852)




The judgment of the Supreme Court was reversed in the court of errors. (9 Cowen 628.) In the opinion given by the chancellor
it is said, “the general rule is that an infant cannot avoid his contract executed by himself, and which is therefore voidable only
while he is within age. He lacks legal discretion to do the act of avoidance. But this rule must be taken with the distinction
that it shall not work unavoidable prejudice to the infant, or the object of his privilege would not be answered. When applied
to a sale of his property it must be to his land, a case in which he may enter and receive the profits until the power of finally
avoiding shall arrive.” The true rule was said to be that where the infant can enter and hold the subject of the sale till his legal
age, he shall be incapable of avoiding till that time; but where the possession is changed, and there are no legal means to hold
and regain it in the meantime, the infant, or his guardian for him, has the right to exercise the power of rescission immediately;
that the common law gave no action or other means by which the mere possession of personal property could be reclaimed
and held subject to the right of avoidance.

The sum of the doctrines held by both courts in this case in relation to conveyances of lands by a minor is, that they cannot be
avoided until after the minor arrives at full age, though he may enter and take the profits in the meantime, but that the sale and
delivery of chattels by a minor may be avoided while under age.

The whole subject in relation to the character of the acts of infants, and the time and manner in which they may be avoided,
was thoroughly canvassed in the case of Bool v. Mix, 17 Wendell, 119, and it was said that the general rules vary; that the act
in pais of an infant may be avoided by some other act of equal solemnity and notoriety. It may also be avoided by a writ of dum
fuit infra œtatem; but that it cannot be *93 avoided until the infant becomes of age, though he may enter and take the profits;
that some of the old books say that an infant may avoid his deed by entry before he becomes of age, but such is not the doctrine
of the present day. He may enter and take the profits until he has the legal capacity to affirm or disaffirm the deed, but the deed
is not rendered void by the entry; it may still be confirmed after he arrives at full age.

No case has been cited in which an infant has, by himself or guardian, attempted, while within age, to recover lands passed from
him by an executed conveyance, and it is probable that none such can be shown; otherwise it would, doubtless, have been cited
in support of the plaintiffs. It is very doubtful whether in cases of this character a formal demand, even if the infant had attained
majority, should not have been made for possession before the bringing of suit. The deed of the infant was only voidable, and
until avoided the defendant is not a trespasser. His possession is rightful, and it would seem that he should have some notice
of the intention to disaffirm the contract. But this point is left open.

Another ground which might have been taken in support of demurrer is this, that there was no offer on the part of the plaintiffs
to restore the purchase-money which they had received from the defendant Powell on the sale. This is the rule under the laws
of Spain, (vide Febrero, vol. 5, p. 379) and it has received the sanction of the courts of some of the States, eminent for their
wisdom and authority. It is characterized by honesty, and enforces rectitude of conduct in transactions between individuals,
and, as a general rule, it will be recognized and enforced by this court. See Reeve's Dom. Rela., 243-249; 15 Mass. R., 359; 1
N. H. R., 73-75; 5 Sergt. & Rawle's R., 309, 313; 7 Cow. R., 183.

We are of opinion that there is no error in the judgment, and it is ordered that the same be affirmed.

Judgment affirmed.

NOTE 19.--Kilgore v. Jordan, 17 T., 341; Stuart v. Baker, 17 T., 417.


Parallel Citations

1852 WL 3911 (Tex.)

End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    7
David Jason West and Pydia, Inc. v. State, 212 S.W.3d 513 (2006)




                                                      212 S.W.3d 513
                                                 Court of Appeals of Texas,
                                                          Austin.

                   DAVID JASON WEST AND PYDIA, INC. d/b/a www.bankopp.com, Appellants,
                                                 v.
                                      STATE of Texas, Appellee.

                                          No. 03–05–00724–CV.        |    July 21, 2006.

Synopsis
Background: State brought action against individual and business, alleging violations of the Deceptive Trade Practices–
Consumer Protection Act (DTPA) arising out of defendants' offers to eliminate consumers' debt. The District Court, Travis
County, 353rd Judicial District, Margaret A. Cooper, J., granted State's motion for supplemental restraining order, freezing
defendants' funds, and supplemental temporary injunction maintaining the freeze on the account. Defendants appealed.



Holdings: The Court of Appeals, Bob Pemberton, J., held that:

[1] State demonstrated a probable right to recovery;

[2] sufficient evidence supported findings that defendants violated DTPA and that temporary injunction was in the public
interest;

[3] temporary injunction complied with statutory requirements under the DTPA; and

[4] temporary injunction satisfied specificity requirement of Rules of Civil Procedure.


Affirmed.



 West Headnotes (8)


 [1]    Injunction       Preservation of status quo
        The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending trial on
        the merits.

        Cases that cite this headnote


 [2]    Appeal and Error         Injunction
        Appeal and Error         Refusing injunction
        Because the decision to grant or deny a temporary injunction lies within the sound discretion of the trial court, the
        Court of Appeals will not disturb that decision absent a clear abuse of discretion.

        1 Cases that cite this headnote



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David Jason West and Pydia, Inc. v. State, 212 S.W.3d 513 (2006)




 [3]    Appeal and Error         Injunction
        When reviewing a trial court's decision to grant or deny a temporary injunction, the Court of Appeals views the
        evidence in the light most favorable to the trial court's order, indulging every reasonable inference in its favor.

        1 Cases that cite this headnote


 [4]    Antitrust and Trade Regulation           Credit repair and counseling
        Debt elimination service offered by business was that of a credit services organization, rather than a loan and was,
        thus, subject to the Deceptive Trade Practices–Consumer Protection Act (DTPA), such that State demonstrated a
        probable right to recovery in its DTPA action against business, in support of its motion for a temporary injunction
        freezing business's assets, where business advertised a “banking opportunity” on radio, in a telephone message, and
        on the Internet, offering debt elimination, for $5,000, to any “U.S. Citizen” for any type of debt through a “loan” that
        would not require repayment. V.T.C.A., Bus. & C. §§ 17.46(a, b), 17.47.

        1 Cases that cite this headnote


 [5]    Injunction       Irreparable injury
        Injunction       Adequacy of remedy at law
        Probable injury, as required for issuance of a temporary injunction under the common law, includes elements of
        imminent harm, irreparable harm, and lack of an adequate remedy at law.

        10 Cases that cite this headnote


 [6]    Antitrust and Trade Regulation           Credit repair and counseling
        Sufficient evidence supported trial court's findings that business that advertised “banking opportunity,” offering debt
        elimination for $5,000, may have been violating the Deceptive Trade Practices–Consumer Protection Act (DTPA), and
        that State's efforts to freeze business's assets were in public interest, as required for issuance of temporary injunction
        under the DTPA provision governing restraining orders and injunctions; business's Internet site contained repeated
        assertions that participants would not repay bank because loans would be forgiven, and evidence showed that account
        to which participants' $5000 had been transferred belonged to business's owner. V.T.C.A., Bus. & C. § 17.47(a).

        Cases that cite this headnote


 [7]    Antitrust and Trade Regulation           Particular cases
        District Court's temporary injunction freezing business's assets, complied with statutory requirements for temporary
        injunctions issued under the Deceptive Trade Practices–Consumer Protection Act (DTPA), where court found that
        business may have been violating the DTPA through its “banking opportunity,” and that the temporary injunction
        was in the public interest. V.T.C.A., Bus. & C. § 17.47(a, b).

        Cases that cite this headnote


 [8]    Antitrust and Trade Regulation           Particular cases
        District Court's temporary injunction freezing business's assets, satisfied specificity requirement of the Rule of Civil
        Procedure governing the form and scope of temporary injunctions, where court found that, unless business was
        “immediately restrained from the acts prohibited,” business would “dissipate funds obtained from consumers through




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
David Jason West and Pydia, Inc. v. State, 212 S.W.3d 513 (2006)


         misrepresentations in violation of the Deceptive Trade Practices Act” (DTPA). V.T.C.A., Bus. & C. § 17.47(a);
         Vernon's Ann.Texas Rules Civ.Proc., Rule 683.

         1 Cases that cite this headnote




Attorneys and Law Firms

*514 Mark D. Hopkins and C. Wilson Shirley, III, Savrick, Schumann, Johnson, McGarr, Kaminski & Shirley, Austin, for
Appellants.

David M. Ashton, Mary Taylor Henderon, Nanette Marie Dinunzio, Asst. Atty. Gen., Austin, for Appellees.

Before Chief Justice LAW, Justices PURYEAR and PEMBERTON.



                                                             OPINION

BOB PEMBERTON, Justice.

In this interlocutory appeal, we must determine whether the district court abused its discretion by granting the State's request for
a supplemental temporary injunction and asset freeze against appellants, David West and Pydia, Inc. d/b/a www.bankopp.com
(collectively “West”). In three issues, West asserts that the district court erred by granting *515 the temporary injunction
because the State did not demonstrate (1) a probable right to recovery or (2) a probable injury, and (3) the order did not
specifically state the reasons for its issuance. Because we hold that the district court did not abuse its discretion, we affirm the
supplemental temporary injunction order.



                                                         BACKGROUND

At the supplemental temporary injunction hearing, the court admitted evidence of a printed copy of West's Web site, testimony
from an investigator employed by the Consumer Protection and Public Health Division of the Texas Attorney General's office,
and documents from Hibernia National Bank in Baton Rouge provided in response to the State's civil investigative demand. The
investigator's testimony and the Web site evidence revealed that West used an Austin radio commercial, a recorded telephone
message (identified as a “phone overview”), and a Web site to advertise meetings at a local hotel about a “banking opportunity”
that would allow any “U.S. Citizen” to pay off all personal debt—including “credit cards, mortgages, student loans, vehicles,
loans, IRS settlements, and back child support”—before December 31, 2005, by securing a “loan” from an unnamed bank.
West's “www.bankopp.com ” Web site also stated that “David [West] found a Bank that is willing to give individuals loans to
pay off their debts. Then the Bank is willing to turn around and forgive that loan so it doesn't have to be paid off.” It asserted that
“two little known banking practices ... Fractional Banking and Forgiven Loans” made this “one shot opportunity” possible. The
site claimed that although “this opportunity is legal,” the “Federal Reserve will undoubtedly close the loopholes that allowed the
project to take place this once. While the system intended on well connected, wealthy individuals to be able to take advantage
of this, it was never intended that regular every day people would gain access to it.”

The site further claimed that the unnamed bank had agreed to pay off $100 million in debt and that “[the] project is about David
[West]'s looking for others to add their debt to the pile David started.” The idea was to accumulate $100 million in debt for
the bank to “fractionalize then forgive” so that “the bank can make money and the folks with David can get out of debt.” The
site claimed that, after “David told his 10 closest friends about the project,” word spread quickly throughout Louisiana and
Mississippi. The site also explained that West accelerated its marketing of the project following Hurricane Katrina:



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David Jason West and Pydia, Inc. v. State, 212 S.W.3d 513 (2006)




             After Hurricane Katrina hit the area he had been putting the word out in, David switched gears to Radio
             advertising across the South and is now starting a hectic schedule of FREE open meetings in major
             Southern Cities. These Open Meetings will have hundreds of people in attendance and are expected to
             help reach[ ] the goal of $100 Million in debt before Thanksgiving. This would leave plenty of time for
             the bank to pay before December 31st (the bank only needs 10 business days).


As a signal of their “commitment to be involved with the project,” the site asked participants to deposit a wire transfer of
$5,000 to a bank account in Panama, or to the “Del Sur International Holdings” account with Hibernia National Bank in Baton
Rouge. According to the site, after the money was submitted, the bank would perform a financial analysis and might contact
the participant to discuss any issues: “[T]he bank will analyze each project member's debt and provide feedback if there are
concerns.” Also after wiring their $5,000 “commitment/deposit money,” the site stated that participants would receive *516
a document “guarantee[ing] that the loan that [they] are signing will be forgiven and that [they] will not have to pay it back!”
Visitors to the Web site were not informed that the Del Sur International Holdings account, to which the $5,000 wire transfers
were directed, was the sole proprietorship of David West.

The State filed suit under the Deceptive Trade Practices–Consumer Protection Act, Tex. Bus. & Com.Code Ann. §§
17.46(a)-(b), .47 (West Supp.2005) ( “DTPA”) against David West, Roxana Suadi West, 1 Carlos M. Suadi, and Pydia, Inc. d/b/
a www.bankopp.com, seeking civil penalties and injunctive relief based on the debt elimination “service for sale to consumers.”
The State obtained a temporary restraining order and temporary injunction against West, preventing any further marketing in
Texas of the “banking opportunity.” 2

After learning that David West attempted to withdraw all funds from the Baton Rouge account to which the participants' $5,000
wire transfers had been directed, 3 the State obtained a supplemental restraining order, freezing the funds in the Hibernia
bank account. The State also sought to convert the supplemental restraining order into a supplemental temporary injunction,
maintaining the freeze on the account. Following a hearing on October 25, 2005, the district court entered an order preventing
David West, Roxana Suadi West, Carlos M. Suadi, and Pydia, Inc. d/b/a www.bankopp.com from accessing the Hibernia bank
account.

Specifically, the order enjoined them (and those associated with them) from

  • transferring, spending, hypothecating, concealing, encumbering, withdrawing, removing or allowing the transfer, removal,
     or withdrawal of any funds from Account # [ ], held at Hibernia National Bank; and

  • transferring, spending, hypothecating, concealing, encumbering, withdrawing, removing or allowing the transfer, removal,
     or withdrawal of any funds from any other financial institution and/or account into which Defendants have placed or caused
     to be placed, funds from consumers to participate in Defendants' “bank opportunity.”

The order also set the case for trial.

West appeals only from the district court's October 25 supplemental temporary injunction order that froze the assets in the
Hibernia bank account. It asserts that the district court abused its discretion by entering the supplemental temporary injunction
because the State did not demonstrate (1) a probable right to recovery or (2) a probable injury, and (3) the order did not
specifically state the reasons for its issuance. We consider each of these assertions.



                                                        DISCUSSION

Standard of review



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David Jason West and Pydia, Inc. v. State, 212 S.W.3d 513 (2006)


 [1] [2] [3] The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending
trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). Because the decision to grant or deny a *517
temporary injunction lies within the sound discretion of the trial court, we will not disturb that decision absent a clear abuse
of discretion. Id. at 204. We view the evidence in the light most favorable to the trial court's order, indulging every reasonable
inference in its favor. Brammer v. K.B. Home Lone Star, L.P., 114 S.W.3d 101, 105–06 (Tex.App.-Austin 2003, no pet.). This
Court may not substitute its judgment for that of the trial court unless its action was so arbitrary that it exceeded the bounds
of reasonable discretion. Butnaru, 84 S.W.3d at 204. The trial court does not abuse its discretion if some evidence reasonably
supports its decision. Id. at 211.


Probable right to recovery
 [4] In its first issue, West argues that the district court erred in granting the temporary injunction because the State did not
demonstrate a probable right to recovery. West asserts that the transaction at issue is a loan of money, which is neither a “good”
nor a “service” under the DTPA. See Riverside Nat'l Bank v. Lewis, 603 S.W.2d 169, 174 (Tex.1980); see also Tex. Bus.
& Com.Code Ann. § 17.45(1), (2) (West 2002). West argues that the DTPA applies to transactions in which the borrower's
objective is to purchase or lease goods or services, but the DTPA is inapplicable if a borrower's objective is merely an attempt
to acquire money. See La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 566–67 (Tex.1984); Megason v.
Red River Employees Fed. Credit Union, 868 S.W.2d 871, 872 (Tex.Civ.App.-Texarkana 1993, no writ).

The State responds that West's “banking opportunity” is not a “loan” because it specifies that repayment is unnecessary. Cf.
Tex. Fin.Code Ann. § 301.002(a)(10) (West Supp.2005) (defining “loan” as “an advance of money that is made to or on behalf
of an obligor, the principal amount of which the obligor has an obligation to pay the creditor”). Alternatively, the State argues
that West is offering a loan forgiveness service.

The district court's finding of a probable right to recovery under the DTPA is supported by the evidence that West's Web site,
offers a service—specifically, the elimination of debt—in exchange for $5,000. According to the site, after the money was
submitted, “the bank [would] analyze each project member's debt and provide feedback if there are concerns.” The site also
informed the public that, after wiring $5,000, participants would receive a document “guarantee [ing] that the loan that [they]
are signing will be forgiven and that [they] will not have to pay it back!”

“Services” are defined in the DTPA as “work, labor, or service purchased or leased for use, including services furnished in
connection with the sale or repair of goods.” Tex. Bus. & Com.Code Ann. § 17.45(2). The State's suit complains that West's
service violates the DTPA because it (1) fails to disclose the factual basis for its representations that David West has found a
bank willing to give individuals “loans” to pay their debts without expectation of repayment and (2) encourages consumers to
wire $5,000 to an account that is not identified as belonging to David West.

The debt elimination opportunity that West offered is similar to the function of a “credit services organization,” defined in the
finance code as

  a person who provides, or represents that the person can or will provide, for the payment of valuable consideration, any of
  the following services with respect to the extension of consumer credit by others:

  (A) improving a consumer's credit history or rating;

  (B) obtaining an extension of consumer credit for a consumer; or

   *518 (C) providing advice or assistance to a consumer with regard to Paragraph (A) or (B).

Tex. Fin.Code Ann. § 393.001 (West 1998). A credit services organization is prohibited from making false or misleading
representations in the offer or sale of its services, including any unfounded guarantees to “erase bad credit” or to obtain an




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David Jason West and Pydia, Inc. v. State, 212 S.W.3d 513 (2006)


extension of consumer credit “regardless of credit history.” Id. § 393.304 (West 1998). A violation of chapter 393 is actionable
under the DTPA. Id. § 393.504 (West 1998).

One company was held to have been a credit services organization based on its:

  • television commercials “targeting consumers with debt problems and urging them to contact [the company] for relief from
     these woes;”

  • printed materials informing a debtor that it could assist in obtaining and repairing credit; and

  • Web site, which stated that the company could provide advice or assistance to “empower debtors [to] make an informed
    decision on how to manage, service or liquidate their debts.”

In re Zuniga, 332 B.R. 760, 786 (Bankr.S.D.Tex., 2005) (applying Texas law). These activities parallel West's “banking
opportunity”—advertised on the radio, in a telephone message, and on the Web—offering debt elimination, for $5,000 as
specified on the Web site, to any “U.S. Citizen” for any type of debt through a “loan” that would not require repayment. The
service West promoted on its Web site included financial analysis, by which “the bank [would] analyze each project member's
debt and provide feedback if there are concerns.”

We conclude that the district court did not abuse its discretion in determining that the State demonstrated a probable right to
recovery under the DTPA. We overrule West's first issue.


Probable injury
 [5] In its second issue, West argues that the district court erred in granting the temporary injunction because the State did not
demonstrate a probable injury prior to final trial on the merits. Butnaru, 84 S.W.3d at 204. Probable injury includes elements
of imminent harm, irreparable harm, and lack of an adequate remedy at law. Universal Health Servs., Inc. v. Thompson, 24
S.W.3d 570, 577 (Tex.App.-Austin 2000, no pet.) (citing Surko Enters., Inc. v. Borg–Warner Acceptance Corp., 782 S.W.2d
223, 225 (Tex.App.-Houston [1st Dist.] 1989, no writ)).

West argues that the State did not produce any competent evidence that money in the Hibernia bank account in Louisiana
belonged to any Texas consumer or that West would dissipate the funds from the account. The State contends that the common
law requirements for a temporary injunction—including balancing of the equities, proof of irreparable harm or injury, and lack
of an adequate remedy at law—are inapplicable when the State is seeking statutorily-authorized injunctive relief. See Tex. Bus.
& Com.Code Ann. § 17.47(a). Section 17.47 of the DTPA states that

             whenever the consumer protection division has reason to believe that any person is engaging in, has
             engaged in, or is about to engage in any act or practice declared to be unlawful by this subchapter, and
             that proceedings would be in the public interest, the division may bring an action in the name of the
             state against the person to restrain by temporary restraining order, temporary injunction, or permanent
             injunction the use of such method, act, or practice.

Id. The Texas Supreme Court has ruled that “when it is determined that [a] statute is being violated, it is within the province
of the district court to restrain it.” State *519 v. Texas Pet Foods, Inc., 591 S.W.2d 800, 805 (Tex.1979) (affirming award of
permanent injunctive relief based on threatened violation of environmental statutes). The court observed that the doctrine of
balancing the equities had no application to statutorily-authorized injunctive relief. Id.

Texas courts have likewise held that when an applicant relies upon a statutory source for injunctive relief, such as the DTPA,
the statute's express language supersedes the common law injunctive relief elements such as imminent harm or irreparable
injury and lack of an adequate remedy at law. See, e.g., Shields v. State, 27 S.W.3d 267, 273 (Tex.App.-Austin 2000, no pet.)
(State need not prove likelihood of future violations because injunctive relief available under Securities Act for past acts alone);



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David Jason West and Pydia, Inc. v. State, 212 S.W.3d 513 (2006)


MortgageBanc & Trust, Inc. v. State, 718 S.W.2d 865, 869 (Tex.App.-Austin 1986, no writ) (express statutory language of
Securities Act authorizing injunction supersedes equitable requirements generally applicable to common law injunctive relief);
Rio Grande Oil Co. v. State, 539 S.W.2d 917, 921 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ ref'd n.r.e.) (State need only meet
statutory provisions of Securities Act and is not required to otherwise show probable injury); Gulf Holding Corp. v. Brazoria
County, 497 S.W.2d 614, 619 (Tex.Civ.App.-Houston [14th Dist] 1973, writ ref'd n.r.e.) (State need not prove irreparable injury
to be entitled to injunction under Open Beach Act); see also Household Retail Servs., Inc. v. State, No. 04–00–00734–CV,
2001 Tex.App. LEXIS 5893, at *9, 2001 WL 984779, at *3, (Tex.App.-San Antonio Aug.29, 2001, no pet.) (holding that when
legislature authorized attorney general to seek injunctions on behalf of multiple consumers, it determined that past or threatened
DTPA violation coupled with public need constituted sufficient “irreparable risk of harm” to support entry of injunction).

 [6] Accordingly, the State argues that, to be entitled to a temporary injunction under the DTPA, it need only demonstrate to
the court its reason to believe that (1) any person is engaging in, has engaged in, or is about to engage in any act or practice
declared to be unlawful by the DTPA, and (2) that proceedings would be in the public interest. See Tex. Bus. & Com.Code
Ann. § 17.47(a). The fact that a person has ceased its unlawful conduct will not affect the State's entitlement to injunctive relief.
Id. Furthermore, the DTPA authorizes the court to “make such additional orders or judgments as are necessary to compensate
identifiable persons for actual damages or to restore money or property, real or personal, which may have been acquired by
means of any unlawful act or practice.” Id. § 17.47(d) (emphasis added).

At the October 25 hearing on the supplemental temporary injunction, the State introduced evidence of West's
“www.bankopp.com ” Web site, promoting a “banking opportunity” that would allow any “U.S. Citizen” to pay off all personal
debt—including “credit cards, mortgages, student loans, vehicles, loans, IRS settlements, and back child support”—before
December 31, 2005, by securing a “loan” from an unnamed bank. The site contained repeated assertions that participants will not
repay the bank because the “loans” will be forgiven. It claimed that “two little known banking practices ... Fractional Banking
and Forgiven Loans” made this “one shot opportunity” possible. The site also claimed that although “this opportunity is legal,”
the “Federal Reserve will undoubtedly close the loopholes that allowed the project to take place this once. While the system
intended on well connected, wealthy individuals to be able to take advantage of this, it was never intended that regular every
day people would gain access to it.” The site also asked participants to deposit a wire transfer of $5,000—as a signal of their
“commitment *520 to be involved with the project”—to a bank account in Panama, or to an account with Hibernia National
Bank in Baton Rouge.

The State also introduced into evidence documents that the Hibernia National Bank in Baton Rouge, Louisiana provided in
response to the State's civil investigative demand. The documents included a commercial new account information card for
Del Sur International Holdings and its “sole proprietorship resolution certificate,” along with a copy of a Louisiana driver's
license issued to David Jason West. These documents show that David West opened a free small business checking account
with $100 cash at Hibernia on August 8, 2005, under the business name of Del Sur International Holdings. He is the sole owner
and signatory on the account. The account number assigned to the Del Sur International Holdings checking account matches
the account number on the Web site to which the participants' $5,000 wire transfers had been directed. The Web site does not
disclose that the $5,000 transfers of participants' “commitment money” were deposited into an account owned by David West.

Based on this evidence, the district court determined that West “may be violating the DTPA” and that the State's action “was
in the public interest.” Indulging every reasonable inference in favor of the court's order as we must, we conclude that there is
sufficient evidence to support the court's findings in accordance with section 17.47(a). Thus, we overrule West's second issue.


Specificity of order under rule 683
 [7] [8] In its third issue, West claims that the district court's temporary injunction violated rule 683 because it did not state
the reasons for its order with specificity. See Tex.R. Civ. P. 683. West argues that the district court's order does not specifically
state the reasons why injury will be suffered if the interlocutory relief is not ordered. West also faults the order for its failure to
state why the identified probable injury is an irreparable one for which the State has no adequate legal remedy. Under Rule 683



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David Jason West and Pydia, Inc. v. State, 212 S.W.3d 513 (2006)




  [e]very order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific
  in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought
  to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys,
  and upon those persons in active concert or participation with them who receive actual notice of the order by personal service
  or otherwise.

  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. The appeal of a temporary injunction shall constitute no cause for delay of the trial.

Tex.R. Civ. P. 683.

The State responds that West waived its complaint about the specificity of the court's order by failing to object when the court
inquired about its agreement to the form of the order. Because we conclude that the order was sufficiently specific under rule
683, we need not address the waiver issue. 4

 *521 Relying on rule 693, the State responds that “the principles, practice and procedure governing courts of equity shall
govern proceedings in injunctions when the same are not in conflict with these rules or the provisions of the statutes.” Tex.R.
Civ. P. 693 (emphasis added); see also Texas Pet Foods, Inc., 591 S.W.2d at 805 (“When it is determined that the statute is
being violated, it is within the province of the district court to restrain it .... [t]he doctrine of balancing the equities has no
application to this statutorily authorized injunctive relief.”).

The State reiterates that section 17.47(a) of the DTPA authorizes the State's consumer protection division to bring an action
for injunctive relief when “it has reason to believe that any person is engaging in, has engaged in, or is about to engage in
any act or practice declared to be unlawful by [the DTPA], and that proceedings would be in the public interest.” Tex. Bus. &
Com.Code Ann. § 17.47(a). The DTPA also authorizes the court to “make such additional orders or judgments as are necessary
to compensate identifiable persons for actual damages or to restore money or property, real or personal, which may have been
acquired by means of any unlawful act or practice.” Id. § 17.47(d). The State contends that the order is proper because it contains
the essential findings that “Defendants may be violating § 17.47(a) and (b) of the Texas Deceptive Trade Practices–Consumer
Protection Act,” and that “this action is in the public interest.”

The court found that the freeze was necessary to prevent West from dissipating funds in the account to which the participants'
wire transfers had been directed:

            [U]nless Defendants are immediately restrained from the acts prohibited below, Defendants will dissipate
            funds obtained from consumers through misrepresentations in violation of the Deceptive Trade Practices
            Act, before a full trial can be held on the merits of the State's claims. To the extent required by law,
            Plaintiff [State] has proved that continued violation of these laws will continue to cause Plaintiff and the
            general public to suffer irreparable harm.

We conclude that this order complied with the statutory prerequisites under section 17.47(a) of the DTPA by finding that
“Defendants may be violating § 17.47(a) and (b) of the Texas Deceptive Trade Practices–Consumer Protection Act,” and that
“this action is in the public interest.” The order also satisfied the specificity requirement of rule 683 by finding that, “unless
Defendants are immediately restrained *522 from the acts prohibited below, Defendants will dissipate funds obtained from
consumers through misrepresentations in violation of the Deceptive Trade Practices Act, before a full trial can be held on the
merits of the State's claims.” Accordingly, we overrule West's third issue.



                                                        CONCLUSION




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David Jason West and Pydia, Inc. v. State, 212 S.W.3d 513 (2006)


Based on the record before us, West has not shown that the district court acted outside the bounds of its reasonable discretion
by granting the supplemental temporary injunction. Accordingly, we affirm the court's order.



Footnotes
1      Roxana Suadi West and Carlos M. Suadi are not parties to this appeal. The State's petition implicates them by alleging that the radio
        advertisements for the “debt elimination” seminar were paid by Pydia, Inc. with West's and Suadi's credit cards. The petition also
        alleges that Roxana West paid for the seminar room at the hotel where the meetings were scheduled.
2       David West and Pydia, Inc. d/b/a www.bankopp.com (collectively “West”) did not appeal from this temporary injunction.
3       The State made this assertion, which West did not dispute, at the supplemental temporary injunction hearing.
4       The record shows that, after an initial objection to the order, West denied any further objection to its form:
          THE COURT: Do you want to take a moment to look at it?
          [West's counsel]: Thank you, Your Honor. (Pause). Your Honor, the proposed order states that given the exhibits and sworn
             affidavits attached thereto, that unless defendants are immediately restrained from the acts prohibited below, defendants will
             dissipate funds obtained from consumers through misrepresentation. Is that the court's ruling today?
          THE COURT: Well, we didn't have any sworn affidavits, I don't think, introduced into evidence, did we?
          [State's counsel]: No, Your Honor.
          THE COURT: Okay. I'll make that change. Any other objections to the form?
          [West's counsel]: No, Your Honor.
          The State acknowledges that Texas courts are split on whether failure to object to a temporary injunction order results in waiver
          on appeal or a fatally defective order. Compare Tex.R.App. P. 33(a)(1); Texas Tech Univ. Health Scis. Ctr. v. Rao, 105 S.W.3d
          763, 768 (Tex.App.-Amarillo 2003, pet. dism'd) (finding waiver of complaint about order's lack of specificity); Shields v. State, 27
          S.W.3d 267, 273 (Tex.App.-Austin 2000, no pet.) (same); Emerson v. Fires Out, Inc., 735 S.W.2d 492, 493–94 (Tex.App.-Austin
          1987, no writ) (same); with Tex.R.App. P. 683; Monsanto Co. v. Davis, 25 S.W.3d 773, 789 (Tex.App.-Waco 2000, pet. dism'd
          w.o.j.) (voiding order for failure to explain reasons for its issuance); University Interscholastic League v. Torres, 616 S.W.2d 355,
          358 (Tex.Civ.App.-San Antonio 1981, no writ) (same); Smith v. Hamby, 609 S.W.2d 866, 868 (Tex.Civ.App.-Fort Worth 1980,
          no writ) (same). We need not address that issue here, however.


End of Document                                                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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Deen v. Kirk, 508 S.W.2d 70 (1974)




                                                       508 S.W.2d 70
                                                   Supreme Court of Texas.

                                                Berry L. DEEN, Relator,
                                                           v.
                                       Stanley C. KIRK, Judge et al., Respondents.

                                               No. B—4397.       |   April 3, 1974.

Original mandamus proceeding wherein relator sought expungement of an order purporting to set aside a previously rendered
divorce judgment. The Supreme Court, Walker, J., held that where trial court had jurisdictional power to determine validity and
effectiveness of waiver of citation executed by wife and to render a judgment granting husband a divorce, a bill of review was
the only remedy available to wife in the trial court more than thirty days after rendition of judgment, but where a petition for
bill of review was never heard and, in fact, was dismissed, order purporting to set aside divorce judgment previously rendered
was void and subject to being set aside.

Writ granted conditionally.



 West Headnotes (2)


 [1]    Divorce       Jurisdiction of the Person
        Waiver of citation executed by wife prior to husband's institution of divorce suit in Wichita County did not subject
        wife to jurisdiction of court considering statutory prohibition against waiver of process by an instrument executed
        prior to institution of suit. Vernon's Ann.Civ.St. art. 2224; Rules of Civil Procedure, rules 119, 329b.

        11 Cases that cite this headnote


 [2]    Divorce       Bill of Review
        Where trial court had jurisdictional power to determine validity and effectiveness of waiver of citation executed by
        wife and to render a judgment granting husband a divorce, a bill of review was the only remedy then available to wife
        in the trial court, but where a petition for writ of review was never heard and, in fact, was dismissed, order purporting
        to set aside divorce judgment previously rendered was void and subject to being set aside. Vernon's Ann.Civ.St. art.
        2224; Rules of Civil Procedure, rules 119, 329b.

        52 Cases that cite this headnote




Attorneys and Law Firms

*70 C. Coit Mock and W. J. Fleniken, Jr., Fort Worth, for relator.

Clyde Fillmore, Wichita Falls, for respondents.




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Deen v. Kirk, 508 S.W.2d 70 (1974)




Opinion

WALKER, Justice.

This is an original mandamus proceeding. It was instituted by Betty L. Deen, relator, against F. Edgar Deen, Jr., and the
Honorable Stanley C. Kirk, Judge of the 78th Judicial District of Wichita County, to require the latter to expunge an order
purporting to set aside a divorce judgment previously rendered by him. We agree with relator that the judgment in question had
become final and that Judge Kirk had no power to set it aside as he attempted to do. In accordance with our usual procedure
in cases of this nature, the writ of mandamus will be granted conditionally.

On June 22, 1973, F. Edgar Deen, Jr., hereinafter referred to as respondent, instituted suit for divorce against relator in Cause
No. 94,536—B in the 78th District Court of Wichita County. At the same time he filed a waiver of citation previously executed
by relator. The jurat on the waiver is dated June 21, 1973. On August 22, 1973, without further notice, citation or waiver, Judge
Kirk rendered judgment granting respondent a divorce and approving an undescribed property settlement agreement. Relator
first learned of these proceedings on October 27, 1973.

On November 30, 1973, relator filed suit for divorce against respondent in the Domestic Relations Court No. 4 of Tarrant County.
Temporary injunctions were issued in that suit, and both parties were ordered *71 to file written inventories. Apparently no
further action has been taken in that case, which is still pending in the trial court. It has no bearing on our disposition of this
mandamus proceeding.

On December 3, 1973, relator filed in Cause No. 95,544—B in the 78th District Court of Wichita County a petition in the
nature of a bill of review, praying that the judgment in Cause No. 94,536—B be set aside. On December 13, 1973, Judge Kirk
on his own motion entered an order in Cause No. 94,536—B setting aside the judgment previously rendered in that case. A
few days later relator was served with citation in the original divorce case. Respondent then filed in Cause No. 95,544—B a
motion to dismiss, alleging that since the judgment in Cause No. 94,536—B had been set aside, the bill of review proceeding
was moot. On January 3, 1974, the motion was granted and the bill of review proceeding was dismissed. The original divorce
case was also set for trial on the merits.

It is our understanding that relator appealed the judgment of dismissal in Cause No. 95,544—B to the Court of Civil Appeals.
So far as we know, she did not attempt to carry the original divorce judgment in Cause No. 94,536—B to the Court of Civil
Appeals by writ of error. In the present proceeding she seeks a writ of mandamus to require Judge Kirk to set aside the order
of December 13, 1973, whereby he attempted to give her the relief she sought by her petition for a bill of review.
 [1] Under the provisions of Rule 119, Texas Rules of Civil Procedure, a defendant may waive the issuance and service of
citation by filing among the papers of the cause a verified written memorandum ‘signed by him, or by his duly authorized agent
or attorney, after suit is brought.’ Article 2224, Vernon's Ann.Civ.St., prohibits the waiver of process by an instrument executed
prior to institution of suit. It is clear then that the waiver executed by relator prior to institution of the divorce suit in Wichita
County did not subject her to the jurisdiction of the court. McAnelly v. Ward, 72 Tex. 342, 12 S.W. 206.


Respondents say that since the lack of jurisdiction over relator was apparent from the record, the judgment rendered on August
22, 1973, was void and could properly be set aside by Judge Kirk at any time. There are Texas decisions that support this
position, and respondents cite a number of them. See, for example, Harrison v. Whiteley, Tex.Com.App., 6 S.W.2d 89, where
it was held that a judgment was void and could be vacated at a subsequent term of court because the lack of jurisdiction over
the defendant affirmatively appeared in the ‘judgment roll’, i.e. from the citation on file among the papers in the case.

The present case is governed by the following provisions of Rule 329b, T.R.C.P.:
          5. Judgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment
          or order overruling an original or amended motion for new trial. After the expiration of thirty (30) days




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
Deen v. Kirk, 508 S.W.2d 70 (1974)


           from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside
           except by bill of review for sufficient cause, filed within the time allowed by law. . . .



The history of these provisions was reviewed in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, where it was pointed out
that the meaning and effect of the two sentences could not be determined from either: (1) decisions in cases tried in district courts
whose proceedings were not governed by the Special Practice Act passed by the Legislature in 1923 1 and its amendments and
extensions or by Rule 330(l), T.R.C.P., as it existed prior to 1955, or (2) decisions in cases tried in county courts before January
1, 1961. We also *72 observed that the case of Harrison v. Whiteley, Tex.Com.App., 6 S.W.2d 89, is in the latter category.

The opinion in McEwen recognizes that a bill of review might not be an appropriate method for attacking in the trial court,
more than thirty days after the rendition of judgment or order overruling motion for new trial, a judgment in a case which the
court was without jurisdictional power to hear and adjudicate. The words ‘jurisdictional power’ as used in that opinion mean
jurisdiction over the subject matter, the power to hear and determine cases of the general class to which the particular one
belongs. We were not speaking of jurisdiction over the parties. The examples given were the rendition by a county court of
judgment for divorce or for title to land. In each instance the court would have been utterly without power to render an effective
judgment on the merits of the controversy.

The quoted provisions of Rule 329b were construed in McEwen as follows:
           Accordingly, we construe the emphasized provision of Rule 329—b to mean that when the time for filing
           a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a
           bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court
           had jurisdictional power to render it. Into this category will fall those cases in which a default judgment is
           asserted to be void for want of service, or of valid service, of process. This is in harmony with our holding
           in Brown v. Clippenger, 113 Tex. 364, 256 S.W. 254. With this construction of the Rule, we may assume,
           without deciding, that Texaco is correct when it says that the default judgment against it is a void judgment
           and that its motion to vacate is a direct attack on the judgment. We are yet compelled to hold that the order
           vacating the default judgment is unauthorized and void because the district court had jurisdictional power to
           determine the validity of service (Indeed, it was its duty to do so) and to render the judgment, and Texaco's
           motion to vacate it does not qualify as a bill of review. (Emphasis supplied)


 [2] Paraphrasing the italicized portion of the opinion just quoted, the 78th District Court of Wichita County had jurisdictional
power to determine the validity and effectiveness of the waiver and to render a judgment for divorce. Relator's petition for a
bill of review was never heard but was dismissed. In these circumstances and under the provisions of Rule 329b, the order
of December 13, 1973, purporting to set aside the divorce judgment previously rendered in Cause No. 94,536—B is void and
should itself be set aside. We are not to be understood as saying that a bill of review was the only effective remedy available to
relator when she learned of the divorce judgment. See Art. 2255, V.A.C.S.; Whitney v. L & L Realty Corp., Tex., 500 S.W.2d
94; Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934. It was, however, the only remedy then available to her in the
trial court.


We assume that Judge Kirk will set aside his order of December 13, 1973, promptly after our judgment in this proceeding
becomes final. In the event he fails to do so, a writ of mandamus will issue.


Footnotes
1      Acts 1923, 38th Leg., ch. 105, p. 215, s 1, later codified as Art. 2002, Tex.Rev.Civ.Stat. 1925.


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                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       3
DeLee v. Allied Finance Co. of Dallas, 408 S.W.2d 245 (1966)




                                                       408 S.W.2d 245
                                                Court of Civil Appeals of Texas.
                                                            Dallas.

                                             Bob DeLEE, Appellant,
                                                     v.
                                 ALLIED FINANCE COMPANY OF DALLAS, Appellee.

                         No. 16797.        |   Oct. 21, 1966.   |   Rehearing Denied Nov. 10, 1966.

The District Court, Dallas County, Owen Giles, J., entered a consent judgment, and the defendant appealed. The Court of
Civil Appeals, Claude Williams, J., held that where recitations contained in judgment embodying compromise and settlement
agreement of parties were clear and explicit, and judgment was made in open court and was agreed to not only bye attorneys but
by the defendant himself, defendant on appeal could not complain of judgment, in absence of allegations and proof of fraud,
collusion, or some other similar reason.

Judgment affirmed.



 West Headnotes (5)


 [1]    Appeal and Error        Failure to Make Bill of Exceptions, Case, or Statement of Facts
        Where points of appellant were preserved in unverified motion for a new trial, but there was no statement of facts
        in record which would reveal testimony introduced in support of appellant's motion for new trial, each finding in
        unchallenged consent judgment would be presumed to be true.

        Cases that cite this headnote


 [2]    Appeal and Error        Assent to Proceeding
        Where recitations contained in consent judgment embodying compromise and settlement agreement of parties were
        clear and explicit, and judgment was made in open court and was agreed to not only by attorneys but by the defendant
        himself, defendant on appeal could not complain of judgment, in absence of allegation and proof of fraud, collusion,
        or some other similar reason. Rules of Civil Procedure, rule 11.

        11 Cases that cite this headnote


 [3]    Appeal and Error        Assent to Proceeding
        Stipulation by parties to an action as to nature and terms of judgment to be entered constitutes a waiver of all
        nonjurisdictional errors committed by trial court prior to agreement and judgment and justifies its affirmance, if
        agreement was based on valid consideration and was not obtained by fraud, collusion, or the like.

        1 Cases that cite this headnote


 [4]    Appeal and Error        On Consent, Offer, or Admission
        Consent by party to action of trial court in entering judgment is waiver of all errors committed or contained in
        judgment, thus leaving nothing which can properly be considered by reviewing court, except want of jurisdiction.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
DeLee v. Allied Finance Co. of Dallas, 408 S.W.2d 245 (1966)




         3 Cases that cite this headnote


 [5]     Appeal and Error          On Consent, Offer, or Admission
         Where final judgment executed by defendant and his attorneys of record was contractual in nature and was governed
         by laws relating to contracts and defendant alleged no valid basis for vacating the contract reduced to judgment,
         defendant could not be heard to complain on appeal that contract and judgment be set aside.

         2 Cases that cite this headnote




Attorneys and Law Firms

*246 Henry Klepak and William B. Pasley, Dallas, for appellant.

Locke, Purnell, Boren, Laney & Neely and John D. Crawford and J. L . Shook, Dallas, for appellee.

Opinion

CLAUDE WILLIAMS, Justice.

This appeal is from a consent judgment, as follows:


                                                      'FINAL JUDGMENT

‘On this day came on regularly to be heard the above entitled and numbered cause and came the plaintiff, Allied Finance
Company of Dallas, by its attorneys and announced ready for trial; and came the defendant Bob DeLee, in person and by his
attorneys, in open court and all parties announced to the court that a compromise and settlement of all matters between the
parties, including additional matters not heretofore alleged, to-wit, a Note and Chattel Mortgage, dated October 8, 1964 in the
principal amount of $14,099.22 secured by the hereinafter listed personal property, said settlement and compromise being that
plaintiff recover judgment against the defendant for the sum of $16,278.89, principal, interest and attorneys' fees and that the
plaintiff is entitled to judgment therefor, together with interest from this date until paid at the rate of 10% Per annum and all
costs of this suit, and is entitled to the establishment and foreclosure of its chattel mortgage lien and certificate of title lien as
it existed on the date of said October 8, 1964 note, contract and chattel mortgage and the application for certificate of title; and
it appearing that the defendant consents and agrees to this judgment and agrees that the pleadings support this judgment and
further agrees that he will not appeal same;
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the court that plaintiff, Allied Finance Company of Dallas,
a corporation, do have and recover of and from the defendant, Bob DeLee, the sum of $16,278 .89, together with interest at the
rate of 10% Per annum from this date until paid, and all costs of this suit; and the chattel mortgage and possessory certificate
of title lien (on title No. 22971906) on the following *247 property is established and foreclosed, to-wit:‘

(Here follows a description of personal property and details of order of sale.)

‘SIGNED and ENTERED this 5 day of January, 1966.

‘/s/ Owen Giles

JUDGE




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
DeLee v. Allied Finance Co. of Dallas, 408 S.W.2d 245 (1966)


'AGREED TO AS TO FORM, SUBSTANCE AND ENTRY:

'By /s/ Roy J. True

Henry Klepak, Attorney for Bob DeLee

'/s/ Bob DeLee

Bob DeLee, Defendant

'LOCKE, PURNELL, BOREN, LANEY & NEELY

'By: /s/ John D. Crawford,

John D. Crawford, Attorney for

Allied Finance Company of Dallas'




Appellant seeks to attack this judgment in two points of error wherein he alleges (1) that the trial court erred in rendering the
consent judgment against appellant without a settlement agreement being reduced to writing or entered of record in open court,
as required by Rule 11, Vernon's Texas Rules of Civil Procedure, to thereby evidence the present consent of the appellant; and
(2) that the court erred in rendering judgment against appellant in an amount in excess of the pleadings. We find no merit in
either of these points and overrule same.
 [1] While appellant's points are preserved in an unverified motion for new trial, we find no statement of facts in this record
which would reveal testimony introduced in support of the motion for new trial. Accordingly, the judgment, above recited,
stands unchallenged and each finding recited therein is presumed to be true.

 [2] A casual reference to the judgment clearly demonstrates that it is sufficient to meet every requirement of Rule 11, T.R.C.P.,
relied upon by appellant. The recitations contained in the judgment are clear and explicit and the same was made in open court
and agreed to by not only the attorneys but by the appellant himself. Thus we find appellant complaining of that to which he
has agreed. This, he cannot do in the absence of allegation and proof of fraud, collusion, or some similar reason. As early as
1853 the Supreme Court of Texas had occasion, speaking through Chief Justice Hemphill, to classically announce the rule in
such cases as follows:
‘* * * appellants are at once confronted with the general principle that consent takes away error, and that a judgment by
agreement or compromise cannot be impeached, unless for fraud, collusion, or like causes, none of which appear in this record
or are alleged or assigned. (Citing authorities.) The appellants are concluded by their own consent, and their appeal cannot be
sustained .’ Dunman v. Hartwell, 9 Tex. 495, 60 Am.Dec. 176.



[3]   The rule, more recently stated, is expressed in 3 Tex.Jur.2d, s 213, p. 479, as follows:
          ‘A stipulation by the parties to an action as to the nature and terms of the judgment to be entered constitutes
          a waiver of all nonjurisdictional errors committed by the court prior to the agreement and judgment and
          justifies its affirmance, if the agreement is based on a valid consideration and was not obtained by fraud,
          collusion, or the like.’




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DeLee v. Allied Finance Co. of Dallas, 408 S.W.2d 245 (1966)


 [4] The rationale of such rule is that a party will not be allowed to complain on appeal of an action or ruling which he invited or
induced. Having consented to the action of the court in entering judgment he thereby waives all errors committed or contained
in the judgment, thus leaving nothing which could properly be considered by an appellate court, except want of jurisdiction.
 *248 Posey v. Plains Pipe Line Co., Tex.Civ.App., 39 S.W.2d 1100; Blume v. Shadyacres Inv. Co., Tex.Civ.App., 83 S.W.2d
1026; Hall v. McKee, Tex.Civ.App., 179 S.W.2d 590; 69 A.L.R.2d 767 et seq.

 [5] Moreover, the final judgment executed by appellant and his attorneys of record was contractual in nature and is governed
by the laws relating to contracts. Appellant has alleged no valid basis for vacating his contract reduced to judgment. Therefore,
appellant cannot now be heard to complain that the agreement and judgment be set aside. Plumly v. Plumly, Tex.Civ.App.,
210 S.W.2d 177; Alexander v. Alexander, Tex.Civ.App., 373 S.W.2d 800; Rawlins v. Stahl, Tex.Civ.App., 329 S.W.2d 308;
33 Tex.Jur.2d, ss 105, 107, pp. 623, 626.


The judgment of the trial court is

Affirmed.

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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   4
Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640 (1991)




                                                       813 S.W.2d 640
                                                   Court of Appeals of Texas,
                                                     Houston (14th Dist.).

                                     Davendra D. DESAI, Appellant,
                                                  v.
                     RELIANCE MACHINE WORKS, INC., Natu Patel and Kokila Patel, Appellees.

                  No. A14–90–280–CV.           |    July 11, 1991.   |   Rehearing Overruled Aug. 22, 1991.

Appeal was taken from order of the 240th District Court, Fort Bend County, C.A. Dickerson, J., dissolving temporary injunction
in dispute over ownership of controlling 1% interest in corporation. The Court of Appeals, Junell, J., held that temporary
injunction designed to restrain 51% shareholder's abuse of controlling interest in corporation was properly dissolved, in view of
evidence that shareholder had since been deprived of any participation in management, operation, and benefits of corporation.

Affirmed.



 West Headnotes (4)


 [1]    Appeal and Error         Appeal from orders relating to injunctions
        Court of Appeals did not have jurisdiction to review validity of order granting temporary injunction, on appeal from
        order dissolving injunction, where appeal was not perfected from initial injunction order, and time limit for doing so
        had expired. Vernon's Ann.Texas Rules Civ.Proc., Rule 683; Rules App.Proc., Rule 42(a).

        4 Cases that cite this headnote


 [2]    Appeal and Error         Continuing, vacating, or dissolving
        Injunction       Authority and discretion of court
        Decision to dissolve temporary injunction is matter lying within broad discretion of trial court; review of trial court's
        order of dissolution is limited to narrow question of whether trial court's actions constituted clear abuse of discretion.

        6 Cases that cite this headnote


 [3]    Injunction       Grounds or cause in general
        Trial court has authority to dissolve temporary injunction upon showing of changed condition.

        6 Cases that cite this headnote


 [4]    Injunction       Particular cases
        Temporary injunction designed to restrain 51% shareholder's abuse of controlling interest in corporation was properly
        dissolved, in view of evidence that shareholder had since been deprived of any participation in management, operation,
        and benefits of corporation.

        3 Cases that cite this headnote




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640 (1991)




Attorneys and Law Firms

*640 Stuart M. Nelkin, Kathy D. Boutchee, Houston, for appellant.

*641 Leonard L. Scarcella, Stafford, Deborah Bailey, Suger Land, for appellees.

Before JUNELL, MURPHY and CANNON, JJ.



                                                            OPINION

JUNELL, Justice.

This is an interlocutory appeal from the trial court's order dissolving a temporary injunction. TEX.CIV.PRAC. & REM.CODE
ANN. § 51.014 (Vernon Supp.1989). In six points of error, appellant asserts that the trial court abused its discretion in dissolving
the temporary injunction. We affirm.

Reliance Machine Works, Inc. was founded in 1982 by appellant and appellee, Natu Patel. Fifty percent of the stock was issued
to appellant and the remaining fifty percent was issued to Dhanash Patel, Natu Patel's brother. Appellant and Dhanash Patel
were the sole officers of the corporation and the only members of the board of directors. In 1983, the parties entered into an oral
agreement whereby ownership of Reliance would be transferred to appellant's wife, Minaxi Desai, and appellee, Kokila Patel,
in order to qualify as a minority (female) owned business for the purposes of securing government contracts. Shortly thereafter,
fifty-one percent of the stock was transferred to appellee, Kokila Patel, and this is where the dispute begins. Appellees contend
that the issuance of an additional one percent of the stock to Kokila Patel was permanent in that it was in exchange for $55,000 of
unpaid salaries. Appellant asserts that this arrangement was only temporary due to the fact that Minaxi Desai was in India at the
time, and that the agreement was that ownership in Reliance would be equalized upon her return. When Minaxi Desai returned
from India, Kokila Patel did not relinquish her majority interest. Appellant contends that appellee, Kokila Patel, fraudulently
obtained the majority interest in Reliance and has used that interest to the detriment of Reliance and appellant.

In January 1987, appellant brought a shareholder's derivative suit against appellees and on April 2, 1987, the trial court entered
a temporary injunction order enjoining the appellees from engaging in twenty enumerated acts. The temporary injunction order
did not include an order setting the cause for trial on the merits. On March 21, 1990, the trial court dissolved the temporary
injunction upon a finding that a material and substantial change in circumstances and conditions had occurred since the issuance
of the temporary injunction, and appellant appealed. On appellant's motion, this court entered a temporary order, pursuant to
TEX.R.APP.P. 43(c), continuing the injunction pending disposition of this appeal.

 [1] By way of a counterpoint, appellees assert that the trial court did not abuse its discretion in dissolving the temporary
injunction because the original temporary injunction order did not comply with TEX.R.CIV.P. 683. Rule 683 provides, in
pertinent part, that:

             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. The trial court's April 2, 1987 order granting the temporary injunction did not include an order setting the
cause for trial on the merits. We agree that had appellees appealed from the original order, the temporary injunction should have
been dissolved. E.g., Interfirst Bank San Felipe N.A. v. Paz Construction Co., 715 S.W.2d 640 (Tex.1986). However, appellees
did not perfect an appeal from the initial order, and the time limit for doing so has long since expired. See TEX.R.APP.P.
42(a). Accordingly, we have no jurisdiction to review the validity of the trial court's April 2, 1987 order granting the temporary



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640 (1991)


injunction. See, e.g., Ludewig v. Houston Pipeline Co., 737 S.W.2d 15, 16 (Tex.App.—Corpus Christi 1987, no writ); Tober v.
Turner of Texas, Inc., 668 S.W.2d 831, 834 (Tex.App.—Austin 1984, no writ). Appellees' counterpoint is overruled.

 [2] [3] The decision to dissolve a temporary injunction is a matter lying within the broad discretion of the trial court.
Our review of the trial court's order of dissolution *642 is limited to the narrow question of whether the trial court's action
constituted a clear abuse of discretion. See Tober, 668 S.W.2d at 834; State v. Friedmann, 572 S.W.2d 373, 375 (Tex.Civ.App.
—Corpus Christi 1978, writ ref'd n.r.e.). The trial court has the authority to dissolve a temporary injunction upon a showing of
changed conditions. See, e.g., Tober, 668 S.W.2d at 835–36. Here, appellees' motion to dissolve alleged that, since the issuance
of the temporary injunction, appellees had been effectively excluded from any participation in the operations and management of
Reliance. After three days of testimony in a contested hearing, the trial court dissolved the injunction upon a finding of material
and substantial changes in circumstances and conditions since the issuance of the temporary injunction on April 2, 1987.

 [4] Appellant's first point of error asserts that the trial court abused its discretion in dissolving the temporary injunction because
there was no change in circumstances that altered the status quo that existed at the time the temporary injunction was granted.
We cannot agree. The trial court heard testimony that numerous changes in Reliance had occurred since the issuance of the
temporary injunction. These changes were made at the direction of appellant and without the participation of Kokila Patel, the
majority shareholder and member of Reliance's board of directors.

Appellees introduced testimony at the hearing to show that appellant had relocated Reliance to a larger facility. The testimony
indicated that the new site was environmentally contaminated by leaking gasoline tanks. The relocation of the business was
a part of appellant's course of expansion which would include increased numbers of employees and equipment. In relocating
the company, appellant entered into a new lease agreement which called for increased monthly rent and insurance costs.
Furthermore, Reliance's new landlord would become a business entity operated by members of appellant's family. Whether
these changes were beneficial to Reliance or not, they were completed without the knowledge or participation of Kokila Patel.
Further testimony revealed that Kokila Patel had even been barred admittance to Reliance's facilities.

When the temporary injunction was issued, Kokila Patel was in possession of 51% of the outstanding stock in Reliance. The
dispute in the underlying case involves the ownership of the 1% controlling interest. Rather than curtail Kokila Patel's alleged
abuse of that controlling interest, ample testimony was introduced to show that, since the issuance of the temporary injunction,
Kokila Patel has been deprived of any participation in the management, operation, and benefits of Reliance. Under these
circumstances, we hold that the trial court did not abuse its discretion in dissolving the temporary injunction. The first point
of error is overruled.

In his second point of error, appellant asserts that the trial court abused its discretion when it dissolved the temporary injunction
because the dissolution imperils his rights. In support of this contention appellant relies on the holding in Lone Star Mining Co.
v. Texeramics, Inc., 340 S.W.2d 871 (Tex.Civ.App.—Eastland 1960, writ ref'd n.r.e.). In Lone Star, the court held that “[w]here
it appears that a continuation of a temporary injunction cannot imperil the rights of the adverse party, but its dissolution may
seriously jeopardize the rights of the complaining party, the temporary injunction should be continued in force.” Id. at 874. As
our prior discussion reflects, the trial court was presented with ample evidence tending to show that the continuation of the
temporary injunction would imperil the rights of the appellees. Therefore, appellant's contention is without merit. We overrule
the second point of error.

Appellant's third point of error asserts that even if changed circumstances existed, the trial court abused its discretion by
dissolving the temporary injunction rather than modifying it to order that Kokila Patel be consulted in future management
decisions. Appellant cites no authority in support of this contention. However, based upon our review of the record before us,
 *643 and our discussion relating to appellant's first point of error, we find that the trial court did not abuse its discretion in
dissolving the temporary injunction rather than modifying it to reflect that Kokila Patel be consulted in future management
decisions. Appellant's third point of error is overruled.




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Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640 (1991)


Our disposition of the appeal on these grounds make it unnecessary to consider appellant's remaining points of error. The trial
court's order dissolving the temporary injunction is affirmed. Accordingly, this court's temporary order continuing the injunction
pending disposition of this appeal is hereby dissolved.



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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   4
Dunman v. Hartwell, 9 Tex. 495 (1853)
60 Am.Dec. 176



                                                          9 Tex. 495
                                                    Supreme Court of Texas.

                                                     DUNMAN AND WIFE
                                                               v.
                                                   N. W. & T. R. HARTWELL.

                                                                 1853.

Opinion

 *495 Where the record, in a case in which process has been served, recites that the parties appeared by their attorneys and
agreed to the following decree, &c., the authority of the attorneys cannot be questioned on appeal or writ of error. (Note 85.)

Consent takes away error; and a judgment by agreement or compromise cannot be impeached, unless for fraud, collusion, or
like causes.

Where there has been two partitions, and on final judgment the former was re-established, it was but just and proper to require
the distributees under the second partition to give an equivalent to the distributees under the first partition for any of the property
which the distributees under the second and rejected partition had alienated or consumed in the interval.

Error from Liberty. This case was before the Supreme Court once before, and is reported in 7th Texas Reports, 576. On the
receipt of the mandate a decree in accordance with it was made by consent of the parties appearing by their attorneys. Dunman
and wife alone prosecuted this writ of error.


 West Headnotes (4)


 [1]     Appeal and Error          Consent to judgment or order
         In a case where the record recites that “the parties appeared by their attorneys, and agreed to the following decree, to
         be entered as the judgment of the court,” and one of the parties appealed, it was held that the appellant was concluded
         by his own consent, and that the judgment should be affirmed, with damages.

         21 Cases that cite this headnote


 [2]     Compromise and Settlement             Impeachment for fraud, mistake, or undue advantage only
         A compromise and settlement of a suit or disputed claim is binding unless it is shown that it was the result of fraud,
         mistake, or improper means.

         Cases that cite this headnote


 [3]     Attorney and Client         Stipulations and admissions
         Where a judgment is entered by agreement of the attorneys whose authority is not questioned, the parties are
         concluded, and no appeal will lie.

         2 Cases that cite this headnote


 [4]     Partition      Adjustment of claims and equities between parties



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 1
Dunman v. Hartwell, 9 Tex. 495 (1853)
60 Am.Dec. 176

        Where there had been two partitions, and, on final judgment, the former was re-established, it was but just and proper
        to require the distributees under the second partition, to give an equivalent to the distributees under the first partition,
        for any of the property which the distributees under the second and rejected partition had alienated or consumed in
        the interval.

        Cases that cite this headnote




Attorneys and Law Firms

H. N. & M. M. Potter and Allen & Hale, for appellees.

HEMPHILL, CH. J.

The record in this case is very defective. *496 The proceedings and judgment were based on a mandate of the Supreme
Court; but the mandate is not transcribed. It should have been the first entry, and a copy should have been transmitted with the
transcript. The judgment which we are invoked to revise and reverse was entered by consent. It commences with the recital that
the “case coming on to be heard upon the mandate from the Supreme Court, the parties appeared by their attorneys and agreed
to the following decree to be entered as the judgment of this court,” &c., &c. This agreement was made by the attorneys of
the parties; but no objection is taken to the judgment on that ground. It is not assigned or contended that their authority should
have appeared of record. No question is raised as to their power. That they had competent authority must be presumed until it
is impugned and the contrary shown, and the judgment must be taken as having been agreed to by the parties themselves; under
this aspect the appellants are at once confronted with the general principle that consent takes away error, and that a judgment by
agreement or compromise cannot be impeached, unless for fraud, collusion, or like causes, none of which appear in this record
or are alleged or assigned. (Story v. Hawkins et al., 8 Da. R., 12; French v. Hotwell, 5 Johns. Chan. R., 555; 14 Ves. R., 31.)

The appellants are concluded by their own consent, and their appeal cannot be sustained.

But if the decree had not been entered by consent there does not appear any such substantial error prejudicial to the appellants
as would have authorized a reversal.

The mandate of the Supreme Court required the rights of Mrs. Hartwell, under the deed of gift, and of her minor children to
a portion of the estate under the law to be respected; and this appears in substance to have been done, in accordance with the
spirit and intent of the mandate, and without injustice to the other distributees of the estate.

After deducting the property or its value embraced in the deed of gift, the surplus was directed to be equally divided *497
between the heirs of the deceased. This has been effected, as to the real estate, by establishing the partition formerly made and
of record in the County Court; and if execution has been given the widow for the value of her property under the deed of gift,
and the minor heirs for the value of their shares respectively of the personal property, it arose doubtless from the fact that this
property had been converted by the other parties to their own use.

The errors assigned are:

1st. In rendering judgment against the heirs, and ordering execution to issue against the same.

This has been already considered and its futility shown.

2d. In authorizing the auditors to set aside to Francis M. and Hansel R. Hartwell, out of any of the lands set apart to Rachel
Dunman, one of the heirs of E. H. Wallis, deceased, an equal amount in lands in value to that of any amount that the said Rachel
and James F. Dunman may have sold, &c.




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Dunman v. Hartwell, 9 Tex. 495 (1853)
60 Am.Dec. 176


The mandate under which the District Court was acting directed the minors, Francis and Hansel, to have shares of the estate
equal to those of the other distributees. To effect this the former partition in which their shares were set apart was recognized or
confirmed; and if the Dunmans had in the meantime sold any portion of the land formerly assigned to these minors, it was but
equitable that the deficiency should be made up out of the lands set apart as the distributive share of Rachel. Such a disposition
was in conformity with the spirit of the mandate, was but just to the minors, and could not operate to the injury of the appellants.

3d. That Francis M. and Hansel R. Hartwell are given by said decree more than their share. There is no evidence of this in the
record. No statement of facts or bills of exceptions are sent up with the transcript.

4th. In ordering execution to issue against the estate of Elisha W. Wallis, deceased, one of the heirs.

The record furnishes no evidence that any such execution was issued.

 *498 The appellants have not appeared to prosecute their appeal, and it was evidently taken for delay. It is ordered, adjudged,
and decreed, that the judgment of the District Court be affirmed, with ten per cent. damages on the pro rata amount of the
judgment, for money which is due from the appellants.

Affirmed with damages.

NOTE 85.--Hutchinson v. Owen, 20 T., 287; Laird v. Thomas, 22 T., 276; Goss v. Pilgrim, 28 T., 263. The want of service
of an amendment is cured by a recital in the judgment which shows that the defendant was in court, (Delvalt v. Snow, 25 T.,
320,) and a recital that the defendant appeared avoids the necessity of a statement of facts when service is made by publication.
(Chester v. Walters, 30 T., 53; Smith v. Wood, 37 T., 616.)


Parallel Citations

1853 WL 4235 (Tex.), 60 Am.Dec. 176

End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
Emerson v. Fires Out, Inc., 735 S.W.2d 492 (1987)




                                                       735 S.W.2d 492
                                                   Court of Appeals of Texas,
                                                            Austin.

                           Ernest A. EMERSON, Texas State Fire Marshal, et al., Appellants,
                                                       v.
                                           FIRES OUT, INC., Appellee.

                     No. 3–86–081–CV.          |   June 10, 1987.      |   Rehearing Denied Sept. 9, 1987.

Manufacturer and seller of small fire extinguishers filed declaratory judgment suit seeking temporary injunction against fire
marshal's interference with its sales. The 261st Judicial District Court, Travis County, Pete Lowry, J., granted temporary
injunction and fire marshal appealed. The Court of Appeals, Shannon, C.J., held that: (1) error was not preserved as to claim
that reasons for issuance of injunctive order were not sufficiently set out as required by civil rule, and (2) district court could
conclude that manufacturer demonstrated probable right to recover.

Affirmed.



 West Headnotes (4)


 [1]    Appeal and Error          Sufficiency and Scope of Statement of Grounds
        Error was not preserved as to claim that reasons for district court's issuance of injunctive order were not sufficiently
        set out as required by civil rule; motion for reconsideration did not point to any claimed deficiency in form of order.
        Vernon's Ann.Texas Rules Civ.Proc., Rule 683; Rules App.Proc., Rule 52(a).

        3 Cases that cite this headnote


 [2]    Injunction       Likelihood of success on merits
        Injunction       Injury, Hardship, Harm, or Effect
        To warrant issuance of temporary injunction, applicant need only show probable right and probable injury and is not
        required to establish that he will finally prevail in litigation.

        1 Cases that cite this headnote


 [3]    Appeal and Error          Injunction
        Appeal and Error          Refusing injunction
        Injunction       Discretionary Nature of Remedy
        Injunction       Abuse of discretion
        Trial court is clothed with broad discretion in determining whether pleadings and evidence present case of probable
        right and probable injury that warrant issuance of temporary injunction, and its order issuing or denying writ of
        injunction will be reversed only on showing of clear abuse of discretion; if petition alleges cause of action and evidence
        tends to sustain it there is no abuse in issuance of writ, and there's no abuse where trial court predicates its order
        upon conflicting evidence.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Emerson v. Fires Out, Inc., 735 S.W.2d 492 (1987)




         Cases that cite this headnote


 [4]     Declaratory Judgment            Preliminary injunction or other relief
         Manufacturer and seller of small fire extinguishers demonstrated probable right to recover on merits of declaratory
         judgment suit and was entitled to temporary injunction against state fire marshal's interference with marketing, sale,
         and delivery of its product; salesman's testimony that manufacturer lost sales due to fire marshal's actions was some
         evidence from which it could be concluded that manufacturer was “retailing or wholesaling” so as to qualify for
         Insurance Code exemption from regulation, and district court could conclude that Kansas laboratory which approved
         those extinguishers was “nationally recognized testing laboratory” as required by other Code provisions. V.A.T.S.
         Insurance Code, art. 5.43–1, §§ 1, 3, 5(a), 6(d).

         Cases that cite this headnote




Attorneys and Law Firms

*493 Jim Mattox, Atty. Gen., Daniel Zemann, Jr., Asst. Atty. Gen., Austin, for appellants.

Joanne Summerhays, Barry Bishop, Clark, Thomas, Winters & Newton, Austin, for appellee.

Before SHANNON, C.J., and BRADY and ABOUSSIE, JJ.

Opinion

SHANNON, Chief Justice.

This is an appeal from an order of the district court of Travis County granting a temporary injunction.

Appellee, Fires Out, Inc., is a corporation engaged in the manufacture and sale of small fire extinguishers designed for private
use. Appellee sells its products in Texas and in other states. Appellants, the State Fire Marshal and his employees, took the
position that appellee could not lawfully sell its products in Texas and actively interfered with appellee's efforts to make such
sales.

Appellee filed a declaratory judgment suit in the district court of Travis County and, ancillary to its declaratory judgment suit,
sought a temporary injunction. After hearing, the district court temporarily enjoined appellants from (a) “taking any action
whatsoever to interfere with the marketing, sale or delivery of Fires Out, Inc. fire extinguishers”; and from (b) “contacting any
person for the purpose of stating or representing that fire extinguishers manufactured or sold by Fires Out, Inc. may not legally
be sold in Texas.” This Court will affirm the district court's temporary injunctive order.

 [1] Appellants attack the district court's order by two points of error. By their first point, appellants assert that the injunctive
order must be dissolved because the reasons for its issuance are not sufficiently set out as required by Tex.R.Civ.P.Ann. 683
(Supp.1987). Rule 683 provides that every order granting an injunction “shall set forth the reasons for its issuance.”

The only reason set forth in the district court's order is as follows:

             The Court considered the verified pleadings, the evidence, and arguments of counsel, and finds and
             concludes that the plaintiff has shown and demonstrated its right to a temporary injunction under the law,
             and the Court further concludes that plaintiff's sale of its fire extinguisher product within the State of
             Texas is exempted from regulation by the State Fire Marshal under Section 6(d) of Article 5.43–1.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Emerson v. Fires Out, Inc., 735 S.W.2d 492 (1987)




We need not determine, however, whether the order is in violation of Rule 683 because appellants failed to preserve the claimed
error for appellate review. Although appellants filed a “Motion for Reconsideration,” they did not point out to the district court
any claimed deficiency in the form of the order.

Texas R.App.P.Ann. 52(a) (Supp.1987) provides generally that

            [i]n order to preserve a complaint for appellate review, a party must have presented to the trial court a
            timely request, objection or motion, stating the specific grounds for the ruling he desired the court to
            make.... (Emphasis supplied).

Rule 52(a) derives from Tex.R.Civ.P.Ann. 373 (1985). To preserve error, Rule 373 required a party to make known to the court
the desired action and the party's grounds therefor at the time the ruling or order was made or sought. Rule 373 was applied
to errors committed by the trial court in the entry of judgments. Travis Heights Improvement Ass'n v. Small, 662 S.W.2d 406,
414 (Tex.App.1983, no writ). In Travis Heights, the appellant complained that the trial court had failed to include a particular
finding in the judgment. This Court stated in response:

            We think that appellant's second point of error goes only to the form of the judgment. As such, it was
            waived by appellant's failure to make a motion to reform the judgment, or to in some other way *494
            make the complaint known to the trial court.

See also Plasky v. Gulf Insurance Co., 160 Tex. 612, 335 S.W.2d 581, 584 (1960) (appellant waived error concerning time
period, stated in judgment, during which interest on judgment could be collected, when he failed to object or except to judgment
—R. 373); Whatley v. Whatley, 493 S.W.2d 299, 304 (Tex.Civ.App.1973, no writ) (defendant who failed to object to judgment
awarding child support in lump sum rather than to individual children waived error). In Delhi Gas Pipeline Corp. v. Lamb,
724 S.W.2d 97 (Tex.App.1987, writ pending), the El Paso Court of Appeals expressly held that Rule 52(a) carried forward the
provisions of Rule 373, and that the rationale of Plasky and other opinions decided under Rule 373 applied under Rule 52(a).

Principles of sound judicial administration support application of the waiver rule in this appeal. As in the above opinions,
there was no claimed error present until the judgment was prepared and presented to the district court. At that time, appellants
could have moved to modify or change the terms of the judgment. It serves no good purpose to permit appellants to lie in wait
and present this error in form for the first time on appeal. On proper request, the district court could easily have added to the
judgment a description of the specific harm avoided by granting the temporary injunction. Appellants would then have obtained
proper notice of the district court's reasoning and appellate review would have been facilitated.

Although appellants did request the district court to reconsider the order, appellants did not raise the facial inadequacy of
the order. Accordingly, appellants' motion did not preserve the error. See, e.g., State v. Williams, 357 S.W.2d 799, 800–01
(Tex.Civ.App.1962, writ ref'd n.r.e.); see also Tex.R.App.P. 52(a) (objection must state “specific grounds”).

 [2] [3] [4] By their second point of error, appellants complain that the district court abused its discretion in granting the
injunctive order because appellee did not demonstrate a probable right to recovery. In a hearing on an application for a temporary
injunction, the only question before the trial court is the appellant's right to the preservation of the status quo of the subject
matter of the suit, pending a final trial on the merits. To warrant the issuance of a temporary injunction, the applicant need only
show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. The trial
court is clothed with broad discretion in determining whether the pleadings and evidence present a case of probable right and
probable injury. The trial court's order in issuing or denying the writ of injunction will be reversed only on a showing of a clear
abuse of discretion. There is no abuse of discretion in the issuance of a writ of injunction if the petition alleges a cause of action
and the evidence tends to sustain it. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953).
Further, there is no abuse of discretion where the trial court predicates its order upon conflicting evidence. Davis v. Huey, 571




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Emerson v. Fires Out, Inc., 735 S.W.2d 492 (1987)


S.W.2d 859, 862 (Tex.1978). Even questions of law “can only be determined from a review of the entire record after a full and
final hearing.” Transport Co. of Texas v. Robertson Transports, supra.

The district court concluded that appellee's sale of its fire extinguishers within Texas was exempted from regulation by
Tex.Ins.Code art. 5.43–1 § 6(d) (1981). That provision provides as follows:

  The provisions of this article do not apply to the following:




  firms engaged in the retailing or wholesaling of portable fire extinguishers as defined in Section 3, but not engaged in the
  installation or recharging of them.... (Emphasis supplied).

Appellants argue that the district court erred in applying this exemption to appellee because there was insufficient proof that
appellee was “retailing or wholesaling” portable fire extinguishers. Although the proof is somewhat lacking in clarity, appellants
concede that Lawrence C. Lasalle, a salesman of Fires Out fire extinguishers, *495 testified that appellee “lost sales” due
to the Fire Marshal's actions. Lasalle's testimony is some evidence from which the district court could conclude that appellee
qualified for the statutory exemption.

Appellants contend, alternatively, that the district court abused its discretion by refusing to ignore the § 6(d) exemption entirely.
Appellants claim that § 6(d) is an anachronism, an exemption that the legislature should have omitted when art. 5.43–1 was
amended to regulate the sale of fire extinguishers as well as their installation and servicing. According to appellants, giving
effect to § 6(d) defeats the legislature's intent to regulate the sale of portable fire extinguishers “as a measure of public safety.”
In support of their contention, appellants point to art. 5.43–1, § 1, which provides:

             The purpose of this article is to regulate the leasing, renting, selling, and servicing of portable fire
             extinguishers and the installing and servicing of fixed fire extinguisher systems, in the interest of
             safeguarding lives and property. (Emphasis supplied).


Appellee, in turn, relies upon the general rule of statutory construction that every word of the statute is presumed to have purpose
and each sentence, clause, phrase and word should be given effect if reasonably possible. Ex Parte Pruitt, 551 S.W.2d 706, 709
(Tex.1977). Appellee reminds us that this rule is particularly appropriate in the case of a penal statute, such as art. 5.43–1 (see
§ 12), because penal statutes must be strictly construed. First Bank of Bedford v. Miller, 563 S.W.2d 572, 577 (Tex.1978).

Upon examination of the statute, it appears to this Court that the district court could reasonably have given effect to the
exemption consistent with the statute's overall intent. Section 6(d) only exempts firms selling portable fire extinguishers “as
defined in Section 3.” Section 3(c) defines a “portable fire extinguisher,” in part, as one that “has a label of approval attached
by a nationally recognized testing laboratory....” Accordingly, the § 6(d) exemption only applies to sales of approved fire
extinguishers. Sale of unapproved fire extinguishers thus remains subject to sanction under art. 5.43–1, § 10(9) (prohibiting sale
of fire extinguishers in violation of § 5(a)), and § 5(a) (prohibiting sale of unapproved fire extinguishers). Such a construction
preserves the exemption and still gives effect to the legislative intent to make portable fire extinguishers safe.

The record supports appellee's contention that its product carries the label of approval by a “nationally recognized laboratory.”
Ronald Wells, director of General Laboratories, the test laboratory for appellee, testified that General Laboratories is a member
laboratory of the American Society of Testing Materials, a nationally recognized testing and certification board. Although
Wells indicated that Kansas, the state in which General Laboratories is located, had not certified it as a nationally recognized
laboratory, the conflicting evidence provided a reasonable basis for the district court's determination that General Laboratories
was nationally recognized. Huey v. Davis, supra.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
Emerson v. Fires Out, Inc., 735 S.W.2d 492 (1987)


Appellants contend, the evidence aside, that the Fire Marshal's determination that General Laboratories is not nationally
recognized is conclusive on this point. No one disputes that the term “nationally recognized testing laboratory” is undefined by
the statute. The Fire Marshal asserts, nonetheless, that his statutory duty to “administer, enforce and carry out the applicable
provisions of the code ...,” Tex.Ins.Code Ann. art. § 1.09(a), requires him to set the correct standard. Perhaps the Fire Marshal's
assertion is correct, especially since art. 5.43–1, § 2 gives the State Board of Insurance power to promulgate rules and regulations
for the administration of the article “through the State Fire Marshal.” Nevertheless, as the testimony of the Fire Marshal's
manager of licensing investigation, Quay Wood, makes plain, neither the State Board of Insurance nor the Fire Marshal has made
any attempt to articulate a standard by which testing laboratories may be measured. The district court was free, accordingly,
to conclude under the proof that General Laboratories was *496 “nationally recognized,” as required by §§ 3 and 5(a) of
the statute.

Because a reasonable construction of the statute permits appellee to claim the benefit of exemption from its regulation, this
Court concludes that the district court did not abuse its discretion in determining that appellee demonstrated a probable right
to recover on the merits.

The district court's order is affirmed.



End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   5
Ex parte Coffee, 160 Tex. 224 (1959)
328 S.W.2d 283



                                                         160 Tex. 224
                                                    Supreme Court of Texas.

                                   Ex parte John R. COFFEE and A. L. Holley, Relators.

                           No. A-7439.      |   Oct. 7, 1959.     |   Rehearing Denied Nov. 11, 1959.

Original habeas corpus proceeding by relators to relieve themselves of penalties imposed by judgment of contempt entered by
the District Court of the 51st Judicial District growing out of a violation by relators of a temporary injunction granted by the
court. The Supreme Court, Calvert, J., held that where petition for injunctive relief was presented to the judge of the district
court of the 51st Judicial District in Tom Green County and one defendant was a resident of Dallas County and the other three
were residents of Howard County and the restraint was not to stay proceedings in the suit or execution on a judgment but to
restrain the sale under a deed of trust, action of the district judge, without requiring proof that it was impracticable to reach the
District Judge of Howard County or a District Judge of Dallas County, in granting a temporary restraining order returnable to
his own court in Sterling County and granting the temporary writ was not void so as to be subject to collateral attack by relators
seeking to relieve themselves from a judgment of contempt for violation of the injunction.

Relators remanded to custody.

Griffin and Hamilton, JJ., dissented.



 West Headnotes (16)


 [1]     Judgment        Invalidity of Judgment in General
         Collateral attack on a judgment is entitled to prevail only if the judgment is void.

         4 Cases that cite this headnote


 [2]     Injunction       Authority of court; jurisdiction and venue
         The statute providing that writs of injunction granted to stay proceedings in a suit or execution on a judgment shall
         be tried in court where suit is pending applies to and governs the issuance and returns of writs and trials in cases in
         which relief sought is purely or primarily injunctive. Vernon's Ann.Civ.St. arts. 4656.

         12 Cases that cite this headnote


 [3]     Evidence       Geographical Facts
         The Supreme Court takes judicial notice that neither Dallas nor Howard County is in the 51st Judicial District.

         Cases that cite this headnote


 [4]     Courts       Dicta
         Where it was unnecessary to the decisions of the Courts of Civil Appeals that the validity of injunction orders be
         adjudicated, any statements in the opinions that the orders were void or indicating that the respective trial courts were
         without jurisdictional power to enter them, was dicta.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
Ex parte Coffee, 160 Tex. 224 (1959)
328 S.W.2d 283


        1 Cases that cite this headnote


 [5]    Injunction       Authority of court; jurisdiction and venue
        The term “writ of injunction” as used in the articles relating to granting of writ of injunction by nonresident judges and
        requiring writs of injunction granted to stay proceedings to be tried in court where suit is pending includes “temporary
        restraining orders” as provided for in the rule. Vernon's Ann.Civ.St. arts. 4642 et seq., 4643 and subds. 2, 3; arts.
        4647–4650, 4652, 4653, 4656, 4658; Rules of Civil Procedure, rules 680, 681.

        2 Cases that cite this headnote


 [6]    Judgment        Irregularities in Proceedings
        Where petition for injunctive relief was presented to the judge of the district court of the 51st judicial district in Tom
        Green County, and one defendant was a resident of Dallas County and the other three were residents of Howard
        County, and the restraint was not to stay proceedings in the suit or execution on a judgment, but to restrain a sale under
        a deed of trust, action of district judge without requiring proof that it was impracticable to reach the district judge of
        Howard County of a district judge of Dallas County, in granting a temporary restraining order returnable to his own
        court in Sterling County and granting the temporary writ was not void so as to be subject to collateral attack by relators
        seeking to relieve them from a judgment of contempt for violation of the injunction. Vernon's Ann.Civ.St. arts. 4642
        et seq.; 4643 and subds. 2, 3; arts. 4647–4650, 4652, 4653, 4656, 4658; Rules of Civil Procedure, rules 680, 681.

        3 Cases that cite this headnote


 [7]    Injunction       Authority of court; jurisdiction and venue
        When a suit is one for purely injunctive relief, other than to stay proceedings in a suit or execution on a judgment and
        the relief is sought and granted before the filing of suit, the order granting relief is not void for failure to make the
        restraining order returnable to the county of residence of the defendant or one of them, nor is the writ a temporary
        injunction thereafter granted by the court issuing a restraining order void. Vernon's Ann.Civ.St. arts. 4643, subds.
        2, 3, 4656.

        9 Cases that cite this headnote


 [8]    Judges       Exercise of powers beyond territorial limits of jurisdiction
        Orders entered by nonresident judge granting an injunction order presented by a nonresident judge granting a
        temporary restraining order and a temporary writ of injunction without requiring the filing of the statutory affidavit
        and the making of statutory proof of the inaccessibility of an effort to make or reach a resident judge as provided by
        the statute are not void. Vernon's Ann.Civ.St. arts. 4643, subds. 2, 3, 4656.

        1 Cases that cite this headnote


 [9]    Judges       Exercise of powers beyond territorial limits of jurisdiction
        Statutes      Construction of Revised Statutes and Codes
        Under the article relating to the granting of writs of injunction by nonresident judges, significance may be attached
        to the legislative elimination from the article in 1925 codification of all of the express language indicating that in
        absence of the required affidavit, a nonresident judge would have no power to act. Vernon's Ann.Civ.St. art. 4643.

        Cases that cite this headnote



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Ex parte Coffee, 160 Tex. 224 (1959)
328 S.W.2d 283


 [10]   Injunction      Authority of court; jurisdiction and venue
        The statutory requirement for affidavit and proof before a nonresident judge is authorized to grant a writ of injunction
        and statutory requirement for making the writs returnable to and triable in the county of the residence of the defendant
        are procedural and not jurisdictional. Vernon's Ann.Civ.St. arts. 4643, 4656.

        1 Cases that cite this headnote


 [11]   Judgment        Errors and Irregularities
        Judgments which are rendered without observance of statutory requirements which are purely procedural are not void,
        however irregular or erroneous they may be.

        8 Cases that cite this headnote


 [12]   Mortgages        Restraining exercise of power
        An order granting a writ of temporary injunction against foreclosure sale under a deed of trust was not void because
        no new bond was required of or filed, where a bond was required and filed as a prerequisite to the granting of the
        restraining order, since new order granting the writ of temporary injunction continued the restraining order bond with
        full force and effect as a temporary injunction bond. Vernon's Ann.Civ.St. arts. 4643, 4656; Rules of Civil Procedure,
        rule 684.

        6 Cases that cite this headnote


 [13]   Injunction      Particular cases
        Where, in a restraining order the signers of the bond obligated themselves to “abide the decision” which might be
        made in the suit, such was a continuing obligation until the suit was finally disposed of.

        Cases that cite this headnote


 [14]   Injunction      Particular cases
        Though in granting a writ of temporary injunction upon the expiration of a restraining order, the trial court should
        have required a new bond with new contractual obligations, there was no reason why the signers of a restraining order
        bond before it and agreeing, that the court could not extend the bond and obligation of its signers to comply with the
        rule. Rules of Civil Procedure, rule 684.

        3 Cases that cite this headnote


 [15]   Habeas Corpus         Conclusiveness of Prior Determinations
        In original habeas corpus proceeding where there was nothing in the record before the Supreme Court to show that
        the trial court did not extend the restraining order bond and second obligation of its signers to comply with the rule,
        the Supreme Court would assume in support of the validity of the court's order and writ, that it did occur. Rules of
        Civil Procedure, rule 684.

        Cases that cite this headnote


 [16]   Injunction      Form and requisites




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Ex parte Coffee, 160 Tex. 224 (1959)
328 S.W.2d 283

         If the written terms of a restraining order bond on file did not then truly reflect the full statutory obligations of the
         signers, the bond could have been amended or corrected upon motion to afford relators full protection.

         2 Cases that cite this headnote




Attorneys and Law Firms

*225 **285 John A. Coffee, George T. Thomas, John R. Coffee, Big Spring, for relators.

Ralph Logan, San Angelo, for respondent.

Opinion

CALVERT, Justice.

This is an original habeas corpus proceeding filed in this court by relators to relieve themselves of penalties imposed by a
judgment of contempt entered by the District Court of the 51st Judicial District. The judgment of contempt and imposition of
penalties grew out of a violation by relators of a temporary injunction granted by the court in the following fact situation.

On May 29, 1959 R. L. Damron, a resident of Crane County, and Wm. W. Gruber, a resident of Tom Green County, presented
to the judge of the aforesaid court at his chambers in Tom Green County their petition in which they sought injunctive relief
against Kathleen Amberson, a resident of Dallas County, and John Coffee, G. L Holley and Louis Bankston, all residents of
Howard County. It was alleged that plaintiffs were the owners of an interest in leasehold estates owned by Amberson Petroleum
Company in certain lands located in Sterling County, which estates were subject to a deed of trust lien given to secure an
indebtedness in favor of Mrs. Amberson; that the indebtedness was not due until September 10, 1959, but that the defendant,
John Coffee, as substitute trustee, had posted notices of his intention to sell the property on June 2nd under power of sale
contained in the deed of trust and unless restrained and enjoined from so doing would make the sale, to the plaintiffs irreparable
injury. They prayed for a restraining order, for a temporary injunction and for a permanent injunction until the debt should
become due.

Upon presentation of the petition to the District Judge a restraining order was issued restraining the defendant, John Coffee,
from selling the property pending a hearing to be held on the prayer for a temporary injunction, which hearing was set at 10
o'clock a. m., June 8th, in the courtroom of the District Court in the courthouse at Sterling City, Sterling County, within *226
the 51st Judicial District. The issuance of the restraining order was conditioned upon the filing by Damron and Gruber of a
bond in the penal sum of $7,500, conditioned as required by law. A bond in that sum, conditioned that Damron and Gruber
would abide the decision in the case and would pay all sums of money and costs which might be adjudged against them if ‘the
restraining order’ should be dissolved, in whole or in part, was approved and filed by the Clerk of the District Court, Sterling
County, on June 2, and the sale advertised for that date was avoided.

At the conclusion of the hearing on June 8th the court granted a temporary injunction restraining and enjoining all defendants
from selling the property at trustee's sale under the deed of trust pending final hearing and determination of the cause or until
September 10, 1959, whichever was earlier in time. The judgment contained the following order: ‘And the bond heretofore filed
with the Clerk upon issuance of the restraining order herein be, and is hereby continued in full force and effect as a temporary
injunction bond.’

 **286 On July 15th the District Judge, sitting in Sterling County, pursuant to a show cause order and after hearing, determined
that on July 7th relators, Coffee and Holley, did, in violation of the temporary injunction and in contempt of the court, sell and
cause to be sold the property at trustee's slae to relator Holley, and that Coffee, as substitute trustee, executed, a deed conveying
the property to Holley, which deed had been filed for record and recorded in Sterling County. The court assessed a fine of $100
against each of the defendants and ordered them confined in jail for twenty-four hours and thereafter until the fines and costs


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Ex parte Coffee, 160 Tex. 224 (1959)
328 S.W.2d 283

were paid and until they should purge themselves of their contempt by executing and filing of record a reconveyance of the
property to Amberson Petroleum Company without prejudice to the rights, titles, etc. of lienholders or other persons as the same
existed prior to the trustee's sale. It is from these penalties that relators seek relief in this proceeding.
 [1] Relators recognize the collateral nature of the attack they make on the trial court's judgment and that they are entitled to
relief in this proceeding only if the judgment is void. They assert that the judgment is void for two reasons: because the trial
court had no power, authority or jurisdiction to grant the temporary injunction, and because no bond was required or filed as
a condition precedent to the issuance of the writ of temporary injunction as required by Rule 684, Texas Rules of *227 Civil
Procedure. If the order granting the writ of temporary injunction and the writ itself were void, then the judgment of contempt
is also void. Ex parte Coward, 110 Tex. 587, 222 S.W. 531.


Relator's contention that the order granting the injunction was void because the court was without power or jurisdiction to grant
it is based upon the failure of the trial judge to comply with Articles 4643 and 4656, Vernon's Annotated Texas Civil Statutes.

Article 4643 relates to the granting of writs of injunction by nonresident judges and reads as follows:
‘No district judge shall grant a writ of injunction returnable to any other court than his own except in the following cases:

‘1. Where the resident judge cannot hear and act upon the application by reason of his absence, sickness, inability, inaccessibility,
disqualification or refusal to act, when such facts are fully set out in the application or in an affidavit accompanying same, and
if such judge refuses to act, such refusal shall be indorsed by said judge on such writ with his reasons therefor. In such case no
district judge shall grant the writ when the application therefor has once been acted upon by another district judge of this State.

‘2. To stay execution, or to restrain foreclosure, sales under deeds of trust, trespasses, the removal of property, or acts injurious
to or impairing riparian or easement rights, when satisfactory proof is made to such nonresident judge that it is impracticable
for the applicant to reach the resident judge and procure his action in time to effectuate the purpose of the application.

‘3. When the resident judge cannot be reached by the ordinary and available means of travel and communication in sufficient
time to effectuate the purpose of the writ sought. In such case the applicant or his attorney seeking a writ on the ground of such
inaccessibility shall attach to his application an affidavit fully stating the facts of such inaccessibility and his efforts made to
reach and communicate with said judge, and the result thereof, and unless such efforts appear to have been fair and reasonable
the application shall not be heard. Such injunction may be subsequently dissolved upon it being **287 shown *228 that the
petitioner did not first make reasonable efforts to procure a hearing upon said application before the resident judge.’


Article 4656 reads as follows:
          ‘Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable
          to and tried in the court where such suit is pending, or such judgment was rendered; writs of injunction
          for other causes, if the party against whom it is granted be an inhabitant of the State, shall be returnable
          to and tried in the district or county court of the county in which such party has his domicile, according as
          the amount or matter in controversy comes within the jurisdiction of either of said courts. If there be more
          than one party against whom a writ is granted, it may be returned and tried in the proper court of the county
          where either may ahve his domicile.’


 [2] It is settled that Art. 4656 only applies to and governs the issuance and return of writs and trial in cases in which the relief
sought is purely or primarily injunctive. Southwest Weather Research, Inc. v. Jones, Tex.Sup., 327 S.W.2d 417; Brown v. Gulf
Television Co., 157 Tex. 607, 306 S.W.2d 706. In that type of suit Article 4643 directs that no district judge shall issue a writ
returnable to any court other than his own except in specified emergency situations and upon adequate proof of the emergency,
and if one of the emergency situations arises which authorizes the granting of emergency restraint by a nonresident judge, Art.
4656 directs, with the two exceptions set out in the opening clause, that the writ be made returnable to the county of residence
of the defendant or of one of the defendants if there be more than one.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
Ex parte Coffee, 160 Tex. 224 (1959)
328 S.W.2d 283


 [3] The petition presented to the Judge of the District Court of the 51st Judicial District in chambers in Tom Green County
shows on its face that Damron and Gruber sought injunctive relief only. It also shows on its face that one of the defendants
was a resident of Dallas County and the other three were residents of Howard County. We take judicial notice that neither
Dallas nor Howard County is in the 51st Judicial District. It further shows on its face that the restraint sought was not to stay
proceedings in a suit or execution on a judgment, but was to restrain a sale under a deed of trust. With those facts before him the
District Judge, without requiring an affidavit or proof that it was impracticable to reach the District Judge of Howard County
or one of the District Judges of Dallas County and procure action from one of them in time to halt the sale, granted *229
a temporary restraining order returnable to his own court in Sterling County and there tried the right of the plaintiffs to and
granted a temporary writ of injunction. The order granting the writ did not direct to what court the writ was returnable and the
writ, if one was actually issued, is not in the record. We may assume, however, that the writ was returnable and returned to the
court from which it was issued from the fact that the contempt hearing was held in that court.


In asserting that the proceedings are void relators rely on Bridges v. Williams, Tex.Civ.App., 154 S.W.2d 669, no writ history;
Uvalde Rock Asphalt Co. v. Asphalt Belt R. Co., Tex.Com.App., 262 S.W. 736, reversed on rehearing Tex.Com.App., 267
S.W. 688, and City of Dallas v. Armour & Co., Tex.Civ.App., 216 S.W. 222. To that list of cases affording seeming support for
relators' position may be added Box v. Oliver, Tex.Civ.App., 43 S.W.2d 979, no writ history, and Anderson v. Southwestern
Presbyterian Home, etc., Tex.Civ.App., 248 S.W.2d 775, writ dismissed.

In Bridges v. Williams, a suit solely for injunctive relief filed in the 77th Judicial District in and for Limestone County, the
District Judge granted an ex parte writ of temporary injunction against a resident of Caldwell County, which was not within the
 **288 77th Judicial District, and made the writ returnable to his own court. On appeal the Court of Civil Appeals reversed
the judgment of the trial court, dissolved the writ of injunction and ordered the suit dismissed. In the course of its opinion the
court pointed out that plaintiff's petition showed on its face that the defendant was a resident of Caldwell County, and said: ‘The
petition shows upon its face that the judge of the 77th Judicial District of Texas was without statutory right or power to issue
the temporary writ of injunction, as well as without authority to make the same returnable to his court.' 1 154 S.W.2d 671. In
support of its conclusion the court cited City of Dallas v. Armour, supra, and Box v. Oliver, supra.

In City of Dallas v. Armour, the plaintiffs in a suit against residents of Dallas County to cancel a contract performable in Dallas
County and to enjoin its performance pendente lite presented their petition to the District Judge of the 66th Judicial District,
Hill County, and, upon the theory that the District Judges of Dallas County were disqualified to act, secured an exparte writ
of temporary injunction returnable to the District Court of the 14th Judicial District of Dallas County, where the *230 suit
was directed to be filed. On appeal, the Court of Civil Appeals held the District Judges of Dallas County to be qualified to
act and, citing Article 4643, said: ‘* * * the nonresident judge who issued the writ, was without authority to do so, since he
acted and assumed to act only on the basis that the Dallas county judges were disqualified, and, being without authority, his
act is void.’ 216 S.W. 225.

In Box v. Oliver, the Judge of the District Court of the 77th Judicial District granted an ex parte writ of injunction, pending
further order of the court, against the sheriff of Robertson County, a county not within the 77th Judicial District. On appeal the
Court of Civil Appeals, citing Articles 4643 and 4656, dissolved the injunction, holding that ‘the court was without authority
to make the order’ of restraint. 43 S.W.2d 980.

In Anderson v. Southwestern Presbyterian Home, etc., the plaintiff filed suit in the District Court of the 66th Judicial District,
Hill County, seeking purely injunctive relief against a resident of Tarrant County, a county not within the 66th Judicial District.
After hearing, the court overruled the defendants' plea of privilege and by separate order granted a temporary injunction. On
appeal the Court of Civil Appeals held both orders to be erroneous and reversed and ordered the cause transferred to one of
the District Courts of Tarrant County. With reference to the order granting the writ of temporary injunction, the court said
that the trial court ‘was without the statutory right or power to issue the temporary writ of injunction against the defendant




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Ex parte Coffee, 160 Tex. 224 (1959)
328 S.W.2d 283

in Tarrant County and that it was likewise without authority to make the writ returnable to the district court of Hill County.’
248 S.W.2d 777.
 [4] In the four cases analyzed it was unnecessary to the decisions of the Courts of Civil Appeals that the validity or invalidity
of the injunction orders be adjudicated, and any statements in the opinions that the orders were void or indicating that the
respective trial courts were without jurisdictional power to enter them may be treated as dicta. Each of the cases was before
the respective Courts of Civil Appeals by appeal from the trial court's order, and dissolution of the various orders of restraint
was proper on the ground that they were irregularly and erroneously granted. The cases analyzed are therefore not regarded
as controlling or as particularly persuasive.


Article 4643 was originally enacted in 1907 as a proviso to Article 2989 of the Revised Civil Statutes of 1895. Acts of Regular
 *231 Session, 30th Leg., ch. 107, p. 206. As thus amended Art. 2989 was codified as **289 Art. 4643 of the Revised Civil
Statutes of 1911. In the codification of 1925 the first part of Art. 4643 of the 1911 statutes was carried forward as Art. 4642
and the proviso was carried forward as Art. 4643. In the process of codification the language of the proviso was materially
altered. We need note only a few of the pertinent alterations. In the original Act and in the 1911 statute it was provided that a
nonresident district judge should have no power to grant a writ of injunction returnable to any other court than his own, unless
the resident judge was absent from his district, or was sick and unable to hear and act on the application, or was inaccessible, or
had refused to act, or was disqualified; and the applicant was required to set out the facts of, and relating to, the resident judge's
absence, sickness, inability to act, inaccessibility or disqualification in his application or in an accompanying affidavit. If the
basis for seeking action by a nonresident judge was inaccessibility of the resident judge the applicant was required to file with
his application an affidavit showing the efforts made to reach and communicate with the resident judge, and it was provided that
a nonresident judge should have no power to grant relief unless it appeared from the affidavit that a fair and reasonable effort
had been made to secure relief from the resident judge. But while providing that a nonresident judge would have no power
to grant relief because of inaccessibility of the resident judge unless the required affidavit showed fair and reasonable efforts
to obtain relief from the resident judge, the statute did not declare violative action by the nonresident judge voil. Instead, it
declared that a violative injunction should be dissolved upon a showing that a reasonable effort had not been made to procure
a hearing before the resident judge. In the present statute there is no express reference to a want of power in a nonresident
judge to act; a want of power can only be implied from the opening words of the Article: ‘No district judge shall grant a writ
of injunction returnable to any other court than his own except * * *.’ Moreover, the Article still provides for dissolution of
an injunction granted by a nonresident judge upon proof that the applicant ‘did not first make reasonable efforts to procure
a hearing upon said application before the resident judge.’ In the original Act and in the 1911 statute a ‘resident judge’ was
defined as one ‘in whose district the suit is, or is to be brought,’ and we will ascribe to the term that meaning even though the
definition was eliminated in the 1925 codification. We interpret the words ‘in whose district the suit is * * * to be brought’
to mean the district in which venue properly lies as shown on the face of the petition. Conversely, a nonresident *232 judge
is one in whose district the suit is not filed or in whose district venue, as shown on the face of an unfiled petition, does not
properly lie. Paragraphs 2 and 3 of Art. 4643 are interrelated and must be construed as overlapping.

Article 4656, with a few minor and unimportant changes in verbiage, is derived from what may be termed the first comprehensive
practice act governing judicial proceedings in the State of Texas. It was enacted by the First Legislature of the State of texas
in 1846. Gammel's Laws of Texas, Vol. 2, pp. 1669, 1711-1712.
 [5] Articles 4643 and 4656 are but two of a series of Articles in Title 76 of the Revised Civil Statutes of 1925, Vernon's
Ann.Civ.St. art. 4642 et seq., dealing with injunctions. As written they formed a logical procedural whole applicable to our
practice before adoption of the Rules of Civil Procedure in 1941. They contemplated that a trial judge could, upon presentation
of a sworn petition therefor and before the filing of suit, grant a writ of temporary injunction without a hearing, Arts. 4647 and
4648, effective upon the filing of bond, Art. 4649, whereupon the party to whom the writ was granted would file his petition and
the court's order with the clerk of the proper court, Art. 4650, the clerk would issue the writ, Art. 4652, and it would be served
by an officer and **290 returned to the court from which it issued, Art. 4653, or to the court to which it was made returnable.
Art. 4656. Restraint under a temporary writ continued, unless dissolved, until the case was finally disposed of. Riggins v.
Thompson, 96 Tex. 154, 71 S.W. 14, 15; Ex parte Zuccaro, 106 Tex. 197, 163 S.W. 579, 580. Relief from the restraint of a
temporary writ was obtainable through a motion to dissolve. Art. 4658. Under our present Rules of Civil Procedure no writ of


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Ex parte Coffee, 160 Tex. 224 (1959)
328 S.W.2d 283

temporary injunction may be issued without notice and hearing. Rule 681. Under the Rules of Civil Procedure the purpose once
served by an exparte temporary injunction in obtaining immediate restraint is now served exclusively by an ex parte restraining
order, Rule 680, but it will be noted that Arts. 4643 and 4656 nowhere expressly mention or purport to govern issuance, service
or return of restraining orders. However, a restraining order is one type of injunction, Riggins v. Thompson, supra; Ex parte
Zuccaro, supra, and inasmuch as restraining orders serve the same purpose under the Rules as was theretofore served, in part,
by temporary injunctions, and in order to bring the statutes and the Rules into a harmonious whole, we interpret the term ‘writs
of injunction’ as used in Arts. 4643 and 4656 to include ‘temporary restraining order’ as provided for in Rule 680. It is under
that interpretation *233 that we test the validity of the proceedings in the trial court in this case.

 [6] The proceedings leading up to the judgment of contempt against relators were undoubtedly irregular and erroneous. Upon
presentation of the petition to the District Judge it was his duty to make any restraining order granted by him returnable to a
District Court of Dallas or Howard County, and he was authorized to grant it in the first instance only upon the filing of an
affidavit showing the inaccessibility of the district judges of those counties and that fair and reasonable efforts had been made
by the plaintiffs to reach such judges but that it was impracticable to reach them and to obtain action from one of them in time
to halt the sale. Not only were the proceedings in the granting and return of the restraining order irregular and erroneous, but the
proceedings in trying in Sterling County the right of the applicants to a temporary writ and in making it returnable to the District
Court of the 51st Judicial District Court were also irregular and erroneous. But the important question here is not whether the
proceedings were irregular and erroneous, but whether they were wholly void. We hold that they were not.

 [7] The only types of suits in which the return of a writ as required by Article 4656 has been held jurisdictional are those to stay
proceedings in a suit or execution on a judgment, Baker v. Crosbyton Southplains R. Co., 107 Tex. 566, 182 S.W. 287; Seligson
v. Collins, 64 Tex. 314; Switzer v. Smith, Tex.Com.App., 300 S.W. 31, 68 A.L.R. 377, and even in suits of that character it has
been held by the Court of Criminal Appeals that failure to make the writ returnable as directed by the statute does not justify
violation of the injunction or relieve a violator from punishment for contempt. Ex parte Breeding, Tex.Cr.App., 90 S.W. 634.
Since the instant suit is not one of that character it is unnecessary for us to decide whether we would follow that decision.
There is far less reason for holding void a writ of injunction made returnable to the court issuing it in other types of suits. As to
such other types of suits our courts have recognized that the statute is primarily a venue statute. Brown v. Gulf Television Co.,
157 Tex. 607, 306 S.W.2d 706; Uvalde Rock Asphalt Co. v. Asphalt Belt R. Co., Tex.Com.App., 262 S.W. 736, on rehearing
Tex.Com.App., 267 S.W. 688; Perry v. Jaggers, Tex.Civ.App., 9 S.W.2d 143, writ dismissed; Pipe Line Workers Local No. 38
v. H. b. Zachry Co., Tex.Civ.App., 276 S.W.2d 876, writ refused, n. r. e. Whereas in the two types of suits designated in the
first clause of the statute any injunction granted, if not *234 made returnable to the court **291 where the suit is pending or
the judgment was rendered, would bring about an immediate conflict between two courts, often of coordinate jurisdiction, that
would not be true with respect to the issuance, return and trial of the right to an injunction in other types of suits, particularly
when, as in this case, the injunctive relief is sought and granted before suit is filed. Our specific holding is that when a suit
is one for purely injunctive relief other than to stay proceedings in a suit or execution on a judgment, and the relief is sought
and granted before the filing of suit, the order granting the relief is not void for failure to make the restraining order returnable
to the county of residence of the defendant or of one of them, nor is a writ of temporary injunction thereafter granted by the
court issuing the restraining order, void.

 [8] We also hold that orders entered by a nonresident judge granting a temporary restraining order and a temporary writ of
injunction without requiring the filing of the statutory affidavit and the making of statutory proof of the inaccessibility of and
efforts made to reach a resident judge, as provided by Art. 4643, are not void. If the Legislature had intended that such orders
should be void, there would have been no point in providing in the Article for a dissolution of writs granted in the absence of
such affidavit and proof, with the burden placed on the person enjoined to prove facts entitling him to dissolution. Moreover,
significance may be attached to legislative elimination from the article in the 1925 codification of all express language indicating
that in the absence of the required affidavit a nonresident judge would have no power to act.

 [9] [10] The requirement of Article 4643 for affidavit and proof before a nonresident judge is authorized to grant a writ
and the requirement of Article 4656 for making writs returnable to and triable in the county of residence of the defendant are



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Ex parte Coffee, 160 Tex. 224 (1959)
328 S.W.2d 283

procedural and not jurisdictional requirements. Violation of the requirements of the two statutes may be corrected at very little
expense and in a very brief time through orderly channels of procedure. There is no showing in the record before us that relators
sought to have the restraining order dissolved or opposed the granting of the writ of temporary injunction on the ground that
the granting of such relief was violative of Arts. 4643 and 4656. Judgments which are rendered without observance of statutory
requirements which are purely procedural are not void, however irregular or erroneous they may be. 25 Tex.Jur. 809-812,
Judgments, s 308; Freeman v. Freeman, Tex.Sup., 327 S.W.2d 428.

 [11] *235 Neither was the order granting the writ of temporary injunction void because no new bond was required of or filed
by Damron and Gruber. We recognize the rule to be that a writ of temporary injunction is void when no bond is required and
filed as required by Rule 684, Texas Rules of Civil Procedure. Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303. This is
not such a case. A bond was required and filed as a prerequisite to the granting of the restraining order. The order granting the
writ of temporary injunction continued the restraining order bond in full force and effect as a temporary injunction bond.

 [12] [13] [14] [15] [16] In asserting that the order and the writ were void relators rely on San Felipe Independent School
Dist. v. Nelson, Tex.Civ.App., 74 S.W.2d 136, 138, no writ history, in which the San Antonio Court of Civil Appeals expressly
stated that a restraining order bond could not be substituted for the bond required by law for the issuance of a writ of temporary
injunction. On the other hand, the Dallas Court of Civil Appeals has held that when a restraining order is continued in force,
even in part, the restraining order bond remains in force and effect as a temporary injunction bond. Porter v. Guggenheim,
Tex.Civ.App., 107 S.W.2d 891, 892, writ dismissed. Rule 684 requires that a restraining order or temporary injunction bond be
conditioned **292 ‘that the applicant will abide the decision which may be made in the cause, and that he will pay all sums
of money and costs which may be adjudged against him if the restraining order or temporary injunction shall be dissolved in
whole or in part.’ In the restraining order bond the signers obligated themselves to ‘abide the decision’ which might be made
in the suit, and that was a continuing obligation until the suit was finally disposed of. Their other obligation was to pay all
sums of money and costs which might be adjudged against them if the restraining order should be dissolved in whole or in part.
In granting a writ of temporary injunction upon expiration of the restraining order, the trial court should have required a new
bond with new contractual obligations, but we know of no reason why, with the signers of a restraining order bond before it
and agreeing, the court could not extend the bond and the second obligation of its signers to comply with Rule 684. There is
nothing in the record before us to show that that did not occur. In support of the validity of the court's order and the writ we
will presume it did occur. 25 Tex.Jur. 830, Judgments, s 319. If the written terms of the bond on file did not then truly reflect
the full statutory obligations of the signers, the bond could have been amended or corrected, upon motion, to afford relators
full protection. *236 Mansfield v. Ramsey, Tex.Civ.App., 196 S.W. 330, no writ history; Lindley v. Easley, Tex.Civ.App.,
59 S.W.2d 927, 929, no writ history. In the latter case the court said that ‘the failure to require a bond in a sufficient amount
would not render the injunction void and authorize its disobedience with impunity.’ The same may be said of the failure of the
bond to correctly express one of the obligations of the signers. See also 24-A Tex.Jur. 255, Injunctions, s 160.


The relators are remanded to the custody of the sheriff of Sterling County there to remain until discharged according to the
terms of the trial court's judgment.

GRIFFIN, Justice (dissenting).

I agree with the result reached in the majority opinion that the temporary injunction issued by Judge Mays was not void, but
voidable and irregular. This was a matter that could have been corrected by a prompt appeal under the provisions of Art. 4662,
Vernon's Ann.Tex.Civ.Stats.

I disagree that the injunction was not void by virtue of the fact that the order of the judge did not require a bond to be given
and no amount was fixed for the bond.

It is not disputed that the only bond in the record is the bond given to secure the temporary restraining order. It contains
no provisions that secure the issuance of a temporary injunction, or protect anyone by virtue of the issuance of a temporary
injunction. In fact, it was issued ten days prior to the hearing on the issuance of a temporary injunction.


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Ex parte Coffee, 160 Tex. 224 (1959)
328 S.W.2d 283


I do not believe that it can be questioned that the order of May 29, 1959 issued only a temporary restraining order. The life
of that restraining order is specifically stated to be ‘operative until and pending the hearing below ordered.’ The hearing was
ordered for 10:00 a. m. on June 8, 1959 in the District Courtroom of Sterling County, Texas in Sterling City. The court ordered
a bond given before the District Clerk should issue the restraining order. By virtue of its own provisions and also by Rule
680, Tex.Rules Civ.Proc., and innumerable cases, this restraining order expired June 8, 1959 and was of no further force and
effect. *237 Fort Worth Street Railway Company v. Rosedale Street Railway Company, 1887, 68 Tex. 163, 7 S.W. 381;
Riggins v. Thompson, 1902, 96 Tex. 154, 71 S.W. 14; Cole v. Forto, Tex.Civ.App.1913, 155 S.W. 350, no writ history; City
of Jacksonville v. Devereux, Tex.Civ.App.1926, 286 S.W. 572, no writ history; Wood v. Bird, Tex.Civ.App.1929, 20 S.W.2d
221(1), no writ history; Dunlap v. Rotge, Tex.Civ.App.1935, 85 S.W.2d 650(2, 3), no writ history; 24-A Tex.Jur. 24.

 **293 It is true, as declared by the majority, that a temporary restraining order is a species of injunction. The above authorities
and others hold that it is a separate and distinct order from either a temporary injunction or a permanent and perpetual injunction.
The Rules of Civil Procedure recognize that fact for Rule 680 deals only with such restraining order.

Rule 684 also recognizes such fact. That rule provides that ‘in the order granting any temporary restraining order or temporary
injunction, the court shall fix the amount of security to be given by the applicant. Before the issuance of the temporary restraining
order or temporary injunction * * *; if the restraining order or temporary injunction shall be dissolved * * *; where the temporary
restraining order or temporary injunction is against the State * * * the liability of the applicant shall be for its face amount if
the restraining order or temporary injunction shall be dissolved * * *’. (Emphases added) It is apparent from the above wording
in Rule 684 that the two species of injunction are separate and distinct.

Rule 685 continues this distinction between the two types of injunctive relief by using the following language: ‘Upon the grant
of a temporary restraining order or an order fixing a time for hearing upon an application for a temporary injunction * * *’. Rule
686 further carries forward this distinction. This Rule makes a difference in the form of citations to be issued in the temporary
restraining order and temporary injunction. Rule 688 also recognizes this difference.

The order entered June 18, 1959 reciting a hearing and judgment of June 8, 1959 nowhere continues the restraining order, nor
does it mention the restraining order except where the court provides the restraining order bond shall be extended to cover the
temporary injunction. I say the court had no right to so order. The temporary restraining order expired and was of no further
force and effect. Riggins v. Thompson, supra, and other authorities therein cited. When the restraining order expired *238 the
bond expired with it. The only case in Texas which I have been able to find in point holds that a temporary restraining order bond
cannot be continued as a bond for a temporary injunction. San Felipe Independent School Dist. v. Nelson, Tex.Civ.App.1934,
74 S.W.2d 136, 138, no writ history. In that case the San Antonio Court of Civil Appeals had held in their original opinion that
such bond could be continued in force and effect. On rehearing they changed their holding and said:
          ‘We wish to expressly state that we were in error in our original disposition of this cause wherein we held
          that the bond given in connection with the issuing of the temporary restraining order might be substituted
          for the bond required by law for the issuing of a temporary injunction. This, of course, cannot be done.’



The case of Porter v. Guggengeim, Tex.Civ.App.1937, 107 S.W.2d 891, wr. dism., is not in point on the question here before
us. In that case the trial court had continued the restraining order in part. The Dallas Court of Civil Appeals rested its holding
that the bond could be used as a bond for the temporary injunction. That court said, ‘on the hearing, (for temporary injunction)
the court continued the restraining order, in part at least, as a temporary injunction, and the bond likewise continued in force
and effect.’ (2), 2nd. col., at page 892. In our case, as pointed out above, the judge made no such order. He did not mention
the temporary restraining order at all, except as to the bond.

The effect of the majority opinion is to subject the surety on the temporary restraining order bond to new and additional liabilities
for which it did not contract when signing the original bond. It also overlooks the plain provision of the first sentence of Rule 684
‘in the order granting any temporary restraining order or temporary injunction, the court shall fix the **294 amount of security
to be given by the applicant.’ (Emphasis added) The trial court did not comply with this provision as no bond was set or given for


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Ex parte Coffee, 160 Tex. 224 (1959)
328 S.W.2d 283

the temporary injunction. No surety nor sureties have bound themselves for liability under the temporary injunction; nor does
the record show any agreement on the part of the sureties on the restraining order bond to be bound for the temporary injunction.

I believe the trial court had no right or authority to make the surety liable for more than it contracted in its original undertaking,
 *239 and, therefore, I believe the temporary injunction is absolutely void. I would discharge relators.


HAMILTON, J., joins in this dissent.

Parallel Citations

328 S.W.2d 283


Footnotes
1      Emphasis ours throughout.


End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  11
Ex parte Kimberlin, 126 Tex. 60 (1935)
86 S.W.2d 717



                                                       126 Tex. 60
                                                  Supreme Court of Texas.

                                                   Ex parte KIMBERLIN.

                                                 No. 6971.     |   Oct. 9, 1935.

Original habeas corpus proceeding by Sam Kimberlin, seeking release from a commitment issued out of the district court of
the Fourteenth judicial district of Texas, at Dallas.

Order granting temporary writ of habeas corpus set saide.



 West Headnotes (8)


 [1]    Habeas Corpus         Particular issues and problems
        Habeas corpus proceeding in Supreme Court to secure release from commitment based on judgment of contempt in
        lower court constitutes collateral attack upon such judgment and cannot be made to take place of appeal, or writ of
        error.

        1 Cases that cite this headnote


 [2]    Habeas Corpus         Void or invalid judgment or order
        In original habeas corpus proceeding to secure release from commitment based on judgment of contempt for violation
        of restraining order, Supreme Court could not give relief unless restraining order, judgment of contempt, or writ of
        commitment thereunder were void for lack of jurisdiction.

        5 Cases that cite this headnote


 [3]    Injunction      Trade or business
        Order restraining state tax collectors from interfering with alleged interstate business of selling cigarettes to buyers
        within state held not wholly void for want of jurisdiction, notwithstanding error in holding that cigarettes were still
        in interstate commerce after delivery to buyers, where court had right to protect business from some of acts sought
        to be restrained, and hence not to justify release of officer from commitment for contempt in violating such order.
        Vernon's Ann.Civ.St. art. 7047c–1, and Vernon's Ann.P.C. art. 131c–1.

        6 Cases that cite this headnote


 [4]    Commerce         Manufacture and Sale of Goods
        Cigarettes purchased from seller outside state held no longer in interstate commerce after delivery to purchasers within
        state, and hence subject to taxation by state. Vernon's Ann.Civ.St. art. 7047c—1, and Vernon's Ann.P.C. art. 131c.

        1 Cases that cite this headnote


 [5]    Taxation       Remedies for wrongful enforcement




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Ex parte Kimberlin, 126 Tex. 60 (1935)
86 S.W.2d 717

        Fact that collection of state tax, upon cigarettes already delivered to purchaser in Texas, interferes with business of
        seller located in another state furnishes seller no ground for injunctive relief (Vernon's Ann.Civ.St. art. 7047c–1, and
        Vernon's Ann.P.C. art. 131c–1).

        1 Cases that cite this headnote


 [6]    Habeas Corpus          Particular Issues and Problems
        Tax collector held not entitled to release under writ of habeas corpus from commitment based on judgment of contempt
        for violation of order restraining him from interfering with certain cigarette purchasers while collecting cigarette tax,
        where collector appeared to have acquiesced in issuance of order by failing to seek its modification or dissolution
        (Vernon's Ann.Civ.St. art. 7047c–1, and Vernon's Ann.P.C. art. 131c–1).

        Cases that cite this headnote


 [7]    Injunction       Public revenue; bonds and taxation
        Order restraining state tax officials from interfering with certain cigarette purchasers in collecting cigarette tax held
        not void as attempt to prevent enforcement of criminal laws, since it was merely to maintain status quo until final
        hearing could be had. Vernon's Ann.Civ.St. art. 7047c–1, and Vernon's Ann.P.C. art. 131c–1.

        1 Cases that cite this headnote


 [8]    Habeas Corpus          Collateral or direct attack
        Habeas corpus proceeding in Supreme Court to secure release from commitment based on judgment of contempt in
        lower court constitutes collateral attack upon such judgment and cannot be made to take place of certiorari or quo
        warranto.

        1 Cases that cite this headnote




Attorneys and Law Firms

*61 **717 William McCraw, Atty. Gen., and John W. Pope, Jr., T. F. Morrow, William C. Davis, and Pat M. Neff, Jr.,
Asst. Attys. Gen., for relator.

Hughes & Monroe and P. P. Ballowe, all of Dallas, for Julius Klugsberg.

Opinion

GERMAN, Commissioner.

This is an original habeas corpus proceeding, whereby Sam Kimberlin seeks release from a commitment issued out of the
district court of the Fourteenth judiciai district of Texas, at Dallas, on September 26, 1935; said commitment having been based
on a judgment finding him in contempt of court by reason of the wilful violation of a restraining order previously issued.

On July 29, 1935, Julius Klugsberg of Dallas county, doing business under the trade-name of Interstate Tobacco Company,
filed petition in the district court of Dallas county, complaining of George H. Sheppard, in his capacity as Comptroller of Public
Accounts of the State of Texas, and others, including Sam Kimberlin in his capacity as assistant and *62 deputy of the said
Sheppard. In his petition plaintiff set out in substance the various provisions of what is known as the ‘Cigarette Tax Law of the
State of Texas,’ as enacted by H. B. No. 755, chapter 241, of the Forty-Fourth Legislature, and which became effective May


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
Ex parte Kimberlin, 126 Tex. 60 (1935)
86 S.W.2d 717

11, 1935 (Vernon's Ann. Civ. St. art. 7047c-1, and Vernon's Ann. P. C. art. 131c-1). He then alleged that defendants George H.
Sheppard and his **718 deputies, including relator, were charged with the enforcement of the various provisions of that law.

Plaintiff alleged that he was engaged in the business of selling cigarettes exclusively and solely in interstate commerce; that
his principal place of business was at Neosho, Mo., where he kept his office, warehouse, stock of cigarettes, etc.; and that
the manner of doing business was as follows: That he made his purchase of cigarettes in wholesale quantities; that they were
shipped in interstate commerce to Neosho, Mo., and there held by him in stock; that he had one or more general salesmen in the
state of Texas and other solicitors and salesmen who worked under the supervision of the general salesmen; that his solicitors
obtained orders from various persons within the state of Texas for cigarettes to be shipped from the stock held at Neosho, Mo.,
which orders were forwarded to the general salesmen, who in turn sent them to the office at Neosho, Mo., for approval; that
after orders were accepted in this way the cigarettes were put in separate lots or packages according to the individual orders and
each separate lot labeled with the name of the particular purchaser; that after the orders were filled in this manner, the cigarettes
were forwarded in one bulk shipment to the general salesmen, who then turned over to the salesmen the separate orders of
the various purchases, and these salesmen delivered same to the purchasers; that upon delivery of same the purchase money
was paid by the purchaser to the solicitor and was then forwarded to the office at Neosho, Mo. It is also shown that when the
cigarettes were finally delivered to the purchasers and payment made, plaintiff had completely and finally parted with title to
same and had nothing further to do with them.

Plaintiff alleged that although his bisiness as above conducted and the cigarettes sold by him in this manner were not subject
to any of the provisions of the Cigarette Tax Law, being entirely within interstate commerce, nevertheless the Comptroller and
his assistants were seeking and attempting to make the provisions of the law applicable to him and to his business, and were in
various ways interfering with him in the *63 conduct of his business by attempting to make applicable said law and to collect
the taxes therein provided for upon cigarettes handled by him. Allegations were made of several specific acts on the part of
the Comptroller and his assistants, including threats of prosecution against solicitors and salesmen, in an effort to make him
and his business subject to provisions of the law.

The constitutionality of the Cigarette Tax Law was attacked on many grounds not necessary to mention here. Among other
things, it is alleged that the Comptroller ‘seeks to extend the terms of its prohibitions and penalties to persons and consumers
buying in interstate commerce, and thereby destroying, crippling and overthrowing the lawful business of your petitioner,
by inculcating in the minds of the purchasers who buy from petitioner in interstate commerce that purchases under such
circumstances are criminal in their nature and violative of the terms of this act, and expose such purchasers and consumers so
buying from your petitioner to the pains, penalties and punishment of the law; and that the effect of such act and the extension of
its penalties and prohibitions to such purchasers, customers and patrons is to deny to your petitioner the right under the Federal
and State Constitutions, to conduct his business through the avenues of interstate commerce, and to lawfully sell to purchasers
desiring to consume his cigarettes such tobacco commodities, all of which is contrary to the interstate commerce clause of the
Federal Constitution hereinbefore set out, and is contrary to the Fourteenth Amendment to the Federal Constitution, in that it
seeks to deprive the petitioner of his rights, his property and his liberty without due process of law; and by liberty as herein
meant is the liberty to pursue a lawful calling in and under the provisions of the Interstate Commerce Clause of the Federal
Constitution hereinbefore mentioned.’

Plaintiff prayed for a restraining order to continue until such time as a hearing might be had for a temporary injunction and
that finally he be awarded a permanent injunction against the Comptroller and other defendants including relator. As the
temporary restraining order followed almost verbatim the language of the prayer in the petition, we set out the restraining portion
thereof. Among other things, the defendants were commanded to ‘desist and refrain from harassing and annoying petitioner,
his agents, and servants in the prosecution and conduct of such interstate business as aforesaid, and commanding and *64
 **719 enjoining them to refrain from arresting and criminally prosecuting, under the Act aforesaid, your petitioner his agents,
servants and employees, in the conduct of such interstate trade, and commanding and enjoining the said defendants and each of
them, their agents, servants and employees, to desist and refrain from seizing and confiscating the goods and commodities of
your petitioner, shipped in interstate commerce, and commanding said defendants, and each of them, their agents, servants and
employees, from wrecking the business of the petitioner by proclaiming to the general public that the purchase of petitioner's



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
Ex parte Kimberlin, 126 Tex. 60 (1935)
86 S.W.2d 717

goods and commodities shipped in interstate commerce are criminal in their nature, and will subject the patrons and customers
of your petitioner to criminal prosecution and to the infliction of pains and penalties, where such purchases are made; and
further to desist, abstain and refrain from annoying, harassing, threatening or intimidating purchasers and patrons of petitioner
who buy his merchandise through channels of interstate commerce, from petitioner, his agents, servants and employees, for
their own private consumption, and not for resale, and to desist and refrain from threatening such purchasers and patrons with
criminal prosecution for such purchases or to seize or confiscate cigarettes so purchased or to institute under such circumstances
criminal prosecutions therefor.’

The temporary restraining order was entered on July 29, 1935, and served as to certain defendants at 4:30 o'clock p. m. of that
day. It was especially provided that the defendants should appear at 9 o'clock a. m. on August 1, 1935, and show cause why
a temporary injunction should not issue. On September 21, 1935, plaintiff Klugsberg filed in the district court a motion for
contempt as to defendants George H. Sheppard and relator Kimberlin. It is unnecessary to set out the various acts alleged to
constitute the contempt, as it was later found by the court that only one of them constituted a contempt.

The motion was set for hearing on September 26, 1935, before Judge Sarah T. Hughes, judge of the district court of the
Fourteenth judicial district, who had caused the restraining order to be issued, and relator was properly served with notice. On
the day set for hearing he appeared in person and by attorneys, and after full hearing upon the facts, relator was adjudged to be
in contempt of court. The judgment of the court in this regard is as follows: ‘* * * But as to the said Sam Kimberlin, however,
it is the opinion of the court, and the court so finds, that he, on *65 the 20th day of September, 1935, in willful violation of
the orders of the court referred to above, seized the quantity of cigarettes as described in the pleadings and testimony of the
witnesses from one Barrett, who had purchased same on a standing order, and from one Keys, who had purchased on regular
order; and the court finds that acts of said Kimberlin were and are an interference with the previous orders of the court in this
case, and that said transactions with the said Barrett and the said Keys were interstate commerce between them and the plaintiff
herein, and the court finds that the said Kimberlin by reason of the premises is in active contempt.’
 [1] [2] It is elementary that a habeas corpus proceeding in this court constitutes a collateral attack upon the judgment of
contempt in the lower court, and a writ of habeas corpus cannot be made to take the place of an appeal, certiorari, quo warranto,
or writ of error. In such a proceeding as this the court cannot give relief unless the restraining order by the district judge, or the
judgment of contempt or the writ of commitment thereunder, is absolutely void; and such voidness must be solely because of
lack of jurisdiction. Ex parte Smith, 110 Tex. 55, 214 S. W. 320; Ex parte Lipscomb, 111 Tex. 409, 239 S. W. 1101; Ex parte
Olson, 111 Tex. 601, 243 S. W. 773, 777; Lytle v. Ry. Co., 41 Tex. Civ. App. 112, 90 S. W. 316.

 [3] Relator apparently recognized this rule, but attempts to justify his action in violating the restraining order on the ground that
the court was wholly without jurisdiction to issue same and to restrain interference with purchasers of cigarettes from plaintiff
Klugsberg by demanding of them payment of the cigarette tax provided for by H. B. No. 755; and was likewise without power
to adjudge him in contempt for violating that portion of the order which sought to restrain him from confiscating cigarettes sold
to Barrett and Keys by plaintiff. However, no contention is made that the district court did not have jurisdiction of the cause of
action and of the parties. Nor can it be plausibly contended that the court did not have **720 power to issue the writ in order
to accomplish some of the purposes therein mentioned. Apparently it is not contended that the business being conducted by
plaintiff Klugsberg up to the time the cigarettes were delivered to the purchasers was not interstate business within the decisions
of our federal courts. The court undoubtedly had the right to protect plaintiff and his business from some of the acts sought to
be *66 restrained by the writ. This being true, it is evident that the writ was not wholly void for want of jurisdiction, but at
the most was only voidable as to some of the acts sought to be restrained. In Ex parte Olson, supra, the court said: ‘The district
court clearly had jurisdiction of relator and the subject-matter of the suit, and the injunction issued, therefore, cannot be said to
be absolutely void.’ The court cited Lytle v. Ry. Co., 41 Tex. Civ. App. 112, 90 S. W. 316, 317, wherein it was said: ‘Until we
come to consider and determine the questions involved in the appeal, we must observe the rule that, in proceedings for contempt
in failing to obey an order of court, the respondent may question the order which he is charged with refusing to obey, only in
so far as he can show it to be absolutely void, and cannot be heard to say that it is erroneous, however flagrant it may appear to
be. If the district court had jurisdiction of the parties and the matter adjudicated, the injunction cannot be said to be absolutely
void. ‘Jurisdiction,’ in the sense here used does not mean simple jurisdiction of the particular case occupying the attention of
the court, but jurisdiction of the class of cases to which the particular case belongs. It is sufficient, in a proceeding like this,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Ex parte Kimberlin, 126 Tex. 60 (1935)
86 S.W.2d 717

that the case belongs to a general class over which the authority of the trial court extends. If it does, then jurisdiction attaches,
and is not lost because of an erroneous decision, however erroneous it may be. O'Brien v. People (216 Ill. 354), 75 N. E. (108),
109 (108 Am. St. Rep. 219, 3 Ann. Cas. 966). The case in which the decree appealed from was one of injunction-the class over
which the court that rendered it had unquestionable original jurisdiction.'

 [4] [5] We are decidedly of the opinion that even though plaintiff Klugsberg was engaged in interstate commerce, yet when
the cigarettes were finally delivered by the salesmen to the respective purchasers and the purchase money was paid to the
salesmen, they ceased to be in interstate commerce and became a proper subject for taxation under the provisions of the Cigarette
Law. The correct rule is reflected by such cases as Waring v. Mayor, etc., of Mobile, 8 Wall. (75 U. S.) 110, 19 L. Ed. 342, and
Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241. It becomes immaterial to determine here whether
the tax after the cigarettes were delivered to the purchasers was to be collected on the sale or on the consumption of same, as
this is a matter wholly between the purchaser and the officers of the state. Even if the attempt by the Comptroller and his *67
associates to lay the tax on the purchaser had an indirect effect upon the business of plaintiff (which we do not find it necessary
to decide), this furnishes no ground for injunctive relief on his part. This is not a case of interference with business by reason
of willful threats and intimidations, but the alleged interference results from a bona fide effort to enforce the tax laws of this
state; and such acts cannot be held to be such an interference with the business of plaintiff as to justify relief by injunction. It is
admitted that when the cigarettes were delivered to the purchaser and the purchase money paid, plaintiff had no further interest
in them or in the transaction by which the sale was effected.


Notwithstanding, however, the district judge was in error in holding that the cigarettes were still in interstate commerce and
notwithstanding the fact that the judge and notwithstanding the fact that the judgc erroneously held relator in contempt because
he confiscated the cigarettes after being delivered to the purchasers, yet we are of the opinion that the action of the court in
this regard was an error of judgment upon the law and facts, and was not absolutely void because of lack of jurisdiction. Upon
this point the cases of Ex parte Testard, 101 Tex. 250, 106 S. W. 319, Ex parte Warfield, 40 Tex. Cr. R. 413, 50 S. W. 933,
938, 76 Am St. Rep. 724, and Ex parte Olson, supra, appear to be in point. In Ex parte Roper, 61 Tex. Cr. R. 68, 134 S. W.
334, 338, it was said: ,‘Again, it is urged as grounds of release that the writ of injunction goes beyond the power of the court to
restrain appellant from the unlawful use of property and to engage in unlawful sales, but effectually restrains him from selling
under prescription and in accordance with the law. It may be conceded that the writ, as issued, goes beyond the prayer in the
petition for injunction, **721 and beyond the precise limits authorized by law. This would not, however, render the injunction
granted absolutely void, but, so far as the court was authorized to issue an injunction, it would and should be upheld. This, as
we understand, was directly held by our Supreme Court in Ex parte Testard, 101 Tex. 250, 106 S. W. 319.’
 [6] In this connection we observe that relator had a speedy and effective remedy, easily available, to which he could have
resorted and by which he could have no doubt removed the objectionable features from the writ long before he violated same
on September 20th. We think it was clearly his duty to file motion before the court to modify the restraining order, *68 and
in the event he failed in that regard, to insist upon a prompt hearing to determine whether or not a temporary or permanent
injunction should issue. In the event a temporary or permanent injunction was issued, he had a speedy remedy by appeal to the
Court of Civil Appeals. It will be noted that the original order of the court directed the cause to be set for hearing at 9 o'clock
a. m. August 1st, which was only two days after the restraining order was issued. The judgment of contempt shows that by
agreement of the parties the hearing was continued from day to day and the restraining order kept in force until it was violated
by relator on September 20th. Thus it is seen that instead of moving to modify or dissolve the writ, and instead of seeking to
have a hearing on same, relator appears to have fully acquiesced in the action of the court until the 20th of September. If the
restraining order was too broad and included matters of doubtful validity, it was clearly the duty of relator to obey same and
to seek a modification or dissolution. The language of the Court of Criminal Appeals in the case of Ex parte Warfield, supra,
appears to be appropriate here. In that case it was said:
‘It has been said that applicant was not shown to have violated the spirit of the injunction, inasmuch as no conversation was
shown of a character calculated to persuade or lead away the wife of plaintiff; but his conduct was certainly in violation of
the letter of said injunction, and we cannot say that the court did not have the right and authority to make the injunction as
broad as it did, as, under the allegations of the petition, it is shown that defendant was not to be trusted in the society of Mrs.
Morris, or to speak with her.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
Ex parte Kimberlin, 126 Tex. 60 (1935)
86 S.W.2d 717


‘But, even if it be conceded that the act of the court in this regard is of doubtful validity,-that is, that it may or may not be void,-
still we do not feel inclined to interfere. The defendant in that suit had his right to invoke the action of that court ot dissolve
that injunction. He did not do so, but he saw fit to willfully disregard it, and he now claims before this court that the same was
absolutely void, and that he had the right to defy it and set it at naught. It occurs to us that the injunction could have been easily
obeyed, without infringing upon any of the fundamental rights of the applicant.’




The necessity for appropriate action to obtain relief by motion to modify, or by the usual processes afforded by resort to the
court where the cause is pending, is clearly recognized by the court in the case of Ex parte *69 Travis, 123 Tex. 480, 73 S.W.
(2d) 487, 489, in an able opinion by Justice Greenwood.
 [7] Relator contends, however, that the writ was void in all particulars because it was an attempt to prevent enforcement of
the criminal laws of this state. This was obviously not an attempt to interfere with the orderly administration of the law. It was
merely for the purpose of holding the situation in status quo until the court could consider and pass upon the various contentions
presented by the petition. As is shown above, an opportunity was afforded for a prompt hearing and relator evidently did not
consider the action of the court as seriously interfering with the administration of the law, because he waited some fifty days
without attempting to modify the order or have a hearing thereon, and then violated the writ.


The order granting temporary writ of habeas corpus is set aside, and the relator is remanded to the custody of the sheriff of
Dallas county.

Opinion adopted by the Supreme Court.


Parallel Citations

86 S.W.2d 717

End of Document                                                        © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     6
Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007)
50 Tex. Sup. Ct. J. 965



                                                        234 S.W.3d 642
                                                    Supreme Court of Texas.

                                           FORTIS BENEFITS, Petitioner,
                                                        v.
                                Vanessa CANTU and Ford Motor Company, Respondents.

  No. 05–0791.       |    Argued Nov. 16, 2006.        |   Decided June 29, 2007.       |   Rehearing Denied Nov. 2, 2007.

Synopsis
Background: Automobile accident victim's health insurer sought reimbursement or subrogation following victim's settlement
of tort claims. The 249th District Court, Johnson County, D. Wayne Bridewell, J., entered summary judgment in favor of victim.
Insurer appealed. The Waco Court of Appeals, Bill Vance, J., 170 S.W.3d 755, affirmed. Review was granted.



Holdings: The Supreme Court, Willett, J., held that:

[1] made-whole doctrine did not apply to insurer's claim based on contractual right to subrogation, abrogating Esparza v. Scott
& White Health Plan, 909 S.W.2d 548, and

[2] insurer relinquished any subrogation claim against automobile manufacturer by entering written pretrial agreement.


Affirmed in part, reversed in part, and remanded.



 West Headnotes (18)


 [1]    Insurance         Reimbursement of Payments
        Insurance         Adequate compensation of insured; “made whole” doctrine
        Made-whole doctrine did not apply to medical insurer's claim based on contractual right to reimbursement or
        subrogation; policy gave to insurer an unfettered right to recover the proceeds from insured's settlement of the
        underlying tort suit; abrogating Esparza v. Scott & White Health Plan, 909 S.W.2d 548.

        12 Cases that cite this headnote


 [2]    Subrogation         Nature and theory of right
        Subrogation         Agreements for subrogation
        Contractual subrogation rights generally arise from contract language; they do not derive their validity from principles
        of equity.

        5 Cases that cite this headnote


 [3]    Subrogation         Agreements for subrogation
        Contractual subrogation clauses express the parties' intent that reimbursement should be controlled by agreed contract
        terms rather than external rules imposed by the courts.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007)
50 Tex. Sup. Ct. J. 965


        3 Cases that cite this headnote


 [4]    Subrogation          Nature and theory of right
        Subrogation          Agreements for subrogation
        The three varieties of subrogation—equitable, contractual, and statutory—represent three separate and distinct rights
        that, while related, are independent of each other.

        5 Cases that cite this headnote


 [5]    Equity       Equity follows the law
        Courts generally adhere to the maxim that equity follows the law, and this requires equitable doctrines to conform to
        contractual and statutory mandates, not the other way around.

        1 Cases that cite this headnote


 [6]    Contracts          Contravention of law in general
        Contracts          Public Policy in General
        Where a valid contract prescribes particular remedies or imposes particular obligations, equity generally must yield
        unless the contract violates positive law or offends public policy.

        5 Cases that cite this headnote


 [7]    Payment           Nature and grounds of right
        Subrogation          Agreements for subrogation
        Neither subrogation nor reimbursement clauses in contracts violate public policy.

        3 Cases that cite this headnote


 [8]    Statutes       Nature and Definition of Legislative Acts
        State's public policy is reflected in its statutes.

        2 Cases that cite this headnote


 [9]    Insurance          Adequate compensation of insured; “made whole” doctrine
        Parties are free to negate the made-whole doctrine contractually and to do so before an event occurs that triggers
        medical benefits under the policy.

        3 Cases that cite this headnote


 [10]   Subrogation          Agreements for subrogation
        Contract-based subrogation rights should be governed by the parties' express agreement and not invalidated by
        equitable considerations that might control by default in the absence of an agreement.

        5 Cases that cite this headnote




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007)
50 Tex. Sup. Ct. J. 965


 [11]   Insurance         Validity and Enforceability
        Insurance         Public policy
        Adhesion contracts such as insurance policies are not automatically unconscionable or void.

        1 Cases that cite this headnote


 [12]   Insurance         Reimbursement of Payments
        Insurance         Subrogation Against Third Parties; Right to Proceeds of Action or Settlement
        It is not per se unconscionable that an insurer would seek to reduce its risk and boost its solvency by including a
        subrogation and/or reimbursement clause.

        1 Cases that cite this headnote


 [13]   Insurance         Adequate compensation of insured; “made whole” doctrine
        Insurance         Medical insurance
        Subrogation clause entitled health insurer to recover from insured's settlement of tort claim, even if the insured was
        not made whole and even though the clause did not refer to “first money”; the policy entitled insurer to the proceeds
        of any settlement or judgment limited to the amount of benefits paid.

        2 Cases that cite this headnote


 [14]   Insurance         Medical insurance
        Subrogation clause entitling health insurer to proceeds of any settlement or judgment limited to the amount of benefits
        paid gave a subrogation right only on recoveries for claims that related to benefits available under the contract; the
        clause did not allow subrogation of claims unrelated to the policy.

        2 Cases that cite this headnote


 [15]   Insurance         Waiver or loss of subrogation rights
        Health insurer relinquished any subrogation claim against automobile manufacturer by entering written pretrial
        agreement and stipulations that insured would pursue case against manufacturer and other defendants independently
        of insurer and that insurer would then look only to insured. Vernon's Ann.Texas Rules Civ.Proc., Rule 11.

        Cases that cite this headnote


 [16]   Stipulations        Necessity for writing in general
        Rule making pretrial agreement between attorneys or parties enforceable only if in writing aims to remove
        misunderstandings and controversies that accompany verbal assurances, and the written agreements speak for
        themselves. Vernon's Ann.Texas Rules Civ.Proc., Rule 11.

        2 Cases that cite this headnote


 [17]   Stipulations        Use and enforcement in general
        Trial court has duty to enforce terms of valid pretrial agreement. Vernon's Ann.Texas Rules Civ.Proc., Rule 11.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007)
50 Tex. Sup. Ct. J. 965


        11 Cases that cite this headnote


 [18]   Subrogation        Agreements for subrogation
        The equitable made-whole doctrine is inapplicable when the parties' agreed contract provides a clear and specific
        right of subrogation.

        2 Cases that cite this headnote




Attorneys and Law Firms

*643 Loren R. Smith, Kelly, Smith & Murrah, P.C., Thomas A. Laucius, Laucius & Associates, Houston, TX, for Petitioner.

Thomas B. Cowart, Law Offices of Thomas B. Cowart, P.C., Adolfo Ruiz Rodriguez, Basheer Youssef Ghorayeb, Rodriguez
Law Firm, P.C., Dallas, TX, Michael W. Eady, Thompson, Coe, Cousins & Irons, L.L.P., Austin, TX, for Respondents.

Kevin J. Cook, Payne & Blanchard, Dallas, TX, E.L. Caraway III, Watson Caraway Harrington Nelson Midkiff & Luningham,
Fort Worth, TX, for Other Interested Parties.

Gary L. Wickert, Matthiesen, Wickert & Lehrer, S.C., Hartford, WI, Brent M. Rosenthal, Baron & Budd, P.C., Dallas, TX,
for Amicus Curiae.

Opinion

*644 Justice WILLETT delivered the opinion of the Court.

The issue in this insurance subrogation case is whether the equitable “made whole” doctrine—the rule that an insurer is not
entitled to subrogation of medical benefits unless the insured has been “made whole”—trumps an insurer's contract-based
subrogation right.

After respondent Vanessa Cantu sued multiple parties for severe injuries she sustained in an auto accident, her medical insurer,
petitioner Fortis Benefits, intervened, claiming a subrogation right under the policy. The various defendants settled with Cantu,
and Fortis looked only to Cantu for its recovery. A divided court of appeals upheld a trial court finding that because Cantu's
medical expenses exceeded the settlement amount plus the benefits Fortis had paid, Fortis's subrogation claim was barred by the
equitable “made whole” doctrine. We hold that the “made whole” doctrine must yield to Fortis's right to contractual subrogation
under the plain terms of the insurance policy.



                                                         I. Background

Cantu suffered severe injuries in a car wreck and later sued the driver of the vehicle in which she was riding, his employer, the
vehicle seller, and the vehicle manufacturer (Ford). Fortis intervened and asserted contractual subrogation and reimbursement
rights to recoup from Cantu's tort recovery the amount of medical benefits it had paid under the policy. At a pretrial conference,
Fortis agreed with all parties on the record that Fortis was excused from participating in the pretrial and trial proceedings and
that Fortis at the post-verdict phase would look only to Cantu to resolve its subrogation and reimbursement claims.

Cantu settled her claims with the defendants before trial for $1.445 million. Cantu and Fortis disputed what portion of the
settlement proceeds, if any, should go to Fortis, and Cantu moved for summary judgment, arguing she had not been “made
whole” by the settlement. Cantu's past medical expenses totaled $378,500 (of which Fortis claimed to have paid $247,534.14),


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007)
50 Tex. Sup. Ct. J. 965

and her summary judgment evidence included two “life care plans” estimating her future medical expenses at roughly $1.7
million and $5.3 million. She argued that her past and future medical expenses, exclusive of other amounts like pain and
suffering, exceeded the amount of the settlement plus what Fortis had already paid. Cantu argued that the “made whole” doctrine
precluded Fortis's contractual claims of subrogation and reimbursement. The trial court granted summary judgment in favor of
Cantu, and a divided court of appeals affirmed. 1



                                      II. Subrogation and the “Made Whole” Doctrine

This Court recognized the “made whole” doctrine twenty-seven years ago in Ortiz v. Great Southern Fire & Casualty Insurance
Co. 2 The Ortiz family had a fire insurance policy from Great Southern on their home, but not the contents. 3 A fire caused
damages of $4,000 to the home and $11,614 to personal property, and Great Southern paid $4,000 for home repairs. 4 The
Ortizes then sued Stacy–Mason, Inc., alleging that one of its employees negligently started the fire. Great Southern intervened,
claiming a right of equitable *645 subrogation. 5 After the Ortizes settled with Stacy–Mason for $10,000, the trial court
awarded, and the court of appeals affirmed, $4,000 of that settlement to Great Southern. 6

We reversed, holding, “An insurer is not entitled to subrogation if the insured's loss is in excess of the amounts recovered from
the insurer and the third party causing the loss.” 7 We reasoned that one justification for equitable subrogation is to prevent the
insured from receiving a double recovery, first from the insurer, then from the third party. 8 We also recognized, however, that
if the insured's total recovery is less than his or her losses, equity cuts the other way: “when ‘either the insurer or the insured
must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume.’ ” 9
Because the settlement in Ortiz encompassed both covered and noncovered items, we remanded for a determination of how
much of the $10,000 related to house damage. 10

 [1] Ortiz would govern if Fortis were merely asserting a claim for equitable subrogation. But Fortis is not citing principles of
equity to recover its money; its policy with Cantu conferred on Fortis two separate contractual rights of recovery, one styled
“subrogation” and one styled “reimbursement.” 11 Fortis argues that these provisions authorize recovery from Cantu's $1.445
million settlement with the defendants, and that neither provision is displaced by the “made whole” doctrine. We agree.



                                   A. Equitable Subrogation v. Contractual Subrogation

Our Ortiz decision addressed the “made whole” doctrine in the context of equitable subrogation, but it did not discuss how
the doctrine applies, if at all, to contractual subrogation. Other courts, however, have discussed whether the doctrine applies
in the face of a contract that grants the insurer greater subrogation rights. For example, in Oss v. United Services Automobile
 *646 Ass'n, 12 the Fifth Circuit, applying Texas law in a diversity case, was confronted with facts similar to those in this
case. The insured was not made whole by the settlement following a car wreck, yet insurer USAA sought enforcement of
its contractual subrogation rights under the policy. 13 Like Fortis, USAA urged the Fifth Circuit to reject the “made whole”
doctrine by distinguishing Ortiz as involving equitable rather than contractual subrogation. 14 The Fifth Circuit, relying on the
El Paso Court of Appeals' decision in Means v. United Fidelity Life Insurance Co., refused because it believed that, in Texas,
“the same principles govern both equitable and contractual subrogation.” 15

In Means, the insureds had challenged the validity of United Fidelity's contractual subrogation right to foreclose on their 200–
acre property. 16 The court noted, “Whether we have a purely equitable subrogation or, as here, a purely contractual one where
both Mr. and Mrs. Means agreed to the subrogation, the principles are the same, and the rights of United Fidelity Life Insurance



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007)
50 Tex. Sup. Ct. J. 965

Company after the payment were superior to the homestead rights of Mr. and Mrs. Means.” 17 Read in context, the court's
discussion in Means does little more than affirm a subrogee's basic rights, whether they arise via contract or equity. Moreover,
Means nowhere addressed the “made whole” doctrine that we first articulated in Ortiz, nor could it have, since Ortiz was decided
three years later. When the El Paso Court of Appeals declared in Means that “the principles are the same” in contractual and
equitable subrogation, it did so against a legal landscape that did not yet include the “made whole” doctrine. 18 For this reason,
Means is not particularly instructive, nor is Oss, which relies predominantly on Means.

Other Texas courts of appeals have addressed the difference between equitable and contractual subrogation. For example, the
Austin Court of Appeals in Lexington Insurance Co. v. Gray recognized the distinction between “legal” and “conventional”
subrogation. 19 The former is governed by equity; the latter by contract. 20 The court (1) observed that Texas courts have
given “substance to the distinction,” (2) noted the “unusually ‘hospitable’ treatment that the right of subrogation has historically
received in Texas,” especially express subrogation agreements, which are given “considerable weight” and are governed by
general contract law principles, 21 and (3) cited several cases holding that a subrogee invoking contractual subrogation can
“recover without regard to the relative equities of the parties.” 22 Lexington did not specifically *647 involve the “made
whole” doctrine we had adopted a decade earlier in Ortiz, but it suggested that this equitable defense would not apply in the
face of an express agreement whereby the parties agree in advance that the matter will be governed by contract principles rather
than equitable principles. Where the policy's terms govern subrogation, the court added, “there is no reason for the equitable
principles usually found in subrogation cases to come into play.” 23


A few years later, however, in Esparza v. Scott & White Health Plan, 24 the Austin Court of Appeals backed away from this
interpretation. The Esparzas settled for an amount that did not make them whole, and Scott and White sought subrogation under
an express provision in the parties' insurance contract, citing Lexington as holding that the “made whole” doctrine should apply
only to equitable subrogation and not to contractual subrogation. 25 The court of appeals disagreed, stating:


  The distinction we drew between legal and conventional subrogation in Lexington simply means that under conventional
  subrogation no balancing of equities is necessary to determine whether the subrogee has a right to recover at all. While an
  insurance contract providing expressly for subrogation may remove from the realm of equity the question of whether the
  insurer has a right to subrogation, it cannot answer the question of when the insurer is actually entitled to subrogation or
  how much it should receive....

     ... To avoid injustice, the equities must still be balanced in deciding what amount, if any, the subrogee is entitled to receive
    in a given case. 26
The court adopted the reasoning from Oss that a boiler-plate subrogation provision does not automatically negate an insurance
policy's fundamental purpose, which is to protect the insured by shifting the risk of loss to the insurer. 27 If anyone is to go
unpaid, the court reasoned, it should be the insurance company. The court concluded that contracts “ ‘confirm, but [do] not
expand, the equitable subrogation rights of insurers,’ ” and the equities must still be balanced to achieve justice. 28

 [2] We do not disagree that equitable and contractual subrogation rest upon common principles, but contract rights generally
arise from contract language; they do not derive their validity from principles of equity but directly from the parties' agreement.
The policy declares the parties' rights and obligations, which are not generally supplanted by court-fashioned equitable rules
that might apply, as a default gap-filler, in the absence of a valid contract. If subrogation arises independent of any contract,
then an express subrogation agreement would be superfluous and serve only to acknowledge this preexisting right, a position
we reject. 29

[3] Contractual subrogation clauses express the parties' intent that reimbursement should be controlled by agreed contract
*648 terms rather than external rules imposed by the courts. The United States Supreme Court addressed this very point in a


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Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007)
50 Tex. Sup. Ct. J. 965

subrogation case decided shortly after we granted the instant case. In Sereboff v. Mid Atlantic Medical Services, Inc., 30 insurer
Mid Atlantic was an ERISA plan fiduciary for the Sereboffs. When the Sereboffs were injured in an auto accident, Mid Atlantic
paid the couple's expenses pursuant to the plan. 31 When the Sereboffs settled the tort claims that arose from the accident, Mid
Atlantic filed suit under ERISA to collect the medical expenses it had paid. 32 Mid Atlantic sought reimbursement under an
“Acts of Third Parties” provision in the plan. 33 The Sereboffs argued that the equitable defense of the “made whole” doctrine
should apply, even though language in the plan document was to the contrary. 34 The Court disagreed, comparing an action
under the “Acts of Third Parties” provision to an action to enforce an equitable lien established by agreement. 35 The Court
refused to apply the “made whole” doctrine, deeming the Sereboffs' equitable defenses “beside the point” because Mid Atlantic's
subrogation claims arose by written agreement. 36


This position was earlier adopted by the Fifth Circuit in another ERISA case, Walker v. Wal–Mart Stores, Inc. 37 That case,
like today's case, concerned a subrogation clause that granted a right of recovery against “any and all” third-party settlements.
Walker brought a malpractice action against her dentist, alleging he propped open her mouth excessively, resulting in three
jaw surgeries and medical expenses of over $41,000. 38 Walker settled for $12,500, and the trial court awarded the insurer
the entire settlement amount as first-money reimbursement for the medical benefits it paid. 39 The Fifth Circuit held that “the
Plan's language is unambiguous.... We agree with the district court in holding that the ‘any and all’ language plainly means
the first dollar of recovery (any) and 100% recovery (all) of the funds received by the plaintiff in the settlement, up to the full
amount of the benefits paid.” 40

 [4] [5] [6] [7] [8] The three varieties of subrogation—equitable, contractual, and statutory—represent three separate
and distinct rights that, while related, are independent of each other. Independent, however, does not mean co-equal. We
generally adhere to the maxim that “equity follows the law,” which requires equitable doctrines to conform to contractual
and statutory mandates, not the other way around. Where a valid contract prescribes particular *649 remedies or imposes
particular obligations, equity generally must yield unless the contract violates positive law or offends public policy. This
Court has “long recognized a strong public policy in favor of preserving the freedom of contract.” 41 And in Texas Ass'n of
Counties County Government Risk Management Pool v. Matagorda County, we emphasized that insurers are well equipped to
evaluate and reduce risk by, for example, “drafting policies to specifically provide for reimbursement.” 42 Fortis did exactly that,
drafting two separate recovery provisions that replaced equitable rights with specific contractual rights. Neither subrogation nor
reimbursement clauses violate Texas public policy. 43 As we have stated, “ ‘the State's public policy is reflected in its statutes,’
” 44 and Texas workers' compensation law specifically embraces an insurer's first-money right of subrogation, thus indicating
no blanket legislative disfavor of such provisions. 45 It is indeed difficult to declare something contrary to public policy when
state law, both statutory and regulatory, actually suggests approval. 46 In a subrogation case arising under the Labor Code, the
Amarillo Court of Appeals distinguished statutory subrogation from equitable and contractual subrogation. 47 The court looked
only at the statute's plain language in affirming the trial court's refusal to invoke its equitable powers to deny subrogation. 48
We agree with this modest, text-based approach.

 [9] Given this insurance policy's plain language, we are loathe to judicially rewrite the parties' contract by engrafting extra-
contractual standards that neither the Legislature nor the Texas Department of Insurance has thus far decided to promulgate. As
we have said before, balancing dueling policy concerns is generally for non-judicial bodies, and it remains the “better policy
for the contracts of insurance to be changed by the public body charged with their supervision, the State Board of Insurance,
or by the Legislature, rather than for this Court” to contravene the express language of insurance contracts with equitable
arguments. 49 The *650 contrary, however—replacing equitable protections with specific contract language—is not unknown
in Texas law. 50 Parties are thus free to negate the “made whole” doctrine contractually, and to do so before an event occurs
that triggers medical benefits under the policy. 51


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007)
50 Tex. Sup. Ct. J. 965


 [10] [11] [12] Leading insurance law treatises likewise recognize that specific policy terms can override equitable principles
and that many jurisdictions, though not all, apply the “made whole” doctrine only in the absence of contrary reimbursement
language in the contract. 52 We agree with those courts holding that contract-based subrogation rights should be governed by
the parties' express agreement and not invalidated by equitable considerations that might control by default in the absence of
an agreement. 53



                                B. Subrogation Under Cantu's Insurance Contract With Fortis

 [13] [14] We turn now to the specific language of the policy in issue, which defines the parties' rights and obligations. It
contains a section called “Recovery,” which includes a “Subrogation Right” provision and a separate (and broader) “Right
of Reimbursement” provision. The former establishes a right of subrogation: “Upon payment of benefits, We [Fortis] will be
subrogated to all rights of recovery a Covered Person [Cantu] may have against any person or organization.” 54 The provision
continues: “Such right extends to the proceeds of any settlement or judgment; but is limited to the amount of benefits We have
paid.” 55 Fortis thus retained an unfettered right to recover the proceeds from *651 the settlement of the underlying suit, the
only limitation being the amount of recovery—what Fortis had paid under the contract. Nowhere does this provision suggest
that Cantu must first be “made whole” for Fortis to recover. This provision does not use the modifier “first money,” but its
meaning is not imprecise or ambiguous. The contract's specific language controls Fortis's right to subrogation, and the equitable
defense of the “made whole” doctrine must give way.

Accordingly, we hold that Fortis is contractually entitled to recover from the $1.445 million settlement the total amount of
benefits it paid to Cantu. 56



                                                III. Fortis's Claims Against Ford

 [15] [16] [17] Fortis also asserts that the court of appeals erred in not considering the validity of a pretrial agreement
regarding its claims against defendant Ford. At a pretrial conference convened under Texas Rule of Civil Procedure 11, Fortis
agreed to divide the proceeding into two phases: first Cantu would litigate the case with the defendants completely independent
from Fortis, and then Fortis would look only to Cantu to resolve its claim for subrogation. The Rule 11 agreement and stipulations
in the record, which narrowed the issues presented to the trial court, make clear that Fortis has unequivocally relinquished
any claims against Ford. Just as Cantu entered into and is bound by the specific language in the insurance agreement, Fortis
entered into and is bound by the specific language in the Rule 11 agreement. Rule 11 aims to remove misunderstandings and
controversies that accompany verbal assurances, and the written agreements “speak for themselves.” 57 As this is a valid pretrial
agreement under Rule 11, the trial court had a duty to enforce its terms. 58 Hence, the trial court did not err in dismissing Fortis's
claims against Ford, and the court of appeals did not err in affirming that portion of the judgment.



                                                          IV. Conclusion

 [18] The equitable “made whole” doctrine is inapplicable when the parties' agreed contract provides a clear and specific right
of subrogation. Accordingly, while we affirm that part of the court of appeals' judgment regarding respondent Ford, we reverse
and remand to the trial court for further proceedings consistent with this decision.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                8
Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007)
50 Tex. Sup. Ct. J. 965


Parallel Citations

50 Tex. Sup. Ct. J. 965


Footnotes
1      170 S.W.3d 755.
2      597 S.W.2d 342 (Tex.1980).
3      Id. at 343.
4      Id.
5      Id.
6      Id.
7      Id.
8      Id.
9      Id. at 344 (quoting Garrity v. Rural Mut. Ins. Co., 77 Wis.2d 537, 253 N.W.2d 512, 514 (1977)).
10     Id.
11     The policy states:
            Subrogation Right. Upon payment of benefits, We will be subrogated to all rights of recovery a Covered Person may have
            against any person or organization. This includes but is not limited to recoveries against such third party, against any liability
            coverage for such third party or against automobile insurance in the event a claim is made under the uninsured or underinsured
            motorist coverages. Such right extends to the proceeds of any settlement or judgment; but is limited to the amount of benefits
            We have paid. You must 1) do nothing to prejudice any right of recovery; 2) execute and deliver any required instruments or
            papers; and 3) do whatever else is necessary to secure such rights.
            If We are precluded from exercising Our Subrogation Right, We may exercise Our Right of Reimbursement.
            Right of Reimbursement. If benefits are paid under this plan, and any Covered Person recovers against any person or
            organization by settlement, judgment or otherwise, We have a right to recover from that Covered Person an amount equal to
            the amount We have paid. This includes but is not limited to recoveries against such third party, against any liability coverage
            for such third party or against automobile insurance in the event a claim is made under the uninsured or underinsured motorist
            coverages.
          (emphases added).
12      807 F.2d 457 (5th Cir.1987).
13      Id. at 458–59.
14      Id. at 460.
15      Id. (citing 550 S.W.2d 302, 309 (Tex.Civ.App.-El Paso 1977, writ ref'd n.r.e.)).
16      550 S.W.2d at 308.
17      Id. at 309.
18      Id.
19      775 S.W.2d 679, 683 (Tex.App.-Austin 1989, writ denied).
20      Id.
21      Id. at 683–84.
22      Id. (citing Girard Fire & Marine Ins. Co. v. Farmer, 53 S.W.2d 1016 (Tex.Com.App.1932, judgm't adopted); Duval County Ranch
        Co. v. Alamo Lumber Co., 663 S.W.2d 627 (Tex.App.-Amarillo 1983, writ ref'd n.r.e.); Quincy Mut. Fire Ins. Co. v. Jones, 486
        S.W.2d 126 (Tex.Civ.App.-Dallas 1972, no writ); F.H. Vahlsing, Inc. v. Hartford Fire Ins. Co., 108 S.W.2d 947 (Tex.Civ.App.-San
        Antonio 1937, writ dism'd w.o.j.)).
23      Id. at 684.
24      909 S.W.2d 548 (Tex.App.-Austin 1995, writ denied).
25      Id. at 551 (citing 775 S.W.2d 679).
26      Id. at 552–52 (emphasis in original).
27      Id.
28      Id. at 552 (quoting Oss, 807 F.2d at 460).




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Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007)
50 Tex. Sup. Ct. J. 965

29     Even if the “Subrogation Right” provision merely confirmed the preexisting right of equitable subrogation and nothing more, the
       policy's separate and broader “Right of Reimbursement” provision affords Fortis an alternative basis to recover from Cantu the
       medical benefits it paid.
30     547 U.S. 356, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006).
31     Id. at 1872.
32     Id. at 1873.
33     Id. at 1872–73.
34     Id. at 1877.
35     Id.
36     Id. Cantu would have us distinguish Sereboff because it arises under the ERISA statute and “has no application to this non-ERISA
       case.” However, “ERISA neither requires a welfare plan to contain a subrogation clause nor does it bar such clauses or otherwise
       regulate their content.” Ryan v. Fed. Express Corp., 78 F.3d 123, 127 (3d Cir.1996). Accordingly, a contractual subrogation provision,
       whether in an ERISA plan or in a private insurance policy, must be enforced as written. See id. at 128.
37     159 F.3d 938 (5th Cir.1998) (per curiam).
38     Id. at 939.
39     Id.
40     Id. at 940.
41     Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 553 (Tex.2001) (citing Wood Motor Co. v. Nebel, 150 Tex. 86, 238 S.W.2d 181, 185
       (1951)). As a rule, a court should not by judicial fiat insert non-existent language into statutes or into parties' agreed-to contracts, or
       delete existent language from them either. Our confined duty is to construe the contract as is, and holding that equitable considerations
       trump contrary contract terms would render contractual subrogation a nullity.
42     52 S.W.3d 128, 136 (Tex.2000). As we noted, “the presence of absence of a reimbursement clause in the insurance contract could
       affect the premium charged,” so such provisions cannot be deemed illusory. Id. at 131 n. 4.
43     See id.; Ortiz, 597 S.W.2d at 343.
44     Town of Flower Mound v. Stafford Estates Ltd. P'ship, 135 S.W.3d 620, 628 (Tex.2004) (quoting Texas Commerce Bank, N.A. v.
       Grizzle, 96 S.W.3d 240, 250 (Tex.2002)).
45     See TEX. LABOR CODE §§ 417.001–.004 (authorizing subrogation in Texas workers' compensation law).
46     See Lawrence, 44 S.W.3d at 553 (“Public policy, some courts have said, is a term of vague and uncertain meaning, which it pertains to
       the law-making power to define, and courts are apt to encroach upon the domain of that branch of the government if they characterize
       a transaction as invalid because it is contrary to public policy, unless the transaction contravenes some positive statute or some well-
       established rule of law.”).
47     Tex. Workers' Comp. Ins. Fund v. Knight, 61 S.W.3d 91, 93 (Tex.App.-Amarillo 2001, no pet.).
48     Id.
49     Members Mut. Ins. Co. v. Cutaia, 476 S.W.2d 278, 281 (Tex.1972).
50     See, e.g., Zapata v. Torres, 464 S.W.2d 926, 930 (Tex.Civ.App.-Dallas 1971, no writ) (stating it is “reasonable to suppose” that the
       parties' express agreement was intended to replace implied equitable rights) (citations omitted).
51     Of course, if the Legislature and/or TDI believes that the contract's terms, though clear, work an unfair result, they can take action
       to prescribe or proscribe whatever principles they believe strike the best balance. The Insurance Code requires insurers to submit
       their insurance forms to TDI for approval, TEX. INS.CODE § § 1701.051, 1701.054, and while TDI can disapprove forms it deems
       unjust, id. § 1701.055(a)(2), it did not do so here.
52     16 COUCH ON INSURANCE 3d §§ 223:134, 223:147; 22 HOLMES APPLEMAN ON INSURANCE 2d § 141.2[B][1]; 3
       APPLEMAN INSURANCE LAW & PRACTICE § 1675.
53     Cantu attempts to avoid the policy's express language by arguing that insurance contracts “are contracts of adhesion in which the
       insured has little, if any, negotiating room,” and that contractual abrogation of the “made whole” doctrine is thus unconscionable and
       unenforceable. Even taking as true the contention that insurance contracts are contracts of adhesion that reflect unequal bargaining
       power, “adhesion contracts are not automatically unconscionable or void.” In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571,
       574 (Tex.1999). Nor is it per se unconscionable that an insurer would seek to reduce its risk and boost its solvency by including a
       subrogation and/or reimbursement clause. In any event, Cantu has produced no evidence of duress or unconscionability.
54     Emphasis added. Although Cantu argues that this language is so open-ended it allows for subrogation of claims unrelated to the
       policy, we must construe this provision in relation to the entire instrument, Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983), to avoid
       an interpretation that renders the contract “unreasonable, inequitable, and oppressive,” Reilly v. Rangers Mgmt., Inc., 727 S.W.2d
       527, 530 (Tex.1987). This contract is a “Major Medical Policy” that “describes the benefits available to You and covered Family



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Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007)
50 Tex. Sup. Ct. J. 965

       Members from Fortis Insurance Company.” The provision therefore gives Fortis a subrogation right only on recoveries for claims
       that relate to benefits available under the contract.
55     Emphasis added.
56     Because we enforce the contract's “all rights of recovery” subrogation provision, we need not reach the separate “Right of
       Reimbursement” provision, which by its terms only applies if Fortis is denied subrogation. Nor need we consider whether the trial
       court erred in computing past and future medical expenses in relation to Cantu's total damages.
57     Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex.1995) (citing Birdwell v. Cox, 18 Tex. 535, 537 (1857)).
58     See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex.1996) (orig. proceeding) (noting that trial courts cannot consider evidence
       outside the bounds of the Rule 11 agreement); Scott–Richter v. Taffarello, 186 S.W.3d 182, 189 (Tex.App.-Fort Worth 2006, pet.
       denied) (“A trial court has a ministerial duty to enforce a valid Rule 11 agreement.”).


End of Document                                                        © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    11
Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011)




                                                       374 S.W.3d 464
                                                   Court of Appeals of Texas,
                                                             Waco.

                                  GRAY WIRELINE SERVICE, INC., Appellant
                                                       v.
       Larry R. CAVANNA, David Gray, Steve D. Gray, Kenneth M. Nester, Sr., Ismael Alvarez, Extreme Wireline
          Trucks & Equipment, LLC, Andrew E. Hughes, Bruce R. Barnett, and CGN Leasing, LLC, Appellees.

                                           No. 10–11–00058–CV.          |   Oct. 12, 2011.

Synopsis
Background: Company brought action against former employees, equipment company, and leasing company alleging various
causes of action based on violations of employment agreements. The 335th District Court, Burleson County, Terry Flenniken,
J., granted motion compelling arbitration in part, granted a temporary injunction, and reformed several of the employment
agreements. Company appealed.



Holdings: The Court of Appeals, Tom Gray, C.J., held that:

[1] trial court's reformation of the non-compete agreements was not within the exception to the arbitration clause;

[2] reformation of non-compete agreements in employment contracts was an issue to be determined by the arbitrator;

[3] litigation had to be stayed pending the outcome of the arbitration; and

[4] temporary injunction order that did not set the cause for trial on the merits was void on its face.


Reversed and remanded.



 West Headnotes (23)


 [1]      Alternative Dispute Resolution         Validity
          Alternative Dispute Resolution         Disputes and Matters Arbitrable Under Agreement
          In evaluating a motion to compel arbitration, a court must first determine whether a valid arbitration agreement exists,
          and then whether the agreement encompasses the claims raised.

          Cases that cite this headnote


 [2]      Alternative Dispute Resolution         Scope and standards of review
          Whether a valid arbitration agreement exists is a legal question subject to de novo review.

          Cases that cite this headnote




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011)




 [3]    Alternative Dispute Resolution         Evidence
        The presumption favoring arbitration arises only after the party seeking to compel arbitration proves that a valid
        arbitration agreement exists.

        Cases that cite this headnote


 [4]    Alternative Dispute Resolution         Construction in favor of arbitration
        Courts must resolve any doubts about an arbitration agreement's scope in favor of arbitration.

        Cases that cite this headnote


 [5]    Alternative Dispute Resolution         Construction
        Arbitration agreements are interpreted under traditional contract principles.

        Cases that cite this headnote


 [6]    Alternative Dispute Resolution         Evidence
        If the trial court finds a valid arbitration agreement, the burden shifts to the party opposing arbitration to raise an
        affirmative defense to enforcing arbitration.

        1 Cases that cite this headnote


 [7]    Alternative Dispute Resolution         Discretion
        Absent a defense to enforcing the arbitration agreement, the trial court has no discretion but to compel arbitration
        and stay its own proceedings.

        Cases that cite this headnote


 [8]    Alternative Dispute Resolution         Disputes and Matters Arbitrable Under Agreement
        To determine whether an arbitration agreement covers a party's claims, a court must focus on the complaint's factual
        allegations, not the legal causes of action asserted.

        Cases that cite this headnote


 [9]    Alternative Dispute Resolution         Liberal or strict construction
        Alternative Dispute Resolution         Evidence
        Court construes arbitration clauses broadly, and when a contract contains an arbitration clause, there is a presumption
        of arbitrability.

        Cases that cite this headnote


 [10]   Alternative Dispute Resolution         Construction in favor of arbitration
        Any doubts as to arbitrability are to be resolved in favor of coverage.

        Cases that cite this headnote



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011)




 [11]   Alternative Dispute Resolution            Construction in favor of arbitration
        Court resolves any doubts about the scope of the arbitration agreement in favor of coverage.

        Cases that cite this headnote


 [12]   Alternative Dispute Resolution            Construction in favor of arbitration
        The policy in favor of enforcing arbitration agreements is so compelling that a court should not deny arbitration unless
        it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation covering the
        dispute at issue.

        Cases that cite this headnote


 [13]   Alternative Dispute Resolution            Disputes and Matters Arbitrable Under Agreement
        Generally, if the facts alleged touch matters that are covered by, have a significant relationship to, are inextricably
        enmeshed with, or are factually intertwined with the contract that contains the arbitration agreement, the claims are
        arbitrable.

        1 Cases that cite this headnote


 [14]   Alternative Dispute Resolution            Disputes and Matters Arbitrable Under Agreement
        To come within the scope of the arbitration provision, a party's allegations need only be factually intertwined with
        arbitrable claims or otherwise touch upon the subject matter of the agreement containing the arbitration provision.

        1 Cases that cite this headnote


 [15]   Alternative Dispute Resolution            Employment disputes
        Contracts       In restraint of trade
        Reformation of Instruments              Form of remedy
        Trial court's reformation of the non-compete agreements in employment agreements could only be construed as a
        permanent reformation, which was not within the exception to the arbitration clause in the employment agreements;
        arbitration clause in employment agreements clearly contemplated that only temporary relief could be sought in the
        trial court, and thus, any equitable relief to be granted by the trial court would have to be interim in nature only.

        1 Cases that cite this headnote


 [16]   Contracts       In restraint of trade
        Judgment        Contract cases in general
        Reformation of Instruments              Form of remedy
        Reformation pursuant to statute regarding remedies in actions to enforce covenants not to compete is a remedy to
        be granted at a final hearing, whether on the merits or by summary judgment, not as interim relief. V.T.C.A., Bus.
        & C. § 15.51(c).

        2 Cases that cite this headnote


 [17]   Alternative Dispute Resolution            Matters to Be Determined by Court



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Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011)


        Reformation of non-compete agreements in employment contracts was an issue to be determined by the arbitrator
        rather than the trial court; the motion to reform, which asked for a determination that the restrictions contained
        within the non-compete agreements were not reasonable either in scope or duration or alternatively that the former
        employees had fully complied with the non-compete agreements, necessarily touched matters that were covered by,
        had a significant relationship to, were inextricably enmeshed with, or were factually intertwined with the contract
        that contained the arbitration agreement.

        1 Cases that cite this headnote


 [18]   Alternative Dispute Resolution          Particular cases
        Litigation between company and various defendants had to be stayed pending the outcome of the arbitration between
        company and former employees, where the central issue in the case was the purported violation of non-compete
        agreements by the employees.

        Cases that cite this headnote


 [19]   Alternative Dispute Resolution          Stay of Proceedings Pending Arbitration
        Even when a party has brought arbitrable claims against one party and claims not subject to arbitration against another
        party in the same lawsuit, courts should stay all litigation if the collateral litigation addresses the same issues as
        arbitration which threatens to render the arbitration moot.

        Cases that cite this headnote


 [20]   Appeal and Error         Reply briefs
        Injunction       Form and requisites
        Temporary injunction order that did not set the cause for trial on the merits was void on its face, and thus, the issue was
        not waived by the failure to complain about the injunction order in the original appellant's brief. Vernon's Ann.Texas
        Rules Civ.Proc., Rule 683.

        4 Cases that cite this headnote


 [21]   Injunction       Scope and duration of relief
        Injunction       Form and requisites
        The requirements of rule regarding form and scope of temporary injunctions are mandatory and must be strictly
        followed. Vernon's Ann.Texas Rules Civ.Proc., Rule 683.

        1 Cases that cite this headnote


 [22]   Appeal and Error         Defects, objections, and amendments
        Injunction       Scope and duration of relief
        Injunction       Form and requisites
        When a temporary injunction order does not meet the mandatory requirements of rule on form and scope of injunctions,
        it must be declared void and dissolved, regardless of whether the defect was raised or briefed on appeal. Vernon's
        Ann.Texas Rules Civ.Proc., Rule 683.

        3 Cases that cite this headnote




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Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011)




 [23]   Motions        Construction and operation of orders in general
        A void order has no force or effect and confers no right; it is a nullity.

        2 Cases that cite this headnote




Attorneys and Law Firms

 *466 Ryan P. Hartman, Fulbright & Jaworski LLP, Houston, Bill Youngkin, Law Offices of Bill Youngkin, Bryan, for
appellant.

J. Davis Watson, Watson Law Firm LLP, Bryan, Wayne T. Rife, Law Offices of Wayne T. Rife PC, College Station, Laura J.
Upchurch, Moorman Tate Urquhart Haley Upchurch & Yates, LLP, Brenham, James M. Riley Jr., Coats/Rose, Houston, Jay
B. Goss, Bruchez Goss Thornton Meronof & Hawthorne, Bryan, for appellees.

Ismael Alvarez, Pro Se.

Before Chief Justice GRAY, Justice DAVIS, and Justice SCOGGINS.



                                                           OPINION

TOM GRAY, Chief Justice.

This is an interlocutory appeal from three orders that (1) reformed several employment agreements, (2) compelled arbitration
in part and denied a stay of the balance of the litigation involving third parties during the pendency of the arbitration, and (3)
granted a temporary injunction. See TEX. CIV. PRAC. & REMEDIES CODE ANN. § 51.016 (West 2008). Gray Wireline
Service, Inc. complains that the trial court erred by reforming the employment agreements rather than sending those issues to
be determined by the arbitrator in contravention of the employment agreement and by refusing to stay the pending litigation in
the trial court. GWSI further complains that the trial court erred by granting a temporary injunction in favor of Steve Gray and
CGN Leasing. Because *467 we find that the trial court erred by reforming the employment agreements but should have sent
that issue to arbitration, and erred by denying the motion to stay the litigation, we reverse the judgments of the trial court and
remand to that court for further proceedings. Additionally, because we find that the temporary injunction did not comply with
the Rules of Civil Procedure, we reverse the order granting the temporary injunction and order that it be dissolved.


Background
Steve Gray formed GWSI, a cased-hole wireline company, which operated primarily in Texas. In 2006, the shareholders of
GWSI agreed to sell a portion of their shares to Centre Partners, Inc. and by doing so Centre Partners, Inc. gained control of
GWSI. The new owners entered into employment agreements with Larry Cavanna, David Gray, Steve Gray, and Kenneth M.
Nester, Sr. 1 which each contained a non-compete clause that terminated at various times depending on the reasons for the
individual's departure, but was generally two years in duration. Each of the four departed from GWSI at various times, with
Nester being the last to leave, terminating his employment on August 15, 2009.

GWSI originally filed suit in mid-October of 2009 against Larry Cavanna, David Gray, Steve Gray, Kenneth M. Nester,
Sr., Ismael Alvarez, Extreme Wireline Trucks & Equipment, LLC, Andrew E. Hughes, Bruce R. Barnett, and CGN Leasing,
LLC seeking a temporary restraining order and asserting various causes of action based on violations of the employment
agreement, including tortious interference, breach of fiduciary duty, breach of contract, civil conspiracy, unjust enrichment,
unfair competition, violation of Penal Code Chapter 33, conversion, and trespass against the various defendants. The trial court


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Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011)


issued a temporary restraining order, which was subsequently extended by agreement of the parties so that they could conduct
limited expedited discovery. Shortly after the issuance of the temporary restraining order, Steve Gray and CGN Leasing, LLC
filed a demand for arbitration in accordance with Steve Gray's employment agreement, and included a cause of action for
a declaratory judgment in the arbitration demand. GWSI ultimately withdrew its request for a temporary injunction the day
before the scheduled hearing. Cavanna, David Gray, and Nester then filed a “Motion to Reform and Alternate Motion for
Determination” seeking reformation of the non-compete clause pursuant to Section 15.51(c) of the Business and Commerce
Code or alternatively a determination that they were in full compliance with the employment agreements. GWSI subsequently
filed its own demand for arbitration as to Steve Gray, Cavanna, David Gray, and Nester with the American Arbitration
Association as well as a motion to stay the litigation pending the arbitration with the trial court.

After a hearing on the motions, the trial court denied the motion to compel arbitration relating to the motion to reform and by
separate order granted the motion to reform and reformed the employment agreements of Cavanna, David Gray, and Nester.
The trial court then granted the motion to compel arbitration but denied *468 the motion to stay the trial court's proceedings
pending the arbitration as to all of the defendants except for Cavanna, David Gray, Nester, Steve Gray, and CGN Leasing. The
trial court did stay the pending litigation against them until the completion of the arbitration.


The Non–Compete Agreements
Each of the employment agreements contained the following language which Cavanna, Gray, and Nester sought to modify in
the motion to reform:

  Geographic Limitation. The geographic limitation for the Non–Compete Obligations is any state, province (or substantially
  equivalent designation of a geographic area within a foreign country), or Outer Continental Shelf region (A) in which the
  Company provided its products, services, or activities during the twenty-four (24) months prior to the date of termination of
  Executive's employment with the Company, (B) in which the Company had plans to provide or contemplated providing its
  products, services, or activities during the twenty-four (24) months prior to the date of termination of Executive's employment,
  or (C) in which a customer or client of the Company, with whom Executive had or made contact or had access to information
  and/or files about during Executive's employment with the Company or within the twelve (12) months prior to the date of
  termination of Executive's employment with the Company, is located.

  Acknowledgments. Executive acknowledges and agrees that:

  ...

  (g) the restricted period set forth is a material term of this Agreement and that the Company is entitled to Executive's
  compliance with these terms during that full period. Therefore, Executive agrees that the restricted period will be tolled
  during any period of non-compliance by Executive. If the Company must seek injunctive relief or judicial intervention to
  enforce this Agreement, the restricted time period set forth herein does not commence until Executive is judged by a court
  of competent jurisdiction to be in full compliance with this Agreement;....

The trial court reformed the first paragraph to include the language “as evidenced by existing memoranda, minutes, or other
correspondence (including, without limitation, internal or external presentations)” in paragraph (B) of the geographic restriction
section. The trial court also reformed the tolling paragraph to delete the last sentence and to add the following: “If the Company
must seek injunctive relief or judicial intervention to enforce this Agreement, the restricted time period set forth herein does
not commence until a court of competent jurisdiction deems it should commence.”


Arbitration
 [1] [2] [3] [4] In evaluating a motion to compel arbitration, a court must first determine whether a valid arbitration
agreement exists, and then whether the agreement encompasses the claims raised. Am. Std. v. Brownsville Indep. Sch. Dist.
(In re D. Wilson Constr. Co.), 196 S.W.3d 774, 781 (Tex.2006); see In re Dillard Dep't Stores, Inc., 186 S.W.3d 514, 515


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Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011)


(Tex.2006) (per curiam); LDF Constr., Inc. v. Bryan, 324 S.W.3d 137 (Tex.App.-Waco 2010, no pet.). Whether a valid
arbitration agreement exists is a legal question subject to de novo review. Id. Although the Texas Supreme Court has repeatedly
expressed a strong presumption favoring arbitration, the presumption arises only after the party seeking to compel arbitration
proves that a valid arbitration agreement exists. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). Courts must
resolve any *469 doubts about an arbitration agreement's scope in favor of arbitration. In re FirstMerit Bank, N.A., 52 S.W.3d
749, 753 (Tex.2001).

 [5] [6] [7] Arbitration agreements are interpreted under traditional contract principles. J.M. Davidson, 128 S.W.3d at 227.
If the trial court finds a valid agreement, the burden shifts to the party opposing arbitration to raise an affirmative defense to
enforcing arbitration. Id. Absent a defense to enforcing the arbitration agreement, the trial court has no discretion but to compel
arbitration and stay its own proceedings. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex.2002) (per curiam).

 [8] [9] [10] [11] [12] To determine whether an arbitration agreement covers a party's claims, a court must focus on the
complaint's factual allegations, not the legal causes of action asserted. FirstMerit Bank, 52 S.W.3d at 754. See also Energy
Transfer Fuel, LP v. Estate of Souter, No. 10–09–00361–CV, 2010 WL 1611082, at *2–3, 2010 Tex.App. LEXIS 2975 at *6–
7 (Tex.App.-Waco Apr. 21, 2010, no pet.) (mem. op.). We are to construe arbitration clauses broadly, and when a contract
contains an arbitration clause, there is a presumption of arbitrability. See AT & T Tech., Inc. v. Communications Workers of
Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986). Any doubts as to arbitrability are to be resolved in favor
of coverage. FirstMerit Bank, 52 S.W.3d at 754. Likewise, we resolve any doubts about the scope of the arbitration agreement
in favor of coverage. Id. In fact, the policy in favor of enforcing arbitration agreements is so compelling that a court should not
deny arbitration unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation
covering the dispute at issue. Prudential Sec., Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex.1995).

 [13]    [14] Generally, if the facts alleged “touch matters” that are covered by, have a “significant relationship” to, are
“inextricably enmeshed” with, or are “factually intertwined” with the contract that contains the arbitration agreement, the
claims are arbitrable. Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 498 (Tex.App.-San Antonio 2000, orig. proceeding).
In other words, to come within the scope of the arbitration provision, a party's allegations need only be factually intertwined
with arbitrable claims or otherwise touch upon the subject matter of the agreement containing the arbitration provision. See
Prudential, 909 S.W.2d at 900; Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex.1992).


The Arbitration Clause
The arbitration clause at issue in each of the employment agreements states:

            Arbitration. Any dispute or controversy between the Company and Executive, arising out of or relating to
            this Agreement, the breach of this Agreement, or otherwise, shall be settled by arbitration in Wilmington,
            Delaware administered by the American Arbitration Association in accordance with its Commercial
            Rules then in effect and judgment on the award rendered by the arbitrator may be entered in any court
            having jurisdiction thereof. The arbitrator shall have the authority to award any remedy or relief that a
            court of competent jurisdiction could order or grant, including, without limitation, the issuance of an
            injunction. However, either party may, without inconsistency with this arbitration provision, apply to
            any court having jurisdiction over such dispute or controversy and seek interim provisional, injunctive
            or other equitable relief until *470 the arbitration award is rendered or the controversy is otherwise
            resolved. Except as necessary in court proceedings to enforce this arbitration provision or an award
            rendered hereunder, or to obtain interim relief, neither a party nor an arbitrator may disclose the existence,
            content or results of any arbitration hereunder without the prior written consent of the company and
            Executive. Each party shall bear its or his own costs and expenses in any arbitration hereunder and one-
            half of the arbitrator's fees and costs; provided, however, that the arbitrator shall have the discretion to
            award the prevailing party reimbursement of its or his reasonable attorney's fees and costs.




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Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011)


No party is contending that the arbitration agreement is not valid or that arbitration should not be ordered. Rather, it is which
claims to be determined by the arbitrator that are at issue, specifically, the motion to reform. Therefore, the burden is on Cavanna,
Gray, and Nester to establish that the motion to reform the non-compete agreements is not within the scope of the arbitration
agreement. See J.M. Davidson, 128 S.W.3d at 227.

GWSI complains that the reformation of the non-compete agreements by the trial court was not allowed within the limited
categories of relief allowed by the arbitration clause, but that the issue of reformation should be determined by the arbitrator
because reformation pursuant to Business and Commerce Code section 15.51(c) is an issue to be determined at a final hearing
on the merits. Because of this, GWSI contends that pursuant to the arbitration clause, the trial court could not permanently
and finally reform the agreements prior to a determination on the merits at a final hearing, which should have been before
the arbitrator.

 [15] Cavanna, Gray, and Nester responded by contending both in the trial court and to this Court that the trial court's
reformation of the employment agreements was allowed pursuant to the arbitration clause because it constitutes “other equitable
relief” as allowed in the arbitration clause. Their position is that the term “interim” does not apply to the entire phrase
“interim provisional, injunctive or other equitable relief.” We disagree. The arbitration clause clearly contemplates that only
temporary relief may be sought in the trial court. In order for Cavanna, Gray, and Nester's interpretation to be correct, the
phrase immediately following “interim provisional, injunctive or other equitable relief” which states “until the arbitration award
is rendered or the controversy is otherwise resolved” would have to be ignored entirely. Any equitable relief to be granted
by the trial court would have to be interim in nature only, and thus that relief would seemingly be subsumed in or otherwise
resolved at the final hearing on the merits. The trial court's reformation of the non-compete agreements can only be construed
as a permanent reformation, which was not within the exception to the arbitration clause in the employment agreements.

 [16] Additionally, we agree that reformation pursuant to section 15.51(c) of the Business and Commerce Code is a remedy to
be granted at a final hearing, whether on the merits or by summary judgment, not as interim relief. See EMS USA, Inc. v. Shary,
309 S.W.3d 653, 657 (Tex.App.-Houston [14th Dist.] 2010, no pet.); Cardinal Health Staffing Network, Inc. v. Bowen, 106
S.W.3d 230, 238–39 (Tex.App.-Houston [1st Dist.] 2003, no pet.). See also, e.g., Lockhart v. McCurley, No. 10–09–00240–
CV, 2010 WL 966029, at *1–2, 2010 Tex.App. LEXIS 1909 at *5 (Tex.App.-Waco March 10, 2010, no pet.) (mem. *471
op.); Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 885 (Tex.App.-Dallas 2003, no pet.); W.R. Grace & Co.-Conn. v.
Henson, No. 13–06–00668–CV, 2007 WL 2389547, at *4–5, 2007 Tex.App. LEXIS 6771 at *11–12 (Tex.App.-Corpus Christi
2007, no pet.) (mem. op.).


Other Provisions in the Agreement
 [17] Having determined that the trial court's reformation of the non-compete agreements did not fit within the exceptions to
the arbitration agreement, we must determine whether the reformation is an issue to be determined by the arbitrator or the trial
court. Cavanna, Gray, and Nester contend that there are two provisions outside of the arbitration provisions in the employment
agreements which establish that the trial court was the proper forum for the issue of the reformation of the non-compete
agreements rather than to be determined through arbitration. The first is the reference to “a court of competent jurisdiction”
within the tolling provision. The second is contained in the next paragraph, paragraph (h) in the acknowledgment section which
states:

             (h) the covenants contained in Paragraphs 8 through 12 are reasonable with respect to their duration,
             geographic area and scope. If, at the time of enforcement of this Paragraph 11, a court holds that the
             restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree
             that the maximum period, scope or geographic area legally permissible under such circumstances will
             be substituted for the period, scope or area stated herein.


Cavanna, Gray, and Nester argue that these provisions establish a clear intent between the parties that even if the exception
stated in the arbitration agreement itself does not allow for the reformation of the agreement pursuant to the Business and


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Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011)


Commerce Code as “other equitable relief,” the reformation dispute should be resolved only by the trial court because of the
use of the term “court” rather than “arbitrator” or “arbitral forum” in these additional paragraphs.

The motion to reform asked the trial court to determine that the restrictions contained within the non-compete agreements were
not reasonable either in scope or duration or alternatively, for the trial court to determine that they had fully complied with
the non-compete agreements. When we consider the factual allegations contained within the motion to reform, we find that
these claims necessarily “touch matters” that are covered by, have a “significant relationship” to, are “inextricably enmeshed”
with, or are “factually intertwined” with the contract that contains the arbitration agreement. See Pennzoil Co. v. Arnold Oil
Co., 30 S.W.3d 494, 498 (Tex.App.-San Antonio 2000, orig. proceeding). Thus, we find that Cavanna, Gray, and Nester have
not established an affirmative or other defense to the arbitration clause sufficient to overcome the presumption in favor of
arbitration, and therefore the trial court erred in ruling on the motion to reform. We sustain issue one. Because of our holding
sustaining the first issue, we do not reach the second issue relating to the arbitrators determining arbitrability.


Stay of Proceedings
 [18] In its third issue, GWSI complains that the trial court erred by denying its motion to stay the proceedings entirely pending
the outcome of the arbitration. The trial court granted the motion to stay relating to Steve Gray, Cavanna, David Gray, Nester,
and CGN Leasing but denied the motion as it relates to the other defendants.

 *472 [19] Federal law requires courts to stay litigation of claims that are subject to arbitration until arbitration is completed.
9 U.S.C.A. § 3 (West 2009); In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 195–96 (Tex.2007) (orig. proceeding). Even
when a party has brought arbitrable claims against one party and claims not subject to arbitration against another party in the
same lawsuit, courts should stay all litigation if the collateral litigation addresses the same issues as arbitration which threatens
to render the arbitration moot. See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d at 195–96.

None of the non-signatories have filed briefs in this Court. However, our review of the claims indicates that the central issue
to all is the purported violation of the non-compete agreements. Therefore, the litigation should be stayed pending the outcome
of the arbitration and the trial court erred to order otherwise. We sustain issue three.


TEMPORARY INJUNCTION
 [20] GWSI indicated in its notice of appeal that it was appealing the trial court's order granting a temporary injunction against it
and in favor of Steve Gray and CGN Leasing. Steve Gray and CGN Leasing contend that any complaint regarding the temporary
injunction has been waived because no issue was raised complaining of the trial court's entry of the temporary injunction. GWSI,
in its reply brief, acknowledged the failure to raise the issue but argues that the injunction order is void on its face; therefore,
the issue is not waived by the failure to complain about the injunction order in the original appellant's brief.

 [21] Rule 683 of the Rules of Civil Procedure sets forth part of the requirements for a temporary injunction. See TEX.R.
CIV. P. 683. Rule 683 requires that “[e]very 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. The order of temporary injunction does not
include an order setting the cause for trial on the merits as required by Rule 683. Id.; see also EOG Res., Inc. v. Gutierrez, 75
S.W.3d 50, 52 (Tex.App.-San Antonio 2002, no pet.) (reason for requiring injunction order to include trial date is to prevent
temporary injunction from effectively becoming permanent without trial). The requirements of Rule 683 are mandatory and
must be strictly followed. Qwest Commc'ns. Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex.2000) (per curiam); InterFirst
Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986) (per curiam).

 [22] [23] When a temporary injunction order does not meet the mandatory requirements of Rule 683, it must be declared
void and dissolved, regardless of whether the defect was raised or briefed on appeal. InterFirst, 715 S.W.2d at 641 (temporary
injunction that does not set cause for trial on merits is void and must be dissolved); Bay Fin. Sav. Bank, FSB v. Brown, 142
S.W.3d 586, 591 (Tex.App.-Texarkana 2004, no pet.) (although error not raised on appeal, temporary injunction void because


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Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011)


it did not include order setting cause for trial on merits); EOG Res., 75 S.W.3d at 53 (same). A void order has no force or effect
and confers no right; it is a nullity. See In re Garza, 126 S.W.3d 268, 273 (Tex.App.-San Antonio 2003, orig. proceeding).

Because the temporary injunction order does not set the cause for trial on the merits, it is void. We reverse the trial court's
temporary injunction order and order that it be dissolved. InterFirst, 715 S.W.2d at 641 (Tex.1986).


 *473 Conclusion
We find that the trial court erred by reforming the employment agreements and not determining that the issue of reformation
should be determined by the arbitrators. We further find that the trial court erred by denying the motion to stay the litigation
as to the non-signatories to the employment agreements until the completion of the arbitration. We order that the temporary
injunction is void and order the trial court to dissolve it. We reverse and remand to the trial court for further proceedings. The
stay of the trial court proceedings issued by this Court on March 11, 2011 is hereby lifted.



Footnotes
1      David Gray and Steve Gray are both defendants in the trial court proceedings. On appeal, the issue relating to Steve Gray and
       CGN Leasing, LLC involves only the temporary injunction. The other issues relating to the reformation, the arbitration, and the stay
       of proceedings involves David Gray but not Steve Gray. Therefore, in this opinion we will refer to Steve Gray by his full name.
       References to “Gray” refer to David Gray only.


End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999)




                                                        6 S.W.3d 717
                                                  Court of Appeals of Texas,
                                                       Corpus Christi.

                         David HENKE, Individually and d/b/a Breslau Cattle Co., Appellant,
                                                       v.
                          PEOPLES STATE BANK OF HALLETTSVILLE, Texas, Appellee.

                  No. 13–99–274–CV.           |   Nov. 10, 1999.    |   Rehearing Overruled Dec. 22, 1999.

Debtor moved to dissolve temporary injunction pertaining to liquidation of collateral. The 25th District Court, Lavaca County,
Dwight E. Peschel, J., denied motion. Debtor appealed. The Court of Appeals, Hinojosa, J., held that: (1) appellate jurisdiction
existed; (2) debtor waived right to complain of any errors in orders comprising temporary injunction; (3) defects in injunction
and modifying orders were not fundamental errors; and (4) debtor failed to prove changed circumstances.

Affirmed.



 West Headnotes (18)


 [1]    Appeal and Error         Necessity of final determination
        Under Texas procedure, appeals are allowed only from final orders or judgments.

        Cases that cite this headnote


 [2]    Appeal and Error         Necessity of final determination
        Unless a statute specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction only over
        final judgments.

        Cases that cite this headnote


 [3]    Appeal and Error         Injunction
        Court of Appeals had jurisdiction to consider debtor's interlocutory appeal challenging denial of motion to dissolve
        temporary injunction pertaining to liquidation of collateral. V.T.C.A., Civil Practice & Remedies Code § 51.014(4)
        (1997).

        Cases that cite this headnote


 [4]    Injunction       Authority and discretion of court
        The determination of whether to dissolve a temporary injunction lies within the sound discretion of the trial court.

        3 Cases that cite this headnote


 [5]    Appeal and Error         Continuing, vacating, or dissolving




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Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999)


        On appeal from denial of motion to dissolve temporary injunction, review is limited to the narrow question of whether
        the trial court abused its discretion by denying the motion to dissolve.

        2 Cases that cite this headnote


 [6]    Appeal and Error        Burden of showing grounds for review
        Appellant challenging denial of motion to dissolve temporary injunction bore burden of establishing that trial court
        abused its discretion.

        3 Cases that cite this headnote


 [7]    Appeal and Error        Injunction
        Debtor waived right to complain of any errors in orders comprising temporary injunction when he failed to appeal
        order granting temporary injunction and subsequent modifying orders.

        5 Cases that cite this headnote


 [8]    Appeal and Error        On consent, offer, or admission
        The general rule is that a party may not appeal from or attack a judgment to which he has agreed, absent allegation
        and proof of fraud, collusion, or misrepresentation.

        5 Cases that cite this headnote


 [9]    Appeal and Error        Judgment
        Appeal and Error        Rulings and proceedings on motions
        Debtor waived any errors in temporary injunction and modifying orders, and waived right to appeal from such orders,
        when he agreed to orders and did not show fraud, collusion, or misrepresentation.

        5 Cases that cite this headnote


 [10]   Injunction      Grounds in general
        A trial court may modify a temporary injunction because of changed circumstances.

        Cases that cite this headnote


 [11]   Injunction      Grounds in general
        Movant seeking modification of temporary injunction must prove that circumstances have changed.

        Cases that cite this headnote


 [12]   Injunction      Grounds in general
        Changed circumstances justifying modification of temporary injunction are conditions that altered the status quo
        existing after the temporary injunction was granted or that made the temporary injunction unnecessary or improper.

        5 Cases that cite this headnote




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Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999)




 [13]   Injunction       Grounds or cause in general
        The trial court has no duty, upon the filing of a motion to dissolve a temporary injunction, to reconsider the grant of
        the injunction if the motion does not allege fundamental error or changed conditions, and the trial court cannot be
        held to have abused its discretion by refusing to alter its prior decision if there is no new evidence.

        6 Cases that cite this headnote


 [14]   Injunction       Terminating, Vacating, or Dissolving Injunction
        The purpose of a motion to dissolve a temporary injunction is to provide a means to show that changed circumstances
        or changes in the law require the modification or dissolution of the injunction; the purpose is not to give an unsuccessful
        party an opportunity to relitigate the propriety of the original grant.

        1 Cases that cite this headnote


 [15]   Injunction       Particular cases
        Defects in temporary injunction and modifying orders, which failed to set forth date for trial, were not fundamental
        errors requiring trial court to reconsider grant of injunction when party that sought to dissolve injunction actively
        agreed to each order. Vernon's Ann.Texas Rules Civ.Proc., Rule 683.

        5 Cases that cite this headnote


 [16]   Injunction       Scope of Relief in General
        Injunction       Form and requisites
        Requirements of rule governing form and scope of injunctions and restraining orders are mandatory and must be
        strictly followed. Vernon's Ann.Texas Rules Civ.Proc., Rule 683.

        Cases that cite this headnote


 [17]   Injunction       Authority and discretion of court
        Injunction       Grounds in general
        If failure to comply with rule governing temporary injunctions was fundamental, trial court had a duty to reconsider
        its grant of a temporary injunction and modifying orders. Vernon's Ann.Texas Rules Civ.Proc., Rule 683.

        1 Cases that cite this headnote


 [18]   Injunction       Evidence and affidavits
        Debtor seeking to dissolve temporary injunction pertaining to liquidation of collateral did not prove requisite change
        in circumstances, even though he argued that collateral at issue had been liquidated and proceeds applied to debt owed
        to one creditor, inasmuch as debtor did not show that all creditors had been paid in full, and underlying orders were
        necessary to ensure proper disbursement of any remaining proceeds.

        Cases that cite this headnote




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Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999)




Attorneys and Law Firms

*719 Percy L.“ Wayne” Isgitt, Atty. at Law, Houston, for Appellant.

D B Stone, Atty. at Law, Don D. Sunderland, Mullin, Hoard & Brown, Amarillo, David C. Junkin, Steven James Wingard, Scott,
Douglas & McConnico, Austin, Marcus F. Schwartz, Schwartz & Schwartz, Attys. at Law, Hallettsville, Kaaran E. Thomas,
Vinson & Elkins, Houston, for Appellee.

Before Justices HINOJOSA, YAÑEZ, and RODRIGUEZ.



                                                           OPINION

Opinion by Justice HINOJOSA.

This is an interlocutory appeal from the trial court's denial of a motion to dissolve a temporary injunction. In three issues,
appellant, David Henke, contends the trial court erred in refusing to grant the motion to dissolve because:

  (1) the portions of the underlying orders which comprise the temporary injunction are subject to being declared void and
     dissolved because they fail to meet the mandatory requirements of Texas Rule of Civil Procedure 683 1 in that they: (a) do
     not specify a trial date, (b) do not set forth the reason for the issuance of the temporary injunction, (c) are not specific as to
     the terms of the temporary injunction, and (d) do not contain reasonable detail as to the act or acts sought to be restrained
     without reference to the complaint or other document;


  (2) while the parties agreed to a temporary injunction, the injunctive provisions as embodied in the orders constitute a
     permanent injunction in the absence of an order setting the case for trial; and

       (3) the basis for the temporary orders was to provide an orderly manner for the liquidation of collateral—because the
          collateral has been liquidated and the proceeds applied to the debt owed Peoples State Bank, the reasons for the
          issuance of the temporary injunction no longer exist.

   We affirm the trial court's order.
The record reflects the trial court rendered: (1) a temporary restraining order, signed on August 8, 1997; (2) an agreed order,
signed on August 22, 1997, granting a temporary injunction; (3) an agreed order, signed on September 5, 1997, modifying the
temporary orders (the temporary restraining order of August 8 and the agreed temporary injunction of August 22); and (4) an
agreed order, signed on *720 September 16, 1997, modifying the temporary restraining order (and all temporary injunction
orders) and providing for the terms and conditions for the sale of cattle.

Henke could not appeal the temporary restraining order; however, he had twenty days within which to perfect an appeal from
the remaining temporary orders. TEX.R.APP. P. 42; TEX. CIV. PRAC. & REM.CODE ANN. § 51.014 (Vernon 1997). Henke
did not appeal any of the temporary orders.

On April 22, 1999, Henke filed a motion to dissolve the temporary injunction and the subsequent modifying orders. The trial
court denied the motion on April 27, 1999 stating, “Henke has not timely appealed or otherwise challenged the Orders and ...
he has agreed to the Orders.” Henke appeals from the trial court's order denying his motion to dissolve.



                                               A. APPELLATE JURISDICTION




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999)


 [1] [2] [3] Under Texas procedure, appeals are allowed only from final orders or judgments. Jack B. Anglin Co. v. Tipps,
842 S.W.2d 266, 272 (Tex.1992); North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). Unless a statute
specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction only over final judgments. Cherokee
Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.1985) (orig.proceeding); Aldridge, 400 S.W.2d at 895; City of Mission v. Ramirez,
865 S.W.2d 579, 581 (Tex.App.—Corpus Christi 1993, no writ). Section 51.014 of the Texas Civil Practice & Remedies Code
specifically allows appeal of various interlocutory orders, including an order that “(4) grants or refuses a temporary injunction
or grants or overrules a motion to dissolve a temporary injunction ... [.]” TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(4)
(Vernon 1997). We conclude we have jurisdiction to consider this interlocutory appeal.



                                               B. MOTION TO DISSOLVE

 [4] [5] [6] The determination of whether to dissolve a temporary injunction lies within the sound discretion of the trial court.
Cellular Marketing, Inc. v. Houston Cellular Telephone Co., 784 S.W.2d 734, 735 (Tex.App.—Houston [14th Dist.] 1990, no
writ). On appeal, our review is limited to the narrow question of whether the trial court abused its discretion by denying the
motion to dissolve. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993). Accordingly, Henke has the burden to establish that
the trial court abused its discretion. Tober v. Turner of Texas, 668 S.W.2d 831, 834 (Tex.App.—Austin 1984, no writ).



                                                        C. RULE 683

 [7] Henke correctly argues that the orders to which he and Peoples State Bank agreed, and which the trial court signed, are
technically subject to being declared void and dissolved because they fail to meet the requirements of Rule 683. However,
because Henke failed to appeal the trial court's order granting the temporary injunction and the subsequent modifying orders,
we hold Henke has waived his right to complain of any errors in those orders.

 [8] [9] Further, the general rule is that a party may not appeal from or attack a judgment to which he has agreed, absent
allegation and proof of fraud, collusion, or misrepresentation. First American Title Ins. Co. v. Adams, 829 S.W.2d 356, 364
(Tex.App.—Corpus Christi 1992, writ denied) (citing Bexar County Criminal Dist. Attorney's Office v. Mayo, 773 S.W.2d 642,
644 (Tex.App.—San Antonio 1989, no writ) and Charalambous v. Jean Lafitte Corp., 652 S.W.2d 521, 525 (Tex.App.—El
Paso 1983, writ ref'd n.r.e.)). We find no evidence in the record of fraud, collusion, or misrepresentation. Because he agreed to
the orders, we hold Henke has waived any error and has waived his right to appeal.



                      *721 C. CHANGED CIRCUMSTANCES AND FUNDAMENTAL ERROR

 [10] [11] [12] [13] [14] A trial court may modify a temporary injunction because of changed circumstances. Smith
v. O'Neill, 813 S.W.2d 501, 502 (Tex.1991). The movant must prove that circumstances have changed. City of Seagoville v.
Smith, 695 S.W.2d 288, 289 (Tex.App.—Dallas 1985, no writ). Changed circumstances are conditions that altered the status
quo existing after the temporary injunction was granted or that made the temporary injunction unnecessary or improper. Desai
v. Reliance Mach. Works, Inc., 813 S.W.2d 640, 641 (Tex.App.—Houston [14th Dist.] 1991, no writ). The trial court has no
duty, upon the filing of a motion to dissolve, to reconsider the grant of the injunction if the motion does not allege fundamental
error or changed conditions. Cellular Marketing, 784 S.W.2d at 735. The trial court cannot be held to have abused its discretion
by refusing to alter its prior decision if there is no new evidence. Id. The purpose of a motion to dissolve is to provide a means
to show that changed circumstances or changes in the law require the modification or dissolution of the injunction; the purpose
is not to give an unsuccessful party an opportunity to relitigate the propriety of the original grant. Tober, 668 S.W.2d at 836.
The Tober Court stated:




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Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999)




              From a practical standpoint, if a litigant could, by motion to dissolve, force reconsideration of the original
              grant, without a showing of changed conditions, then there is an incentive for him to do so at least once,
              or more often, in hope that he will be able to wear down the resistance of the original trial judge, or in
              hope that he will be able to secure a hearing before a different trial judge who may be more sympathetic.
              Such actions needlessly add to the judicial caseload, both at the trial and appellate level. Recognition of
              the principle that the trial court has no duty to reconsider the validity of the original grant of temporary
              injunction upon motion to dissolve enables the trial court to dispose of motions to dissolve solely upon
              the pleadings when the motion to dissolve, on its face, shows that the litigant offers no new evidence.

Id. at 835.

[15]    At the hearing on the motion to dissolve, Henke argued the orders he had agreed to were “void.” He stated:

              Under the case law and under the Rules of Civil Procedure a temporary injunction must set forth a date
              for trial in order for it to be valid.... And also, if it does not contain a trial setting and if it does not contain
              findings as to the reason for it, it is void and may not be made valid by waiver.


 [16] [17] Initially, it appears the trial court's failure to comply with Rule 683 is fundamental error. The requirements of rule
683 are mandatory and must be strictly followed. InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641
(Tex.1986). If the error is fundamental, the trial court had a duty to reconsider the grant of the temporary injunction and the
modifying orders. See Cellular Marketing, 784 S.W.2d at 735. However, because the orders were agreed, they are not subject
to attack by Henke. See Alexander v. Alexander, 373 S.W.2d 800, 805 (Tex.Civ.App.—Corpus Christi 1963, no writ). Because
Henke actively agreed to each order, we hold the deficiencies in the orders are not fundamental error.

 [18] Henke contends the temporary injunction should have been dissolved because of changed conditions. Henke argues the
agreed order of September 16, 1997, provided for the liquidation of collateral (sale of cattle) and the application of the proceeds
to the indebtedness of his creditors. Henke contends the collateral has been liquidated and the proceeds have been applied to
the debt he owed Peoples State Bank. Thus, he argues, the reason for the temporary injunction no longer exists.

 *722 After reviewing the record, we hold Henke did not prove a change in the circumstances made the basis of the temporary
injunction. We note that Henke's motion to dissolve alleges only the violation of Rule 683 and not any changed conditions. The
record reflects that Henke only argued changed conditions at the hearing on the motion to dissolve. Henke argued:

              [T]he whole point of the order is now moot. Peoples Bank was paid in December of 1997. They continue
              to pursue Mr. Henke and raise their attorneys' fees up to a quarter of a million dollars level when they
              were paid within three months of filing this lawsuit. The purpose for the injunction doesn't exist anymore.
              All the money that is going to be collected has been collected months and months ago.


Henke's argument is no evidence that circumstances had changed. The agreed order modifying temporary orders, signed
on September 5, 1997, states that Henke was indebted to Peoples State Bank, First State Bank, Prairie Livestock, Friona
Agricultural Credit Corporation, and several other entities. Henke made no effort to prove that all these entities had been paid
in full.

In addition, the order states:

              In the event disbursements to PSB [Peoples State Bank] for application to the Henke's debt result in
              payment in full of Henke's debt to PSB, then, all additional proceeds that are distributed to PSB under the
              provisions of this order are to be maintained by PSB in an interest-bearing escrow account and disbursed
              only upon further order of this Court.



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  6
Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999)




Thus, even if Peoples State Bank was paid in full as alleged by Henke, the temporary injunction and the modifying orders are
still necessary to ensure the proper disbursement of any remaining proceeds.

We hold the trial court did not abuse its discretion by denying Henke's motion to dissolve. We overrule Henke's three issues.

The trial court's order denying Henke's motion to dissolve is AFFIRMED.



Footnotes
1      RULE 683. FORM AND SCOPE OF INJUNCTION OR RESTRAINING ORDER
           Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in
           terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be
           restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon
           those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
           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. The appeal of a temporary injunction shall constitute no cause for delay of the trial.
         TEX.R. CIV. P. 683.


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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          7
Hernandez v. Telles, 663 S.W.2d 91 (1983)




                                                      663 S.W.2d 91
                                                 Court of Appeals of Texas,
                                                          El Paso.

                   Miguel HERNANDEZ & Antonio Hernandez, d/b/a Bocaccio 2000, Appellants,
                                                  v.
                                       Ramon TELLES, Appellee.

                                          No. 08–82–00320–CV.         |   Dec. 14, 1983.

Buyers brought action against seller for breach of warranties and violations of the Deceptive Trade Practices-Consumer
Protection Act, alleging they had been damaged by purchase of defective mechanical bucking bull. The 34th District Court, El
Paso County, Jerry Woodard, J., entered take nothing judgment against buyers, and buyers appealed. The Court of Appeals,
Ward, J., held that: (1) original contract of sale between buyers and seller was replaced by new agreement made by compromise
and settlement; (2) evidence existed supporting trial court's submission to jury of issues regarding compromise and settlement;
(3) sufficient evidence existed to support finding on issues regarding compromise and settlement; and (4) buyers' objection,
made on appeal, as to late filing of seller's answer, was untimely and had been waived.

Affirmed.



 West Headnotes (10)


 [1]    Compromise and Settlement            Unliquidated, disputed, or doubtful claims in general
        Disputed or unliquidated claim is basis for compromise.

        Cases that cite this headnote


 [2]    Compromise and Settlement            Nature and Requisites
        Law has always favored resolution of controversies through compromise and settlement rather than through litigation
        and it has always been policy of law to uphold and enforce such contracts if they are fairly made and are not in
        contravention of some law or public policy.

        7 Cases that cite this headnote


 [3]    Compromise and Settlement            Subject-matter
        Even strong policy of statute to protect consumers against false, misleading and deceptive business practices, which is
        foundation of Deceptive Trade Practices Act, does not overrule stronger policy of law favoring settlements of disputes.
        V.T.C.A., Bus. & C. § 17.50.

        5 Cases that cite this headnote


 [4]    Compromise and Settlement            Nature and Requisites
        Compromise and settlement agreement is subject to general principles of law of contracts.




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Hernandez v. Telles, 663 S.W.2d 91 (1983)




        4 Cases that cite this headnote


 [5]    Compromise and Settlement           Nature and Requisites
        Compromise and Settlement           Unliquidated, disputed, or doubtful claims in general
        Enforceable agreement of compromise requires offer of compromise, meeting of minds of parties and unconditional
        acceptance within time and on terms offered; it is also essential that amount of claim be disputed.

        2 Cases that cite this headnote


 [6]    Compromise and Settlement           Subject-matter
        Where buyers purchased allegedly defective bucking bull from seller, buyers and seller reached new agreement to
        rescind sale, seller agreeing to return balance paid on contract upon buyers' return of bull, and buyers never returned
        bull though seller was ready, willing and able to perform, original contract of sale was replaced by new agreement
        made by compromise and settlement.

        1 Cases that cite this headnote


 [7]    Compromise and Settlement           Operation and Effect
        Settlement agreement could be asserted as a defense in action brought under the Deceptive Trade Practices Act,
        notwithstanding fact that compromise and settlement is not statutory defense under Act. V.T.C.A., Bus. & C. §§ 17.41
        et seq., 17.50B(d).

        Cases that cite this headnote


 [8]    Compromise and Settlement           Weight and sufficiency
        Considering only evidence and inferences therefrom which supported jury's findings, evidence existed that buyers
        and seller of allegedly defective bucking bull reached compromise agreement.

        Cases that cite this headnote


 [9]    Compromise and Settlement           Weight and sufficiency
        Considering all evidence, sufficient evidence existed that buyers and seller of allegedly defective bucking bull reached
        compromise agreement.

        Cases that cite this headnote


 [10]   Appeal and Error         Amendments and supplemental pleadings
        Where no objection appeared in record to defendant's filing of pleading on defensive issues as trial amendment without
        leave of trial court, nor to evidence supporting pleading, plaintiff's objection made on appeal as to late filing of
        defendant's answer was untimely and had been waived.

        Cases that cite this headnote




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
Hernandez v. Telles, 663 S.W.2d 91 (1983)




Attorneys and Law Firms

*92 Lawrence Douglas Durnford, El Paso, for appellants.

Miguel A. Alvarez, Scott Segall, El Paso, for appellee.

Before PRESLAR, C.J., and WARD and SCHULTE, JJ.



                                                            OPINION

WARD, Justice.

The Plaintiffs Miguel and Antonio Hernandez filed this suit against the Defendant Ramon Telles under the provisions of the
Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Com.Code Ann. sec. 17.41, et seq. (Vernon Supp.1982),
alleging they had been damaged by their purchase of a defective mechanical bucking bull. Trial was to a jury which answered
the Plaintiffs' issues generally in favor of the Plaintiffs. However, the jury also answered issues which submitted the Defendant's
theory that the dispute had been previously compromised and settled in favor of the Defendant. Based on the latter findings, a
take nothing judgment was entered against the Plaintiffs who now bring this appeal. We affirm.

On February 18, 1981, the parties entered into a written agreement by which the Defendant agreed to sell to the Plaintiffs the
bucking mechanical bull for the total price of $5,250.00, the terms being the sum of $1,000.00 cash paid to the Defendant on
the date of the contract, $1,500.00 to be paid on the date of delivery and the balance by a series of IOUs. The bull was delivered
to the Plaintiffs in El Paso about the first of March and the $1,500.00 was paid to the Defendant. Plaintiffs then took the device
to their place of entertainment in Juarez, Mexico, and it immediately started breaking down. This occurred on three or four
occasions. According to the Defendant, one of the Plaintiffs then came to the Defendant in El Paso some time in March, and a
new agreement was entered into whereby the parties agreed to rescind the sale. The sum of $1,000.00 in cash was immediately
repaid to the Plaintiffs as well as $500.00 of the IOUs. Defendant agreed that when the Plaintiffs delivered the bull back to
him in El Paso he would give the Plaintiffs the balance of their cash and notes that they had paid on the contract. The Plaintiffs
thereafter never returned the bucking bull, although the defendant was ready, able and willing to return the balance of the
purchase price upon the return of the bull.

On June 26, a letter termed a Deceptive Trade Practices Act Notice was mailed to the Defendant by the Plaintiffs' attorney. By
it, demands were made for the balance of the purchase price, the cost of certain repairs made to the machine, losses of business
suffered by the Plaintiffs and attorney's fees. Thereafter the suit was filed and the trial resulted. At the trial, the jury returned
issues in favor of the Plaintiffs regarding two Deceptive Trade Practices Acts and breaches of express and implied warranties.
In addition, they found that the Plaintiffs had suffered $4,400.00 in actual damages and $4,700.00 in lost profits. No attack by
the Defendant is made on this appeal as to these findings.

The findings that are the subject of this appeal are those regarding Special Issue Nos. 27, 28 and 29. The jury determined by
No. 27 that the Plaintiffs and Defendant *93 entered into an agreement for the return of the mechanical bull to El Paso and
the refund of the purchase monies, by No. 28 that the Plaintiffs after that agreement refused to return the said mechanical bull,
and by No. 29 that the Defendant stood ready, able and willing to refund said monies upon return of the mechanical bull. On
the basis of these answers, the court entered the take nothing judgment.

The Plaintiffs' first point of error alleges that they are entitled to judgment as a matter of law based upon the favorable jury
findings on their cause of action and award of damages. Under the point, they further argue that as a matter of law Special Issue
Nos. 27, 28 and 29 were either improperly submitted or were immaterial to the verdict as a matter of law. The Plaintiffs' position
is that the statutory cause of action created by the Deceptive Trade Practices Act can only be defended against by the statutory
defenses specifically enumerated in the Act. Section 17.50B(d) provides a defense to any cause of action under Section 17.50 if


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Hernandez v. Telles, 663 S.W.2d 91 (1983)


the Defendant proves: (1) that he received statutory notice of the claim, (2) that within thirty days of the date of said notice he,
(3) tendered to the consumer the amount of actual damages claimed and expenses reasonably incurred in asserting the claim.
The Plaintiffs argue that there is no evidence to prove that the defendant ever complied with the Act.

 [1] [2] [3] [4] [5] [6] [7] Regardless of the statute, the issues in question submitted the Defendant's theory that there
was a compromise and settlement of the cause of action between the parties in March, 1981. A disputed or unliquidated claim
is the basis for a compromise. The law has always favored the resolution of controversies through compromise and settlement
rather than through litigation and it has always been the policy of the law to uphold and enforce such contracts if they are
fairly made and are not in contravention of some law or public policy. 15A Am.Jur.2d, Compromise and Settlement, secs. 2
and 5 (1976). We hold that even the strong policy of the statute to protect consumers against false, misleading and deceptive
business practices, which is the foundation of the Deceptive Trade Practices Act does not overrule the stronger policy of the
law favoring settlements of disputes. A compromise and settlement agreement is subject to the general principles of the law
of contracts. An enforceable agreement of compromise requires an offer of compromise, a meeting of minds of the parties and
an unconditional acceptance within the time and on the terms offered. It is essential that the amount of the claim be disputed.
12 Tex.Jur.3d, Compromise and Settlement, sec. 4 (1981). All of the recited elements were met according to the testimony
of the Defendant, and the special issues in question together with any necessary implied findings by the court resolved the
dispute in the Defendant's favor. The original contract of sale was replaced by the new agreement made by the compromise
and settlement. It was the Plaintiffs who breached the new agreement and they should not be in a position to profit by their
breach. The first point is overruled.

 [8] [9] [10] The Plaintiffs' second point of error is that the trial court erred in overruling their objections to the submission of
Special Issue Nos. 27, 28 and 29, as they were not controlling issues on any theory of defense and had no effect upon the liability
issues in the case. As previously discussed, we disagree with this contention. Also under this point, the Plaintiffs argue that
there was no evidence or insufficient evidence to support the submission. We have considered only the evidence and inferences
therefrom which support the jury's findings and the no evidence argument is overruled. Having considered all of the evidence,
the factual insufficiency argument is likewise overruled.

Also under the point, the Plaintiffs complain because the pleadings supporting these defensive issues were not filed within
seven days of trial without leave of court. It appears this pleading was filed as a trial amendment and no objection appears in
the record to the filing of this pleading or to the evidence supporting it. The objection now made on appeal as to the late filing
of the answer is untimely and the objection has been waived. The second point of error is overruled.

*94 The judgment of the trial court is affirmed.



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                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   4
In re Corcoran, 343 S.W.3d 268 (2011)




                                                  343 S.W.3d 268 (Mem)
                                                 Court of Appeals of Texas,
                                                   Houston (14th Dist.).

                             In re G. Christian CORCORAN and Peggy Corcoran, Relators.

                                         No. 14–10–01187–CV.          |   May 19, 2011.

Original Proceeding Writ of Mandamus, 125th District Court Harris County, Texas, *269 Trial Court No. 2009–41594, Shearn
Smith, Judge.

Attorneys and Law Firms

Marc J. Wojciechowski, Malcom Deon Dishongh, Spring, for Relators.

Kimberly M. Spurlock, Humble, Jeffrey D. Roberts, Houston, for Real Party in Interest.

Panel consists of Justices BOYCE, CHRISTOPHER, and JAMISON.



                                                  SUBSTITUTE OPINION

WILLIAM J. BOYCE, Justice.

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 2003, 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.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
In re Corcoran, 343 S.W.3d 268 (2011)


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); 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.



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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  2
In re Garza, 126 S.W.3d 268 (2003)




                                                       126 S.W.3d 268
                                                   Court of Appeals of Texas,
                                                         San Antonio.

       In re Andrea GARZA, Individually and as Independent Executrix of the Estate of Alfred S. Garza, deceased.

                                            No. 04–03–00478–CV.          |   Nov. 12, 2003.

Litigant sought writ of mandamus ordering the 81st Judicial District Court, Atascosa County, Donna S. Rayes, J., to vacate
contempt judgment. The Court of Appeals, Karen Angelini, J., held that: (1) temporary injunction which did not include a trial
setting date or provide for a bond was void, and (2) trial court abused its discretion in holding litigant in contempt for violating
void injunction.

Writ conditionally granted.



 West Headnotes (9)


 [1]      Mandamus          Remedy at Law
          Mandamus          Nature of acts to be commanded
          Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is
          no other adequate remedy at law.

          2 Cases that cite this headnote


 [2]      Habeas Corpus         Contempt
          Mandamus          Existence and Adequacy of Other Remedy in General
          Contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus, and the only possible
          relief is a writ of mandamus.

          3 Cases that cite this headnote


 [3]      Appeal and Error         Consent to judgment or order
          Generally, a party may not appeal from or attack a judgment to which he has agreed, absent allegation and proof of
          fraud, collusion, or misrepresentation; the rationale for this rule is that a party should not be allowed, but rather be
          estopped, to complain on appeal of an action or ruling which he invited, agreed to, or induced.

          Cases that cite this headnote


 [4]      Motions       Construction and operation of orders in general
          A void order has no force or effect and confers no rights; it is a mere nullity.

          9 Cases that cite this headnote


 [5]      Contempt        Validity of mandate, order, or judgment



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In re Garza, 126 S.W.3d 268 (2003)


        A party who agrees to a void order has agreed to nothing, and thus, a trial court that holds a party in contempt for
        violating a void order necessarily abuses its discretion.

        10 Cases that cite this headnote


 [6]    Injunction      Preservation of status quo
        The purpose of a temporary injunction is to preserve the status quo of the subject matter of the suit, pending a final
        trial on the merits of the case.

        Cases that cite this headnote


 [7]    Injunction      Form and requisites
        There are two reasons for requiring a temporary injunction to include a trial date; one is to prevent the temporary
        injunction from effectively becoming permanent without a trial, and another is for the order to be complete on its face
        and not reference to the complaint or other document. Vernon's Ann.Texas Rules Civ.Proc., Rule 683.

        5 Cases that cite this headnote


 [8]    Injunction      Necessity and waiver in general
        Injunction      Form and requisites
        Temporary injunction issued by trial court was void, where it did not contain a trial setting date or provide for a bond
        as required by procedural rules. Vernon's Ann.Texas Rules Civ.Proc., Rules 683, 684.

        8 Cases that cite this headnote


 [9]    Injunction      Illegality or invalidity of injunction
        Trial court abused its discretion by holding litigant in contempt for violating temporary injunction which was void
        due the failure to include in injunction order a trial setting date or provide for a bond. Vernon's Ann.Texas Rules
        Civ.Proc., Rules 683, 684.

        13 Cases that cite this headnote




*269 Original Mandamus Proceeding. 1

Attorneys and Law Firms

W. Wendall Hall, Rosemarie Kanusky, Fulbright & Jaworski L.L.P., Terrence J. Martin, Martin, Friedland & Strolle, P.C.,
San Antonio, for Relator.

Ellen B. Mitchell, Cox & Smith Incorporated, Douglas W. Sanders, Jeffrey T. Cullinane, Paul D. Barkhurst, Oppenheimer,
Blend, Harrison & Tate, Inc., San Antonio, for Real Party in Interest.

Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.




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In re Garza, 126 S.W.3d 268 (2003)




                                                           OPINION

Opinion by KAREN ANGELINI, Justice.

Relator Andrea Garza seeks a writ of mandamus ordering respondent, the Honorable Donna S. Rayes, to vacate the May 28,
2003 contempt judgment. Because we conclude that Garza is entitled to the relief sought, we conditionally grant the writ.



                                                       BACKGROUND

This mandamus proceeding arises out of a dispute over a family business. In October 1995, Real Party in Interest Jaime Trevino
and his cousin, Alfred G. Garza, entered into a partnership agreement to operate a business called Lobo Security. According to
Trevino, however, his uncle, Alfred S. Garza, was his true partner. For personal financial reasons, Alfred S. Garza had requested
that the partnership agreement name his son, Alfred G. Garza, as Trevino's partner. During their partnership, Trevino claims
that Alfred S. Garza diverted partnership funds for his own benefit and the benefit of his immediate family members. On March
1, 2001, Alfred S. Garza died.

On July 27, 2001, Trevino sued Alfred S. Garza's estate for fraud, breach of fiduciary duty, and breach of contract. Trevino also
sued his aunt, Relator Andrea Garza, Alfred G. Garza, his partner under the partnership agreement, and two of his other cousins
for fraud, conversion, civil conspiracy, and aiding and abetting Alfred S. Garza's breach of fiduciary duty. Additionally, Trevino
sought a declaratory judgment regarding the characterization of the partnership's property. In response, Alfred G. Garza filed a
counterclaim for breach of contract, breach of fiduciary duty, breach of the duty of good faith and fair dealing, and conversion.
Alfred G. Garza also sought declaratory relief.

On August 8, 2001, the trial court entered a temporary injunction, preventing the defendants (“the Garzas”) from depleting their
assets during litigation. The Garzas were enjoined from “[d]estroying, removing, concealing, encumbering, transferring, or
otherwise harming or reducing the value of the property of one or both of the parties.” And, they were enjoined from “[s]elling,
transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of [Trevino] or [the
Garzas], whether personalty or realty, and whether separate or community, except as specifically authorized” by the trial court.
The temporary injunction did permit the Garzas to incur indebtedness to pay legal expenses. It did *270 not, however, contain
a trial setting date or provide for a bond.

A year later, the Garzas moved to dissolve the temporary injunction. Trevino then filed his first motion for contempt, which
was denied by the trial court. On April 17, 2003, Trevino filed his second motion for contempt, arguing that Andrea Garza had
violated the temporary injunction by borrowing $112,000 against her homestead to pay for her legal fees and costs. According
to Trevino, the temporary injunction's prohibition against encumbrances trumped the provision allowing Garza to fund her
defense. After holding an evidentiary hearing, the trial court signed a “Judgment of Contempt” on May 28, 2003, ordering
Garza, on or before July 1, 2003, to effectuate a release of lien and pay Trevino's attorney $3,500 and costs of the proceeding.
On June 26, 2003, Garza filed this mandamus proceeding, seeking relief from the trial court's contempt judgment. 2



                                                         MANDAMUS

 [1] [2] Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no
other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding); In re Dilley Indep. Sch.
Dist., 23 S.W.3d 189, 191 (Tex.App.-San Antonio 2000, orig. proceeding). Contempt orders that do not involve confinement




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In re Garza, 126 S.W.3d 268 (2003)


cannot be reviewed by writ of habeas corpus, and the only possible relief is a writ of mandamus. In re Long, 984 S.W.2d 623,
625 (Tex.1999) (orig.proceeding); Rosser v. Squier, 902 S.W.2d 962, 962 (Tex.1995) (orig.proceeding).



                                                           WAIVER?

According to Garza, because the temporary injunction failed to (1) set a trial setting pursuant to Texas Rule of Civil Procedure
683 and (2) set bond pursuant to Texas Rule of Civil Procedure 684, the temporary injunction is void. Thus, she argues that
the trial court abused its discretion in holding her in contempt for violating a void order. See Ex parte Shaffer, 649 S.W.2d
300, 301–02 (Tex.1983) (holding that trial court abuses its discretion by holding party in contempt for violating void order). In
response, Trevino argues that Garza has waived her complaint by agreeing to the terms of the temporary injunction.

The temporary injunction states that “[t]he parties have agreed to the terms of this order as evidenced by the signatures below.”
Although counsel for the Garzas signed the temporary injunction, his signature was prefaced by the phrase, “Approved as to
Form Only.” However, in “Defendants' Motion to Dissolve or Modify Temporary Restraining Order,” counsel for the Garzas
admits that at the time the temporary injunction was entered, the Garzas had agreed to its terms. The record, therefore, shows
that the Garzas did, in fact, agree to the terms of the temporary injunction.

 [3] According to Trevino, because the Garzas agreed to the terms of the temporary injunction, they are barred from complaining
of any error now. Trevino emphasizes that generally, a party may not appeal from or attack a judgment to which he has agreed,
absent allegation and proof of fraud, collusion, or misrepresentation. Henke v. Peoples State Bank, 6 S.W.3d 717, 720 (Tex.App.-
Corpus Christi 1999, pet. dism'd w.o.j.). “The rationale for this rule is that a party should not be allowed, but rather be estopped,
to complain on *271 appeal of an action or ruling which he invited, agreed to, or induced.” Ayala v. Minniti, 714 S.W.2d
452, 456 (Tex.App.-Houston 1986, no writ). By consenting to the action of the court, a party waives all errors committed or
contained in the judgment, except want of jurisdiction. Id.

Specifically, Trevino relies on Henke v. Peoples State Bank, 6 S.W.3d 717 (Tex.App.-Corpus Christi 1999, pet. dism'd w.o.j.),
a case with similar facts to those presented here. In Henke, the appellant filed an interlocutory appeal of the trial court's denial
of his motion to dissolve a temporary injunction, arguing that the temporary injunction was void because it did not set a trial
date. Id. at 719. As here, the appellant had agreed to the temporary injunction at the time it was entered. Relying on the general
rule that a party may not appeal or attack an agreed judgment, the Thirteenth Court of Appeals held that by agreeing to the
temporary injunction, the appellant had waived any error and had waived his right to appeal. Id. at 720.

 [4] [5] The Thirteenth Court of Appeals, however, failed to discuss if a party could agree to a void order. Garza argues that
she has not waived her rights, because the temporary injunction is void. We agree that if the temporary injunction is void, Garza
has not waived her rights to attack the void injunction. A void order has no force or effect and confers no rights; it is a mere
nullity. Slaughter v. Qualls, 139 Tex. 340, 345, 162 S.W.2d 671, 674 (1942). Thus, a party who agrees to a void order has
agreed to nothing. And, a trial court that holds a party in contempt for violating a void order necessarily abuses its discretion.
Ex parte Shaffer, 649 S.W.2d at 301–02. In response, Trevino contends that the temporary injunction is voidable, not void. We
must, therefore, determine whether the temporary injunction is void or voidable.



                                                    VOID OR VOIDABLE?

 [6] [7] Texas Rule of Civil Procedure 683 provides that “[e]very 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. The Texas Supreme
Court has stated that the requirements of rule 683 are mandatory, and “an order granting a temporary injunction that does
not meet them is subject to being declared void and dissolved.” Qwest Comm. Corp. v. AT & T Corp., 24 S.W.3d 334, 337
(Tex.2000) (per curiam); see also InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986) (per



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In re Garza, 126 S.W.3d 268 (2003)


curiam). Thus, we have held that failure to meet the requirements of rule 683 renders the injunction order “fatally defective
and void, whether specifically raised by point of error or not.” 3 EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 53 (Tex.App.-San
Antonio 2002, no pet.) (quoting Hopper v. Safeguard Bus. Sys., Inc., 787 S.W.2d 624, 626 (Tex.App.-San Antonio 1990, no
writ)); accord Kaufmann v. Morales, 93 S.W.3d 650, 656–57 (Tex.App.-Houston [14th Dist.] 2002, no pet.); *272 Permian
Chem. Co. v. State, 746 S.W.2d 873, 874 (Tex.App.-El Paso 1988, writ dism'd); TY Equity Group, Inc. v. Cmty. Crossing, Ltd.,
No. 05–02–00591–CV, 2002 WL 31357002, at *1 (Tex.App.-Dallas Oct.21, 2002, no pet.) (not designated for publication).

Despite all the above-cited case law, Trevino argues that the temporary injunction is voidable because a judgment that is
contrary to statute, constitutional provision, or procedural rule is merely voidable. Unlike a void judgment that is subject to
collateral attack, a voidable judgment has effect until challenged. Thus, a voidable judgment may become valid by failure to
timely challenge it by direct appeal. Because Garza did not challenge the temporary injunction by interlocutory appeal, Trevino
contends that the temporary injunction has now become valid.

In support of his argument that the temporary injunction is merely voidable, Trevino cites Reiss v. Reiss, 118 S.W.3d 439
(Tex., 2003). In Reiss, the supreme court interpreted a 1980 divorce decree that divided retirement benefits stemming from one
spouse's employment both during and after the marriage. Id. at 440. The trial court held that the language in the divorce decree
included retirement benefits accrued after the marriage. Id. The former husband appealed, arguing that the divorce decree is a
void judgment because the trial court that entered it did not have jurisdiction to divest him of his separate property, i.e. retirement
benefits accrued after the divorce. Id. at 442. Thus, the former husband contended that as a void judgment, the divorce decree
was subject to attack at any time. Id. The supreme court disagreed. Id.

The supreme court noted that in general, “as long as the court entering a judgment has jurisdiction of the parties and the
subject matter and does not act outside its capacity as a court, the judgment is not void.” Id. Thus, according to the supreme
court, other than lack of jurisdiction, errors “such as a court's action contrary to a statute or statutory equivalent, merely render
the judgment voidable so that it may be corrected through the ordinary appellate process or other proper proceedings.” Id.
(internal quotations omitted). Thus, Trevino argues that because Texas Rule of Civil Procedure 683 was violated in this case,
the temporary injunction is voidable, not void, according to Reiss.

For support, Reiss cites Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex.2000) and Mapco, Inc. v. Forrest, 795 S.W.2d 700,
703 (Tex.1990) (per curiam). Dubai and Mapco, however, were decided before Qwest Communications Corp. v. AT & T Corp.,
24 S.W.3d 334 (Tex.2000) (per curiam). In Qwest, the supreme court reiterated the following:

             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. See InterFirst Bank San Felipe, N.A.
             v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986) (stating that requirements of rule 683 are mandatory
             and must be strictly followed). In InterFirst Bank, however, the order failed to set the case for trial on
             the merits. Id. at 641. Yet rather than dismissing the appeal for want of jurisdiction, we declared the
             temporary injunction void and ordered it dissolved. See id. We have also held that a temporary injunction
             was void when there was no bond. See *273 Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308
             (1956) (holding that bond provisions of rule 684 are mandatory). Here, these procedural requirements
             may render the trial court's order void but they do not change the order's character and function defining
             its classification.

Qwest, 24 S.W.3d at 337 (emphasis added). Qwest, thus, clearly states that unless a temporary injunction complies with both
rules 683 and 684, it is void. Qwest was decided after Dubai, the case relied on by the supreme court in Reiss. Thus, we must
assume that if the supreme court believed the principles it stated in Dubai applied to temporary injunctions, it would have so
stated in Qwest. Moreover, Reiss does not discuss temporary injunctions in any manner. We, therefore, must follow Qwest's
holding.


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In re Garza, 126 S.W.3d 268 (2003)




 [8] Additionally, Trevino argues that the supreme court cases discussing temporary injunctions state that a temporary
injunction failing to comply with rules 683 and 684 is “subject to being declared void and dissolved.” InterFirst Bank, 715
S.W.2d at 641. According to Trevino, “subject to being declared void” means that the order is voidable, not void. However,
the Qwest court made clear that a temporary injunction failing to comply with rules 683 and 684 is void. See Qwest, 24 S.W.3d
at 337 (“[W]e declared the temporary injunction void and ordered it dissolved. We have also held that a temporary injunction
was void when there was no bond.”). If the supreme court had meant that such a temporary injunction was voidable, we feel
certain it would have used the word “voidable.” Instead, the court has repeatedly used the word “void.” See Qwest, 24 S.W.3d
at 337; InterFirst Bank, 715 S.W.2d at 641. We, therefore, hold that because the temporary injunction here failed to comply
with rules 683 and 684, it is void. 4



                                                      CONTEMPT JUDGMENT

 [9] A trial court that holds a party in contempt for violating a void order necessarily abuses its discretion. Ex parte Shaffer,
649 S.W.2d 300, 301–02 (Tex.1983). Here, the trial court held Garza in contempt for violating a void order. As such, the trial
court abused its discretion, and Garza is entitled to the relief sought.



                                                             CONCLUSION

Because the trial court abused its discretion, we conditionally grant Garza's petition for writ of mandamus. TEX.R.APP. P.
52.8(c). Only if the Honorable Donna S. Rayes fails to vacate the “Judgment of Contempt” signed on May 28, 2003, will we
issue the writ.



Footnotes
1      This proceeding arises out of Cause No. 01–07–0443–CVA, styled Jaime J. Trevino v. Andrea Garza, Annette Carrasco, Amanda
       Garcia, and Alfred G. Garza, pending in the 81st Judicial District Court, Atascosa County, Texas, the Honorable Donna S. Rayes
       presiding.
2      Garza also filed a motion to stay the contempt judgment. We granted the motion and stayed the contempt judgment pending final
       disposition of this petition.
3      The purpose of a temporary injunction is to preserve the status quo of the subject matter of the suit, pending a final trial on the merits
       of the case. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). There are at least two reasons for requiring a temporary
       injunction to include a trial date. One is to prevent the temporary injunction from effectively becoming permanent without a trial.
       EOG Res., 75 S.W.3d at 53; see also Kaufmann, 93 S.W.3d at 657. The second is for the order to be complete on its face and not
       “reference to the complaint or other document.” Kaufmann, 93 S.W.3d at 657 (quoting rule 683). “It is important for trial judges or
       parties to read the original order and have before them all information relevant to the injunction.” Id.
4      Because we have determined that the temporary injunction is void, we need not reach the relator's other issues.


End of Document                                                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008)




                                                  2008 WL 3970865
                                     Only the Westlaw citation is currently available.

                   SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

                                              MEMORANDUM OPINION
                                               Court of Appeals of Texas,
                                               Corpus Christi-Edinburg.

                                     In re GRAYBAR ELECTRIC COMPANY, INC.
                                      Graybar Electric Company, Inc., Appellant,
                                                          v.
                                           Alvaro Gonzalez, et al., Appellees.
                 In re Graybar Electric Company, Inc., Mira Enterprises, Inc., and Mark Stallings, Inc.
                                      Graybar Electric Company, Inc., Appellant,
                                                          v.
                                   Laredo Hix, L.P. and Alvaro Gonzalez, Appellees.

         Nos. 13-08-00073-CV, 13-08-00294-CV, 13-08-00333-CV, 13-08-00341-CV.                        |   Aug. 26, 2008.


 West KeySummary


 1      Courts       Injunction or Prohibition Against Proceedings
        Trial court was not required to dissolve an anti-suit injunction so the party bound by the injunction could bring suit in
        another county. The party that sought to dissolve the injunction was seeking to enforce a mechanics' lien in a different
        county. The purpose of the injunction was to prevent this from happening until after a trial on the merits was held.
        The party that sought dissolution was not stripped of their rights to foreclose on their lien.

        5 Cases that cite this headnote




On Petition for Writ of Mandamus.
On appeal from the 93rd District Court of Hidalgo County, Texas, Rodolfo Delgado, J.

Attorneys and Law Firms

Ben Louis Aderholt, Looper, Reed & McGraw, Joe Virene, Houston, Mike Mills, Atlas & Hall, McAllen, Adriana H. Cardenas,
McAllen, John T. Dailey, San Antonio, TX, for Appellants Relators.

Raymond L. Thomas, David H. Jones, Tracy A. Spillman, Kittleman, Thomas & Gonzales, L.L.P., Rebecca Vela, Kittleman,
Thomas Ramirez & Gonzales, McAllen, for Real Parties in Interest.

Before Justices RODRIGUEZ, GARZA, and VELA.



                                                MEMORANDUM OPINION




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In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008)




Memorandum Opinion by Justice GARZA.

*1 Appellant/relator, Graybar Electric Company (“Graybar”), alleges that the trial court abused its discretion in denying its
motion to partially dissolve or modify an injunction granted in favor of appellees/real parties in interest, Alvaro Gonzalez and
Laredo Hix, L.P. (“Laredo Hix”). By two issues in its first interlocutory appeal, cause number 13-08-00294-CV, 1 Graybar
contends that the trial court abused its discretion in denying its motion because: (1) the trial court did not have jurisdiction under
the Texas Property Code, see TEX. PROP.CODE ANN. § 53.157(2) (Vernon 2007); and (2) the trial court did not have subject
matter jurisdiction to issue a temporary injunction pursuant to section 65.023 of the civil practice and remedies code. See TEX.
CIV. PRAC. & REM.CODE ANN. § 65.023 (Vernon 1997). 2 In addition, Graybar petitions this Court for a writ of mandamus,
in cause number 13-08-00073-CV, directing the Hidalgo County district court to set aside its order denying Graybar's motion
to abate, by which the court effectively asserts dominant jurisdiction.

By six issues, reorganized as four, Graybar alleges in its second interlocutory appeal, cause number 13-08-00341-CV, that the
trial court abused its discretion in granting Laredo Hix's motion to extend the original temporary injunction. 3 Graybar, MIRA
Enterprises, Inc. (“MIRA”), and Mark Stallings Electric, Inc. (“Stallings”) also petition this Court for a writ of mandamus,
in cause number 13-08-00333-CV, directing the Hidalgo County district court to transfer the entire case to Webb County.
We affirm the trial court's judgment in cause number 13-08-00294-CV; we deny Graybar's petition for writ of mandamus in
cause number 13-08-00073-CV; we dismiss Graybar's appeal in cause number 13-08-00341-CV; and we deny Graybar's second
petition for writ of mandamus in cause number 13-08-00333-CV.



                                    I. FACTUAL AND PROCEDURAL BACKGROUND

This case centers on the management and construction of a Holiday Inn Express & Suites Hotel in Laredo, Texas. On January
18, 2007, HMC Hospitality Operating Company (“HMC”) filed suit against Gonzalez in Collin County, asserting claims for
breach of contract, declaratory judgment, quantum meruit, and attorney's fees with respect to alleged breaches of various hotel
management agreements between HMC and Gonzalez pertaining to the Laredo Holiday Inn. The district court in Collin County
transferred the case to Hidalgo County on April 4, 2007, in response to a motion to transfer venue filed by Gonzalez.


On May 23, 2007, Graybar 4 perfected a mechanic's lien against the Laredo Holiday Inn and its owner, Laredo Hix, by filing its
lien in the public records of Webb County. Graybar sought repayment for materials provided in the construction of the Laredo
Holiday Inn in the amount of $37,788.55.

On June 22, 2007, Gonzalez filed an amended answer and counterclaim in the Hidalgo County district court denying the
allegations made by HMC, asserting various affirmative defenses, and stating a counterclaim for fraud. Subsequently, Gonzalez
filed an application for a temporary restraining order and motions for temporary and permanent injunctive relief in the Hidalgo
County district court, seeking to enjoin HMC from communicating with or litigating against Gonzalez.

 *2 On July 20, 2007, The Gonzalez-DLS Family Limited Partnership and Brownsville SB, L.P. filed an original petition in
intervention in the Hidalgo County suit against HMC seeking declaratory relief, damages for breach of contract and fraud,
exemplary damages, and attorney's fees pertaining to alleged material misrepresentations made by HMC to induce Gonzalez
to enter into various hotel management agreements for four separate hotels in Pharr, McAllen, Brownsville, and Laredo. In
addition, Ascension Hospitality Management, L.L.C. filed a petition in intervention to join in Hidalgo County suit. Furthermore,
all parties joined in Gonzalez's application for temporary injunction.

On August 6, 2007, the Hidalgo County district court granted Gonzalez's application for temporary injunction. In its order, the
court restrained HMC “from continuing to harass, threaten or communicate with the Gonzalez Group and the Gonzalez Group's
employees, agents, or representatives....” The court also restrained HMC “from filing, initiating, serving any process and from


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In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008)


continuing any litigation against the Gonzalez Group and the Gonzalez Group's employees, agents[,] and representatives....” On
August 23, 2007, HMC filed notice of its accelerated interlocutory appeal which was assigned cause number 13-07-00518-CV. 5

On September 24, 2007, Graybar filed an original petition in Webb County against Stallings, MIRA, and Laredo Hix seeking to
foreclose on the lien it filed on May 23, 2007, asserting that the defendants had failed to timely pay balances due for materials
furnished for the construction of the Laredo Holiday Inn. 6 In its petition, Graybar contended that it was owed $37,788.55 for
materials provided.

On October 9, 2007, Laredo Hix filed an original petition in intervention with the Hidalgo County district court. In its petition,
Laredo Hix named sixteen parties as counter-defendants. Among the many counter-defendants were HMC, MIRA, Graybar,
and Stallings. Laredo Hix claimed that HMC was in breach of contract, was negligent, and had breached a fiduciary duty owed
to it. Additionally, Laredo Hix contended that Graybar, MIRA, and Stallings were in breach of contract and had negligently
carried out their duties in the construction of the Laredo Holiday Inn. Laredo Hix also filed an application for a temporary
restraining order and requests for temporary and permanent injunctions to prevent Graybar from pursuing its suit in Webb
County until the Hidalgo County suit was resolved. Also on October 9, 2007, Gonzalez filed a supplemental counterclaim, an
application for temporary restraining order, and requests for temporary and permanent injunctions against Graybar which were
virtually identical to those filed by Laredo Hix. 7

On November 2, 2007, the Hidalgo County district court granted the requests for temporary injunction made by Gonzalez and
Laredo Hix. The court specifically restrained Graybar from (1) “continuing to harass, threaten or communicate with Laredo
Hix, L.P. and/or Alvaro Gonzalez, and their employees, agents, or representatives,” and (2) “filing, initiating, serving any
process, and from continuing any litigation either criminal or civil against Laredo Hix, L.P., and/or Alvaro Gonzalez, and
their employees, agents and representatives, except in this Court.” The temporary injunction, which was in part an anti-suit
injunction, was to last until May 12, 2008, when the matter was set for trial.

 *3 On November 8, 2007, Graybar filed a motion to partially dissolve or modify the November 2, 2007 injunction and a
verified plea in abatement with the Hidalgo County district court. In support of its motion, Graybar attached a copy of its original
petition in Webb County against Stallings, MIRA, and Laredo Hix. 8 On January 2, 2008, after a hearing, the Hidalgo County
district court denied Graybar's motion and plea in abatement. Graybar perfected its appeal. 9 Graybar also filed a petition for
writ of mandamus on February 4, 2008, claiming that the trial court abused its discretion in denying its plea in abatement
because the Webb County district court has dominant jurisdiction over all claims.

At a hearing on May 12, 2008, the Hidalgo County district court denied motions to transfer venue filed by Graybar and other
interested parties-namely, Harden Plumbing Company, Inc., Pete Gallegos Paving, Inc., Stallings, and MIRA-and addressed a
motion to compel. However, the court did not commence a trial on the merits at this time. Nevertheless, the November 2, 2007
temporary injunction expired. On May 20, 2008, Gonzalez and Laredo Hix filed an emergency motion to extend the November
2, 2007 temporary injunction until November 10, 2008, when the matter was scheduled for a trial on the merits in Hidalgo
County. The Hidalgo County district court granted the extension, noting that “[a]ll findings set forth in this Court's Temporary
Injunction Order dated November 2, 2007 are incorporated by reference as if set forth fully herein.” No other changes were
made to the temporary injunction.

Graybar, MIRA, and Stallings filed a joint petition for writ of mandamus in cause number 13-08-00333-CV on May 27, 2008,
asserting that the venue provisions of the civil practice and remedies code mandate venue in Webb County. See id. §§ 15.011,
15.012 (Vernon 2002). In conjunction with its motion for leave of court, which we granted earlier, Graybar filed its notice of
appeal in cause number 13-08-00341-CV on June 12, 2008.




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In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008)




                                            II. CAUSE NUMBER 13-08-00294-CV

A. Appellate Jurisdiction
Section 51.014(a)(4) of the civil practice and remedies code provides this Court with interlocutory appellate jurisdiction if the
district court “grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction....”
Id. § 51.014(a)(4) (Vernon 2008). Here, the trial court denied Graybar's motion to dissolve or modify an injunction. Therefore,
we have jurisdiction over Graybar's interlocutory appeal. See id.


B. Standard of Review
Whether to dissolve a temporary injunction is a matter lying within the trial court's discretion. Cellular Mktg., Inc. v. Houston
Cellular Tel. Co., 784 S.W.2d 734, 735 (Tex.App.-Houston [14th Dist.] 1990, no writ); Tober v. Turner of Tex., Inc., 668
S.W.2d 831, 834 (Tex.App.-Austin 1984, no writ). On appeal, our review is limited to the question of whether the trial court
abused its discretion in denying Graybar's motion to dissolve. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993). A clear
failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Walker v. Packer, 827
S.W.2d 833, 839 (Tex.1992) (orig.proceeding).

 *4 The trial court may modify a temporary injunction because of fundamental error or changed circumstances, but it has no
duty to reconsider the grant of a temporary injunction if the movant fails to present new evidence showing fundamental error or
changed circumstances. Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 580 (Tex.App.-Austin 2000, no pet.) (citing
Henke v. Peoples State Bank, 6 S.W.3d 717, 721 (Tex.App.-Corpus Christi 1999, pet. dism'd w.o.j.)). Fundamental error exists
when “the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest
is declared in the statutes or the Constitution of Texas.” Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982). On the other hand,
changed circumstances “are conditions that altered the status quo existing after the temporary injunction was granted or that
made the temporary injunction unnecessary or improper.” Henke, 6 S.W.3d at 721.


C. Discussion

1. Graybar's Mechanic's Lien in Webb County
In its first issue, Graybar asserts that the Hidalgo County district court did not have jurisdiction over its Webb County claims
pursuant to section 53.157 of the Texas Property Code. See TEX. PROP.CODE ANN. § 53.157(2). Specifically, Graybar
contends that Webb County is the only county in which its foreclosure suit can be brought and maintained because that is where
the property is located. On the other hand, Gonzalez and Laredo Hix argue that section 53.157 of the property code relates to
venue of a mechanic's lien foreclosure suit and not to subject matter jurisdiction. They further argue that the injunction issued
by the Hidalgo County district court does not require that Graybar pursue its mechanic's lien foreclosure suit in Hidalgo County.

Section 53.157 of the property code provides, in relevant part: “A mechanic's lien or affidavit claiming a mechanic's lien filed
under Section 53.052 may be discharged of record by ... failing to institute suit to foreclose the lien in the county in which
the property is located....” Id. § 53.157(2) (emphasis added). 10 Moreover, section 53.154 states that “[a] mechanic's lien may
be foreclosed only on judgment of a court of competent jurisdiction foreclosing the lien and ordering the sale of the property
subject to the lien.” Id. § 53.154 (Vernon 2007).

It is undisputed that Graybar perfected its mechanic's lien by filing an affidavit in the Webb County public records. The thrust of
Graybar's argument pertaining to its mechanic's lien is that the Hidalgo County district court's issuance of the anti-suit injunction
essentially forbids Graybar from foreclosing on its lien because the property code prevents it from instituting a foreclosure suit
in Hidalgo County. We disagree.




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The part of the Hidalgo County district court's November 2, 2007 temporary injunction, which is, in effect, an anti-suit
injunction, provides, in relevant part:

   *5 IT IS FURTHER ORDERED, that Counter-Defendants JUAN A. CASTILLO, GRAYBAR ELECTRIC COMPANY,
  INC., GILBERT J. GUERRERO D/B/A RIO DELTA ENGINEERING, PETE GALLEGOS PAVING, INC., SOLORIO
  & ASSOCIATES, MARK STALLINGS ELECTRIC, INC., and their agents, representatives, attorneys and those acting
  in concert therewith, are hereby immediately restrained from filing, initiating, serving any process, and from continuing
  any litigation either criminal or civil against the Laredo HIX, LP and/or Alvaro Gonzalez, and their employees, agents and
  representatives, except in this Court.

  IT IS FURTHER ORDERED that this Temporary Injunction shall be valid for the remainder of this litigation until a final
  trial on the merits shall take place at 9 a.m., May 12, 2008.

We do not find and Graybar has not directed us to, anything in the record demonstrating that the Hidalgo County district court
affirmatively asserted jurisdiction over Graybar's suit pertaining to its mechanic's lien. The effect of the anti-suit injunction was
merely to abate Graybar's foreclosure suit until a trial on the merits occurred in the Hidalgo County lawsuit. 11 See Golden
Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex.1996). We disagree with Graybar's contention that it has been “stripped
of its right to bring suit to foreclose its lien.” Graybar has commenced its foreclosure suit in Webb County, and based on the
record before us, there is nothing preventing Graybar from prosecuting its foreclosure suit after the Hidalgo County suit is
resolved. Graybar has not provided any citations to authority supporting its argument that the resolution of the Hidalgo County
lawsuit would eliminate its ability to ultimately foreclose on its mechanic's lien or that the court's injunction required Graybar
to foreclose on its mechanic's lien in Hidalgo County. See TEX.R.APP. P. 38.1(h). Moreover, Graybar has not raised any issues
pertaining to changed circumstances. See Universal Health Servs., Inc., 24 S.W.3d at 580; Henke, 6 S.W.3d at 721. Therefore,
we do not find any fundamental error in the Hidalgo County district court's actions necessitating a modification or dissolution
of the temporary injunction issued. Accordingly, we overrule Graybar's first issue.


2. Section 65.023 of the Texas Civil Practice and Remedies Code
By its second issue, Graybar asserts that the trial court did not have subject matter jurisdiction to issue the anti-suit injunction
pursuant to section 65.023 of the civil practice and remedies code. See TEX. CIV. PRAC. & REM.CODE ANN. § 65.023.
Specifically, Graybar argues that section 65.023 requires that any injunction must be filed in Webb County. See id. Conversely,
Gonzalez and Laredo Hix contend that section 65.023 of the civil practice and remedies code is not applicable because the
Hidalgo County lawsuit is not purely injunctive in nature. See id.

The principle of comity requires that courts exercise the power to enjoin foreign suits “sparingly, and only in very special
circumstances.” Harper, 925 S.W.2d at 651. An anti-suit injunction may be justified when the injunction will prevent a
multiplicity of suits or will protect a party from vexatious or harassing litigation. Christensen v. Integrity Ins. Co., 719 S.W.2d
161, 163 (Tex.1986); see Gannon, 706 S.W.2d at 307; see also Harper, 925 S.W.2d at 651 (holding that an anti-suit injunction
is appropriate: (1) to address a threat to the court's jurisdiction; (2) to prevent the evasion of important public policy; (3) to
prevent a multiplicity of suits; or (4) to protect a party from vexatious or harassing litigation). The issuance of an anti-suit
injunction is within the sound discretion of the trial court. London Mkt. Insurers v. Am. Home Assurance Co., 95 S.W.3d 702,
705-06 (Tex.App.-Corpus Christi 2003, no pet.).

*6 Graybar's second issue hinges upon the interpretation of section 65.023 of the civil practice and remedies code. See TEX.
CIV. PRAC. & REM.CODE ANN. § 65.023. Specifically, section 65.023, entitled “Place for Trial,” provides:

  (a) Except as provided by Subsection (b), a writ of injunction against a party who is a resident of this state shall be tried in
  a district or county court in the county in which the party is domiciled. If the writ is granted against more than one party, it
  may be tried in the proper court of the county in which either party is domiciled.




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  (b) A writ of injunction granted to stay proceedings in a suit or execution on a judgment must be tried in the court in which
  the suit is pending or the judgment was rendered.

Id.

Graybar contends that the Hidalgo County district court was powerless to enjoin the Webb County suit because section 65.023
mandates that a writ of injunction had to be filed in Webb County. See id. We disagree.

The Texas Supreme Court, in In re Continental Airlines, interpreted section 65.023 of the civil practice and remedies code,
the injunction venue statute. 988 S.W.2d 733 (Tex.1998) (orig.proceeding); see TEX. CIV. PRAC. & REM.CODE ANN. §
65 .023. The supreme court noted that “the injunction venue statute applies only to suits in which the relief sought is purely or
primarily injunctive.” In re Continental Airlines, 988 S.W.2d at 736 (emphasis added) (citing Ex parte Coffee, 160 Tex. 224,
328 S.W.2d 283, 287 (Tex.1959) (holding that the statute now codified as section 65.023 of the civil practice and remedies code
“only applies to and governs the issuance and return of writs and trial in cases in which the relief sought is purely or primarily
injunctive.”)); see also In re Daniel, No. 12-06-00232-CV, 2006 Tex.App. LEXIS 7207, at *7, 2006 WL 2361350 (Tex.App.-
Tyler Aug. 16, 2006, orig. proceeding) (suggesting that if the petition includes both a plea for declaratory judgment and an
injunction without any additional causes of action, then the primary purpose of the suit is injunctive in nature). Furthermore,
this Court has held in similar circumstances that when “[t]he injunction granted by the court below was ancillary in nature,”
former article 4656 does not apply. 12 Ray v. Paulus, 489 S.W.2d 446, 449-50 (Tex.Civ.App.-Corpus Christi 1972, no writ).

This case is not purely injunctive in nature. In fact, the Hidalgo County district court merely issued the injunction as a means
to prevent a multiplicity of suits and vexatious or harassing litigation. See id. at 450; see also Harper, 925 S.W.2d at 651. In
applying Graybar's logic, no trial court would be able to obtain subject matter jurisdiction to enjoin another court from litigating
a matter unless the enjoined court agreed to be enjoined. This contention is not supported by case law on anti-suit injunctions.
See Harper, 925 S.W.2d at 651; Christensen, 719 S.W.2d at 163; Gannon, 706 S.W.2d at 305.

 *7 In support of its contention that section 65.023 prevented the Hidalgo County district court from enjoining the Webb County
lawsuit, Graybar relies heavily on this Court's holding in Butron v. Cantu, 960 S.W.2d 91, 94-95 (Tex.App.-Corpus Christi
1997, no writ). However, we find the Butron decision to be factually distinguishable from this case.

In Butron, a district court in Cameron County rendered a judgment against an attorney for legal malpractice. Id. at 93. In response
to this judgment, the attorney filed an action in Hidalgo County to declare the Cameron County judgment void and later sought
a temporary injunction to prevent collection on a supersedeas bond posted with the Cameron County district court. Id. The
Hidalgo County district court subsequently issued a temporary injunction prohibiting the collection of the supersedeas bond.
Id. The issue on appeal was the propriety of the Hidalgo County district court's grant of the attorney's request for temporary
injunction. Id. at 94. This Court held that, since the Cameron County district court had rendered the judgment, only that court
could enjoin collection on the supersedeas bond. Id. at 95. There, injunctive relief was the primary relief sought by the attorney
in Hidalgo County to “prevent [appellant] from executing on that [Cameron County] judgment.” Id. Moreover, this Court
specifically noted that “[s]ection 65.023 is intended to ensure that comity prevails among the various Texas trial courts because
‘orderly procedure and proper respect for the courts will require that ... attacks upon their judgments should be made in the court
rendering such judgment, rather than in other courts indiscriminately.’ ” Id. at 94 (quoting McVeigh v. Lerner, 849 S.W.2d 911,
914 (Tex.App.-Houston [1st Dist.] 1993, writ denied)).

We first note that Graybar has not secured a final judgment on its foreclosure suit in Webb County. Here, unlike Butron, the
temporary injunction sought by Gonzalez and Laredo Hix in Hidalgo County was not pursued for the purpose of preventing
Graybar from collecting on a final judgment. 13 However, most importantly, the relief sought in the case at bar is not primarily
injunctive in nature. The temporary injunction in the present case is merely ancillary to the primary relief sought-damages
associated with various causes of action, including breach of contract and breach of fiduciary duty, pertaining to the management



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and construction of the Laredo Holiday Inn. See Karagounis v. Bexar County Hosp. Dist., 70 S.W.3d 145, 146-47 (Tex.App.-
San Antonio 2001, pet. denied) (holding that because the true nature of the relief being sought was not purely injunctive but
for specific performance of a contract, section 65.023 of the civil practice and remedies code did not apply). We believe this
case is akin to Ray. See 489 S.W.2d at 449-50. Contrary to Graybar's assertions, Texas courts have routinely authorized the
issuance of anti-suit injunctions to prevent a multiplicity of suits and to prevent vexatious or harassing litigation. See Harper,
925 S.W.2d at 651; Christensen, 719 S.W.2d at 163; Gannon, 706 S.W.2d at 305.

 *8 We therefore do not find any fundamental error in the Hidalgo County district court's issuance of the temporary injunction to
maintain the status quo. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002) (stating that the purpose of a temporary
injunction is to preserve the status quo of the litigation's subject matter pending a trial on the merits); see also Harper, 925
S.W.2d at 651; Christensen, 719 S.W.2d at 163; Gannon, 706 S.W.2d at 305. Accordingly, we conclude that the trial court did
not abuse its discretion in issuing the anti-suit injunction and denying Graybar's motion. We overrule Graybar's second issue,
and we affirm the judgment of the trial court.



                                            III. CAUSE NUMBER 13-08-00073-CV

In its first petition for writ of mandamus, Graybar argues that the Hidalgo County district court abused its discretion in denying its
verified plea in abatement because the Webb County district court has dominant jurisdiction. Graybar also claims that Gonzalez
and Laredo Hix engaged in impermissible “forum shopping.” Gonzalez and Laredo Hix argue that: (1) Hidalgo County has
dominant jurisdiction over the Webb County lawsuit because suit was commenced there first and the claims are interrelated;
(2) the Webb County lawsuit has not commenced because Laredo Hix has yet to be served; and (3) Graybar has not introduced
any evidence to support an abatement of the Hidalgo County lawsuit. 14


A. Standard of Review
Mandamus relief is available only to correct a “clear abuse of discretion” when there is no adequate remedy by appeal. Walker,
827 S.W.2d at 839. Mandamus is appropriate to resolve disputes over dominant jurisdiction. Perry v. Del Rio, 66 S.W.3d 239,
258 (Tex.2001) (orig.proceeding) (citing Curtis v. Gibbs, 511 S.W.2d 263, 268 (Tex.1974)). Moreover, mandamus relief may
be granted when one court actively interferes with the jurisdiction of another court. See In re Reliant Energy, Inc., 159 S.W.3d
624, 626 (Tex.2005) (orig.proceeding).

The party bringing a plea in abatement must show: (1) the other suit (here, the Webb County lawsuit) commenced first; (2)
the suit is still pending; (3) the same parties are involved; and (4) the controversies are the same. S. County Mut. Ins. Co. v.
Ochoa, 19 S.W.3d 452, 468 (Tex.App.-Corpus Christi 2000, no pet.) (op. on reh'g). The movant has the burden of proof to
establish the allegations in his motion to abate. Flowers v. Steelcraft Corp., 406 S.W.2d 199, 199 (Tex.1966); S. County Mut.
Ins. Co., 19 S.W.3d at 469.

We review the trial court's action in granting or denying a plea in abatement using an abuse of discretion standard. Wyatt v.
Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988); Davis v. Guerrero, 64 S.W.3d 685, 691 (Tex.App.-Austin 2002, no pet.);
S. County Mut. Ins. Co., 19 S.W.3d at 468. The trial court abuses its discretion when it acts in an unreasonable and arbitrary
manner, or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241-42 (Tex.1985).


B. The Doctrine of Dominant Jurisdiction & Venue
 *9 The dominant jurisdiction doctrine applies when venue is proper in two or more Texas counties or courts. Gonzalez v.
Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex.2005) (noting that the concept of dominant jurisdiction is not applicable in
cases where venue is not proper in more than one Texas county); Wyatt, 760 S.W.2d at 248. Dominant jurisdiction recognizes



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“the plaintiff's privilege to choose the forum” and accepts that choice as correct, provided “the forum is a proper one.”
Gonzalez, 159 S.W.3d at 622; Wyatt, 760 S.W.2d at 248; see Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1070 (Tex.1926)
(orig.proceeding), disapproved on other grounds by Walker, 827 S.W.2d at 843.

“The long-standing common law rule in Texas is that the first court to acquire jurisdiction over the subject matter and the
parties of a controversy has dominant jurisdiction over all other courts.” San Miguel v. Bellows, 35 S.W.3d 702, 704 (Tex.App.-
Corpus Christi 2000, pet. denied) (citing Cleveland, 285 S.W. at 1070); see Curtis, 511 S.W.2d at 267. “Where jurisdiction of a
district court has attached, it has the power to permit pleadings to be amended, new parties to be made, to determine all essential
questions, and to do anything with reference thereto authorized by law.” San Miguel, 35 S.W.3d at 704 (citing Cleveland, 286
S.W. at 1069). Dominant jurisdiction excludes other courts from exercising jurisdiction over the same case. Curtis, 511 S.W.2d
at 267; San Miguel, 35 S.W.3d at 704.

Dominant jurisdiction requires “an inherent interrelation of the subject matter” in the two suits before a plea in abatement must
be granted in the second action. Wyatt, 760 S.W.2d at 248. It is not required that the exact issues and all the parties be included
in the first action before the second action is filed, provided that the claim in the first suit may be amended to bring in all
necessary and proper parties and issues. Id. at 247. In determining whether an inherent interrelationship exists, courts should
be guided by the rule governing persons to be joined if feasible and the compulsory counterclaim rule. Id.


C. Discussion
It is undisputed that the Hidalgo County district court has general subject matter jurisdiction over all claims involved. See
TEX. CONST. art. V, § 8 (providing that the district court has exclusive, original jurisdiction of “all actions, proceedings, and
remedies,” except when the constitution or other law confers jurisdiction on some other court); TEX. GOV'T CODE ANN . §
24.007 (Vernon 2000) (“The district court has the jurisdiction provided by Article V, Section 8 of the Texas Constitution.”); see
also Gordon v. Jones, 196 S.W.3d 376, 381-82 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Moreover, Graybar acknowledges
in its plea in abatement that the “Webb County Lawsuit is clearly inherently interrelated with the Hidalgo County Lawsuit....
Both have the same subject matter-the HOLIDAY INN-LAREDO.” See Wyatt, 760 S.W.2d at 248. Therefore, the only issue
before us is which suit was filed first.

 *10 HMC filed its original petition with the Collin County district court on January 18, 2007, asserting various causes of
action pertaining to an alleged breach of several hotel management agreements regarding the Laredo Holiday Inn. The lawsuit
was transferred to Hidalgo County on May 21, 2007. It was not until September 24, 2007, that Graybar filed its suit in Webb
County to foreclose upon its mechanic's lien. Clearly, the Hidalgo County lawsuit was filed first.

When suit is proper in more than one county, the court in which the suit is first filed acquires dominant jurisdiction. Wyatt,
760 S.W.2d at 248. As long as the forum is proper, it is the plaintiff's privilege to choose the forum. Id. “Defendants are not
at liberty to decline to do battle in the forum chosen by the plaintiff.” Id. Therefore, because the parties agree that the claims
are interrelated and because the Hidalgo County lawsuit was filed first, we conclude that the Hidalgo County district court has
dominant jurisdiction over the Webb County suit. 15

Graybar, however, relies heavily on this Court's holding in San Miguel to support its contention that Webb County has dominant
jurisdiction over the involved claims. 35 S.W.3d at 703-05. In that case, San Miguel obtained a judgment against R.D. Bellows
Law Office (“Bellows”) for damages of $513,000 in a Harris County district court. Id. at 703. After the judgment had become
final, San Miguel filed an application for ancillary relief in the Harris County district court seeking a turnover order and joining
Bellows's wife, Suzette, and the Bellows Law Firm, P.L.L.C. Id. Subsequently, Suzette and the P.L.L.C. obtained an ex parte
temporary restraining order in Live Oak County to prevent San Miguel from proceeding with her collection efforts in Harris
County. Id. at 704. Suzette and the P.L.L.C. also filed an application for temporary injunction and a petition for declaratory
judgment. Id. This Court concluded that the Live Oak trial court abused its discretion in issuing a temporary injunction enjoining
San Miguel from pursuing her collection efforts against Bellows in the Harris County trial court. Id. at 703, 705.



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We find this case to be factually distinguishable. Unlike San Miguel, Graybar has not secured a final judgment in Webb County.
Further, the purpose of the Hidalgo County district court's issuance of the temporary injunction and its denial of Graybar's plea
in abatement was not to prevent Graybar from enforcing a final judgment. Additionally, as previously discussed, the claims
involved are inherently interrelated and the Hidalgo County lawsuit was filed first; therefore, Hidalgo County has dominant
jurisdiction over the claims involved. Finally, the claims asserted by Suzette and the P.L.L.C. were merely injunctive in nature
whereas the claims asserted by Gonzalez and Laredo Hix in the Hidalgo County district court are not. See In re Continental
Airlines, 988 S.W.2d at 736; see also In re Daniel, 2006 Tex.App. LEXIS 7207, at *7, 2006 WL 2361350 (suggesting that if
the petition includes both a plea for declaratory judgment and an injunction without any additional causes of action, then the
primary purpose of the suit is injunctive in nature).

 *11 Graybar further argues that Gonzalez and Laredo Hix are engaging in impermissible “forum shopping.” See Reliant
Energy, Inc., 102 S.W.3d at 875 (“Forum shopping is against public policy....”). Graybar has not cited to any authority stating
that the Hidalgo County district court was required to abate the Hidalgo County lawsuit for impermissible “forum shopping.”
In any event, our review of the record does not yield a finding that Gonzalez and Laredo Hix engaged in impermissible “forum
shopping.” Gonzalez and Laredo Hix joined Graybar and several other counter-defendants in the underlying Hidalgo County
lawsuit because, as Graybar admits, these claims are interrelated.

In concluding that the Hidalgo County district court has dominant jurisdiction, we do not find that Graybar's Webb County
foreclosure lawsuit is extinguished; instead, it is merely abated pending the resolution of the Hidalgo County lawsuit. Therefore,
based on the foregoing, we conclude that the Hidalgo County trial court did not abuse its discretion in denying Graybar's motion
to abate. Accordingly, we deny Graybar's petition for writ of mandamus.



                                           IV. CAUSE NUMBER 13-08-00341-CV

In its second interlocutory appeal, Graybar asserts that the trial court erred in granting the motion to extend the November 2,
2007 temporary injunction filed by Gonzalez and Laredo Hix. Specifically, Graybar contends that the temporary injunction
should be dissolved because: (1) it does not state the court's reason for issuing the injunction; (2) it does not describe the acts
sought to be restrained; (3) the trial court did not give Graybar an opportunity to be heard, in violation of the Due Process Clause
of the United States Constitution, see U.S. CONST. amend. XIV; and (4) the trial court did not have subject matter jurisdiction
to issue the order and Webb County has dominant jurisdiction over the remaining claims.

Gonzalez and Laredo Hix argue that: (1) this Court does not have jurisdiction over this appeal; (2) Graybar's alleged procedural
violations do not apply to extensions of temporary injunctions; (3) Graybar has already raised the issues of subject matter
jurisdiction and dominant jurisdiction in cause number 13-08-00294-CV, its first interlocutory appeal; and (4) Graybar received
“all the process to which it was due.”


A. Applicable Law
An appellate court lacks jurisdiction to review an interlocutory order unless a statute specifically authorizes such an appeal.
Qwest Commc'ns Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex.2000). Section 51.014 of the civil practice and remedies code
provides that a party may appeal from an interlocutory order of the trial court that “grants or refuses a temporary injunction.”
TEX. CIV. PRAC. & REM.CODE ANN. § 51.014. Texas courts, however, have construed this provision to allow interlocutory
review of an amended order making a substantive modification to a temporary injunction. See Currie v. Int'l Telecharge, Inc.,
722 S.W.2d 471, 472 (Tex.App.-Dallas 1986, no writ) (deciding that a temporary injunction was modified by restricting the
area affected by a non-competition provision); Toby Martin Oilfield Trucking, Inc. v. Martin, 640 S.W.2d 352, 355 (Tex.App.-
Houston [1st Dist.] 1982, no writ) (finding that temporary injunction was modified by increasing the amount of the bond); see
also City of Lancaster v. Tex. Motor Transp. Ass'n, Inc., No. 05-05-00169-CV, 2005 Tex.App. LEXIS 7744, at *3, 2005 WL



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2303415 (Tex.App.-Dallas Sept. 22, 2005, no pet.) (mem.op .) (concluding that the appellate court did not have jurisdiction to
review a temporary injunction where the sole modification was to extend the date until a trial on the merits could be conducted);
cf. Ludewig v. Houston Pipeline Co., 737 S.W.2d 15, 16 (Tex.App.-Corpus Christi 1987, no writ) (holding that the trial court's
order amending a temporary injunction to include a new trial date is not an appealable order). We must determine whether the
extension of the temporary injunction in this case amounted to a substantive modification.


B. Discussion
 *12 The trial court's order extending the November 2, 2007 temporary injunction specifically incorporated by reference the
substantive findings contained in the original November 2, 2007 temporary injunction. The lone change in the trial court's order
was to extend the duration of the injunction until the new trial setting of November 10, 2008. See City of Lancaster, 2005
Tex.App. LEXIS 7744, at *3, 2005 WL 2303415. As in City of Lancaster, no substantive changes were made to the November
2, 2007 temporary injunction. See id.

Graybar relies heavily on the decisions in EMC Mortgage Corp. v. Jones, No. 05-06-00419-CV, 2008 Tex.App. LEXIS 3270,
at *5, 2008 WL 1960812 (Tex.App.-Dallas May 7, 2008, no pet.) (op. on reh'g); Webb v. Hartman Newspapers, Inc., 793
S.W.2d 302, 303 (Tex.App.-Houston [14 th Dist.] 1990, no writ), and Herider Farm Processing, Inc. v. City of Nacogdoches,
573 S.W.2d 297, 298-99 (Tex.Civ.App.-Tyler 1978, writ ref'd n.r.e.) for the proposition that an extension is appealable because
it is itself a temporary injunction. We disagree.

The EMC Mortgage Corp. case involved the trial court's extension of an underlying temporary injunction after a final judgment
had been secured. 2008 Tex.App. LEXIS 3270, 2008 WL 1960812 at ----9-10. The Dallas Court of Appeals concluded that once
a final judgment was secured, under the circumstances involved, the underlying temporary injunction terminated; therefore, the
extension of the underlying temporary injunction constituted a new temporary injunction. Id. at *14. In this case, we do not
have a final judgment; instead, Graybar challenges the temporary injunction on interlocutory appeal, for which our jurisdiction
is limited. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(4). Therefore, EMC Mortgage Corp. is not applicable.

In Webb, appellant Willis Webb appealed the trial court's extension of a temporary injunction ordering him to comply with
provisions on a covenant not to compete with his former employer. 793 S.W.2d at 303. The Fourteenth Court of Appeals
reviewed the mertis of the temporary injunction without any discussion as to whether the trial court's extension of the temporary
injunction's duration constituted a substantive modification. Id. at 305. Here, we have a unique situation in that we have reviewed
the merits of the temporary injunction in cause number 13-08-00294-CV, Graybar's first interlocutory appeal. The only matter
for review in this cause is the extension. Therefore, we find City of Lancaster to be more on point in this cause, and we decline
to follow Webb.

Finally, in Herider Farm Processing, appellant appealed the trial court's issuance of a temporary injunction enjoining the City
of Nacogdoches from terminating water and sewer services for a period of fifteen days. 573 S.W.2d at 297. After a hearing on
the temporary injunction, the trial court concluded that appellant was entitled to injunctive relief and granted appellant's motion
for a temporary injunction for a period of fifteen days from the date of the hearing. Id. at 298. Appellant subsequently filed a
motion for extension of the temporary injunction “until such time as the principal suit herein may be tried to a conclusion.” Id.
The trial court denied appellant's motion. Id. On appeal of the temporary injunction, the court of appeals noted that the crux of
the disagreement between appellant and appellee pertained to the length of time for which the trial court granted or should have
granted the injunction. Id. The court of appeals concluded that the trial court had abused its discretion in granting the injunction
for only a fifteen day period, reasoning that fifteen days is insufficient to preserve the status quo. Id. at 299.

 *13 The Herider Farm Processing case is not directly analogous to the instant case. Although it was argued that the trial court
had abused its discretion in denying its motion to extend the temporary injunction, the court of appeals did not analyze the
denial of the motion to extend the temporary injunction. Id. at 298. Instead, the court analyzed the original temporary injunction
that the trial court had granted. Id. at 298-99. In doing so, the court concluded that the duration of the original temporary
injunction was insufficient to maintain the status quo of the underlying suit, especially in light of the trial court's conclusion


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that appellant had proven its rights to permanent injunctive relief. Id. at 299. Therefore, the court modified the duration of the
original temporary injunction to last until a trial on the merits. Id. Considering the court did not address appellant's motion to
extend the temporary injunction and instead addressed the trial court's grant of the original temporary injunction, we do not
find this case to be persuasive in this matter. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(4) (providing for an
interlocutory appeal premised on a grant or refusal to issue a temporary injunction).

Graybar further argues that the holdings in Sweet v. Inkjet International, Ltd., No. 05-03-00233-CV, 2003 Tex.App. LEXIS
8539, 2003 WL 22254695 at ----6-8 (Tex.App.-Dallas Oct.2, 2003, no pet.) (mem.op.) (concluding that the trial court's amended
temporary injunction clarifying the term “contacting” constituted a second temporary injunction and, therefore, did not interfere
with the appellate court's jurisdiction), Ahmed v. Shimi Ventures, 99 S.W.3d 682, 688-89 (Tex.App.-Houston [1st Dist.] 2003,
no pet.) (holding that an order modifying a temporary injunction, including adding a provision applicable to insurers, reducing
bond, and changing some compliance dates, but not incorporating the original temporary injunction by reference was a complete
temporary injunction in itself), and Martin, 640 S.W.2d at 355 (involving a modified temporary injunction increasing the bond
amount in the original temporary injunction from $2,000 to $100,000) support its contention that in changing the date of the
temporary injunction, the Hidalgo County district court made a substantive modification to the November 2, 2007 temporary
injunction. We disagree.

None of the cases cited by Graybar address a situation where a trial court has extended a temporary injunction. Furthermore,
none of the cases cited by Graybar stand for the proposition that a mere changing of the date on the temporary injunction to
effectuate an extension constitutes a substantive modification. Thus, the cases relied upon by Graybar are not persuasive in
this matter.

Based on the foregoing, we conclude that the order falls outside the ambit of section 51.014(a)(4) of the civil practice and
remedies code, and that we do not have jurisdiction to review it. See id.; see also TEX. CIV. PRAC. & REM.CODE § 51.014(a)
(4). On June 10, 2008, Gonzalez and Laredo Hix moved to dismiss this appeal. Accordingly, we grant the motion to dismiss
filed by Gonzalez and Laredo Hix, and we dismiss this interlocutory appeal. 16



                                            V. CAUSE NUMBER 13-08-00333-CV

 *14 In a second petition for writ of mandamus, Graybar, MIRA, and Stallings assert that the trial court abused its discretion
in denying their motions to transfer venue. Specifically, they argue that sections 15.011 and 15.012 of the civil practice and
remedies code are mandatory venue provisions which necessitate trying the entire case in Webb County. See TEX. CIV. PRAC.
& REM.CODE ANN. §§ 15.011, 15.012 (Vernon 2002). Gonzalez and Laredo Hix counter by arguing that: (1) the mandatory
venue provisions noted by Graybar do not apply because venue in this case is governed by section 15.062 of the civil practice
and remedies code, see TEX. CIV. PRAC. & REM.CODE ANN. § 15.062 (Vernon 2002); (2) Graybar and MIRA are barred
from obtaining a writ of mandamus because of waiver; and (3) section 15.011 does not apply because the underlying suit does
not involve the recovery of property or quieting title, see id. § 15.011.


A. Standard of Review
As previously stated, the general rule is that mandamus relief is available only to correct a “clear abuse of discretion” when there
is no adequate remedy by appeal. Walker, 827 S.W.2d at 839. However, section 15.0642 of the civil practice and remedies code
provides that “[a] party may apply for a writ of mandamus with an appellate court to enforce the mandatory venue provisions
of this chapter.” TEX. CIV. PRAC. & REM.CODE ANN. § 15.0642 (Vernon 2002); see id. § 15.064 (Vernon 2002) (“No
interlocutory appeal shall lie from the determination [of a motion to transfer venue].”). The Texas Supreme Court has held
that parties bringing a mandamus under section 15.0642 to enforce the mandatory venue provisions of the civil practice and
remedies code need not demonstrate that they lack an adequate remedy by appeal. In re Mo. Pac. R.R., 998 S.W.2d 212, 215
(Tex.1999) (orig.proceeding) (citing In re Continental Airlines, 988 S.W.2d at 735). Instead, the supreme court concluded that



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In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008)


a party need only demonstrate that the trial court abused its discretion. Id. at 216. Therefore, Graybar has properly raised this
issue in its second petition for writ of mandamus.


B. Discussion
Rule 86 of the Texas Rules of Civil Procedure provides that “[a]n objection to improper venue is waived if not made by written
motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion....” TEX.R.
CIV. P. 86(1).


1. Graybar
Graybar was first joined as a party to this matter when Laredo Hix filed its original petition in intervention and Gonzalez
filed his supplemental counterclaim on October 9, 2007. Graybar filed its motion to partially dissolve or modify the November
2, 2007 temporary injunction entered by the Hidalgo County trial court and its verified plea in abatement. Subsequently, on
November 20, 2007, Graybar filed its motion to transfer venue and original answer subject thereto, contending that section
15.011 of the civil practice and remedies code mandated venue in Webb County. See TEX. CIV. PRAC. & REM.CODE ANN.
§ 15.011. On March 19, 2008, Graybar filed a supplement to its November 20, 2007 motion to transfer venue, asserting that
section 15.012 of the civil practice and remedies code also mandated venue in Webb County. See id. § 15.012; cf. In re Pepsico,
Inc., 87 S.W.3d 787, 794 (Tex.App.-Texarkana 2002, orig. proceeding) (“[A]n original timely motion to transfer venue may
be amended to cure defects in the original motion if the amended motion is filed before the trial court rules on the original
motion, and that the properly filed amended motion relates back to and supersedes the original motion to transfer venue.”).
Because Graybar filed its motion to dissolve or modify the temporary injunction and verified plea in abatement prior to its
motion to transfer venue, we conclude that Graybar has waived this contention. See TEX.R. CIV. P. 86(1). Therefore, Graybar
is not entitled to mandamus relief.


2. MIRA
 *15 In its motion to transfer venue filed on November 1, 2007, MIRA contended that Eastland County was the proper venue
for this matter. At no point did MIRA allege that Webb County was the proper venue. Furthermore, MIRA did not make
reference to either sections 15.011 or 15.012 of the civil practice and remedies code in arguing that venue was not proper in
Hidalgo County. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 15.011, 15.012. Because this petition for writ of mandamus
specifically alleges that sections 15.011 and 15.012 mandate venue in Webb County and because MIRA did not plead those
provisions in its motion to transfer venue and did not assert that venue should be in Webb County, we conclude that MIRA has
waived its venue contention. See TEX R. CIV. P. 86(3)(b) (providing that a motion to transfer venue must “state that the action
should be transferred to another specified county of proper venue because.... Mandatory venue of the action in another county
is prescribed by one or more specific statutory provisions which shall be clearly designated or indicated ”) (emphasis added);
Wilson v. Tex. Parks & Wildlife Dep't., 886 S.W.2d 259, 260-61 (Tex.1994). Therefore, MIRA is not entitled to mandamus relief.


3. Stallings
Stallings filed its original motion to transfer venue on November 1, 2007, asserting that section 15.011 mandated venue in Webb
County . 17 See TEX. CIV. PRAC. & REM.CODE ANN. § 15.011. Stallings filed a first amended motion on November 1, 2007,
and a second amended motion on November 15, 2007. 18 See In re Pepsico, Inc., 87 S.W.3d at 794. In its first amended motion
to transfer venue, Stallings specifically denied Laredo Hix's and Gonzalez's venue facts suggesting that venue was proper in
Hidalgo County, and it contended that section 15.012 also mandated venue in Webb County. See id. § 15.012. Stallings filed
a motion requesting a hearing on its motion to transfer venue on November 1, 2007. See TEX.R. CIV. P. 87(1) (providing,
among other things, that “[t]he movant has the duty to request a setting on the motion to transfer”). The Hidalgo County trial
court denied all pending motions to transfer venue after a hearing on May 12, 2008. 19




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In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008)


Stallings argues that sections 15.011 and 15.012 mandate venue in Webb County. See TEX. CIV. PRAC. & REM.CODE ANN.
§§ 15.011, 15.012. We disagree.

Section 15.011 of the civil practice and remedies code provides that:

            Actions for recovery of real property or an estate or interest in real property, for partition of real property,
            to remove encumbrances from the title to real property, for recovery of damages to real property, or to
            quiet title to real property shall be brought in the county in which all or a party of the property is located.

Id. § 15.011. 20 Additionally, section 15.012 of the civil practice and remedies code provides that “[a]ctions to stay proceedings
in a suit shall be brought in the county in which the suit is pending.” Id. § 15.012.

 *16 We are, however, persuaded by the reasoning in Allison v. Fire Insurance Exchange, 98 S.W.3d 227, 241-44 (Tex.App.-
Austin 2002, pet. granted, judgm't vacated w.r.m.). In Allison, the Austin Court of Appeals analyzed the applicability of section
15.011 of the civil practice and remedies code in a case involving actions for negligence, negligence per se, breach of contract,
deceptive trade practices, and breach of good faith and fair dealing in insurance claims handling pertaining to water damage
and mold contamination of an entire house. Id.; see also TEX. CIV. PRAC. & REM.CODE ANN. § 15.011. The Allison court
stated the following:

            When considering venue, we note that the legislature's use of the word “shall” in a statute generally
            indicates the mandatory character of the provision. Because of the mandatory nature of section 15.011,
            we will strictly construe it and will not hold that it applies unless [appellant's] suit falls clearly within
            one of the categories in the section.

Allison, 98 S.W.3d at 241 (internal citations omitted).

Here, Stallings argues that the phrase “recovery of damages of real property” encompasses the claims made by Laredo Hix
and Gonzales; therefore, venue is mandatory in Webb County. As the Allison court properly noted, “[i]f we were to look at
the words ‘recovery of damages to real property’ in isolation, we would concede that the phrase may be sufficiently broad to
encompass the expansive reading urged by [appellee]. But we do not construe statutory phrases in isolation; we read statutes
as a whole.” Id . at 243. Furthermore, we must look to the “true” nature of the action to determine whether section 15.011
applies. Id. (citing Renwar Oil Corp. v. Lancaster, 154 Tex. 311, 313, 276 S.W.2d 774, 775 (1955); Yzaguirre v. KCS Res.,
Inc., 53 S.W.3d 368, 371 (Tex.2001)).

  Before the addition of the phrase “recovery of damages to real property,” the venue provision applied only when the suit
  directly involved a question of title to land. See, e.g., Yzaguirre, 53 S.W.3d at 371 (mandatory venue provision does not
  apply because suit does not involve recovery of real property or quieting title); Maranatha Temple, Inc. v. Enterprise Prods.
  Co., 833 S.W.2d 736, 738 (Tex.App.-Houston [1st Dist.] 1992, writ denied); Scarth v. First Bank & Trust Co., 711 S.W.2d
  140, 141-42 (Tex.App.-Amarillo 1986, no writ). We have been cited to no authority that supports expanding the scope of
  the provision beyond questions relating to the recovery of real property or affecting title to “land.” Except to make it explicit
  that the provision in question allows for the recovery of damages in such a suit relating to land, there is no indication that
  the legislature sought to broaden the provision with the addition of the phrase. That the phrase “for recovery of damages
  to real property” was sandwiched between “to remove encumbrances from the title” and “to quiet title” further bolsters our
  reading. Reading the relevant phrase in its entire context, then gives support for the more narrow interpretation. See 1 Scott
  Brister, et al., Texas Pretrial Practice § 9.34 (2000).

   *17 Were we to interpret the provision to allow for mandatory venue in all instances in which any damages are sought
  relating to a dwelling, no matter the nature of the action, we believe we would be extending beyond permissible bounds
  the statute's language.... The phrase must be understood against the background of what the legislature was attempting to
  accomplish in restoring a damage provision to the section, thereby completing the availability of an array of remedies to
  actions involving “land.”


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In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008)




Id.

Here, Laredo Hix and Gonzalez brought actions against Stallings for breach of contract and negligence in carrying out its duties
in the construction of the Laredo Holiday Inn. Stallings has not cited to any authority expanding the scope of section 15.011
beyond questions relating to the recovery of real property or affecting title to “land.” See Trafalgar House Oil & Gas Inc. v. De
Hinojosa, 773 S.W.2d 797, 798 (Tex.App.-San Antonio 1989, no writ) (construing the identical statutory predecessor to section
15.011 and concluding that “[i]t is not enough that the suit merely involves land; it must be a suit for the recovery of land or
damages thereto, or to quiet the title to land, or to prevent or stay waste on land.”) (quoting Canales v. Estate of Canales, 683
S.W.2d 77, 81 (Tex.App.-San Antonio 1984, no writ)). Because Laredo Hix's and Gonzalez's claims do not involve recovering
real property or quieting title or seeking damages for such loss, section 15.011 does not apply. See Allison, 98 S.W.3d at 244.

Moreover, section 15.012 does not apply because we have previously concluded that the Hidalgo County district court has
dominant jurisdiction over this matter and that the court was authorized to issue an anti-suit injunction with respect to the
pending Webb County claims in cause numbers 13-08-00294-CV and 13-08-00073-CV. See Fleming v. Ahumada, 193 S.W.3d
704, 711-12 (Tex.App.-Corpus Christi 2006, no pet.). Given that sections 15.011 and 15.012 do not apply in this case, we
conclude that the trial court did not abuse its discretion in denying Stallings's motion to transfer venue. Accordingly, we deny
Stallings's petition for writ of mandamus.



                                                         VI. CONCLUSION

Accordingly, we affirm the trial court's judgment in cause number 13-08-00294-CV, deny Graybar's petition for writ of
mandamus in cause number 13-08-00073-CV, dismiss Graybar's appeal in cause number 13-08-00341-CV, and deny Graybar's
second petition for writ of mandamus in cause number 13-08-00333-CV.



Footnotes
1      This interlocutory appeal is accelerated. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(4) (Vernon 2008); TEX.R.APP.
       P. 28.1.
2      On appeal, Graybar raises a third issue pertaining to dominant jurisdiction. However, Graybar raised its dominant jurisdiction issue
       with the Hidalgo County district court in its plea in abatement. In its first petition for writ of mandamus, Graybar takes issue with
       the propriety of the Hidalgo County district court's denial of its plea in abatement. Therefore, we will address Graybar's dominant
       jurisdiction issue in our analysis of its entitlement to a writ of mandamus in cause number 13-08-00073-CV.
3      On June 12, 2008, Graybar filed a motion for leave with this Court to re-file its notice of appeal in cause number 13-08-00294-CV
       and to file its notice of appeal in cause number 13-08-00341-CV. In conjunction with issuing this memorandum opinion, we GRANT
       Graybar's motion for leave.
4      Graybar was the supplier of electrical materials to the construction project.
5      On February 26, 2008, HMC Hospitality Operating Company (“HMC”) filed an unopposed motion to dismiss its appeal against
       Gonzalez. In this motion, HMC notified this Court that the parties in the original appeal had successfully mediated their claims and
       that it sought to dismiss its appeal and that each party would pay its own costs. This Court subsequently granted HMC's motion to
       dismiss in cause number 13-07-00518-CV on May 13, 2008.
6      The record reflects that MIRA was the general contractor and Stallings was an electrical subcontractor.
7      The record contains an affidavit executed by Gonzalez stating that he is the president of Laredo Hix.
8      On appeal, Laredo Hix contends that it was never served with notice of the Webb County suit filed by Graybar; therefore, it argues,
       the suit cannot be considered to have commenced against it.
9      On January 18, 2008, Graybar filed notice of its accelerated interlocutory appeal of the trial court's January 2, 2008 order, in cause
       number 13-07-00518-CV, essentially joining in HMC's original interlocutory appeal. Realizing its error, Graybar filed an emergency
       expedited motion for severance on January 25, 2008. In this motion, Graybar moved this Court to sever its appeal from cause number




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In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008)


       13-07-00518-CV and to docket its appeal under a distinct cause number. This Court granted Graybar's motion for severance and
       assigned its interlocutory appeal a new cause number-13-08-00294-CV.
10     Section 53.157 of the property code allows for the discharge of Graybar's mechanic's lien by five other methods besides failure to
       institute a foreclosure suit in the county in which the property is located. See TEX. PROP.CODE ANN. § 53.157 (Vernon 2007). In
       any event, Graybar has already filed suit to foreclose its mechanic's lien in Webb County. See id. § 53.158 (Vernon 2007) (providing
       that “suit must be brought to foreclose the lien within two years after the last day a claimant may file the lien affidavit under Section
       53.052 or within one year after completion, termination, or abandonment of the work under the original contract under which the
       lien is claimed, whichever is later”); id. § 53 .052 (Vernon 2007) (providing that “the person claiming the lien must file an affidavit
       with the county clerk of the county in which the property is located ... not later than the 15th day of the fourth calendar month after
       the day on which the indebtedness accrues”).
11     Gonzalez and Laredo Hix concede this fact on appeal.
12     Section 65.023 of the Texas Civil Practice and Remedies Code is the successor to both former article 4656 of the Texas Revised
       Civil Statutes and article 4653 of the “Revised Civil Statutes of Texas 1911.” Hughes v. Morgan, 816 S.W.2d 557, 559 (Tex.App.-
       Fort Worth 1991, writ denied); see TEX. CIV. PRAC. & REM.CODE ANN. § 65.023 (Vernon 2008).
13     Graybar also relies on Gardner v. Stewart, 223 S.W.3d 436, 437 (Tex.App.-Dallas 2006, pet. denied) and McVeigh v. Lerner, 849
       S.W.2d 911, 914 (Tex.App.-Houston [1st Dist.] 1993, writ denied) for the contention that section 65.023 prevented the Hidalgo
       County district court from issuing the temporary injunction. Specifically, Graybar argues that section 65.023 requires a party seeking
       to enjoin pending litigation “must do so where the litigation is pending.” However, like Butron v. Cantu, 960 S.W.2d 91, 94 (Tex.App.-
       Corpus Christi 1997, no writ), the Gardner and McVeigh courts concluded that attacks on a judgment must be made in the court that
       rendered the judgment and that a party cannot seek to enjoin a party from enforcing a judgment issued in another district court. See
       Gardner, 223 S.W.3d at 437; McVeigh, 849 S.W.2d at 914. As we have previously noted, Graybar has not secured a judgment in the
       Webb County lawsuit. Therefore, we do not find the Gardner or McVeigh cases to be persuasive in this matter.
14     Gonzalez and Laredo Hix also assert that Graybar is not entitled to a writ of mandamus because it already has an adequate remedy
       at law-its interlocutory appeal. As previously noted, Graybar took issue with the Hidalgo County district court's denial of its plea
       in abatement in its petition for writ of mandamus, not in its interlocutory appeal. Moreover, section 51.014 of the civil practice and
       remedies code does not grant this Court interlocutory appellate jurisdiction over a denial of a plea in abatement. See TEX. CIV.
       PRAC. & REM.CODE ANN. § 51.014.
          Appeal is ordinarily an adequate remedy to review incidental rulings such as pleas in abatement. See Wyatt v. Shaw Plumbing
          Co. ., 760 S.W.2d 245, 248 (Tex.1988); see also In re Ayala, No. 13-07-140-CV, 2007 Tex.App. LEXIS 3319, at *6, 2007 WL
          1238572 (Tex.App.-Corpus Christi Apr.27, 2007, orig. proceeding). However, the Texas Supreme Court has held that mandamus is
          appropriate to resolve disputes over dominant jurisdiction. See Perry v. Del Rio, 66 S.W.3d 239, 258 (Tex.2001) (orig.proceeding)
          (citing Curtis v. Gibbs, 511 S.W.2d 263, 268 (Tex.1974)). In addition, the supreme court, in Abor v. Black, denied mandamus relief
          requesting a court to abate a case in deference to another court's dominant jurisdiction absent “any order [of the former court] which
          actively interferes with the exercise of jurisdiction” by the court with dominant jurisdiction. 695 S.W.2d 564, 567 (Tex.1985). The
          supreme court has not resolved these tests into one uniform test governing mandamus relief pertaining to dominant jurisdiction
          issues. Here, the Webb County district court set a hearing for December 6, 2007, to resolve an emergency plea in abatement and a
          motion filed by Stallings to dissolve or modify the November 2, 2007 temporary injunction. Clearly, the setting of the December
          6, 2007 hearing date by the Webb County district court interferes with the exercise of jurisdiction by the Hidalgo County district
          court. Under either test, Graybar does not have an adequate remedy by appeal and, therefore, it properly raised this issue in its
          petition for writ of mandamus. See Perry, 66 S.W.3d at 258; Abor, 695 S.W.2d at 567.
15     Though Graybar did, in fact, institute its Webb County suit before Laredo Hix's plea in intervention, we must refer to the original
       Hidalgo County suit filed on January 18, 2007. See Wyatt, 760 S.W.2d at 247. This is so because Laredo Hix, through its plea in
       intervention, effectively amended the Hidalgo County suit to join all necessary parties, and Graybar did not challenge the joinder in
       the trial court. See id.; see also TEX.R. CIV. P. 39 (providing that a person subject to service of process shall be joined as a party if (1)
       in his absence complete relief cannot be accorded to those already made parties or (2) he claims an interest relating to the subject of
       the action and is so situated that the disposition of the action in its absence may “(i) as a practical matter impair or impede his ability
       to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or
       otherwise inconsistent obligations by reason of his claimed interest”); R. 40 (providing that defendants may be joined in one action if
       the assertions against them arise “out of the same transaction, occurrence, or series of transactions or occurrences and if any question
       of law or fact common to all of them will arise in the action.”).
16     Given our disposition, we need not address Graybar's remaining issues in cause number 13-08-00341-CV. See TEX.R.APP. P. 47.1.
17     The November 1, 2007 motion to transfer venue was the first pleading filed by Stallings in the trial court; therefore, we do not have
       for review any issues pertaining to the due order of pleading rule with respect to Stallings. See TEX.R. CIV. P. 86(1).



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18     In its second amended motion to transfer venue, Stallings made a convenience argument which was not briefed on appeal.
19     The Hidalgo County trial court's order denying the motions to transfer venue includes a handwritten message stating that the hearing
       on the motions was held on February 12, 2008. However, the order denying the motions was signed and the reporter's record reflects
       that the hearing was conducted on May 12, 2008.
20     Section 15.011 of the civil practice and remedies code is a mandatory venue provision. See In re Applied Chem. Magnesias Corp. .,
       206 S.W.3d 114, 119 (Tex.2006) (orig.proceeding); see also TEX.R. CIV. P. 87(2).


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In re Khan, Not Reported in S.W.3d (2014)




                                                    2014 WL 199024
                                      Only the Westlaw citation is currently available.

                   SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

                                               MEMORANDUM OPINION
                                                Court of Appeals of Texas,
                                                       Beaumont.

                                                   In re Mujtaba Ali KHAN.

                                         No. 09–14–00028–CV.            |   Jan. 16, 2014.

Original Proceeding.

Attorneys and Law Firms

Jamal A. Asafi, Asafi Law Firm, Houston, TX, Gary Michael Block, Humble, TX, for relator.

Margaret T. Brenner, Mark A. Font, Schirrmeister Diaz-Arrastia Brem, LLP, Houston, TX, for real parties in interest.

Before McKEITHEN, C.J., HORTON and JOHNSON, JJ.



                                                 MEMORANDUM OPINION

PER CURIAM.

 *1 In this original mandamus proceeding Mujtaba Ali Khan (“Khan”) contends that the trial court abused its discretion in
ordering a show cause hearing for alleged violations of two temporary injunction orders (“the temporary injunction orders”).
See Xenon Anesthesia of Tex. P.L.L.C. v. Xenon Health L.L.C., No. 09–12–00553–CV, 2013 WL 1279408, at *4 (Tex.App.-
Beaumont Mar.28, 2013, no pet.) (mem.op.). Khan argues the temporary injunction orders are void because the trial court
granted Khan's motion for continuance and re-set the trial date to a later date than the trial dates contained in the temporary
injunction orders. The trial court reset the trial date for February 10, 2014. Khan asks this Court to issue a temporary stay of the
trial court proceedings and to issue a writ of mandamus directing the trial court (1) to vacate its order setting the show cause
hearing, and (2) to dissolve the temporary injunctions. See Tex.R.App. P. 52.8(c); see also Tex.R.App. P. 52.10(b).

After reviewing the petition for writ of mandamus and the mandamus record, we conclude that the relator has not established an
abuse of discretion by the trial court. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.2004) (orig.proceeding);
In re CI Host, Inc., 92 S.W.3d 514, 516 (Tex.2002) (orig.proceeding). We deny the petition for writ of mandamus and motion
for temporary relief. See Tex.R.App. P. 52.8(a).

PETITION DENIED.



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                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
In re Krueger, Not Reported in S.W.3d (2013)




                                                   2013 WL 2157765
                                     Only the Westlaw citation is currently available.

                   SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

                                               MEMORANDUM OPINION
                                                Court of Appeals of Texas,
                                                         Austin.

                                               In re Jeffrey (Tre) KRUEGER.

                                         No. 03–12–00838–CV.           |   May 16, 2013.

Original Proceeding from Travis County.

Attorneys and Law Firms

Mark A. Cohen, Law Office of Mark Cohen, Austin, TX, for real party in interest.

D. Todd Smith, Smith Law Group, P.C., Austin, TX, for relator.

Before Justices PURYEAR, PEMBERTON and ROSE.



                                                 MEMORANDUM OPINION

BOB PEMBERTON, Justice.

 *1 Relator Jeffrey (Tre) Krueger was found in contempt of court for violating a temporary injunction and was committed
to jail for 125 days. During his confinement, Krueger filed a petition for writ of habeas corpus and an emergency motion to
set bond pending this Court's determination of the merits of the petition. We granted the emergency motion, ordered Krueger
released upon the posting of bond, and requested a response from the real parties in interest, Michael Torres and Cru Energy,
Inc. (Cru Energy). A response was subsequently filed. Having considered the petition and response, we conclude that Krueger
is entitled to relief. Accordingly, we will grant the petition for writ of habeas corpus.



                                                       BACKGROUND

Krueger and Torres are opposing parties in ongoing litigation involving Cru Energy, a company that they co-founded. In the
underlying suit, Krueger sued Torres for breach of fiduciary duty, fraud, conversion, and other theories of recovery. Torres filed
an answer and counterclaim in which he made similar allegations against Krueger. During the course of the litigation, Torres
sought and obtained a temporary restraining order and two temporary injunctions against Krueger. The temporary restraining
order, which was entered on June 14, 2011, and extended by agreement on July 27, 2011, prohibited Krueger from, among
other things, “making or initiating any withdrawals or transfers from the Wells Fargo Account (as defined in Plaintiffs' Original
Petition), excluding transfers to be made in the ordinary course of business of Cru Energy.” 1 The first temporary injunction,
which was entered on July 5, 2011, and replaced the temporary restraining order, prohibited Krueger from:


  (1) scheduling or providing notice of or conducting a shareholder's meeting;




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In re Krueger, Not Reported in S.W.3d (2013)




       (2) making or initiating any withdrawals or transfers from any of Cru Energy, Inc. bank accounts, including, but not
          limited to, the Wells Fargo Account as defined in Plaintiffs' Original Petition;

       (3) disposing of, selling or encumbering the shares or any assets of Cru Energy, Inc. to which Jeffrey Krueger claims
          ownership;

       (4) removing, destroying, or otherwise making unavailable any written information or documents related to the
          activities of any of Cru Energy, Inc.'s employees, agents, contractors, prospective or actual investors, customers or
          governmental agencies and its employees, or any other person who may be directly or indirectly involved with the
          affairs or business of Cru Energy, Inc.;

       (5) contacting any of Cru Energy Inc.'s investors or potential investors, or any other persons doing business with or
          potentially a participant in the business of Cru Energy, Inc., except as specifically authorized by Michael Torres.

   The second temporary injunction, which was entered on July 15, 2011 and purports to supplement the first temporary
      injunction, further ordered Krueger to “[r]eturn $80,000 to the Cru Energy bank account number 7038038340 to said
      account no later than July 18, 2011,” to “[r]efrain and desist from denying or restricting Michael Torres' access to all
      money in Cru Energy, Inc.'s bank account number 7038038340 or any other account in the name of Cru Energy, Inc. at
      Wells Fargo Bank for usual and customary purposes of Cru Energy, Inc.,” and to “[r]efrain and desist from denying or
      restricting Michael Torrres' access to or control over the Cru Energy, Inc. Website registered in the company's name....”
 *2 On January 18, 2012, Krueger filed for Chapter 7 Bankruptcy in the United States Bankruptcy Court for the Northern
District of Texas. Subsequently, Cru Energy filed a motion for relief from the automatic stay, and the bankruptcy court modified
the stay to allow Cru Energy to pursue criminal contempt charges against Krueger relating to his obligations under the temporary
orders. On September 6, 2012, following a hearing, Krueger was held in contempt for violating the temporary restraining order
by making three cash withdrawals on June 17, 2011, totaling $3,091.21, from the Wells Fargo Account referenced in the order.
Krueger was subsequently committed to the Travis County Jail for three consecutive days.

In November 2012, Cru Energy pursued additional contempt charges against Krueger relating to alleged violations of the first
temporary injunction. Cru Energy alleged that Krueger had violated the injunction by failing to cease and desist from either
directly or indirectly “making or initiating any withdrawals or transfers from any of Cru Energy, Inc. bank accounts, including,
but not limited to, the Wells Fargo Account as defined in Plaintiffs' Original Petition.” Specifically, according to Cru Energy,
Krueger admitted that he had “held $80,000 in trust for Cru Energy, Inc.” and that he had “withdrew and transferred all of that
money in separate violations of the Temporary Injunction.”

Cru Energy also alleged that Krueger had further violated the injunction by failing to cease and desist from either directly or
indirectly “contacting any of Cru Energy Inc.'s investors or potential investors, or any other persons doing business with or
potentially a participant in the business of Cru Energy, Inc., except as specifically authorized by Michael Torres.” According
to Cru Energy, Krueger had contacted “multiple investors, vendors, and potential contractors and employees of Cru Energy.”
These alleged contacts “includ[ed] but [were] not limited to”: (1) sending an email to several investors and potential contractors
and employees of Cru Energy; (2) contacting and ultimately contracting with DSL, a vendor of Cru Energy; (3) contacting on
multiple occasions Pablo Cortez and Robert Cook, both of whom were employees of Cru Energy; (4) contacting an employee
of Seva Energie, a vendor of Cru Energy; and (5) sending an email to Dr. Patrick Hayes, “an investor and potential vendor
or customer” of Cru Energy.

A hearing was held on the allegations. At the hearing, the district court admitted into evidence the transcript of the September
contempt hearing (but not the documentary evidence from that hearing) and took “judicial notice of its court file.” 2 The district
court proceeded to consider additional evidence regarding the allegations, including the testimony of Krueger and former Cru
Energy employees Cook and Cortez. Documentary evidence was also admitted relating to Krueger's allegedly improper contacts,
including copies of email messages and phone logs.



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 *3 At the conclusion of the hearing, the district court found that Krueger had violated the temporary injunction as alleged.
Specifically, the district court found that Krueger had made 23 separate withdrawals and transfers from a Cru Energy bank
account (the account was not specifically identified in the contempt order, other than as “the bank account holding Cru Energy,
Inc. funds”), in the aggregate amount of approximately $80,000. The district court further found that Krueger had also violated
the injunction by sending an email to several investors and employees of Cru Energy, sending an email to a vendor of Cru
Energy, and sending emails to Pablo Cortez, an employee of Cru Energy. For each violation, the district court committed
Krueger to jail for five consecutive days, for a total term of confinement of 125 days. Krueger was immediately taken into
custody and confined to the Travis County jail. 3 This habeas-corpus proceeding followed.



                                          STANDARD AND SCOPE OF REVIEW

Contempt is “broadly defined” as “disobedience to or disrespect of a court by acting in opposition to its authority.” In re
Reece, 341 S.W.3d 360, 364 (Tex.2011) (orig.proceeding) (citing Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995)
(orig.proceeding)). “[C]ontempt is a broad and inherent power of a court.” Id. (citing Ex parte Browne, 543 S.W.2d 82, 86
(Tex.1976) (orig.proceeding)). However,

             [D]espite the breadth of a court's contempt power, we have warned it is a tool that should be exercised
             with caution. As the Court of Criminal Appeals has explained, “[c]ontempt is strong medicine”—the
             alleged contemnor's very liberty is often at stake—and so it should be used “only as a last resort.”

Id. (internal citations omitted).

An order finding a party in contempt is not an appealable order. See Norman v. Norman, 692 S.W.2d 655, 655 (Tex.1985).
Therefore, the only remedies available to the contemnor are obtaining a writ of mandamus if the contemnor is not confined, or
a writ of habeas corpus if, as here, the contemnor is subject to confinement. See In re Long, 984 S.W.2d 623, 625 (Tex.1999);
Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967). “The remedy [of habeas corpus] is in the nature of a collateral attack
and its purpose is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has
been unlawfully imprisoned.” Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). In a habeas-corpus proceeding, the order
or judgment challenged is presumed to be valid until the relator has discharged his burden of showing otherwise. Ex parte
Occhipenti, 796 S.W.2d 805, 809 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding) (citing Johnson v. Zerbst, 304 U.S.
458, 468–69 (1938)). For the relator to be entitled to release from custody, “the trial court's order of commitment must be void,
either because it was beyond the power of the court or because it deprived the relator of his liberty without due process of law.”
Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980).

 *4 The amount of due process afforded to the contemnor depends on the type of contempt being charged. “Contempt
may occur in the presence of a court (direct contempt), or outside the court's presence (constructive contempt).” Reece, 341
S.W.3d at 365 (citing Gordon, 584 S.W.2d at 688). Because constructive contempt occurs outside the court's presence, more
procedural safeguards are afforded to constructive contemnors, including notice, a hearing, and the opportunity to obtain an
attorney. See Ex parte Krupps, 712 S.W.2d 144, 147 (Tex.Crim.App.1986); Ex parte Werblud, 536 S.W.2d 542, 546 (Tex.1976)
(orig.proceeding). It is undisputed that the contempt alleged in this case, the violation of a written court order that occurred
outside the court's presence, is constructive contempt. See Chambers, 898 S.W.2d at 259.

“Contempt is further classified into either civil or criminal contempt.” Reece, 341 S.W.3d at 365. “Civil contempt in Texas is
the process by which a court exerts its judicial authority to compel obedience to some order of the court.” Ex parte Padron,
565 S.W.2d 921, 924 (Tex.1978) (orig.proceeding). Once the contemnor obeys the court order, the contemnor is released from
his confinement. See Werblud, 536 S.W.2d 545. In other words, “the civil contemnor ‘carries the keys of his prison in his own
pocket.’ “ Id. (quoting Shillitani v. United States, 384 U .S. 364, 368 (1966)). “Criminal contempt[,] on the other hand[,] is



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punitive in nature.” Id. “The sentence is not conditioned upon some promise of future performance because the contemnor is
being punished for some completed act which affronted the dignity and authority of the court.” Id. Here, it is undisputed that
Krueger was subject to criminal contempt, confined as punishment for his completed act of allegedly violating a court order
and without the ability to obtain his release through compliance. See Reece, 341 S.W.3d at 365.

“Many constitutional rights are accorded criminal contemnors.” Werblud, 536 S.W.2d at 547. This is because “criminal
contempt is a crime in every fundamental respect,” Bloom v. Illinois, 391 U.S. 194, 201 (1968), and constitutional protections
are required to ensure that the power to hold a person in contempt is not abused. See id. These rights include “full and complete
notification” of the charges and a “reasonable opportunity to meet the charges by way of defense or explanation,” Gordon, 584
S.W.2d at 688, the right to assistance of counsel if requested, Ex parte Hiester, 572 S.W.2d 300, 302 (Tex.1978), the privilege
against self-incrimination, Werblud, 536 S.W.2d at 547–48, and the right to a jury trial if the proposed punishment exceeds six
months' imprisonment. Taylor v. Hayes, 418 U.S. 488, 495 (1974); Werblud, 536 S.W.2d at 547. Because “contempt proceedings
are quasi-criminal in nature,” the procedures followed in contempt cases “should conform as nearly as practicable to those in
criminal cases.” Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex .1986) (orig.proceeding); Ex parte Johnson, 654 S.W.2d 415,
420 (Tex.1983) (orig.proceeding); In re Houston, 92 S.W.3d 870, 877 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding).

 *5 A criminal contempt conviction for disobedience to a court order requires proof beyond a reasonable doubt of: (1) a
reasonably specific order; (2) a violation of the order; and (3) the willful intent to violate the order. Chambers, 898 S.W.2d at
259. “In reviewing the record, we are without jurisdiction to weigh the proof and determine whether it preponderates for or
against the relator; rather, we determine only if the judgment is void because, for example, the relator has been confined without
a hearing or with no evidence of contempt to support his confinement.” Id. at 259–60. A reviewing court will issue a writ of
habeas corpus and release the contemnor if either the contempt order or the order underlying the contempt is void, because “one
may not be held guilty of contempt for refusing to obey a void order.” Ex parte Shaffer, 649 S.W.2d 300, 301–02 (Tex.1983).



                                                           ANALYSIS

Krueger contends that the contempt order is void for five reasons: (1) the temporary injunction underlying the contempt order
is void for failing to comply with the requirements of Texas Rule of Civil Procedure 683; (2) the temporary injunction is not
sufficiently specific; (3) the show-cause order informing Krueger of the contempt charges failed to notify him that criminal
confinement and a criminal penalty would be sought as punishment; (4) there was no evidence supporting the district court's
findings that Krueger violated the injunction by making withdrawals or transfers from Cru Energy bank accounts; and (5)
there was no evidence supporting the district court's findings that Krueger violated the injunction by making contact with the
individuals he was prohibited from contacting. We agree with Krueger that the temporary injunction he was alleged to have
violated is void for failure to comply with the requirements of Rule 683.

“The law demands clear and complete orders granting injunctions.” Webb v. Glenbrook Owners Ass'n, 298 S.W.3d 374, 384
(Tex.App.-Dallas 2009, no pet.) (citing Tex.R. Civ. P. 683). Rule 683 provides in pertinent part that “[e]very order granting an
injunction ... shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not
by reference to the complaint or other document, the act or acts sought to be restrained. Tex.R. Civ. P. 683. “The requirements
of Rule 683 are mandatory and must be strictly followed.” Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d
640, 641 (Tex.1986) (per curiam). “When a temporary injunction order does not adhere to the requirements of Rule 683 the
injunction order is subject to being declared void and dissolved.” Id.; see Qwest Commc'ns. Corp. v. AT & T Corp., 24 S.W.3d
334, 337 (Tex.2000) (per curiam).

“ ‘[T]he obvious purpose of [Rule 683] is to adequately inform a party of what he is enjoined from doing and the reason why
he is so enjoined.’ “ El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 744 (Tex.App.-Dallas 2011, no pet.) (quoting Schulz v.
Schulz, 478 S.W.2d 239, 244–45 (Tex.Civ.App.-Dallas 1972, no writ)) (alteration in original). Therefore, “an injunction decree
must be as definite, clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained



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from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving
anything for further hearing.” Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871, 875 (Tex.1948). Stated another way, “[t]he
injunction must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily
know exactly what duties or obligations are imposed upon him .” Drew v. Unauthorized Practice of Law Comm., 970 S.W.2d
152, 156 (Tex.App.-Austin 1998, pet. denied) (citing Slavin, 412 S.W .2d at 44). “Interpretation of the provisions of the court
order in question should not rest upon implication or conjecture.” Id.

 *6 “On the other hand, a court order need not be ‘full of superfluous terms and specifications adequate to counter any flight
of fancy a contemnor may imagine in order to declare it vague.’ “ Id. (quoting Ex parte McManus, 589 S.W.2d 790, 793
(Tex.Civ.App.-Dallas 1979, no writ)). Rather, “the injunction must be in broad enough terms to prevent repetition of the evil
sought to be stopped, whether the repetition be in form identical to that employed prior to the injunction or (what is far more
likely) in somewhat different form calculated to circumvent the injunction as written.” San Antonio Bar Ass'n v. Guardian
Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 702 (Tex.1956). But an injunction “must not be so broad as to enjoin a
defendant from activities which are a lawful and proper exercise of his rights.” Hitt v. Mabry, 687 S.W.2d 791, 795 (Tex.App.-
San Antonio 1985, no writ) (citing Villalobos, 208 S.W.2d at 875).

The temporary-injunction provisions at issue in this case prohibited Krueger from: (1) “making or initiating any withdrawals
or transfers from any of Cru Energy, Inc. bank accounts, including, but not limited to, the Wells Fargo Account as defined in
Plaintiff's Original Petition”; and (2) “contacting any of Cru Energy Inc.'s investors or potential investors, or any other persons
doing business with or potentially a participant in the business of Cru Energy, Inc., except as specifically authorized by Michael
Torres.” We conclude that neither provision complies with Rule 683.

We first address the prohibition against withdrawals or transfers from “any of Cru Energy, Inc. bank accounts, including, but
not limited to, the Wells Fargo Account as defined in Plaintiff's Original Petition.” This prohibition violates Rule 683 in two
ways. First, rather than describing in reasonable detail the Wells Fargo Account, the injunction describes the account solely by
reference to a separate document, the petition, that contains identifying information regarding the account in question. Thus, the
petition—not the injunction—provides the means of describing the act or acts sought to be restrained. This is a violation of Rule
683's requirement that the injunction “describe in reasonable detail and not by reference to the complaint or other document,
the act or acts sought to be restrained.” See Tex.R. Civ. P. 683 (emphasis added).

In its brief, Cru Energy acknowledges that “[a]t best, if transfer from that [Wells Fargo] account had formed the basis of the
contempt finding, it may have been subject to habeas corpus for that portion of the judgment.” However, Cru Energy contends
that the reference in the injunction to the Wells Fargo Account was “merely an example” of an account that Krueger was
prohibited from accessing, and it “was irrelevant to the [contempt order] because it was not the account Relator transferred the
money from and for which he was held in contempt.” 4 In other words, according to Cru Energy, the only possible problem
with the injunction is the reference to the Wells Fargo Account, which Krueger was not alleged to have accessed. Therefore, in
Cru Energy's view, if that portion of the injunction is found to be void, it does not affect the validity of the contempt order.

 *7 However, Cru Energy's argument overlooks the second way in which the prohibition violates Rule 683. In addition to
impermissibly describing the Wells Fargo Account by reference to another document, the entire prohibition on withdrawals
and transfers fails to describe in reasonable detail the other accounts that Krueger is enjoined from accessing. The injunction
prohibits Krueger from making withdrawals or transfers from “any” Cru Energy bank accounts, “including but not limited to”
the Wells Fargo Account. But the injunction does not describe in reasonable detail those other accounts. There are no account
numbers listed in the injunction, no identification of the banks in which the accounts exist, and no information describing the
history or current status of the accounts. Thus, even if we were to disregard the portion of the injunction that referenced the
Wells Fargo Account, the injunction still violates Rule 683's requirements that the injunction “shall be specific in terms” and
“shall describe in reasonable detail ... the act or acts sought to be restrained.” See Tex.R. Civ. P. 683.




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Cru Energy argues that the injunction “is in the most detail possible since Mr. Krueger would have to have known an account
which fit that description in the injunction in order to be entitled to transfer money out of it” and that “Krueger himself established
the Cru account he took the funds out of after he acquired knowledge of the July 5, 2011 injunction.” However, Rule 683
requires that the injunction be as “definite, clear and precise as possible ... without calling on [the enjoined party] for inferences
or conclusions about which persons might well differ and without leaving anything for further hearing.” Villalobos, 208 S.W.2d
at 875. The injunction here, by not specifically identifying the off-limit accounts, required Krueger to make “inferences or
conclusions about which persons might well differ” regarding the accounts he was prohibited from accessing and, consequently,
“left for further hearing” the issue of whether withdrawals and transfers from certain accounts violated the injunction. 5 Thus,
the injunction failed to comply with the specificity requirements of Rule 683. See Computek Computer & Office Supplies, Inc.
v. Walton, 156 S.W.3d 217, 222–23 (Tex.App.-Dallas 2005, no pet.) (holding that lack of specificity in injunction was not cured
by any knowledge that enjoined party may have had).

We also disagree with Cru Energy's contention that the injunction was in “the most detail possible.” The second temporary
injunction, which Krueger was not alleged to have violated, specifically ordered Krueger to “[r]eturn $80,000 to the Cru
Energy bank account number 7038038340 to said account no later than July 18, 2011,” and to “[r]efrain and desist from
denying or restricting Michael Torres' access to all money in Cru Energy, Inc.'s bank account number 7038038340 or any other
account in the name of Cru Energy, Inc. at Wells Fargo Bank for usual and customary purposes of Cru Energy, Inc.” Thus,
the second injunction specifically identified the relevant bank accounts, leaving no doubt as to how Krueger was to comply
with the injunction. The first injunction, on the other hand, contained no such specificity. To comply with Rule 683, the first
injunction merely needed to “describe in reasonable detail” the bank accounts that Krueger was prohibited from accessing. See
Tex.R. Civ P. 683. This was not an impracticable requirement—providing the specific bank account names and numbers would
have sufficed. By not providing that or similar information identifying the specific accounts that Krueger was enjoined from
accessing, the injunction failed to comply with Rule 683.

 *8 We next address the prohibition against Krueger “contacting any of Cru Energy, Inc.'s investors or potential investors, or
any other persons doing business with or potentially a participant in the business of Cru Energy, Inc., except as specifically
authorized by Michael Torres.” This portion of the injunction violates Rule 683 by failing to describe in reasonable detail the
individuals or organizations that Krueger was prohibited from contacting. Specifically, the injunction fails to name or otherwise
identify those who are considered “investors or potential investors” of Cru Energy, and those who are “persons doing business
with or potentially a participant in the business of” Cru Energy.

Cru Energy argues that because of Krueger's role in running the company, he is “in a position to know who were investors
and persons doing business with Cru [Energy].” Even assuming that this is true, 6 an injunction must be as “definite, clear and
precise as possible ... without calling on [the enjoined party] for inferences or conclusions about which persons might well
differ and without leaving anything for further hearing.” Villalobos, 208 S.W.2d at 875. The above prohibition fails to inform
Krueger of who he is enjoined from contacting, and it requires him to infer the identity of those individuals based on his then-
existing knowledge of the company's operations. This is similar to the injunction in Computek, 156 S.W.3d at 221–23, that was
held to violate Rule 683. In that case, OEM Supplies (OEM) and the owner of Computek, Michael Williams, were opposing
parties in litigation involving Computek's alleged use of trade secrets to form a competing company in violation of a covenant
not to compete. Id. at 219–20. Computek had been permanently enjoined “from doing business, or authorizing anyone else to
do business, with any OEM client not listed on Attachment A or that was a new account set up while Williams worked for
OEM.” Id. at 221. Although Attachment A listed some clients whom Computek could contact, the injunction did not name or
otherwise identify the clients whom Computek could not contact. Id. Computek contended that due to this lack of specificity, it
could not know whether contacting certain clients violated the injunction. Id. at 221–22. The appeals court agreed, explaining
its reasoning as follows:


  [T]hese paragraphs [of the injunction] enjoin Computek from taking specific actions involving specific OEM clients who are
  not identified or listed in the permanent injunction, and from using or disclosing information and files that are not specifically



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    identified in the permanent injunction. Because these OEM clients are not specifically named, we agree with Computek that
    it must ask every non-ABBA contact it makes whether it was an OEM client during the relevant times, and that question may
    be construed as “canvassing” or “soliciting,” and thus a violation of the permanent injunction. We agree with Computek that
    the permanent injunction lacks specificity in this regard.
     *9 Id. at 222. In response to OEM's argument that Computek “ha[d] the information as to the clients it may not contact ‘as
    demonstrated by their repeated contacts of those clients,’ “ the appeals court observed,

      [E]ven if the trial court had expressly found Computek had such information, rule 683 provides that the order granting an
      injunction “shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not
      by reference to the complaint or any other document, the act or acts sought to be restrained.” Thus, the injunction itself
      must provide the specific information as to the off-limits clients, without inferences or conclusions, or, in this case, implied
      references to other records Computek might have. Thus, we cannot agree with OEM that the lack of specificity as to OEM
      clients is cured by any knowledge Computek may have outside the permanent injunction.

  Id. at 222–23. Similarly, in this case, the injunction does not identify the individuals who Krueger is prohibited from
  contacting, and it requires Krueger to make inferences or conclusions concerning whom those individuals are. In fact, this
  injunction is even more vague than the injunction at issue in Computek, which at least provided a list of specific clients who
  Computek could contact. See id. at 221. Krueger was not specifically informed of either whom he was allowed to contact
  or whom he was enjoined from contacting.
For the above reasons, we conclude that the first temporary injunction violates the specificity requirements of Rule 683 and is,
accordingly, void. 7 Consequently, the order finding Krueger in contempt for allegedly violating that injunction is also void.
See Shaffer, 649 S.W.2d at 301–02; In re Garza, 126 S.W.3d 268, 273 (Tex.App.-San Antonio 2003, orig. proceeding). It is
therefore unnecessary for us to address the other reasons why, in Krueger's view, the contempt order is void. See Gordon, 584
S.W .2d at 689–90; Garza, 126 S.W.3d at 273 n. 4. We grant Krueger's petition for writ of habeas corpus, vacate the district
court's contempt order, and order Krueger discharged from custody and released from the bond set by this Court on December
31, 2012.



Footnotes
1      The “Wells Fargo Account” is described in Krueger's petition as follows:
              The Board authorized a checking/banking account for CRU Energy with Wells Fargo Bank (the “Wells Fargo Account”). The
              Board resolution authorizing the Wells Fargo Account provides that Mr. Krueger and Mr. Torres would both be authorized
              signatories on the Wells Fargo Account.
           Although no identifying account number was provided in the petition, the “Wells Fargo Account” was referenced multiple times
           in the petition and formed the basis for Krueger's conversion theory against Torres. Krueger pled,
              On or about October 1, 2010, Mr. Krueger attempted to electronically access the Wells Fargo Account. Mr. Krueger was able to
              view the Wells Fargo Account, but was unable to conduct any transactions in it. When Mr. Krueger asked Mr. Torres about his
              inability to access the Wells Fargo Account, he informed Mr. Krueger that he had Mr. Krueger's signature authority on the Wells
              Fargo Account revoked. Mr. Torres said that he believed having too many persons with access to the Wells Fargo Account was
              not consistent with how he wanted to handle CRU Energy's accounting functions.
2       The record reflects that most of the evidence concerning the alleged withdrawals and transfers was admitted during the September
        hearing.
3       Krueger was confined from December 19, 2012, when he was taken into custody, through December 31, 2012, when this Court
        ordered him released upon the posting of bond.
4       We note that the contempt order did not specifically identify the account from which Krueger had transferred money in violation
        of the injunction, other than as “the bank account holding Cru Energy, Inc. funds.” The record reflects that there was more than
        one such account.
5       The record of the September 6 contempt hearing reflects this problem. At the hearing, Krueger testified that at one point he withdrew
        $160,000 from a Cru Energy bank account and transferred the funds into his personal account, which, Krueger claimed, was “linked”
        to a Cru Energy bank account. He later withdrew $56,000 of those funds from his personal account and transferred the funds
        into another account that, according to Krueger, was an “operating Cru Energy account” that he had opened at Bank of America



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      without authorization from Michael Torres. At another point in his testimony, Krueger admitted to withdrawing $80,000 from “a
      Cru Energy bank account,” but claimed that the trial court “didn't specifically say that I wouldn't have access to that account.”
      Without specificity in the injunction, questions remain as to which particular accounts qualify as “Cru Energy, Inc. bank accounts”
      for purposes of the injunction. For example, was Krueger's personal account considered a “Cru Energy, Inc. bank account” at the
      time it contained $160,000 of Cru Energy funds? Similarly, was the Bank of America account, which Krueger testified he had opened
      without authorization from Torres, actually a “Cru Energy, Inc. bank account” or, due to the lack of authorization, was it another one
      of Krueger's personal accounts? Such questions can be answered only by drawing inferences and conclusions based on information
      not contained within the injunction.
6     There is some authority for the proposition that, at least in the context of covenants not to compete, injunctions generally restraining
      solicitation of customers and not specifically listing the individual customers are not impermissibly vague. See Safeguard Bus. Sys.,
      Inc. v. Schaffer, 822 S.W.2d 640, 644–45 (Tex.App.-Dallas 1991, no writ). This is because, in that context, it is not “unreasonable to
      assume that he who is sought to be enjoined is sufficiently familiar with the employer's business and its customers to avoid violating
      the injunction.” Id. This case presents a different situation. First, Krueger is prohibited from contacting not merely current investors
      and persons currently doing business with Cru Energy, but also “potential” investors and “potential” participants in the business.
      Additionally, despite whatever role Krueger may have had in Cru Energy in the past, the record reflects that during the ongoing
      litigation, Michael Torres has been making business decisions for the company, and there is no indication in the record that Torres
      has notified Krueger of whom Torres might be soliciting to become an “investor or potential investor in” Cru Energy, or of whom
      Torres might be considering to become “a person doing business with or potentially a participant in the business of” Cru Energy.
      Thus, it would not be reasonable on the facts of this case to assume that Krueger is sufficiently familiar with Cru Energy's investors,
      potential investors, and “any other persons doing business with or potentially a participant in the business of” Cru Energy, to avoid
      violating the injunction.
7     In its brief, Cru Energy asserts that if there is a lack of specificity in the injunction, the defect would render the injunction merely
      voidable (and therefore subject to attack only on direct appeal) as opposed to void. We disagree. The Texas Supreme Court has
      repeatedly stated that an injunction that fails to strictly comply with the requirements of Rule 683 and other rules of civil procedure
      is subject to being declared void. See, e.g., In re Office of Attorney Gen., 257 S.W.3d 695, 697–98 (Tex.2008) (per curiam); Qwest
      Commc'ns Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex.2000) (per curiam); Interfirst Bank San Felipe, N.A. v. Paz Constr. Co.,
      715 S.W.2d 640, 641 (Tex.1986) (per curiam); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (Tex.1956); see also
      In re Garza, 126 S.W.3d 268, 271–73 (Tex.App.-San Antonio 2003, orig. proceeding) (rejecting contention that injunction which
      failed to comply with procedural requirements was merely voidable and observing that “[i]f the supreme court had meant that such
      a temporary injunction was voidable, we feel certain it would have used the word ‘voidable.’ Instead, the court has repeatedly used
      the word ‘void’ ”).


End of Document                                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          8
In re U.S. Silica Co., 157 S.W.3d 434 (2005)
48 Tex. Sup. Ct. J. 411



                                                        157 S.W.3d 434
                                                    Supreme Court of Texas.

                                              In re U.S. SILICA CO. et al.
                                              In re Badger Mining Corp.
                                                 In re Norton Co., et al.
                  In re Norton Co. (n/k/a/ Saint Gordon Abrasives) Siebe North Inc. and Textron Inc.
                                            In re Bacou–Dalloz Safety, Inc.

                          Nos. 04–0270, 04-0271, 04-0297, 04-0308, 04-0309.               |    Feb. 11, 2005.

Synopsis
Background: Ten silicosis cases involving hundreds of plaintiffs were filed in Cameron County and randomly assigned to six
different courts. The first case was assigned to the 197th District Court, Migdalia Lopez, J., but the plaintiffs successfully moved
to transfer and consolidate all cases to the 404th District Court, Abel Limas, J., and some defendants thereafter successfully move
to transfer and consolidate all cases in the 197th District Court. The 103rd District Court, Menton Murray, Jr., J., transferred
to the 197th District Court. The 138th District Court, Robert Garza, J., entered an anti-transfer order. The 357th District Court,
Leonel Alejandro, J., recused and transferred to the 107th District Court, Benjamin Euresti, J., which took no further action.
The 404th District Court, Abel Limas, J., rescinded its consolidation order and blocked any transfer of the case originally filed
in that court. Cross-petitions for writs of mandamus were filed. The Corpus Christi-Edinburg Court of Appeals, 129 S.W.3d
810, denied the cross-petitions. A defendant petitioned for writ of mandamus.



Holdings: The Supreme Court held that:

[1] local administrative judges could not enforce or overrule competing orders of coordinate courts transferring cases, and

[2] under local court rules, only the court in which the first related case was filed could unilaterally transfer cases.


Writ conditionally granted.



 West Headnotes (4)


 [1]     Courts       Designation or assignment of judges
         Government Code provision assigning to local administrative judges the duty to implement and execute local rules
         of administration, including assignment, docketing, transfer, and hearing of cases, does not give local administrative
         judges the authority to enforce or overrule competing orders of coordinate courts transferring cases; such enforcement
         or overruling is the duty of a higher court. V.T.C.A., Government Code § 74.092(1).

         1 Cases that cite this headnote


 [2]     Courts       Courts from and to which transfer may be made
         Under local court rules for Cameron County, only the court in which the first of two or more related cases was filed
         may unilaterally transfer cases, with such transfers moving the cases to the court of first filing.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
In re U.S. Silica Co., 157 S.W.3d 434 (2005)
48 Tex. Sup. Ct. J. 411


        1 Cases that cite this headnote


 [3]    Mandamus          Entertaining and proceeding with cause
        Mandamus relief is appropriate to resolve conflicting orders from two or more courts asserting jurisdiction over the
        same case.

        9 Cases that cite this headnote


 [4]    Judges       Exercise of powers in different courts
        Trial courts have broad discretion to exchange benches and enter orders on other cases in the same county, even
        without a formal order or transfer. Vernon's Ann.Texas Const. Art. 5, § 11; V.T.C.A., Government Code § 74.094(a);
        Vernon's Ann.Texas Rules Civ.Proc., Rule 330(h).

        3 Cases that cite this headnote




Attorneys and Law Firms

*435 Henry S. Platts, David E. Sharp, Beirne Maynard & Parsons, L.L.P., Chester J. Makowski, Keith N. Uhles, Royston
Rayzor Vickery & Williams, L.L.P., Houston, and David C. Garza, Garza & Garza, L.L.P., Brownsville, for Relator.

Cynthia Hardy Smith, Adam Tyler Fox, Cynthia Hardy Smith, Angela Clanton, Strasburger & Price, L.L.P., and William C.
Dowdy III, Dallas, Hubert Oxford III, Benckenstein & Oxford, L.L.P., Beaumont, Kenneth E. McKay, Locke, Lidell & Sapp,
L.L.P., Eva D. Geer, Mayer Knight & Williams, LLP, Gregory Michael Sullivan, John Duff Cleland, Jeffery Keith Gordon,
Andrews & Kurth, L.L.P., Houston, Chris C. Pappas, Alan H. Marks, Amy Dunn Taylor, James Vincent Hewitt, Godwin
Gruber, LLP, George J. Kacal, *436 Kacal Adams & Law, P.C., Jeffrey Boyd Lucas, Dunn Kacal Adams Pappas & Law,
Houston, Thomas B. Taylor, Taylor & Warren, L.L.P., and Jack B. Manning, Douglas T. Gosda, and William J. Cozort Jr.,
Manning Gosda & Arredondo, LLP, Houston, and Jeffrey D. Roerig, Roerig Oliveira & Fisher, Brownsville, W. Bruce Williams,
Cotton Bledsoe Tighe & Dawson, P.C., Midland, Lynne Miller Ford, Phillips & Akers, Houston, Paul J. Holmes, Paul J.
Holmes, P.C., Beaumont, Pamela Jean Neale Williams, Irving, William B. Coffey Jr., Adams & Coffey, P.C., Beaumont, Shawn
Robert Redman, Mark C. Clemer, Brown Sims, P.C., Houston, Edward J. Hennessy, Hennessy Gardner & Barth, Houston,
Willard M. Tinsley, Funderburk & Funderburk, LLP, Houston, and Rex N. Leach, Atlas & Hall, McAllen, David Brill, Brill &
Associates, P.C., Curt Webb, Beck Redden & Secrest, L.L.P., Houston, and Norton A. Colvin Jr., Robert Patrick Rodriguez,
Teri L. Danish, Rodriguez, Colvin & Chaney & Saenz, LLP, Brownsville, Dale Marett Holidy, Houston, Boyd Wells, Wells
Peyton Beard Greenberg Hunt, L.L.P., Beaumont, Sharla J. Frost, James H. Powers, Karen M. Alvarado, Powers & Frost,
L.L.P., Houston, Terence M. Murphy, and Charles Christopher Groves, Jones Day, Dallas, Richard P. Hogan Jr., and Jennifer
Bruch Hogan, Hogan & Hogan, L.L.P., Houston, Jerry C. Parker, Sammons & Parker, P.C., Tyler, Kent M. Adams, Adams &
Coffey, P.C., and Ellen G. Reynard, Adams Coffee & Duesler, Beaumont, Ewing Edben Sikes III, Royston, Rayzor, Vickery &
Williams, L.L.P., Brownsville, Andrew S. Oretsky, Davis Oretsky & Guilfoyle, Houston, Thomas B. Taylor, Taylor & Warren,
L.L.P., Houston, David Craig Landin, Lori Elliott Jarvis, Paul Oliver Wickes, and Clinton David Howie, Hunton & Williams,
LLP, Richmond, VA, Hubert A. Crouch III, Crouch & Ramey, L.L.P., Dallas, Ryan A. Beason, Beason Willingham, LLP,
Houston, Dulcie Green Wink, Haynes & Boone, LLP, Houston, John R. Robinson, Johnson & Sylvan, P.C., Dallas, Michael
Scott Pyle, John Philip Parsons, Forman, Perry, Watkins, Krutz & Tardy, L.L.P., Dallas, Thomas W. Tardy III, Jackson, MS,
Anthony E. Pletcher, Huseman & Pletcher, Corpus Christi, Erin Patterson, Adams & Reese, L.L.P., Houston, R. Stephen Ferrell,
Giessel Barker & Lyman, P.C., Houston, Deborah A. Newman and Roger Henry Nebel, Forman, Perry, Watkins, Krutz &
Tardy, LLP, Houston, Clinton Eugene Phillips, Johnson Ferguson Pipkin & Phillips, Houston, Charles A. Green and Timothy
Dewayne Ammons, Cowles & Thompson, P.C., Dallas, Robert G. Newman, Fulbright & Jaworski L.L.P., San Antonio, Patrick



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
In re U.S. Silica Co., 157 S.W.3d 434 (2005)
48 Tex. Sup. Ct. J. 411

M. Martinez, Hermansen McKibben Woosley & Villarreal, L.L.P., Corpus Christi, Jeff Shaver, Sammons & Parker, Houston,
Jeffrey D. Roberts, Roberts Markel, Guerry, P.C., Houston, Frank N. Luccia, and Cathryn Ann Adams, Luccia & Evans, L.L.P.,
Houston, Robert E. Thackston and Stephanie L. Spardone, Hawkins, Parnell & Thackston, L.L.P., Dallas, Barbara Jane Barron,
Mehaffy & Weber, Beaumont, Richard Reyna, Brock & Person, P.C., San Antonio, Robert J. Rose, Timaeus & Rose, L.L.P.,
Beaumont, Carl Dawson, Ryan & Dawson, Houston, Juan A. Magallanes, Gilberto Hinojosa, Magallanas & Hinojosa, P.C., and
Armando Roberto Villalobos, Brownsville, Alan G. Sampson, Benckenstein & Oxford, Beaumont, Clarence Thomas Valentine
Jr., James Odis Blackwell III, Daw & Ray, P.C., Houston, and Michael Ray Walzel, Stevens, Baldo & Freeman, Beaumont,
Cortlan Howard Maddux, Houston, Gerry Lowery, Robert G. Newman, Fulbright & Jaworski L.L.P., San Antonio, Joe Michael
Dodson, Dodson Law Offices, P.C., Beaumont, Harold Hudson Henley and Geoffrey Justin Henley, Henley & Henley, P.C.,
Dallas, Steve A. Bryant, *437 Steve A. Bryant & Associates, P.C., Houston, for Real Parties.

Opinion

PER CURIAM.

Ten silicosis cases involving hundreds of plaintiffs were filed in Cameron County and randomly assigned to six different courts.
At the behest of different parties, three judges issued conflicting orders asserting jurisdiction over cases in their own courts or
others. Because the Cameron County local rules permit a unilateral transfer only by the court where the first case was filed, we
conditionally grant a writ of mandamus directing the others to vacate orders forbidding that transfer.

On May 30, 2003, a single attorney filed ten silicosis lawsuits in Cameron County. The allegations in each were identical, as
were the 82 defendants. Only the plaintiffs varied—each suit included about 70, for a total of almost 700.

The cases were randomly assigned among the six district courts in Cameron County. Though all were file-stamped with the
same time, consecutive cause numbers indicate the first case filed was assigned to the 197th District Court (Judge Migdalia
Lopez presiding).

Thereafter ensued a scramble for possession. First on the field were the plaintiffs, who kicked things off by moving to transfer
and consolidate all ten cases in the 404th District Court (Judge Abel Limas presiding). That motion was granted on January 6th.

Close behind came some of the defendants, who countered by moving to consolidate all ten cases in the 197th District Court,
where the first case was filed. That motion, too, was granted on January 7th.

The reaction of the remaining courts varied. The 103rd District Court (Judge Menton Murray, Jr. presiding) took the second
option, lateraling cases to the 197th District Court. The 138th District Court (Judge Robert Garza presiding) blocked, entering
an anti-transfer order because no one had requested his consent. The 357th District Court (Judge Leonel Alejandro presiding)
punted, signing a recusal order and transferring cases to the local administrative judge. That court, the 107th District Court
(Judge Benjamin Euresti presiding), remained on the sidelines, taking neither offensive nor defensive action in the proceedings.

At this point, some of the contestants reversed field. Judge Limas rescinded his original consolidation order, but also signed an
order blocking any transfer of the case originally filed in his court. Eventually, the plaintiffs followed suit, seeking to return all
cases to the courts where originally filed, except for those transferred by recusal from the 357th.

 [1] Unable to determine the winner of these jurisdictional contests, the relators sought mandamus relief from the Thirteenth
Court of Appeals. That court declined to referee, holding the proper umpire was the local administrative judge. 129 S.W.3d 810,
814. The court of appeals relied on a provision of the Texas Government Code that assigns to local administrative judges the
statutory duty (among others) to “implement and execute the local rules of administration, including the assignment, docketing,
transfer, and hearing of cases.” Tex. Gov't Code § 74.092(1).




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
In re U.S. Silica Co., 157 S.W.3d 434 (2005)
48 Tex. Sup. Ct. J. 411

We disagree that this statute gives local administrative judges authority to review and reverse conflicting rulings of coordinate
courts like those issued here. While the local administrative judge may transfer cases pursuant to local rules, enforcing or
overruling competing orders is the duty of a higher court.

*438 [2] In this case, the Cameron County rules allow transfer of related cases to the court in which filing was first made
without the consent of any other judge:

             Whenever any pending case is so related to another case previously filed in or disposed of by another
             District Court of Cameron County that a transfer of the later case to such other court would facilitate
             orderly and efficient disposition of the litigation, the Judge of the court in which the earlier case is or
             was pending may, on notice and hearing, transfer the later case to such court.

Cameron County Civ.Ct. R. 1.1(f)(2). The local rules permit the first-filed case to be transferred to a court with a later-filed
case, but only with the first judge's consent:

             In the event that an assigned case is subject to the provisions of paragraphs 1.1(f)(2) and (3) and the
             earlier case is still pending, the judge of the court wherein the later case is pending may on notice and
             hearing order the earlier case transferred to the later court provided that the judge of the court wherein
             the earlier case is assigned consents.

Id. at 1.1(f)(5). Under these rules, only the 197th court could transfer cases unilaterally.

As the relators challenge only the conflicting transfer orders, the propriety of consolidating such a large number of claims is
not before us. See In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 207–10 (Tex.2004) (holding consolidation was abuse of
discretion based on “Maryland factors”); see also In re Bennett, 960 S.W.2d 35, 40 (Tex.1997) (holding that a scheme designed
to subvert random case assignment “breeds disrespect for and threatens the integrity of our judicial system.”).

While we have encouraged consolidation for pretrial purposes (most recently pursuant to legislative mandate), we have avoided
placing such decisions in the hands of one of the players. See generally Tex. Gov't Code § 74.161–63; Tex.R. Jud. Admin.
11.4(h) (appointment by regional administrative judge), 13.3 (appointment by multidistrict litigation panel). Local consolidation
rules have made similar arrangements to avoid the awkward problem of one court taking a case from another. See, e.g., CSR Ltd.
v. Link, 925 S.W.2d 591, 594 (Tex.1996) (noting adoption by Harris County courts of rules for and appointment of presiding
judge in asbestos cases).

But the only issue before us is which court, if any, could unilaterally transfer to itself related Cameron County cases.
Accordingly, we do not address whether the transfers here would (as the local rules also require) “facilitate orderly and efficient
disposition of the litigation.” Cameron County Civ.Ct. R. 1.1(f)(2).

 [3] We have long held that mandamus relief is appropriate to resolve conflicting orders from two or more courts asserting
jurisdiction over the same case. See Bigham v. Dempster, 901 S.W.2d 424, 428 (Tex.1995) (granting mandamus relief from
“conflicting orders issued from different district courts”); see also Abor v. Black, 695 S.W.2d 564, 567 (Tex.1985); Curtis v.
Gibbs, 511 S.W.2d 263, 267 (Tex.1974). Accordingly, mandamus is appropriate here.

The relators also challenge certain interim orders signed by the 404th and 138th District Courts that set trial dates, ordered
mediation, and set aside a number of default judgments. Relators argue that any orders signed after the consolidation in the
197th District Court are void.

We disagree that all orders signed by a transferring court after transfer are void; many are not. See, e.g., *439 Tex. Fam.Code §
155.005(a) (providing transferring court retains jurisdiction to render temporary orders); Tex.R. Jud. Admin. 13.5(b) (providing
transferring court in multidistrict litigation may make further orders on certain conditions); In re Bennett, 960 S.W.2d 35, 40



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
In re U.S. Silica Co., 157 S.W.3d 434 (2005)
48 Tex. Sup. Ct. J. 411

(Tex.1997) (holding trial court retained power to sanction litigant after removal to federal court). This is especially true here
because the transfers involved district courts in a single county.

 [4] Trial courts have broad discretion to exchange benches and enter orders on other cases in the same county, even without
a formal order or transfer. Tex. Const. art. V, § 11 (“[T]he District Judges may exchange districts, or hold courts for each other
when they may deem it expedient”); Tex. Gov't Code § 74.094(a); Tex.R. Civ. P. 330(h) (providing that in multi-court counties
“any judge may hear and determine motions, ... and all preliminary matters, questions and proceedings and may enter judgment
or order thereon in the court in which the case is pending without having the case transferred to the court of the judge acting”);
In re Houston Lighting & Power Co., 976 S.W.2d 671, 673 (Tex.1998). Given the broad powers district courts have to act for
one another, we do not agree that these orders were entered without jurisdiction.

We need not decide whether some post-transfer orders in cases transferred intra-county may qualify among the “rare
circumstances” that render an order void rather than merely voidable. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990).
Here, the relators do not argue that the 197th District Court would be hampered by or unable to rescind any of the orders. Thus,
we decline to grant mandamus relief ordering that they be vacated. See Abor, 695 S.W.2d at 567 (declining to grant mandamus
relief when courts were not actively interfering with each other).

Accordingly, pursuant to Texas Rule of Appellate Procedure 52.8 and without hearing oral argument, we direct the 138th and
404th District Courts to vacate their orders of January 13, 2004, so that the 197th District Court may conduct further proceedings
consistent with this opinion. We are confident that the trial courts will promptly comply, and our writ will issue only if they
do not.


Parallel Citations

48 Tex. Sup. Ct. J. 411

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   5
InterFirst Bank San Felipe, N.A. v. Paz Const. Co., 715 S.W.2d 640 (1986)




                                                     715 S.W.2d 640
                                                 Supreme Court of Texas.

                                  INTERFIRST BANK SAN FELIPE, N.A. Petitioner,
                                                    v.
                                PAZ CONSTRUCTION COMPANY, et al., Respondents.

                                              No. C–5393.      |   Sept. 10, 1986.

Debtor sought temporary injunction enjoining bank from foreclosing deed of trust lien which secured payment of promissory
note. The 334th District Court, Harris County, Marsha Anthony, J., granted temporary injunction and bank appealed. The
Houston Court of Appeals, Fourteenth Supreme Judicial District, Paul C. Murphy, J., affirmed and bank brought error. The
Supreme Court held that failure of order granting temporary injunction to include order setting matter for trial on merits in
violation of rule required temporary injunction to be declared void.

Judgment of Court of Appeals reversed.



 West Headnotes (2)


 [1]    Injunction      Form and requisites
        Rule which provides that every order granting temporary injunction must include order setting cause for trial on merits
        with respect to ultimate relief sought is mandatory and must be strictly followed; when temporary injunction order
        does not adhere to requirements, injunction order is subject to being declared void and dissolved. Vernon's Ann.Texas
        Rules Civ.Proc., Rule 683.

        136 Cases that cite this headnote


 [2]    Mortgages       Restraining exercise of power
        Temporary injunction order which enjoined bank from foreclosing deed of trust lien securing payment of promissory
        note but which did not include order setting cause for trial on merits as required by rule was void and would be
        dissolved, without hearing oral argument. Vernon's Ann.Texas Rules Civ.Proc., Rule 683; Rules App.Proc., Rule
        133(b).

        93 Cases that cite this headnote




Attorneys and Law Firms

*640 Jerry L. Schutza, Alexrod, Smith, Komiss & Kirshbaum, Houston, for petitioner.

W. Briscoe Swan and Leon J. Hursch, Houston, for respondents.

Opinion

PER CURIAM.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
InterFirst Bank San Felipe, N.A. v. Paz Const. Co., 715 S.W.2d 640 (1986)


This is an appeal from an order granting a temporary injunction enjoining InterFirst Bank San Felipe from foreclosing a deed
of trust lien securing payment of a promissory note. On appeal, InterFirst complained that the trial court's injunction order is
void because it does not include an order setting the cause for trial on the merits. Finding no abuse of discretion in the trial
court's decision to grant the temporary injunction, the court of appeals affirmed the trial court's judgment. The court of appeals
concluded the trial court's failure to include an order setting the matter for trial on the merits did not mandate a dissolution
of the injunction.

Rule 683 provides in pertinent part as follows:

             *641 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.


 [1] [2] The requirements of Rule 683 are mandatory and must be strictly followed. When a temporary injunction order does
not adhere to the requirements of Rule 683 the injunction order is subject to being declared void and dissolved. E.g., Northcutt
v. Warren, 326 S.W.2d 10, 10 (Tex.Civ.App.—Texarkana 1959, writ ref'd n.r.e.); University Interscholastic League v. Torres,
616 S.W.2d 355, 357–58 (Tex.Civ.App—San Antonio 1981, no writ); Smith v. Hamby, 609 S.W.2d 866, 868 (Tex.Civ.App.
—Fort Worth 1980, no writ). Because the court of appeals' decision conflicts with the requirements of Rule 683, we grant the
application for writ of error. Pursuant to Rule 133(b), Tex.R.App.P., without hearing oral argument, we reverse the judgment
of the court of appeals, declare the temporary injunction void and order that it be dissolved.



End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   2
K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (2000)
43 Tex. Sup. Ct. J. 1002



                                                     24 S.W.3d 357
                                                 Supreme Court of Texas.

                                       K–MART CORPORATION, Petitioner,
                                                     v.
                               Lisa HONEYCUTT and Michael Honeycutt, Respondents.

                                             No. 99–1112.      |   June 29, 2000.

Invitee brought negligence action against store for personal injuries she allegedly sustained when struck by shopping carts as
store employee pushed them into cart corral. The 319th District Court of Nueces County, Max Bennett, J., entered take-nothing
judgment against invitee. Invitee appealed. On motion for reconsideration, the Corpus Christi Court of Appeals reversed and
remanded, 1 S.W.3d 239. On petition for review, the Supreme Court held that testimony by invitee's human factors and safety
expert would not have assisted trier-of-fact to understand evidence or to determine fact issue.

Court of Appeals' judgment reversed and rendered.



 West Headnotes (11)


 [1]    Appeal and Error        Rulings on admissibility of evidence in general
        The Supreme Court reviews a trial court's exclusion of expert testimony for abuse of discretion. Rules of Evid., Rule
        702.

        35 Cases that cite this headnote


 [2]    Evidence       Determination of question of competency
        A trial court abuses its discretion in excluding expert testimony when its ruling is arbitrary, unreasonable or without
        reference to any guiding rules or legal principles. Rules of Evid., Rule 702.

        104 Cases that cite this headnote


 [3]    Appeal and Error        Reasons for Decision
        Where the trial court does not specify the ground on which it excluded expert testimony, the Supreme Court will
        affirm the trial court's ruling if any ground is meritorious. Rules of Evid., Rule 702.

        16 Cases that cite this headnote


 [4]    Evidence       Matters involving scientific or other special knowledge in general
        When determining the admissibility of expert testimony, the fact that the expert has knowledge, skill, expertise, or
        training does not necessarily mean that the witness can assist the trier-of-fact. Rules of Evid., Rule 702.

        10 Cases that cite this headnote


 [5]    Evidence       Matters involving scientific or other special knowledge in general




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (2000)
43 Tex. Sup. Ct. J. 1002

        Expert testimony assists the trier-of-fact when the expert's knowledge and experience on a relevant issue are beyond
        that of the average juror and the testimony helps the trier-of-fact understand the evidence or determine a fact issue.
        Rules of Evid., Rule 702.

        16 Cases that cite this headnote


 [6]    Evidence       Matters of common knowledge or observation
        An expert's testimony should be excluded when the jury is equally competent to form an opinion about the ultimate
        fact issues or the expert's testimony is within the common knowledge of the jury. Rules of Evid., Rule 702.

        15 Cases that cite this headnote


 [7]    Evidence       Matters of common knowledge or observation
        Expert testimony is inadmissible when it concerns a matter which obviously is within the common knowledge of
        jurors because such testimony, almost by definition, can be of no assistance. Rules of Evid., Rule 702.

        1 Cases that cite this headnote


 [8]    Evidence       Construction and Repair of Structures, Machinery, and Appliances
        Proposed testimony by human factors and safety expert that lack of top railing on defendant store's shopping cart corral
        created unreasonable risk because it served as invitation for people to sit on lower railing, and that it was reasonable for
        plaintiff invitee to sit on lower railing, would not have assisted jury to understand evidence or to determine fact issue in
        negligence action arising from injuries invitee allegedly suffered when purportedly struck by carts that store employee
        pushed into cart corral, and thus, such testimony was properly excluded; jury viewed photographs of cart corral from
        which it could draw its own conclusions, and its collective common sense could ably assist it in determining whether
        people would likely sit on lower railing. Rules of Evid., Rule 702.

        5 Cases that cite this headnote


 [9]    Evidence       Cause
        Proposed testimony by human factors and safety expert, that lack of top railing on defendant store's shopping cart
        corral caused injuries invitee allegedly suffered when she sat on lower railing and was purportedly struck by carts
        that store employee pushed into cart corral, would not have assisted jury to understand evidence or to determine fact
        issue in ensuing negligence action, and thus, such testimony was properly excluded; case did not involve causation
        issue that required scientific or technical explanation, and it was within jury's ability to determine on its own whether
        lack of railing caused accident. Rules of Evid., Rule 702.

        6 Cases that cite this headnote


 [10]   Evidence       Due care and proper conduct in general
        Proposed testimony by human factors and safety expert that store employee did not receive proper training for pushing
        shopping carts would not have assisted jury to understand evidence or to determine fact issue in negligence action
        arising from personal injuries invitee allegedly suffered when struck by shopping carts that employee pushed into
        cart corral, and thus, such testimony was properly excluded; jurors did not need assistance in determining whether
        employee knew how to properly push shopping carts. Rules of Evid., Rule 702.

        Cases that cite this headnote



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (2000)
43 Tex. Sup. Ct. J. 1002


 [11]   Evidence        Due care and proper conduct in general
        Proposed testimony by human factors and safety expert that store employee did not keep proper lookout while pushing
        shopping carts into store's cart corral would not have assisted jury to understand evidence or to determine fact issue
        in negligence action arising from personal injuries invitee allegedly suffered when struck by those carts, and thus,
        such testimony was properly excluded; jury did not need any special interpretation of facts for it to determine whether
        employee was negligent. Rules of Evid., Rule 702.

        2 Cases that cite this headnote




Attorneys and Law Firms

*359 Christopher A. Fusselman, Willie Ben Daw, III, Daw & Ray, Houston, for Petitioner.

William R. Edwards, III, John Blaise Gsanger, The Edwards Law Firm, Karen R. Thompson, Allison & Huerta, Steve T.
Hastings, Huerta Hastings & Allison, Corpus Christi, for Respondent.

Opinion

PER CURIAM.

In this negligence case, we decide whether the trial court abused its discretion by excluding the plaintiffs' human factors and
safety expert. The court of appeals held that it did. Honeycutt v. K-Mart, 1 S.W.3d 239 (Tex.App.-Corpus Christi 1999). We
conclude that the trial court did not abuse its discretion in excluding the expert because none of his opinions would assist the
trier-of-fact to understand the evidence or to determine a fact issue. We therefore reverse the court of appeals' judgment and
render judgment that the Honeycutts take nothing from K–Mart.

Lisa Honeycutt injured her back while shopping at a K–Mart store in Portland, Texas. She was waiting in line to check out at
the register next to the cart corral when the injury occurred. The cart corral, where K–Mart stores empty shopping carts, usually
consists of two horizontal rails intersecting a series of vertical posts; however, a part of the upper rail was missing. While in
line, Honeycutt sat on the lower rail where the top rail was missing with her back to the shopping carts.

As Honeycutt was sitting on the lower rail, Linda Robledo, a service desk supervisor and twelve-and-a-half-year employee,
pushed several shopping carts into the cart corral. Robledo saw Honeycutt quickly stand up. Robledo was unable to see
Honeycutt because Honeycutt was hunched over with her elbows on her knees and Robledo's view was totally or partially
obscured by the carts already in the corral.

Lisa and Michael Honeycutt sued K–Mart for injuries to Lisa's back allegedly caused from being hit by the shopping carts. The
Honeycutts hired Dr. Way Johnston as a human factors and safety expert. During discovery, Johnston entered the K–Mart store
without notifying K–Mart. In his report, Johnston offered the following five opinions: (i) the lack of a top rail presented an
unreasonable risk of injury to shoppers and employees of K–Mart; (ii) the accident would not have occurred but for the lack of
a top rail; (iii) Linda Robledo was not properly trained in pushing shopping carts; (iv) Linda Robledo failed to keep a proper
lookout while pushing the shopping carts into the cart corral; and, (v) Lisa Honeycutt was not contributorily negligent.

Before trial, K–Mart moved to exclude Johnston from testifying. K–Mart argued that Johnston did not satisfy the requirements
of Texas Rule of Evidence 702 because his opinions were not relevant and reliable and were within the average juror's common
knowledge. K–Mart also argued that the trial court should exclude Johnston's testimony because his unauthorized inspection of
the store violated former Texas Rule of Civil Procedure 167. The trial court denied the motion. During trial, K–Mart reasserted
its motion, which the trial court granted without specifying *360 the grounds. The Honeycutts made a bill of exceptions.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (2000)
43 Tex. Sup. Ct. J. 1002


The case was submitted to the jury under a general negligence theory against K–Mart and a comparative negligence theory
against Lisa Honeycutt. The jury answered that both K–Mart and Honeycutt were negligent and attributed eighty-percent of the
fault to Honeycutt. As a result, the trial court rendered a take-nothing judgment against the Honeycutts.

The Honeycutts appealed. The court of appeals initially affirmed the judgment. But on rehearing, it reversed the trial court
and remanded the case for a new trial. 1 S.W.3d at 245. The court of appeals held that the trial court abused its discretion in
excluding Johnston because he was qualified to testify and his testimony satisfied the relevance and reliability requirements of
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995). 1 S.W.3d at 243–44. The court also held that the trial
court abused its discretion in excluding Johnston for violating former Rule 167 because the infraction was harmless. Id. at 245.

 [1] [2] [3] We review a trial court's exclusion of expert testimony for abuse of discretion. See Gammill v. Jack Williams
Chevrolet, 972 S.W.2d 713, 718–19 (Tex.1998). A trial court abuses its discretion when its ruling is arbitrary, unreasonable or
without reference to any guiding rules or legal principles. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). Because the
trial court did not specify the ground on which it excluded Dr. Johnston's testimony, we will affirm the trial court's ruling if any
ground is meritorious. See Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex.1999).

The court of appeals did not consider all of the grounds K–Mart asserted for excluding Johnston under Texas Rule of Evidence
702. Rule 702 states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education
may testify thereto in the form of an opinion or otherwise.” TEX.R. EVID. 702; see also Gammill, 972 S.W.2d at 718. The
court of appeals ruled only that Johnston's testimony was relevant and reliable. It failed to consider whether Johnston's opinions
were beyond the average juror's common knowledge.

 [4] [5] [6] [7] That a witness has knowledge, skill, expertise, or training does not necessarily mean that the witness can
assist the trier-of-fact. See Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996). Expert testimony assists the trier-of-fact when
the expert's knowledge and experience on a relevant issue are beyond that of the average juror and the testimony helps the
trier-of-fact understand the evidence or determine a fact issue. See $18,800 in U.S. Currency v. State, 961 S.W.2d 257, 265
(Tex.App.-Houston [1 st Dist.] 1997, no writ); Glasscock v. Income Property Servs. Inc., 888 S.W.2d 176, 180 (Tex.App.-
Houston [1 st Dist.] 1994, writ dism'd by agr.). When the jury is equally competent to form an opinion about the ultimate
fact issues or the expert's testimony is within the common knowledge of the jury, the trial court should exclude the expert's
testimony. Glasscock, 888 S.W.2d at 180. Thus, “Rule 702 makes inadmissible expert testimony as to a matter which obviously
is within the common knowledge of jurors because such testimony, almost by definition, can be of no assistance.” Scott v.
Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4 th Cir.1986).

 [8] We conclude that none of Johnston's five opinions would have been helpful to the jury in this case. Johnston's first and fifth
opinions concern the ultimate issues of K–Mart and Honeycutt's negligence. Johnston asserts that the lack of a top railing created
an unreasonable risk because it served as an invitation for people to sit on the lower railing. Johnston's training and experience
as a human factors expert informed him that when human *361 beings encounter a low railing, they will sit there. This same
reasoning compelled his conclusion that Honeycutt's sitting on the lower railing was not unreasonable conduct. The jury did not
need Johnston's assistance to determine whether the lack of a top railing was unreasonable. The jury viewed photographs of the
cart corral from which it could draw its own conclusions. This case is similar to Scott, in which the Fourth Circuit held that it
was error to allow a human factors expert to testify that defects in a sidewalk curb created an unreasonably dangerous condition
for women wearing high heels. 789 F.2d at 1055. The Fourth Circuit concluded that it would have been of little help to the jury
because the jurors were able to observe the accident scene for themselves and reach a conclusion about the dangerousness of the
condition. Id. In this case, the jury's collective common sense could ably assist it in determining whether people would likely
sit on the lower railing. See id. (holding it was error to permit human factors expert to testify that women wearing high heels
tend to avoid walking on grates); see also Persinger v. Norfolk & Western Ry., 920 F.2d 1185, 1188 (4 th Cir.1990) (excluding



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K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (2000)
43 Tex. Sup. Ct. J. 1002

expert testimony about whether the weight the plaintiff had to carry was unreasonable because the testimony “did no more than
state the obvious”); Stepney v. Dildy, 128 F.R.D. 77, 80 (D.Md.1989) (“Nor is the testimony of a human factors expert required
to advise the jury that moisture will freeze at 32 degrees or colder.”); Richmond, Human Factors Experts in Personal Injury
Litigation, 46 ARK. L.REV. 333, 337 (1993) (“[M]any experts misuse human factors expertise in litigation by either testifying
about matters clearly within the jury's common knowledge or offering opinions without adequate foundation.”).

 [9] [10] [11] Dr. Johnston's other opinions are also not helpful to the jury because they involve matters within the average
juror's common knowledge. His second opinion is that the lack of a top railing caused Honeycutt's injuries. This is not a causation
issue that requires a scientific or technical explanation. It was within the jury's ability to determine on its own whether the lack
of a railing caused the accident. Johnston's third opinion is that Robledo did not receive proper training for pushing shopping
carts. The jurors in this case did not need assistance in determining whether Robledo knew how to properly push shopping
carts. An expert opinion on how to push a shopping cart would not have aided the jury in deciding the ultimate fact issues in
this case. His fourth opinion is that Robledo did not keep a proper lookout while pushing the carts into the corral. The jury did
not need any special interpretation of the facts for it to determine whether Robledo was negligent.

Thus, all of Johnston's conclusions would tell the jury how they should view the facts. The jury in this case was competent
to determine the ultimate issues without Johnston's testimony. Therefore, the trial court was within its discretion to exclude
the testimony. 1

Pursuant to Texas Rule of Appellate Procedure 59.1, without hearing oral argument, we reverse the court of appeals' judgment
and render judgment that the Honeycutts take nothing from K–Mart.


Parallel Citations

43 Tex. Sup. Ct. J. 1002


Footnotes
1      Because we conclude that the trial court did not abuse its discretion in excluding Johnston's testimony under Rule 702, we do not
        reach the issue of whether Johnston was properly excluded for violating former Texas Rule of Civil Procedure 167.


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                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      5
Mapco, Inc. v. Forrest, 795 S.W.2d 700 (1990)




                                                      795 S.W.2d 700
                                                  Supreme Court of Texas.

                                        MAPCO, INC., et al., Relators,
                                                      v.
               The Honorable Shirley FORREST, Clerk, and the Ninth Court of Appeals, Respondents.

                                               No. C–9490.     |   March 7, 1990.

In action for partition, the 75th District Court, Liberty County, Clarence D. Cain, J., ordered partition and in personam owelty
award against parent company of cotenant of estate. Cotenant and parent company appealed. The Court of Appeals, 786 S.W.2d
368, reversed in part and remanded. After filing of applications for writ of error, relators sought writ of mandamus to compel
clerk of Court of Appeals to forward record and applications for writ of error to Supreme Court. The Supreme Court held that:
(1) filing of applications for writ of error deprived Court of Appeals of jurisdiction over rehearing motion, and (2) expiration
of court term in which judgment was rendered deprived Court of Appeals of authority to alter or change judgment.

Leave to file granted, mandamus conditionally issued, and Court of Appeals and clerk directed to forward record and
applications for writ of error to Supreme Court.



 West Headnotes (10)


 [1]    Appeal and Error         Transfer of Jurisdiction in General
        Jurisdiction of Supreme Court immediately attaches upon filing of application for writ of error and deprives the Court
        of Appeals of jurisdiction to change its judgment.

        3 Cases that cite this headnote


 [2]    Appeal and Error         New Trial or Rehearing
        Court of Appeals is not deprived of jurisdiction to rule on motion for rehearing of another party that is still pending
        when application for writ of error is filed.

        2 Cases that cite this headnote


 [3]    Appeal and Error         Amendment, Modification, or Setting Aside
        Except for “ministerial act” consistent with judgment, Court of Appeals lacks authority to correct or alter judgment
        after expiration of term in which it was rendered.

        1 Cases that cite this headnote


 [4]    Appeal and Error         Application
        Appellate rules authorize second or subsequent motion for rehearing only if Court of Appeals modifies its judgment
        or opinion in connection with the overruling of a previous motion. Rules App.Proc., Rule 100(d).

        2 Cases that cite this headnote




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Mapco, Inc. v. Forrest, 795 S.W.2d 700 (1990)




 [5]    Appeal and Error         Application
        Second motion for rehearing not authorized by appellate rules is nullity even if Court of Appeals rules on it.

        1 Cases that cite this headnote


 [6]    Appeal and Error         Application
        Second motion for rehearing pending when Court of Appeals' term expired did not extend Court of Appeals' plenary
        jurisdiction over judgment in the case where motion was not authorized because Court of Appeals did not modify its
        judgment or opinion in connection with overruling original motion.

        7 Cases that cite this headnote


 [7]    Appeal and Error         Amendment, Modification, or Setting Aside
        Court's action contrary to statute or statutory equivalent means action is erroneous or “voidable,” not that ordinary
        appellate or other direct procedures to correct it may be circumvented.

        32 Cases that cite this headnote


 [8]    Judgment        Invalid or Unauthorized Judgments
        Only trial court judgment rendered without “jurisdictional power” in sense of lack of subject matter jurisdiction can
        be set aside by trial court at any time.

        84 Cases that cite this headnote


 [9]    Appeal and Error         Amendment, Modification, or Setting Aside
        Absent one of those rare circumstances that makes judgment “void,” the mere fact that an action by Court of Appeals
        is contrary to statute, constitutional provision, or rule of civil or appellate procedure makes it “voidable” or erroneous.

        59 Cases that cite this headnote


 [10]   Appeal and Error         Amendment of Proceedings
        Appeal and Error         Application
        Court of Appeals lacked jurisdiction to correct or alter judgment where filing of applications of writ of error left
        court without jurisdiction and second motion for rehearing, pending when Court of Appeals' term expired, was not
        authorized because Court of Appeals did not modify its judgment or opinion in connection with overruling original
        motion.

        2 Cases that cite this headnote




Attorneys and Law Firms

*701 Roger Townsend, Ben Taylor, Houston, for relators.

Thomas Lee Bartlett, Houston, for respondents.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
Mapco, Inc. v. Forrest, 795 S.W.2d 700 (1990)




                                         ORIGINAL MANDAMUS PROCEEDING

PER CURIAM.

In this original proceeding, relators seek writ of mandamus to compel the clerk of the court of appeals to forward the application
and cross-application for writ of error and case record to this court. The clerk has refused to forward the applications and record
on direct orders of the justices of the court of appeals.

Relators Mapco, Inc., Mapco Underground Storage of Texas, Inc., and other aligned parties appealed the trial court judgment
against them to the Ninth Court of Appeals. The case was argued June 15, 1989. At that time the three justices who heard the
case were Chief Justice Martin Dies and Justices Burgess and Brookshire. On August 31, 1989, Chief Justice Dies retired, and
on September 1, 1989, Chief Justice Ronald L. Walker assumed the bench as the appointed successor.

On November 16, 1989, the court of appeals issued its opinions and judgment. Justice Burgess wrote the “majority” opinion,
which reversed the trial court judgment and remanded the cause; Justice Brookshire dissented. The written judgment of the
court conforms to the “majority” opinion disposition. At the end of the court's opinions this notation appears: “Panel of Dies,
C.J., Brookshire, J., Burgess, J. [Next Line:] Walker, C.J., not sitting.”

On November 30, 1989, the appellees (the “Carter parties”) filed their motion for rehearing. The final point of the motion for
rehearing specifically alleged as error the improper court of appeals panel issue. Appellees argued that after his resignation
Chief Justice Dies was not authorized to participate in the decision, and that without his concurrence the decision was one-
to-one, in violation of sections 22.216(i) and 22.222 of the Texas Government Code. 1 On December 7, 1989, the court of
appeals overruled the motion for rehearing. There is no notation concerning which justices participated in the overruling of
the motion for rehearing.

On December 21, 1989, the appellees filed with the court of appeals clerk what they styled “Appellees Motion for
Reconsideration, or Alternatively, for Opinion.” This “motion” re-urged two points that had been in the motion for rehearing,
particularly the panel issue. It urged that the opinion and judgment on their face did not show concurrence of a majority of the
only “panel” that could have been sitting when the judgment was rendered, that the judgment was “void or voidable” for that
reason, and that the court should at least issue a new opinion addressing the panel question.

On January 4, 1990, the court of appeals through its clerk issued a letter stating appellee's motion for reconsideration was
granted, directing re-briefing and setting the case for re-argument. On January 8, 1990, appellees filed their application for writ
of error with the court of appeals clerk with a cover letter stating it was

  to be filed * * * pursuant to Rule 130(b) of the Texas Rules of Appellate Procedure. This Application is submitted for filing
  subject to the Order of the Court of Appeals dated January 4, 1990 granting Appellees' Motion for Reconsideration, *702
  or Alternatively, For Opinion and ordering the subject Appeal to be reargued and rebriefed by the parties.

  It is our position that the decision and judgment rendered by the Court on November 16, 1989 was void or voidable based
  upon the lack of participation in the Judgment and Opinion rendered by a majority of the panel sitting on the Court at the time
  of rendition of said Judgment and, therefore, did not commence the running of the time in which Appellees may file their
  Application for Writ of Error. However, in an abundance of caution, Appellees submit the enclosed Application for Writ
  of Error in order to present their Points of Error to the Supreme Court on a timely basis in the event said void or voidable
  Judgment and Opinion did commence the running of the time in which Appellees may file their Application for Writ of Error.

Within ten days the Mapco parties filed their conditional application for writ of error. Thereafter, the Mapco parties wrote the
court of appeals clerk requesting that the applications and records be forwarded to the supreme court. The clerk responded with



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Mapco, Inc. v. Forrest, 795 S.W.2d 700 (1990)


a letter stating that the court of appeals had “granted in full” the motion for reconsideration and that she declined to forward
the applications and record to the supreme court “following direct orders and instructions from the Justices of the Ninth Court
of Appeals.” The Mapco parties then filed this mandamus proceeding.

 [1] [2] [3] Relators' argument is simply stated. The filing of the applications for writ of error deprived the court of appeals
of jurisdiction to change its judgment. Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 482 (Tex.1964). As this court has
stated, upon the filing of the application for writ of error “the jurisdiction of the Supreme Court immediately attached,” leaving
the court of appeals “without authority to make any order in the case.” Johnson v. Sovereign Camp, W.O.W., 125 Tex. 329,
336, 83 S.W.2d 605, 608 (1935). 2 Relators also argue that the court of appeals' January 4, 1990 order cannot be justified as an
exercise of its plenary power over its judgments, because its period of plenary power over its judgment expired on December
31, 1989, when the term in which the judgment was rendered ended. 3 As this court has written, except for a “ministerial act”
consistent with the judgment, a court of appeals “is without authority to correct or alter a judgment after the expiration of the
term in which it was rendered.” Cockburn v. Hightower, 121 Tex. 555, 557, 52 S.W.2d 365, 366 (1932).

In reply the Carter parties urge a number of innovative arguments why the court of appeals could have jurisdiction to render
its order. We address two of these, to clarify holdings of this court.

 [4] [5] [6] The Carter parties argue that the court of appeals' plenary jurisdiction to vacate its judgment continued into
the next term because the motion for reconsideration was “pending” when the term ended December 31, 1989. The appellate
rules authorize a second or subsequent motion for rehearing only if the court of appeals modifies its judgment or opinion in
connection with the overruling of a previous motion. Tex.R.App.P. 100(d). A second motion for rehearing not authorized by
the rules is a nullity even if the court of appeals rules on it. Honeycutt v. Doss, 410 S.W.2d 772 (Tex.1966). Necessarily such
a motion did not extend the court of appeals' plenary jurisdiction over the judgment in the case.

The second argument is that the court of appeals' judgment was “void” because it was contrary to section 22.222(c) of the
Government Code. In fact a corresponding provision appears in the constitution:

   *703 The Court of Appeals may sit in sections as authorized by law. The concurrence of a majority of the judges sitting
  in a section is necessary to decide a case.

  Tex. Const. art. V, § 6.

It is also true that in Freeman v. Freeman, 160 Tex. 148, 156, 327 S.W.2d 428, 433 (1959), this court stated, “Judgments are
void for lack of power in courts to render them when they are rendered contrary to constitutional or valid statutory prohibition
or outside limiting constitutional or statutory authority.” Given only this language from Freeman, the Carter parties' argument
is reasonably plausible that the court of appeals judgment was “void” as contrary to the “statutory prohibition” that a majority of
a panel must concur to render a decision, or beyond the authority of the court because the constitution requires the concurrence
of a majority of a “section” of the court of appeals.

 [7] [8] In fact, the argument does not withstand closer scrutiny. We have spent considerable effort distinguishing and
explaining the quoted language from Freeman in holdings that a court's action contrary to a statute or statutory equivalent means
the action is erroneous or “voidable,” not that the ordinary appellate or other direct procedures to correct it may be circumvented.
For example, in El Paso Pipe and Supply Co. v. Mountain States Leasing, Inc., 617 S.W.2d 189 (Tex.1981), we expressly
distinguished Freeman and held that conflict with then rule 329b, Texas Rules of Civil Procedure, although a mandatory rule
dealing with the trial court's plenary power, did not make the judgment “void”; the error had to be corrected through the ordinary
appellate process or other proper proceedings. Again, in Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.1985), we expressly
disapproved the quoted statement from Freeman to the extent it was construed to mean that “[i]f a judgment rendered by a trial
court is void it may be set aside by that court at any time.” We further explained it was only a trial court judgment rendered
without “jurisdictional power” in the sense of lack of subject matter jurisdiction that could be set aside by the trial court at
any time.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Mapco, Inc. v. Forrest, 795 S.W.2d 700 (1990)




 [9] [10] If Middleton v. Murff failed to make it clear, we now expressly disapprove the quoted language from Freeman to
the extent it is construed to apply to a court of appeals' plenary power. Absent one of those rare circumstances that makes the
judgment “void,” the mere fact that an action by a court of appeals is contrary to a statute, constitutional provision or rule of civil
or appellate procedure makes it “voidable” or erroneous. A judgment is void only when it is apparent that the court rendering
the judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or
no capacity to act as a court. Cook v. Cameron, 733 S.W.2d 137, 140 (Tex.1987); Browning v. Placke, 698 S.W.2d 362, 362
(Tex.1985). On facts substantially similar to the present case, this court in an ordinary appeal recently held the court of appeals'
judgment was erroneous, and reversed and remanded the cause. See Hayden v. Liberty Mutual Fire Ins. Co., 786 S.W.2d 260
(Tex.1990). Despite its error, here the court of appeals had lost jurisdiction to correct it.

Because the orders and actions of the court of appeals and its clerk conflict with this court's decisions in Johnson v. Sovereign
Camp, W.O.W. and Cockburn v. Hightower, and further with rule 132(a), Tex.R.App.P., we grant leave to file and without oral
argument a majority of the court conditionally issues the writ of mandamus. Tex.R.App.P. 122. We direct the Ninth Court of
Appeals and its clerk to forward the record and applications for writ of error to this court.



Footnotes
1      Tex.Gov't Code Ann. § 22.216(i) merely provides that the Ninth Court of Appeals consists of a chief justice and two other justices.
        Tex.Gov't Code Ann. § 22.222 (1988) provides:
           § 22.222. Court Sitting in Panels
           (a) Each court of appeals may sit in panels of not fewer than three justices for the purpose of hearing cases.
           (b) If more than one panel is used, the court of appeals shall establish rules to periodically rotate the justices among the panels.
           Permanent civil panels and criminal panels without rotation may not be established.
           (c) A majority of a panel constitutes a quorum for the transaction of business, and the concurrence of a majority of a panel is
           necessary for a decision.
2       This court recently overruled in part Johnson v. Sovereign Camp, but only to the extent that the court of appeals is not deprived of
        jurisdiction to rule on the motion for rehearing of another party that is still pending when an application for writ of error is filed.
        Otherwise, the rule applies with full force that appellate jurisdiction immediately attaches in this court. See Doctors Hospital Facilities
        v. Fifth Court of Appeals, 750 S.W.2d 177, 179 (Tex.1988).
3       Tex.Gov't Code Ann. § 22.218 (1988) provides: “The term of each court of appeals begins and ends with each calendar year.”


End of Document                                                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                            5
Murphy v. McDaniel, 20 S.W.3d 873 (2000)




                                                      20 S.W.3d 873
                                                 Court of Appeals of Texas,
                                                           Dallas.

                                James M. MURPHY and Patricia A. Murphy, Appellants,
                                                        v.
                                          Michael F. McDANIEL, Appellee.

                                        No. 05–99–01882–CV.          |   June 21, 2000.

Prospective purchaser of home brought suit against owner for breach of contract, specific performance, declaratory judgment,
statutory and common law fraud, and attorney fees, and owner brought action for trespass to try title and action to quiet
title, and filed counterclaim alleging breach of contract and seeking unpaid rentals. The 162nd Judicial District Court, Dallas
County, Bill Rhea, J., entered temporary injunction preventing owner from selling home or from taking any act attempting
to dispossess potential purchasers, entered summary judgment for owner on prospective purchasers claims, and dissolved
temporary injunction. Prospective purchasers appealed. The Court of Appeals, Wright, J., held that: (1) summary judgment
was interlocutory and not final adjudication of merits of lawsuit, and thus could only be appealed pursuant to limited statutory
exception to bar of appeals of interlocutory orders, and (2) interlocutory summary judgment in favor of owner of home was not
“change in circumstances,” which would authorize dissolution of trial court's temporary injunction.

Reversed and remanded.



 West Headnotes (15)


 [1]    Appeal and Error         On motion for judgment
        Judgment        Construction and operation
        Summary judgment was interlocutory and not final adjudication of merits of lawsuit, and thus could only be appealed
        pursuant to limited statutory exception to bar of appeals of interlocutory orders, even though trial court granted
        summary judgment for property owner on all claims brought against him by prospective purchasers of property, where
        trial court did not rule on claims of owner brought against prospective purchasers, and order did not contain “Mother
        Hubbard” language that indicated that all relief not expressly granted was denied.

        Cases that cite this headnote


 [2]    Appeal and Error         On motion for judgment
        Judgment        Construction and operation
        When a summary judgment does not dispose of all parties and issues and does not purport to be final or contain
        controlling “Mother Hubbard” language, which indicates that all relief not expressly granted is denied, then the order
        is an interlocutory summary judgment that cannot be appealed except in limited circumstances set out by statute.

        Cases that cite this headnote


 [3]    Appeal and Error         Injunction
        When interlocutory appeal is from an order granting a motion to dissolve a temporary injunction, and the initial order
        granting temporary injunctive relief was not appealed, the appellate court does not consider the propriety of the trial


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Murphy v. McDaniel, 20 S.W.3d 873 (2000)


       court's decision granting the initial injunctive relief, but rather, the appellate court will presume the injunction was not
       improvidently granted and the record as a whole supports the trial court's action in granting the temporary injunction.

       6 Cases that cite this headnote


 [4]   Appeal and Error         Continuing, vacating, or dissolving
       On appeal of dissolution of a temporary injunction, an appellate court will not review the reporter's record from a
       hearing on the motion to grant initial injunctive relief to ascertain if the evidence supports such grant, but rather the
       appellate court review of a trial court's dissolution order is limited to the narrow question of whether the trial court's
       action in dissolving the injunction constituted a clear abuse of discretion.

       5 Cases that cite this headnote


 [5]   Injunction       Terminating, Vacating, or Dissolving Injunction
       Purpose of a motion to dissolve a temporary injunction is to provide a means to show that changed circumstances,
       including changes in the law, compel the dissolution of the injunction, and not to give an unsuccessful party an
       opportunity to relitigate the propriety of the original grant.

       4 Cases that cite this headnote


 [6]   Injunction       Grounds or cause in general
       When changed circumstances are the basis of a motion to dissolve a temporary injunction, the moving party must
       show some substantial change has occurred since the proper issuance of the temporary injunction such that the order
       should be dissolved.

       2 Cases that cite this headnote


 [7]   Injunction       Preservation of status quo
       Only legitimate purpose of a temporary injunction is to preserve the status quo pending trial, and the most expeditious
       relief from an unfavorable preliminary order dissolving an injunction is a prompt trial on the merits.

       1 Cases that cite this headnote


 [8]   Appeal and Error         Appeal from orders relating to injunctions
       Interlocutory appeal of a dissolution of a temporary injunction should not be used to obtain an advance ruling on the
       issues, and an appellate court may not give full consideration to the merits of the underlying lawsuit.

       Cases that cite this headnote


 [9]   Appeal and Error         Appeal from orders relating to injunctions
       Narrow scope of review on interlocutory appeal of dissolution of temporary injunction that enjoined owner of home
       from selling it or from any act attempting to dispossess potential purchasers of home precluded consideration of
       claims that would require appellate court to determine propriety of summary judgment evidence and whether trial
       court properly granted summary judgment for owner on potential purchasers' claims without allowing trial court
       opportunity to render final judgment.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Murphy v. McDaniel, 20 S.W.3d 873 (2000)




        1 Cases that cite this headnote


 [10]   Appeal and Error         On Separate Appeal from Interlocutory Judgment or Order
        Appellate court must strictly limit its review of any interlocutory ruling over which it is granted jurisdiction, where
        jurisdiction to review interlocutory rulings was extremely narrow in scope.

        Cases that cite this headnote


 [11]   Injunction       Authority and discretion of court
        Trial court unquestionably has the authority to dissolve a temporary injunction upon a showing of changed
        circumstances.

        2 Cases that cite this headnote


 [12]   Injunction       Grounds or cause in general
        “Change in circumstances,” for the purpose of establishing that temporary injunction may be dissolved, refers to
        a change in conditions occurring since the granting of the temporary injunction, and changed circumstances may
        include an agreement of the parties, newly revealed facts, or a change in the law that make the temporary injunction
        unnecessary or improper.

        7 Cases that cite this headnote


 [13]   Injunction       Particular cases
        Interlocutory summary judgment in favor of owner of home in dispute with potential purchasers of home was
        not “change in circumstances,” which would authorize dissolution of trial court's temporary injunction, and
        thus temporary injunction remained in effect, where trial court could not have dissolved it absent any changed
        circumstances, when time to review grant of temporary injunction had expired, and appellate court had to presume
        grant of temporary injunction was proper.

        5 Cases that cite this headnote


 [14]   Injunction       Evidence and affidavits
        Injunction       Hearing and determination
        Litigant could conceivably rely on the same evidence presented in a separate evidentiary hearing to support a motion to
        dissolve a temporary injunction, and in that situation, the trial court could, if necessary, make factual determinations,
        and would not be bound by the procedural restrictions of a summary judgment proceeding.

        Cases that cite this headnote


 [15]   Injunction       Grounds or cause in general
        Absent changed circumstances, a determination of the parties' claims should serve as the basis for dissolution of a
        temporary injunction only upon final adjudication, and at that time, the temporary injunction becomes moot.

        Cases that cite this headnote




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Murphy v. McDaniel, 20 S.W.3d 873 (2000)




Attorneys and Law Firms

*875 James M. Murphy, Dallas, for Appellant.

Patrick C. Frank, Fieldler, Akin, Frank & Carlton, P.C., Dallas, for Appellee.

Before Justices MORRIS, WRIGHT, and BRIDGES.



                                                           OPINION

CAROLYN WRIGHT, Justice.

James M. Murphy and Patricia A. Murphy bring this interlocutory appeal from the trial court's order dissolving a temporary
injunction. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(4) (Vernon Supp.2000) (authorizing interlocutory appeal
from an order granting a motion to dissolve a temporary injunction). In five issues, appellants contend generally that the trial
court abused its discretion by dissolving the temporary injunction because: (1) the trial court did not conduct an evidentiary
hearing; (2) appellee failed to prove a change in circumstances; (3) the trial court refused to consider the evidence adduced at
the hearing on the motion to grant the temporary injunction when considering appellee's motion for summary judgment; (4)
the trial court erred by striking appellants' summary judgment proof; and (5) the dissolution was based on *876 an improper
summary judgment. We reverse the trial court's order dissolving the temporary injunction and remand for further proceedings.



                                            Factual and Procedural Background

The underlying lawsuit involves a 1982 lease-purchase agreement between appellants and appellee. Under the terms of the
agreement, appellants leased appellee's house for one year and were to purchase the home for $240,000 on or before expiration
of the lease. The agreement provided that when appellants purchased the home, seventy-five percent of the rental payments
would be applied to reduce the purchase price. Appellants, however, were unable to obtain financing, and at the end of the
one-year lease, the parties executed an addendum to the contract. The addendum provided that the closing date for purchase
was to be changed from on or before March 31, 1984 to on or before January 15, 1985. The addendum also provided that after
March 31, 1984, the rental payments would no longer be applied to either the down payment or taken off of the purchase price.
Again, appellants were unable to close on the house, and in January 1985, appellee agreed, by letter, to extend the agreement for
another year. The letter provided that except for the closing date, “all other terms and conditions of the original lease-purchase
agreement will remain the same.” Thereafter, until 1998, appellee agreed each year to extend the closing date. In 1998, appellee
refused to extend the closing date, notified appellants that the lease-purchase agreement had expired, and offered to sell the
property to appellants for the original purchase price of $240,000.

Appellants acknowledged that the agreement had expired. However, they offered to purchase the home for $65,975.06.
According to appellants, the 1984 addendum to the original agreement only applied for that year, and when appellee agreed to
extend the agreement in 1985 and thereafter, the original terms of the lease-purchase agreement were in effect. Thus, according
to appellants, seventy-five percent of the rental payments from 1985 through 1998 should be applied to reduce the purchase
price of the home.

When appellee disagreed, appellants sued him for breach of contract, specific performance, declaratory judgment, statutory
and common law fraud, and attorneys' fees. At the same time, appellants requested a temporary injunction allowing them to
remain in the house while the suit progressed. Appellee counterclaimed, alleging, among other things, that appellants breached
the contract and owed him for unpaid rentals. Appellee also brought suit for trespass to try title and an action to quiet title.



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Murphy v. McDaniel, 20 S.W.3d 873 (2000)


On September 1, 1998, after an evidentiary hearing, the trial court found that appellants made a prima facie showing of a
probable right and probable injury if a temporary injunction was not issued during pendency of the suit. The trial court also
found appellants would suffer immediate and irreparable harm. Therefore, the trial court granted appellants' application for
a temporary injunction enjoining appellee from selling the property or any act attempting to dispossess appellants from the
property. The parties did not appeal the order granting the temporary injunction.

 [1] [2] Subsequently, appellee filed a motion for summary judgment arguing that he was entitled to judgment as a matter of
law on all of appellants' claims. Although appellee did not file a separate motion to dissolve the temporary injunction, the motion
for summary judgment contained a section arguing that “to the extent [the trial court] rules favorably on [appellee]'s motion
for summary judgment, [appellee] is entitled to dissolution of the [temporary] injunction.” Appellee did not seek summary
judgment on his counterclaims. *877 1 After considering the evidence in support of the summary judgment, but without an
evidentiary hearing on the motion to dissolve the temporary injunction, the trial court ordered that “[appellants] take nothing as
to their claims of [appellee]” and further ordered the temporary injunction dissolved. This interlocutory appeal from the portion
of the trial court's order dissolving the temporary injunction followed.



                                                           Discussion

 [3] [4] When, as here, the interlocutory appeal is from an order granting a motion to dissolve, and the initial order granting
temporary injunctive relief was not appealed, we do not consider the propriety of the trial court's decision granting the initial
injunctive relief. See Tober v. Turner of Tex., Inc., 668 S.W.2d 831, 834 (Tex.App.-Austin 1984, no writ). Rather, we presume
the injunction was not improvidently granted and the record as a whole supports the trial court's action in granting the temporary
injunction. Id. We will not, therefore, review the reporter's record from the hearing on the motion to grant to ascertain if the
evidence supports such grant. Id. at 835. Our review of the trial court's order of dissolution is limited to the narrow question
of whether the trial court's action in dissolving the injunction constituted a clear abuse of discretion. Desai v. Reliance Mach.
Works, Inc., 813 S.W.2d 640, 641 (Tex.App.-Houston [14 th Dist.] 1991, no writ).

 [5] [6] The purpose of a motion to dissolve a temporary injunction is to provide a means to show that changed circumstances,
including changes in the law, compel the dissolution of the injunction. See Tober, 668 S.W.2d at 836. The purpose is not to
give an unsuccessful party an opportunity to relitigate the propriety of the original grant. Id. When, as in this case, changed
circumstances are the basis of a motion to dissolve, the moving party must show some substantial change has occurred since
the proper issuance of the temporary injunction such that the order should be dissolved. See Desai, 813 S.W.2d at 642; Tober,
668 S.W.2d at 836.

 [7] [8] [9] [10] Because of the narrow scope of review in this interlocutory appeal, we begin our analysis by determining
which of appellants' issues are properly before us. The only legitimate purpose of a temporary injunction is to preserve the
status quo pending trial, and the most expeditious relief from an unfavorable preliminary order dissolving an injunction is a
prompt trial on the merits. See Reeder v. Intercontinental Plastics Mfg. Co., 581 S.W.2d 497, 499 (Tex.Civ.App.-Dallas 1979,
no writ) (appeal from order granting temporary injunction). An interlocutory appeal should not be used to obtain an advance
ruling on the issues, and we may not give full consideration to the merits of the underlying lawsuit. See State v. Ruiz Wholesale
Co., 901 S.W.2d 772, 777 (Tex.App.-Austin 1995, no writ) (discussing limited scope of review following denial of a temporary
injunction); Reeder, 581 S.W.2d at 499. Consideration of appellants' issues three, four, and five would require us to determine
the propriety of the summary judgment evidence and whether the trial court properly granted appellee's motion for summary
judgment. We decline to do so without allowing the trial court an opportunity to render a final judgment. Because our jurisdiction
to review interlocutory rulings is extremely narrow in scope, we must strictly limit our review of any interlocutory ruling over
which we are granted jurisdiction. See *878 America Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex.App.-Houston [14
th
   Dist.] 1997, no writ) (The legislature determines, by statute, whether a particular type of pretrial ruling may be appealable
before a final judgment is rendered. We strictly construe those statutes authorizing interlocutory appeals.). Thus, we conclude



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Murphy v. McDaniel, 20 S.W.3d 873 (2000)


appellants' third, fourth, and fifth issues are not a proper basis upon which appellants may contend that the trial court abused
its discretion by granting appellee's motion to dissolve. We dismiss appellants' third, fourth, and fifth issues.

In appellants' first and second issues, appellants contend the trial court abused its discretion by granting appellee's motion to
dissolve because the trial court did not conduct an evidentiary hearing and appellee failed to prove a change in circumstances. 2
In essence, appellants argue that the trial court's interlocutory summary judgment alone is not a proper basis to support the
trial court's discretion in dissolving the temporary injunction. The parties agree, and the record supports, that the trial court
granted appellee's motion to dissolve the temporary injunction solely on the basis of its ruling on appellee's motion for summary
judgment. We must decide, therefore, whether the trial court's interlocutory summary judgment is a change in circumstances
that would support the dissolution of the temporary injunction.

 [11] [12] [13] [14] The trial court unquestionably has the authority to dissolve a temporary injunction upon a showing of
changed circumstances. Tober, 668 S.W.2d at 834. In our view, a “change in circumstances” refers to a change in conditions
occurring since the granting of the temporary injunction. Changed circumstances may include an agreement of the parties,
newly revealed facts, or a change in the law that make the temporary injunction unnecessary or improper. Cf. Desai, 813 S.W.2d
at 641–42 (dissolution of temporary injunction where appellees showed they had been effectively excluded from participation
in operation and management of company); see also City of Tyler v. St. Louis S.W. Ry. Co., 405 S.W.2d 330, 333 (Tex.1966)
(only trial court has jurisdiction to modify or vacate permanent injunction based on “changed conditions” because trial court can
subpoena witnesses, take evidence, and make findings of fact). Here, the “change in circumstances” alleged in appellee's motion
was not newly revealed facts or a change in the law; rather, the “change” was merely an interlocutory judicial determination
of the merits of appellants' claims against appellee. The trial court's summary judgment did not reach appellee's claims against
appellants and the trial court did not order any severance of the parties' claims. We conclude the trial court's interlocutory
ruling on the merits of appellants' claims is not, in and of itself, a “change in circumstances” authorizing dissolution of the
trial court's otherwise properly granted temporary injunction. 3 Given this conclusion, we still *879 must determine whether
the trial court, after it properly granted the temporary injunction, could have dissolved it absent any changed circumstances.
We conclude it could not.

We recognize that in Tober, the Austin court of appeals, relying on City of Hudson v. Ivie, 592 S.W.2d 658 (Tex.Civ.App.-
Beaumont 1979, no writ), stated that a trial court has the authority to reverse its prior temporary injunction order absent a
showing of changed circumstances. Tober, 668 S.W.2d at 835. The procedural posture of this case, however, is different from
Ivie. In Ivie, the trial court granted a temporary injunction after an evidentiary hearing. Five days later, after a non-evidentiary
hearing, the trial court granted the defendant's motion to dissolve the injunction. On the same day, the trial court dismissed
the entire proceeding. The court of appeals determined that the trial court abused its discretion in dismissing the case after
holding only a preliminary hearing. However, it affirmed the trial court's order dissolving the injunction because it “read the
statement of facts containing the evidence offered at the [temporary injunction] hearing and [could] not conclude that the trial
court abused its discretion in dissolving the temporary injunction which had been improvidently granted a few days earlier.”
Ivie, 592 S.W.2d at 659–60.

In Ivie, unlike in this case where the time to review the order granting the temporary injunction has expired, the court of appeals
had jurisdiction to review the propriety of the trial court's decision to grant the temporary injunction. The court of appeals'
determination that the trial court had the authority to dissolve its previously granted temporary injunction was, in reality, a
determination that the temporary injunction had been improperly granted. Such is not the case here. We do not have jurisdiction
to consider the propriety of the trial court's decision to grant the temporary injunction. Rather, we must presume the trial court's
initial decision to grant the temporary injunction was proper. See Tober, 668 S.W.2d at 834. Because we must recognize the
trial court properly granted the temporary injunction, we conclude that, absent changed circumstances, the temporary injunction
should remain in effect until a final disposition of the parties' claims.

 [15] Our conclusion is directly supported by the very nature of this appeal. The sole basis for granting appellee's motion
to dissolve the temporary injunction was the trial court's interlocutory ruling on the merits of appellants' claims. Yet, we are


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Murphy v. McDaniel, 20 S.W.3d 873 (2000)


precluded from reviewing the summary judgment at this time. If we were to conclude that the trial court's interlocutory summary
judgment is, in and of itself, an appropriate basis for the trial court's dissolution of its otherwise properly granted temporary
injunction, appellants could obtain a meaningful, interlocutory review of the dissolution order only through our review of
the merits of the interlocutory summary judgment, which we clearly cannot do. We are of the opinion that, absent changed
circumstances, a determination of the parties' claims should serve as the basis for dissolution of a temporary injunction only
upon final adjudication. At that time, the temporary injunction becomes moot. See Isuani v. Manske–Sheffield Radiology Group,
P.A., 802 S.W.2d 235, 236 (Tex.1991); Save Our Springs Alliance, Inc. v. Austin Indep. Sch. Dist., 973 S.W.2d 378, 384
(Tex.App.-Austin 1998, no writ).

Because the trial court's sole basis for granting appellee's motion to dissolve was its interlocutory judgment, we conclude the
trial court abused its discretion by granting appellee's motion to dissolve. The trial court's decision to dissolve was not based on a
conclusion that the temporary injunction was improvidently granted or on the guiding principle of a change in circumstances. 4
We sustain appellants' first and second issues.


 *880 We reverse that portion of the trial court's judgment dissolving the temporary injunction and remand for further
proceedings consistent with this opinion.


Footnotes
1      Thus, we agree with the parties that the summary judgment is interlocutory and not a final adjudication of the merits of this lawsuit.
        When a summary judgment does not dispose of all parties and issues and does not purport to be final or contain controlling “Mother
        Hubbard” language, it is an interlocutory summary judgment that cannot be appealed except in limited circumstances set out by
        statute. See Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex.1993).
2       In their brief, appellants argue issues one and two together. We will address them likewise.
3       In this appeal, the only evidence the trial court could have considered in making its determination to dissolve the temporary injunction
        was the evidence offered in support of appellee's motion for summary judgment. As we have previously concluded, our limited review
        of the dissolution of the temporary injunction does not allow us to consider the propriety of the evidence offered in support of the
        motion for summary judgment. We note, however, that a litigant could conceivably rely on the same evidence presented in a separate
        evidentiary hearing to support a motion to dissolve. In that situation, the trial court could, if necessary, make factual determinations,
        and would not be bound by the procedural restrictions of a summary judgment proceeding. Cf. Liberty Mut. Fire Ins. v. Hayden, 805
        S.W.2d 932, 935 (Tex.App.-Beaumont 1991, no writ) (trial court should conduct separate hearings when faced with “overlapping
        and intermingling” motions concerning summary judgment and other matters that allow oral testimony). That, however, is not the
        case here. In this case, the trial court did not conduct a separate hearing on the motion to dissolve.
4       We also note that the trial court's decision was not based on principles of fundamental error or on any statutory authorization.


 End of Document                                                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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Padilla v. LaFrance, 907 S.W.2d 454 (1995)
38 Tex. Sup. Ct. J. 663



                                                        907 S.W.2d 454
                                                    Supreme Court of Texas.

                                                Enrique PADILLA, Petitioner,
                                                            v.
                                           Ernest J. LaFRANCE, et al., Respondents.

   No. 94–0579.        |    Argued Jan. 3, 1995.      |    Decided May 25, 1995.        |    Rehearing Overruled Oct. 5, 1995.

In action arising from automobile accident, defendant driver filed cross-action, seeking enforcement of alleged settlement
agreement under contract law. The 127th District Court, Harris County, Sharolyn Wood, J., granted plaintiffs' motion for
summary judgment on cross-action, and defendant appealed. The Court of Appeals, Houston (14th Dist.), Sears, J., 875 S.W.2d
730, affirmed. On application for writ of error, the Supreme Court, Phillips, C.J., held that: (1) transcript was timely filed in
appeal; (2) series of letters between parties was sufficient to constitute writing that satisfied rule requiring settlement agreements
to be in writing and filed with court; and (3) withdrawal of consent to settlement did not render settlement unenforceable.

Reversed and remanded with directions.

Enoch, J., dissented with opinion in which Gammage, J., joined.



 West Headnotes (9)


 [1]     Appeal and Error          Necessity and duty of filing in appellate court
         Appeal did not have to be dismissed for failure to file transcript under rule allowing 120 days to file transcript if
         motion to modify judgment has been filed where appellant's motion for reconsideration was equivalent of motion to
         modify judgment. Rules App.Proc., Rule 54(a).

         13 Cases that cite this headnote


 [2]     Frauds, Statute Of        Necessity that writing show all the terms
         Frauds, Statute Of        Admissibility of evidence to aid memorandum
         To satisfy statute of frauds, there must be written memorandum which is complete within itself in every material
         detail, and which contains all of essential elements of agreement, so that contract can be ascertained from writings
         without resorting to oral testimony. V.T.C.A., Bus. & C. § 26.01.

         35 Cases that cite this headnote


 [3]     Frauds, Statute Of        Separate Writings
         Under statute of frauds, the required written memorandum need not be contained in one document. V.T.C.A., Bus.
         & C. § 26.01.

         7 Cases that cite this headnote


 [4]     Contracts         Acceptance of Offer and Communication Thereof
         Where offer prescribes time and manner of acceptance, those terms must ordinarily be complied with to create contract.


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Padilla v. LaFrance, 907 S.W.2d 454 (1995)
38 Tex. Sup. Ct. J. 663


        11 Cases that cite this headnote


 [5]    Contracts         Acceptance of Offer and Communication Thereof
        Although, ordinarily, if offer prescribes time and manner of acceptance terms must be complied with to create contract,
        different method of acceptance may be effectual where original offeror thereafter manifests his assent to other party.

        12 Cases that cite this headnote


 [6]    Insurance         Requisites and Validity of Settlement or Release
        Insurance settlement agreement contained in more than one written document was sufficient to satisfy Texas Rule
        of Civil Procedure 11, which requires settlement agreements to be in writing and filed with papers as part of the
        record, where insurer's letter that was faxed to victims' attorney agreed to pay policy limits and confirmed “settlement
        agreement” between parties but noted one uncertainty as to payment of hospital lien, and victims' attorney responded
        the same day with letter indicating that hospital lien would be paid out of settlement funds and that matter “had been
        settled.” Vernon's Ann.Texas Rules Civ.Proc., Rule 11.

        56 Cases that cite this headnote


 [7]    Compromise and Settlement            Making and Form of Agreement
        Texas Rule of Civil Procedure 11, which requires settlement agreements regarding pending suits to be in writing and
        filed with papers as part of the record, does not require writing to be filed before consent is withdrawn by one of
        the parties, but merely requires that agreement be filed before it is sought to be enforced. Vernon's Ann.Texas Rules
        Civ.Proc., Rule 11.

        141 Cases that cite this headnote


 [8]    Compromise and Settlement            Enforcement
        Although court cannot render valid agreed judgment absent consent at time it is rendered, this does not preclude court,
        after proper notice and hearing, from enforcing settlement complying with Texas Rule of Civil Procedure 11, which
        requires settlement agreements to be in writing and filed, even though one party no longer consents to settlement.
        Vernon's Ann.Texas Rules Civ.Proc., Rule 11.

        121 Cases that cite this headnote


 [9]    Compromise and Settlement            Enforcement
        Action to enforce settlement agreement must be based on proper pleading and proof if consent to settlement is
        withdrawn.

        58 Cases that cite this headnote




Attorneys and Law Firms

*455 James B. Lewis, Ronald P. Schramm, Glover Anderson Chandler & Uzick, Houston, for petitioner.




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Padilla v. LaFrance, 907 S.W.2d 454 (1995)
38 Tex. Sup. Ct. J. 663


John Stevenson, Jr., Stevenson Albright & Ammons, Dennis R. Mundy, D. Craig Olivier, Jeffrey W. Hitt, Olivier & Steidley,
Houston, for respondents.

Opinion

PHILLIPS, Chief Justice, delivered the opinion of the Court, joined by GONZALEZ, HIGHTOWER, HECHT, CORNYN,
SPECTOR, and OWEN, Justices.

The primary issue presented is whether a series of letters between the parties' representatives constituted a written settlement
agreement enforceable under Texas Rule of Civil Procedure 11, even though plaintiffs withdrew their consent to the settlement
before the letters were filed with the court and before judgment was rendered on the agreement. The court of appeals held that
any agreement was unenforceable under Rule 11 because plaintiffs revoked consent before the letters were filed with the court.
875 S.W.2d 730. Because we hold that the letters constituted an enforceable Rule 11 agreement, we reverse the judgment of
the court of appeals and remand to the trial court with instructions to enforce the parties' settlement agreement.



                                                                I

One member of the LaFrance family was killed and two others were seriously injured when their vehicle collided with that
driven by Enrique Padilla. After the LaFrances sued Padilla, his insurer, State Farm Mutual Automobile Insurance Company,
assumed *456 defense of the claims. The parties subsequently engaged in settlement negotiations and, as discussed below,
vigorously dispute whether an enforceable settlement agreement was consummated.

On April 10, 1991, Jeffrey Steidley, the LaFrances' attorney, mailed a settlement demand to Brian Chandler, Padilla's attorney,
providing in pertinent part as follows:

  Dear Mr. Chandler:

  You are quite familiar with the facts and circumstances surrounding the above referenced matter. At this time we make
  demand for policy limits of $40,000.00 for full and final settlement of this case against the insured that you represent. Payment
  of this sum should be made on or before Tuesday, April 23, 1991 at 5:00 p.m., by delivery of checks in the appropriate
  amount to the offices of the undersigned made payable in the following amounts and to the following payees:

     One check in the amount of $20,000.00 to Madeleine LaFrance As Next Friend of Michelle LaFrance and Olivier &
     Steidley.

     One check in the amount of $20,000.00 made payable to Ernest J. LaFrance, Marlene Luther, Marilyn Koenig, Madeleine
     LaFrance and Olivier & Steidley, their attorneys of record.

******

  Please be advised that although I will be more than happy to discuss this case with you or any of your representatives, no
  oral discussion that we may have will serve to alter the time limits expressed in the correspondence. I look forward to receipt
  of the checks on or before date specified, failing which this offer to settle will be withdrawn and my clients will proceed to
  perfect their rights under Texas law, the substance of which I know you are well aware.

Chandler forwarded this letter to Phil Bradshaw, the State Farm adjuster handling the claim, who telephoned Steidley's office
on April 15 and spoke with Sherea Carry. 1 Bradshaw informed Carry of an outstanding $1,600 medical lien for treatment to
Michelle LaFrance that needed to be cleared up in connection with the settlement. Carry responded that she would have Steidley
call Bradshaw to discuss the lien. When Bradshaw did not hear back from Steidley, he called Steidley's office on April 18 and



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Padilla v. LaFrance, 907 S.W.2d 454 (1995)
38 Tex. Sup. Ct. J. 663

again on the morning of April 23 to discuss the lien. Each time he was able to speak only with Carry, who informed Bradshaw
that the lien had not yet been resolved.

When Bradshaw still had not heard from Steidley by the afternoon of April 23, the settlement deadline, he faxed this handwritten
letter to Steidley:

  Dear Mr. Steidley,

  This will confirm our settlement agreement of 4/18/91, whereby State Farm agreed to meet the policy limit demands set out
  in your letter of 4/10/91. The only thing holding up resolution of this is the hospital lien re: Michelle. I await word from you
  regarding the lien so I know to whom to make drafts payable.

It is unclear from the record what Bradshaw was referring to by the “agreement of 4/18/91.” Steidley responded before 5:00
p.m. the same day, by fax and regular mail, with this letter:

  Dear Mr. Bradshaw:

  This letter will confirm that the above referenced matter has been settled for all applicable policy limits, which have been
  represented to us to be $40,000.00. Please forward settlement checks in the above referenced matter. This office will agreed
  [sic] to take care of the lien filed by Medical Center Hospital out of the settlement funds forwarded by your office.

  Your attention to this matter is greatly appreciated.

Bradshaw did not see Steidley's response until he arrived at his office the next morning, April 24. Approximately one week
later, Chandler tendered two settlement checks for $20,000 each to Steidley, along with a formal settlement agreement. Steidley,
however, refused to accept the checks or sign the agreement, contending that Padilla had not *457 timely accepted the April
10 settlement offer. 2

Padilla subsequently filed Steidley's April 23 letter with the court, describing it as “an acceptance of a settlement.” Padilla then
filed a counterclaim in the pending suit, seeking enforcement of the alleged settlement agreement, and both sides moved for
summary judgment on the counterclaim. Padilla argued that the letters between the parties' representatives constituted a written
settlement agreement. Although acknowledging that the court could not render a consent judgment incorporating the terms of
the settlement, as the LaFrances had revoked consent, he nonetheless contended that the court could enforce the settlement
by summary judgment. The LaFrances countered that the parties did not have an enforceable agreement under Texas Rule of
Civil Procedure 11, which requires agreements regarding pending suits to “be in writing, signed and filed with the papers as
part of the record....” The LaFrances further argued that, even if an otherwise valid Rule 11 agreement existed, it could not
be enforced since the LaFrances had revoked consent prior to any judgment being rendered on the agreement. The LaFrances
also moved to sever the counterclaim.

After a hearing on May 1, 1992, the court orally ruled that an enforceable settlement agreement did not exist, granting the
LaFrances' motion for summary judgment and denying Padilla's. The court also granted the motion for severance, noting on
the docket that a final judgment would be granted to the LaFrances on the counterclaim. The court, however, did not sign a
written judgment or order of severance at that time.

On June 11, 1992, Padilla filed a “Motion for Reconsideration on his Motion for Summary Judgment,” raising the same
arguments contained in his original motion for summary judgment and adding one additional argument. 3 Although this motion
was apparently set for oral hearing on June 22, 4 there is no indication in the record or the briefs that any hearing occurred.
On June 19, Padilla filed another motion, styled simply as a “Motion for Summary Judgment,” setting forth essentially the
same arguments contained in the motion for reconsideration. No oral hearing was held on this subsequent motion for summary
judgment, and neither it nor the motion for reconsideration was submitted for a ruling on Harris County's submission docket. See



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Padilla v. LaFrance, 907 S.W.2d 454 (1995)
38 Tex. Sup. Ct. J. 663

Local Rule 3.3.2 of the Harris County District Courts. On October 19, 1992, the court signed an order granting the LaFrances'
motion for summary judgment and denying Padilla's. This order referred only to the cross motions for summary judgment argued
on May 1, mentioning neither Padilla's motion for reconsideration nor his later successive motion for summary judgment. 5
On November 20, 1992, the court signed an order severing Padilla's counterclaim and assigning it a new cause number, thus
finalizing the earlier summary judgment.

Padilla appealed from this severed cause. The LaFrances moved the court of appeals to dismiss the appeal, contending that the
transcript, which Padilla filed 82 days after the judgment became final on November 20, 1992, was untimely. Under Texas Rule
of Appellate Procedure 54(a), the transcript must be filed within sixty days after judgment, or within 120 days if a timely motion
 *458 for new trial or motion to modify the judgment has been filed. The court of appeals originally dismissed the appeal, but
reinstated it on rehearing. The court concluded that Padilla's motion for rehearing of the trial court's oral summary judgment
ruling was the equivalent of a motion for new trial, extending the appellate deadlines under Rule 54(a). 875 S.W.2d at 732.

As to the merits, the court of appeals concluded that the parties did not have an enforceable settlement agreement under Texas
Rule of Civil Procedure 11. The court held that, under Rule 11, consent to the settlement agreement must exist at the time it is
filed with the court. 875 S.W.2d at 734. Although not expressly deciding whether Steidley's April 23 letter constituted a signed
writing sufficient under Rule 11, the court noted that the LaFrances had revoked any consent prior to that letter being filed with
the court. Id. The court accordingly affirmed the trial court's summary judgment in favor of the LaFrances.



                                                                 II

[1]   We initially address the LaFrances' jurisdictional argument. They contend by cross-point that the court of appeals should
have dismissed the appeal because Padilla failed to timely file the transcript. 6 We disagree.

An appellant must file the transcript in the court of appeals “within sixty days after the judgment is signed, or, if a timely motion
for new trial or to modify the judgment has been filed by any party, ... within one hundred twenty days after the judgment
is signed.” Tex.R.App.P. 54(a). Padilla filed the transcript 82 days after the judgment became final and appealable through
severance. 7 The issue, therefore, is whether Padilla timely filed a motion for new trial or a motion to modify the judgment.

A motion for new trial “shall be filed prior to or within thirty days after the judgment or other order complained of is signed.”
Tex.R.Civ.P. 329b(a). A motion to modify the judgment must be filed within this same time period. Tex.R.Civ.P. 329b(g).
Moreover, Texas Rule of Civil Procedure 306c directs that a motion for new trial filed before judgment “shall be deemed to have
been filed on the date of but subsequent to the time of signing of the judgment the motion assails....” We conclude that, under
the authority of these rules, Padilla's June 11 motion for reconsideration was the equivalent of a motion to modify the judgment,
extending the appellate deadlines. These rules prevent the procedural trap that otherwise could occur if a party prematurely
filed a motion that was intended to assail the final judgment. See, e.g., Syn–Labs, Inc. v. Franz, 778 S.W.2d 202, 205 (Tex.App.
—Houston [1st Dist.] 1989, no writ); Miller v. Hernandez, 708 S.W.2d 25, 27 (Tex.App.—Dallas 1986, no writ). Cf. Fredonia
State Bank v. General American Life Ins. Co., 881 S.W.2d 279, 280–82 (Tex.1994) (motion for new trial filed after original
judgment, but before amended judgment, was sufficient to preserve factual insufficiency points).

At the time Padilla moved for reconsideration, the trial court had orally rendered summary judgment for the LaFrances on
the counterclaim and had orally ordered that the counterclaim be severed, indicating to the parties at the May 1 hearing that a
final *459 judgment would be signed on Padilla's counterclaim. Although Padilla's motion for reconsideration was premature,
it clearly assailed the court's final judgment. It thus qualifies as a premature motion to modify the judgment, extending the
appellate timetable.




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Padilla v. LaFrance, 907 S.W.2d 454 (1995)
38 Tex. Sup. Ct. J. 663

The LaFrances argue that Padilla's motion for reconsideration was of no effect because it was superseded by his subsequent
“motion for summary judgment” filed eight days later. The LaFrances rely on State v. Seventeen Thousand Dollars, 809 S.W.2d
637 (Tex.App.—Corpus Christi 1991, no writ), where the court, in deciding whether the appellee had preserved a particular
summary judgment ground in the trial court, held that “[a] substituted or amended motion for summary judgment supercedes
and supplants the previous motion, which may no longer be considered.” 809 S.W.2d at 639 (citing Tex.R.Civ.P. 65). Even
if this holding is correct, an issue we do not decide, it does not support the LaFrances' position here. To fall within this rule,
Padilla's June 19 motion for summary judgment would have to be considered an amended or substituted version of his motion
for reconsideration. However, the June 19 summary judgment motion was not styled as an amended motion to reconsider, and
it did not directly assail the trial court's earlier ruling, as did the motion for reconsideration. Further, if the later motion for
summary judgment was actually an amendment to the motion for reconsideration, as the LaFrances seem to argue, it likewise
would operate to extend the appellate timetable. Although we do not decide whether the later motion for summary judgment,
filed after the trial court's oral rendition of judgment, in and of itself extended the appellate timetable, under the circumstances
of this case this filing cannot negate the effect of the earlier motion for reconsideration.

The LaFrances also point out that Padilla's motion for reconsideration was filed under the original, rather than the severed, cause
number. They note that the trial court's later written severance order designated certain documents to be included in the record
of the severed counterclaim, but did not include the motion for reconsideration, and Padilla never requested that the severance
order be supplemented or modified. Because the motion for reconsideration was never actually filed under the severed cause
number, the LaFrances contend that it cannot be considered in this appeal from the severed cause.

This argument is without merit. At the time Padilla filed the motion for reconsideration, there was no severed cause number, as
the trial court had not yet signed a written order of severance. Further, the trial court's order granting summary judgment, which
is the order Padilla's motion for reconsideration assailed, was also filed under the original cause number, as it likewise preceded
the order of severance. After the trial court subsequently signed the order of severance, finalizing the summary judgment,
Padilla filed a request for transcript under the severed cause number requesting that numerous pleadings, including his motion
for reconsideration, be included in the appellate transcript. The transcript before us from the severed cause accordingly includes
the motion for reconsideration. Under these circumstances, the motion for reconsideration operated to extend the appellate
timetable in the severed cause. See McRoberts v. Ryals, 863 S.W.2d 450, 454–55 (Tex.1993); Mueller v. Saravia, 826 S.W.2d
608, 609 (Tex.1992).

For the foregoing reasons, we hold that Padilla timely filed the transcript. The court of appeals thus did not err in refusing to
dismiss Padilla's appeal.



                                                                III

Texas Rule of Civil Procedure 11 provides as follows:

             Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit
             pending will be enforced unless it be in writing, signed and filed with the papers as part of the record,
             or unless it be made in open court and entered of record.

This rule has existed since 1840 and has contained the filing requirement since 1877. See Kennedy v. Hyde, 682 S.W.2d 525,
526 (Tex.1984) (tracing the history of Rule 11). The rationale for the rule is straightforward:

              *460 Agreements of counsel, respecting the disposition of causes, which are merely verbal, are very
             liable to be misconstrued or forgotten, and to beget misunderstandings and controversies; and hence there
             is great propriety in the rule which requires that all agreements of counsel respecting their causes shall
             be in writing, and if not, the court will not enforce them. They will then speak for themselves, and the




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Padilla v. LaFrance, 907 S.W.2d 454 (1995)
38 Tex. Sup. Ct. J. 663

             court can judge of their import, and proceed to act upon them with safety. The rule is a salutary one, and
             ought to be adhered to whenever counsel disagree as to what has transpired between them.

Birdwell v. Cox, 18 Tex. 535, 537 (1857). A settlement agreement must comply with Rule 11 to be enforceable. Kennedy, 682
S.W.2d at 528. 8

The LaFrances argue that 1) the writings in this case do not evidence a binding agreement, 2) even if there was an agreement,
it did not comply with Rule 11 because the LaFrances withdrew their consent before the writings were filed with the court, and
3) any agreement was further unenforceable because the LaFrances withdrew their consent before judgment was rendered on
the agreement. We consider each of these arguments in turn.



                                                                   A

 [2] [3] Rule 11 requires settlement agreements to “be in writing.” Although we have never articulated what is necessary
to satisfy this “in writing” requirement, we may analogize to the statute of frauds, which requires certain contracts to be in
writing. See Tex.Bus. & Com.Code § 26.01. To satisfy the statute of frauds, “there must be a written memorandum which is
complete within itself in every material detail, and which contains all of the essential elements of the agreement, so that the
contract can be ascertained from the writings without resorting to oral testimony.” Cohen v. McCutchin, 565 S.W.2d 230, 232
(Tex.1978). The written memorandum, however, need not be contained in one document. See Adams v. Abbott, 151 Tex. 601,
254 S.W.2d 78, 80 (1952).

 [4] [5] [6] These principles apply equally to Rule 11 agreements. Applying them here, we hold that the series of letters
between Steidley, Bradshaw and Chandler are sufficient to constitute an agreement in writing satisfying Rule 11. Steidley's
initial letter to Chandler offered to settle the case for the $40,000 policy limits, making clear that the offer could only be accepted
by payment of the money by a specific deadline. It is undisputed that Padilla did not tender the $40,000 within that deadline.
Where an offer prescribes the time and manner of acceptance, those terms must ordinarily be complied with to create a contract.
See Town of Lindsay v. Cooke County Elec. Cooperative Ass'n, 502 S.W.2d 117, 118 (Tex.1973), cert. denied, 416 U.S. 970,
94 S.Ct. 1993, 40 L.Ed.2d 559 (1974). However, a different method of acceptance may be effectual where the “original offeror
thereafter manifests his assent to the other party.” Id. That was the case here. The later writings reflect that Steidley agreed to
a modification of the terms of acceptance set out in the original letter.

Bradshaw's letter—faxed to Steidley on the afternoon of April 23—agreed to pay the $40,000 policy limits, specifically
confirming a “settlement agreement” between the parties. That letter, however, noted uncertainty as to one detail, payment
of the hospital lien, and requested guidance from Steidley. Steidley responded that same day with a letter indicating that
plaintiffs would pay the hospital lien out of the settlement funds, specifically stating that “[t]his letter will confirm that the above
referenced matter has been settled for all applicable policy limits....” (emphasis added). Steidley used this language, indicating
a consummated settlement, notwithstanding that no checks had not yet been forwarded by Padilla. Steidley, therefore, assented
to Padilla's alteration of the mode of acceptance set out in Steidley's original offer. Rather than requiring actual payment by a
particular deadline, Steidley accepted Padilla's agreement to pay the policy limits as acceptance of his earlier offer. Moreover,
 *461 the letters reflect all material terms of the agreement; i.e., Padilla agreed to pay $40,000 in settlement of all claims,
and the LaFrances agreed to be pay the hospital lien out of those proceeds. We accordingly hold that the parties entered into a
binding settlement agreement, evidenced by a writing sufficient to satisfy Rule 11. 9



                                                                   B

 [7] Rule 11 requires settlement agreements to be filed “with the papers as part of the record.” Padilla did not file any of
the settlement letters until after the LaFrances had refused to accept the settlement checks tendered by Padilla. The court of


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38 Tex. Sup. Ct. J. 663

appeals accordingly held that the agreement did not comply with Rule 11 because it was not filed until after the LaFrances
had revoked their consent.

Although Rule 11 requires the writing to be filed in the court record, it does not say when it must be filed. The purpose of
the rule—to avoid disputes over the terms of oral settlement agreements—is not furthered by requiring the writing to be filed
before consent is withdrawn. As noted by the dissent below, “[t]o require the parties to immediately rush to the courthouse with
a signed document in order to quickly comply with the requirements of Rule 11 before the other party reneges on his agreement
goes against the grain of the policy in Texas jurisprudence which favors the settlement of lawsuits.” 875 S.W.2d at 735. The
purpose of the filing requirement, in the language of Birdwell v. Cox, is to put the agreement before the court so that “the court
can judge of [its] import, and proceed to act upon [it] with safety.” 18 Tex. at 537. This purpose is satisfied so long as the
agreement is filed before it is sought to be enforced. Padilla met that requirement here by filing each of the settlement letters
with his motion for summary judgment on the counterclaim.



                                                                 C

Finally, the LaFrances argue that the settlement is unenforceable because they withdrew consent before judgment was rendered
on the agreement. The LaFrances rely on Kennedy v. Hyde, where we held that “notwithstanding a valid Rule 11 agreement,
consent must exist at the time an agreed judgment is rendered.” 682 S.W.2d at 528. See also Burnaman v. Heaton, 150 Tex.
333, 240 S.W.2d 288, 291 (1951).

 [8] The LaFrances, however, confuse the requirements for an agreed judgment with those for an enforceable settlement
agreement. Although a court cannot render a valid agreed judgment absent consent at the time it is rendered, this does not
preclude the court, after proper notice and hearing, from enforcing a settlement agreement complying with Rule 11 even though
one side no longer consents to the settlement. The judgment in the latter case is not an agreed judgment, but rather is a judgment
enforcing a binding contract.

In Burnaman, for example, the plaintiff wanted to repudiate a settlement that her attorney had agreed to on the record in open
court, claiming that she had not authorized such settlement. Although aware of the plaintiff's objection, the court subsequently
rendered a consent judgment incorporating the terms of the settlement. We held that the consent judgment was improper since
contemporaneous consent was lacking. “It is not sufficient to support the judgment that a party's consent thereto may at one
time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the
court.” *462 240 S.W.2d at 291. In reversing the agreed judgment, however, we noted as follows:

            Since the judgment of the trial court is reversed, we cannot pass on the effect of the agreement made by
            the attorneys or the notation of that agreement on the docket. We can only say that the announcement
            of the agreement in open court and its notation on the docket cannot give it the force of a judgment. It
            follows that the reversal of the judgment should be without prejudice to the right of defendants to plead
            the agreement in bar of plaintiff's suit and without prejudice also to plaintiff's right to avoid the agreement
            by pleading that her attorney was without authority to make it. These are issues to be settled by the jury
            or the court in a trial of the case.

240 S.W.2d at 292. Similarly in Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442 (Tex.1983), we held that the trial court
erred by rendering an agreed judgment of dismissal based on a release signed by plaintiff because plaintiff did not consent to the
judgment at the time it was rendered. We noted, however, that “our reversal of the judgment of dismissal is without prejudice
to the rights of the Jim Walter Homes in its attempt to plead and prove an enforceable settlement agreement under the release.”
654 S.W.2d at 444. See also S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 n. 1. (Tex.1995); Cothron Aviation, Inc. v.
Avco Corp., 843 S.W.2d 260, 263 (Tex.App.—Fort Worth 1992, writ denied); Ortega–Carter v. American Int'l Adjustment Co.,
834 S.W.2d 439, 442 (Tex.App.—Dallas 1992, writ denied); Browning v. Holloway, 620 S.W.2d 611, 614–15 (Tex.Civ.App.
—Dallas 1981, writ ref'd n.r.e.); Stewart v. Mathes, 528 S.W.2d 116, 118 (Tex.Civ.App.—Beaumont 1975, no writ).


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 [9] An action to enforce a settlement agreement, where consent is withdrawn, must be based on proper pleading and proof.
See Quintero, 654 S.W.2d at 444; Browning, 620 S.W.2d at 615. In this case, for example, Padilla filed a counterclaim seeking
enforcement of the parties' agreement, and both sides moved for summary judgment on that claim. As previously discussed,
the summary judgment evidence established an enforceable settlement agreement as a matter of law. The trial court therefore
should have granted Padilla's motion for summary judgment and enforced the agreement.

For the foregoing reasons, we reverse the judgment of the court of appeals and remand this cause to the trial court for further
proceedings consistent with this opinion.


ENOCH, Justice, joined by GAMMAGE, Justice, dissenting.
Today the Court holds that a settlement agreement is an enforceable Rule 11 agreement despite the fact that it never complied
with all requirements of the rule before the existence and terms of the agreement became disputed. But for this Court's prior
opinion in Kennedy v. Hyde, 682 S.W.2d 525 (Tex.1984), I would agree that the settlement agreement in this case is enforceable
as a binding contract between the parties regardless of whether it is ever filed as a Rule 11 agreement. Kennedy, however,
engrafted the Rule 11 requirements on the substantive principles of contract law. In my view, Kennedy, unless overruled,
compels us to conclude that the settlement agreement in this case is unenforceable because, although the agreement is otherwise
enforceable as a binding contract, it did not comport with the requirements of Rule 11 at the time Padilla sought to enforce
the agreement. I respectfully dissent.

In Kennedy, the parties reached an oral settlement agreement. The agreement was reduced to writing and signed by all but
one defendant, Kennedy. The plaintiffs amended their pleadings to enforce the oral settlement agreement against Kennedy.
Kennedy, 682 S.W.2d at 526. This Court reversed the judgment of the courts below enforcing the oral settlement agreement,
holding that the oral settlement agreement was unenforceable under Rule 11 because the agreement was not in writing and
signed by Kennedy. Id. at 530.

I begin by noting that Kennedy represents a significant departure from our Rule 11 jurisprudence and substantive contract law.
Prior to Kennedy, this Court never held that to be enforceable as a contract, a settlement agreement must comply with Rule 11.
In *463 Williams v. Hollingsworth, 568 S.W.2d 130, 131 (Tex.1978) and Vickrey v. American Youth Camps, Inc., 532 S.W.2d
292 (Tex.1976) (per curiam), this Court purportedly “strongly implied” that settlement agreements were subject to Rule 11.
Kennedy, 682 S.W.2d at 528. The implication, if any, is neither strong nor persuasive. In Williams, the Court only held that
a valid consent judgment cannot be rendered by a court when consent of one of the parties is lacking. Williams, 568 S.W.2d
at 131. Because one party was not present or represented by counsel at the time an agreed judgment was rendered, that party
had not consented to the agreed judgment. Id. at 132.

The reliance on Vickrey is even more dubious. In that case, the Court in a per curiam opinion simply recited in its statement
of the facts that a settlement was dictated in open court pursuant to Rule 11. Vickrey, 532 S.W.2d at 292. One party appealed
the judgment that had been rendered based on the dictated settlement on the grounds that it did not conform to the settlement
that had been reached between the parties. Id. at 292. The Court reversed the judgment holding that a final judgment based on
a settlement agreement must be in “strict or literal compliance” with that agreement. Id. Like the issue in Williams, the issue in
Vickrey was whether the trial court had the power to render the judgment it did based on the settlement, not whether a settlement
agreement is an otherwise enforceable settlement agreement absent compliance with Rule 11.

By reaching out to render settlement agreements subject to Rule 11, the Court engrafted new requirements onto the substantive
law of contracts, thus exceeding the Court's rule-making authority. TEX.GOV'T CODE § 22.004. Section 22.004(a) grants this
Court the full authority to make rules for practice and procedure in civil actions, “except that its rules may not abridge, enlarge,
or modify the substantive rights of a litigant.” Id. § 22.004(a). Under Kennedy, an oral settlement agreement, although otherwise
enforceable at common law, becomes unenforceable unless made in open court, and thus made part of the court record. It is



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38 Tex. Sup. Ct. J. 663

difficult to conceive of a clearer abridgment of the substantive rights of a litigant than to refuse to enforce a valid contract
because the parties did not comply with a rule of procedure.

The Court recognized that its holding in Kennedy might abridge the substantive law of contracts, but dismissed this concern
by concluding that the Legislature had sanctioned its interpretation of Rule 11 by failing to disapprove of the rule. Kennedy,
682 S.W.2d at 529. The Legislature's failure to disapprove of Rule 11, according to the Court, may be viewed as signifying
its acquiescence in the Court's interpretations of Rule 11's predecessors. While this may be true, it is only true if the Court's
interpretations of Rule 11's predecessors have subjected otherwise enforceable settlement agreements to Rule 11 and rendered
such contracts unenforceable for failure to comply with the rule. None of the Court's prior interpretations have so held.

Nor is such an interpretation “presaged” by the Court's earlier interpretations in Birdwell v. Cox, 18 Tex. 535 (1857) or Matthews
v. Looney, 132 Tex. 313, 123 S.W.2d 871 (1939). See Kennedy, 682 S.W.2d at 529. Birdwell simply involved an agreement
to postpone trial until some depositions could be taken. Birdwell, 18 Tex. at 535–36. In Matthews, the parties in a will contest
reached a settlement but before judgment, disputes arose concerning the terms of the settlement between the parties. Matthews,
123 S.W.2d at 871–72. Although the Court noted that the agreement had not been reduced to writing or rendered of record with
the trial court, the Court held that the trial court lacked authority to enter a judgment because the terms were in dispute. Id. at
873. In other words, the parties had not consented to the terms of the settlement at the time they sought a judgment. Matthews
simply stands for the correct proposition that a judgment may not be rendered based on a settlement if a party withdraws its
consent prior to the judgment. Neither Birdwell nor Matthews justify the Court's action in Kennedy.

While I believe Kennedy is wrongly decided, it is the law and should either be followed or overruled in this case. My criticism
of the Court is that it does neither. Assuming the *464 Court continues to adhere to the holding in Kennedy, Rule 11 requires
that three conditions be met before an agreement will be enforceable: (1) a writing, (2) that is signed, (3) and that has been
filed with the court. London Market Cos. v. Schattman, 811 S.W.2d 550, 552 (Tex.1991) (per curiam). Once the existence or
terms of such an agreement becomes disputed, it is unenforceable unless it comports with all three of these requirements. Id.;
Kennedy, 682 S.W.2d at 530. Accordingly, if a purported agreement is in writing and has been signed, but becomes disputed
before it has been filed with the court, the agreement is unenforceable under Rule 11. See Kennedy, 682 S.W.2d at 530 (oral
agreement was unenforceable at the moment its existence was disputed in pleadings).

Recognizing that Kennedy hangs like an albatross around its neck, the Court deals with the filing requirement of Rule 11 in
such a way as to, in effect, hold that an agreement need only be in writing and signed to be enforceable. According to the Court,
the parties need not file an agreement with the court except and until one party disputes the existence or terms of the agreement
—filing of the document is a mere technicality. Yet the predecessor to Rule 11, Rule 47, was amended in 1877 to specifically
require that agreements be filed with the court to be enforceable. 47 Tex. 597, 625 (1877). In light of this fact, there can be
little justification for today's judicial revision. An amendment to a rule must be presumed to have made some change in existing
law and the Court must endeavor to give some effect to the amendment. American Surety Co. v. Axtell Co., 120 Tex. 166, 36
S.W.2d 715, 719–20 (1931). To the contrary, the Court effectively eliminates the filing requirement from Rule 11.

Moreover, the Court's construction trivializing the filing requirement arguably defeats the purposes of Rule 11. Rule 11 ensures
(1) that agreements of counsel which affect the interest of their clients not be left to the fallibility of human recollection,
Wyss v. Bookman, 235 S.W. 567, 569 (Tex.Comm'n App.1921, holding approved); and (2) that agreements themselves not
become sources of controversy impeding resolution of suits. Kennedy, 682 S.W.2d at 530. In addition, Rule 11 also operates
to prevent the trial judge from having to place the parties' attorneys on the stand and determine which one is telling the truth.
See Fidelity & Casualty Co. v. McCollum, 656 S.W.2d 527, 529 (Tex.App.—Dallas 1983, writ ref'd n.r.e.). Stated another way,
the significance of Rule 11 is to formalize the procedures for entering into agreements concerning a pending lawsuit so that the
court can extricate itself from controversies ancillary to the underlying litigation. The filing element, if it has any purpose at
all, surely is designed to make the parties focus on an agreement and recognize that not only have the terms of the agreement
been memorialized in writing but also that they have the imprimatur of a court record. The filing requirement thus adds to the




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38 Tex. Sup. Ct. J. 663

formality of the process and reduces uncertainty and the likelihood that the agreements will become a source of controversy
distracting the court and the parties from the case at hand.

I suspect that the Court reduces the filing requirement to a matter of little consequence because it is absurd to hold that a contract
would not be enforceable simply because it has not been filed with the court. Yet if we are going to continue to insist that our
substantive contract law be modified by Rule 11, we should at least be consistent in our readings. To be enforced, a settlement
agreement must be in writing, signed, and filed at the time either its existence or the terms of the agreement become disputed.
Kennedy, if correct, compels us to conclude that the agreement in this case is unenforceable because it became disputed before
it complied with the Rule 11 filing requirement. Because the Court chooses not to address Kennedy, it takes the questionable
route of trivializing the filing requirement of Rule 11 to the point of nonexistence. If there is value to Rule 11's requirement
that an agreement be on file with the Court, then that value should not be destroyed. If there is no value to the mere filing of an
agreement, then the Court should amend Rule 11 to delete the requirement. I dissent.


Parallel Citations

38 Tex. Sup. Ct. J. 663


Footnotes
1      The record does not disclose whether Carry was an attorney, legal assistant, or secretary.
2      Shortly after refusing the settlement funds, Steidley sent another letter to Chandler contending that State Farm had acted in bad faith
        by not settling the case for the policy limits, demanding $2.75 million from Padilla and State Farm in extra-contractual damages.
3       The new argument was based on section 154.071(a) of the Texas Civil Practice and Remedies Code, which provides:
              If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the
              same manner as any other written contract.
           This section is contained in Title 7 of the Civil Practice and Remedies Code, regarding referral of cases to alternative dispute
           resolution.
4       The transcript contains a “Notice of Oral Hearing,” filed by Padilla on June 12, indicating that the motion for reconsideration would
        be “presented to the court for ruling with an oral hearing” on June 22, 1992.
5       The court's order did, however, address section 154.071(a) of the Texas Civil Practice and Remedies Code, which was raised only
        in the two later motions.
6       Padilla argues that the LaFrances have waived this argument because they did not raise it in this Court by separate application for
        writ of error. Padilla relies on the requirement that a party who seeks a different and more favorable judgment in this Court than
        that rendered by the court of appeals must file his or her own application for writ of error, rather than merely raising the argument
        by a responsive cross-point. See Donwerth v. Preston II Chrysler–Dodge, Inc., 775 S.W.2d 634, 639 n. 5 (Tex.1989); Archuleta v.
        International Ins. Co., 667 S.W.2d 120, 123 (Tex.1984). The LaFrances' cross-point, however, does not seek a different and more
        favorable judgment. Although a judgment of dismissal would be different from the actual judgment of the court of appeals affirming
        the judgment of the trial court, the end results would be equally favorable. In either case, the trial court's summary judgment in favor
        of the LaFrances remains undisturbed. The LaFrances were thus entitled to raise the dismissal argument by cross-point.
7       Although the trial court signed the order granting summary judgment for the LaFrances on the settlement issue on October 19, 1992,
        it did not sever this issue until November 20, 1992. The latter date controls the appellate timetable.
8       Because the primary purpose of Rule 11 is to require the parties to reduce their agreements to writing, the Court in Kennedy refused
        to enforce an oral settlement agreement.
9       The LaFrances argue that there is no summary judgment evidence that Bradshaw, who was not an attorney, was authorized to negotiate
        a settlement or enter a binding Rule 11 agreement on Padilla's behalf. We disagree. The record reflects that Chandler, who was
        Padilla's attorney, was the one who forwarded the LaFrances settlement offer to Bradshaw, and it was Chandler who procured the
        settlement checks from Bradshaw and tendered them to Steidley. Moreover, Steidley knew that Bradshaw was negotiating on behalf
        of Padilla and that he was at least purporting to act as Padilla's agent. Under these circumstances, even if Bradshaw did not have actual
        authority to settle the lawsuit, Padilla was entitled to ratify Bradshaw's actions, thereby creating a binding agreement. See Restatement
        (Second) of Agency, § 87. Padilla clearly ratified the agreement by tendering the settlement funds and seeking enforcement.


 End of Document                                                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.



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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)




                                                      434 S.W.3d 774
                                                  Court of Appeals of Texas,
                                                    Houston (14th Dist.).

                  PARHAM FAMILY LIMITED PARTNERSHIP and Van E. Parham, Jr., Appellants
                                                     v.
                              Diane MORGAN f/k/a Diane Parham, Appellee.
                          Parham Enterprises, Inc. and Rhetta Parham, Appellants
                                                     v.
                               Diane Morgan f/k/a Diane Parham, Appellee.

                              Nos. 14–12–00753–CV, 14–12–00795–CV.               |     June 3, 2014.

Synopsis
Background: Judgment creditor filed petition to set aside warranty deed that allegedly fraudulently transferred property from
judgment debtor in order to defeat creditor's monetary claim, and for a temporary injunction against further conveyances of the
property. Grantee petitioned to intervene. The Civil Court at Law No. 3, Harris County, Linda Storey, J., struck intervention,
granted partial summary judgment for creditor on attempted transfer, declared deed void, and, signed final judgment awarding
creditor attorney fees, on jury verdict, and enjoining grantee from pursuing its collateral suit regarding the property. Debtor
and grantee appealed.



Holdings: The Court of Appeals, McCally, J., held that:

[1] court had subject matter jurisdiction;

[2] creditor had standing to seek anti-suit injunction;

[3] court granted summary judgment on all bases;

[4] deed was void;

[5] debtor exhibited intent to defraud;

[6] court should not have continued the temporary injunction in its final judgment;

[7] court had authority to enter anti-suit injunction; and

[8] award of attorney fees was properly conditioned on creditor's appellate success.


Affirmed as modified.



 West Headnotes (20)


 [1]     Courts       Amount claimed or value of property


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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)


       Courts       Jurisdiction
       Although value of property alleged to have been fraudulently transferred exceeded county court at law's jurisdictional
       maximum amount in controversy, court had subject matter jurisdiction, based on subject matter of claim, rather than
       amount in controversy; court had jurisdiction to “decide the issue of title to real or personal property” and to “hear a
       suit for the enforcement of a lien on real property.” V.T.C.A., Government Code §§ 25.0003, 25.1032.

       Cases that cite this headnote


 [2]   Courts       Allegations and prayers in pleadings
       The plaintiff's allegations in the petition regarding the amount in controversy control for jurisdictional purposes unless
       the party challenging jurisdiction pleads and proves that the allegations were made fraudulently to obtain jurisdiction.

       Cases that cite this headnote


 [3]   Courts       Allegations and prayers in pleadings
       Judgment creditor's petition, alleging damages exceeding $84,000 but “within the jurisdictional limits of this court,”
       controlled for jurisdictional purposes, notwithstanding that value of property interest at issue in court's judgment was
       $340,000, which exceeded county court at law's $100,000 jurisdictional maximum amount in controversy. V.T.C.A.,
       Government Code § 25.0003(c)(1).

       Cases that cite this headnote


 [4]   Courts       Loss or divestiture of jurisdiction
       When jurisdiction is lawfully and properly acquired, no later fact or event deprives the court of jurisdiction.

       Cases that cite this headnote


 [5]   Injunction       Persons entitled to apply; standing
       Judgment creditor had standing to seek an injunction against further conveyance of real property allegedly fraudulently
       transferred from judgment debtor, even though the transfer took place nine months prior to creditor's claim against
       debtor resulting in judgment; creditor had a clear justiciable interest in whether her judgment lien attached to a property
       she alleged was fraudulently transferred to defeat her monetary claim against debtor. V.T.C.A., Bus. & C. § 24.005(a).

       Cases that cite this headnote


 [6]   Judgment        Construction and operation
       Grant of motion for partial summary judgment was on both claims asserted in motion, and was not grant of motion
       in part, on one claim. V.T.C.A., Bus. & C. § 24.005.

       Cases that cite this headnote


 [7]   Appeal and Error            Reasons for Decision
       Where an appellant fails to challenge even one of the grounds for grant of summary judgment, the Court of Appeals
       may affirm the summary judgment on that ground alone.

       Cases that cite this headnote




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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)




 [8]    Appeal and Error          In general; asserting new defense or grounds of opposition
        On appeal of fraudulent transfer action, Court of Appeals would not consider judgment debtor's argument, raised for
        first time on appeal, that deed was valid because a grantee existed, but received the deed in assumed name. Vernon's
        Ann.Texas Rules Civ.Proc., Rule 166a(c).

        Cases that cite this headnote


 [9]    Deeds        Capacity to take
        Warranty deed that attempted to convey property to a non-existent entity was void.

        Cases that cite this headnote


 [10]   Appeal and Error          Extent of Review Dependent on Nature of Decision Appealed from
        In considering grounds for reversal of summary judgment, Court of Appeals is limited to those grounds expressly
        set forth in the summary-judgment motions, answers, or other responses, and may not rely on the appellate briefs or
        summary-judgment evidence. Vernon's Ann.Texas Rules Civ.Proc., Rule 166a(c).

        Cases that cite this headnote


 [11]   Judgment         Evidence and Affidavits in Particular Cases
        Statement of judgment debtor's president in summary judgment affidavit, that “the sale of the property was done to
        either hinder, delay or defraud” judgment creditor, supplied conclusive evidence that she, on behalf of her company,
        transferred the real property with actual intent to hinder, delay, or default creditor as required to constitute a fraudulent
        transfer. V.T.C.A., Bus. & C. § 24.005(a)(1, 2).

        Cases that cite this headnote


 [12]   Injunction       Findings and conclusions
        Rule requiring that a temporary injunction order describe in reasonable detail, without reference to complaint or other
        document, the act or acts to be restrained, is not violated when documents are attached to the injunction and referred
        to it as part of the injunction because the attachments become part of the injunction itself. Vernon's Ann.Texas Rules
        Civ.Proc., Rule 683.

        Cases that cite this headnote


 [13]   Injunction       Review
        Even if temporary injunction order was void, contempt order based upon it was not reviewable by direct appeal.

        Cases that cite this headnote


 [14]   Injunction       Operation and effect
        Temporary injunction, which was effective “until further order of this court,” was still in effect until trial court entered
        judgment on merits. Vernon's Ann.Texas Rules Civ.Proc., Rule 683.

        Cases that cite this headnote




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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)




 [15]   Injunction       Particular cases
        Continuing temporary injunction in final judgment improperly transformed temporary injunction into permanent
        injunction without trial.

        Cases that cite this headnote


 [16]   Injunction       Grounds in general
        An anti-suit injunction is appropriate in four instances: (1) to address a threat to the court's jurisdiction; (2) to prevent
        the evasion of important public policy; (3) to prevent a multiplicity of suits; or (4) to protect a party from vexatious
        or harassing litigation.

        Cases that cite this headnote


 [17]   Appeal and Error          Extent of Review Dependent on Nature of Decision Appealed from
        Court of Appeals will uphold an anti-suit injunction issued to protect a court's dominant jurisdiction where, if the
        enjoined party were allowed to proceed, the dominant court would lose its ability to proceed with the case.

        Cases that cite this headnote


 [18]   Injunction       Proceedings for recovery of real property
        In judgment creditor's action alleging judgment debtor fraudulently transferred real property in an effort to defeat her
        monetary claim, trial court had authority to permanently enjoin grantee from filing action to quiet title to property
        in probate court; at time of creditor's request for an anti-suit injunction, trial court had already granted summary
        judgment for creditor, declaring debtor's deed void, and had determined that grantee's quiet title lawsuit regarding the
        property was a “mirror lawsuit.” V.T.C.A., Bus. & C. §§ 24.005(a)(1), 24.009(a).

        Cases that cite this headnote


 [19]   Costs      Taxation of costs on appeal or error
        Trial court's judgment properly conditioned award of appellate attorney fees on defendant's failure on appeal, which
        was tantamount to conditioning it on plaintiff's appellate success.

        Cases that cite this headnote


 [20]   Costs      Form and requisites of application in general
        Costs      Objections to taxation or to items
        A failure to segregate attorney's fees can result in the recovery of no such fees; but if no one objects to a jury charge
        in which the jury is not asked to segregate fees, then the objection is waived. Rules App.Proc., Rule 33.1(a).

        Cases that cite this headnote




Attorneys and Law Firms

*776 James Nathan Overstreet, Houston, David Richard Toups, Dallas, for Appellants.



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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)




Robert J. Thomas, Houston, Clinard J. Hanby, The Woodlands, for Appellee.

Panel consists of Justices McCALLY, BUSBY, and WISE.



                                                            OPINION

SHARON McCALLY, Justice.

This consolidated appeal arises from a dispute over Lot 9, Block 1 of Farmette *777 Meadows Section One, Harris County,
Texas (the “subject property”). By the underlying suit, Diane Morgan f/k/a Diane Parham (Diane) sought to avoid a transfer of
the subject property as a fraudulent transfer as well as a declaration that the September 22, 2007 deed purporting to accomplish
the transfer is void. The trial court granted partial summary judgment on the attempted transfer, declared the deed void, signed
a final judgment awarding Diane attorney's fees, and enjoined appellants Parham Family Limited Partnership (Partnership) and
Van E. Parham, Jr. (Van Jr.) from pursuing their collateral suit regarding the subject property.

On appeal, Parham Enterprises, Inc. (PEI) and Rhetta Parham (Rhetta), the president of PEI, urge the trial court erred by (a)
granting the motion for partial summary judgment, (b) enforcing an “expired” temporary injunction, and (c) awarding Diane
attorney's fees despite a failure to segregate. Partnership and Van Jr. challenge the trial court's subject matter jurisdiction over
Diane's suit and Diane's standing to seek injunctive relief against them. Partnership and Van Jr. also assert the trial court erred
in entering the injunction against them. As explained below, we affirm the trial court's judgment as modified.



                                                       I. BACKGROUND

Diane was married to Shawn Parham in June 2004. On June 22, 2004, Shawn conveyed the subject property to PEI. PEI is a
corporation that was owned and controlled by Van Parham, Sr. and Rhetta. Diane worked for PEI until she and Shawn were
separated in August 2005; they were divorced in May 2006.

On September 22, 2007, Rhetta, as president of PEI, signed a deed attempting to convey the subject property to Partnership.
However, it is undisputed that the warranty deed identified the wrong lot within the Farmette Meadows Section and named
a non-existent entity, Parham Family Limited Partnership No. 2, as grantee. The warranty deed, including these errors, was
recorded in the real property records of Harris County. In July 2008, Diane obtained a judgment against PEI for around $82,500
in County Court at Law No. 3 related to PEI's unauthorized use of her personal credit cards. The transfer of the subject property
occurred during the pendency of the credit card dispute. Diane attempted to execute her judgment against PEI once it became
final, but was unsuccessful. She abstracted this judgment in the Harris County deed records on September 22, 2008.

On January 28, 2009, Diane, as a judgment creditor, filed a petition to set aside deed, for declaratory judgment, for fraudulent
transfer and for a temporary restraining order (TRO) and temporary injunction. She named PEI and Rhetta as defendants. Diane
asserted that the September 22, 2007 deed conveying Lot 1 was a fraudulent conveyance of the subject property to a non-
existent entity made to “delay, hinder, or defraud” Diane in her efforts to collect that judgment. Diane sought to set aside “the
purported transfer and an order of sale ... for disposition and satisfaction of [her] judgment,” a declaratory judgment, a TRO and
temporary injunction against further conveyances of the subject property, actual damages that “exceed $84,000 but are within
the jurisdictional limits of this court,” and attorney's fees. The trial court issued a TRO on February 2 and set the hearing on
the temporary injunction for February 13.

On February 13, Diane obtained a temporary injunction against PEI and Rhetta, prohibiting them from “deeding, transferring
or conveying” Lot 1. The trial court set the matter for trial on July 15.




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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)


 *778 On February 27, Van Jr. and Partnership filed a petition in intervention (mistakenly styled an “interpleader”), asserting
an interest in the subject property. Diane filed an amended petition naming Van Parham Sr., Van Jr., Partnership, and V.E.
Parham Jr. Management Corp. as additional defendants. She also added claims for conspiracy and exemplary damages against
all the defendants.

During the remainder of 2009, the defendants filed and continued various dispositive motions. The parties agreed to continue
numerous trial settings and the parties unsuccessfully mediated. In 2010, the trial court denied all of the defendants' dispositive
motions, Van Sr. passed away, and Diane amended her petition to remove Van Sr. and V.E. Parham Jr. Management Corp.
as parties and delete her claim for exemplary damages. And, the parties agreed to more continuances, moving the trial into
2011. On September 19, 2011, Diane filed a motion for partial summary judgment against PEI only. In this motion, she sought
judgment on her claims for declaratory judgment and for fraudulent transfer. This motion was set for submission on October 7.
Diane attached to her motion (1) a copy of the recorded deed on the subject property, bearing the two errors in lot and grantee,
(2) a certificate from the Texas Secretary of State certifying that there is no record of any business entity, foreign or domestic, by
the name of Parham Family Limited Partnership No. 2, 1 and (3) evidence in support of her fraudulent transfer claim, including
an appraisal of the subject property at the time of the purported transfer. Rhetta and PEI responded to Diane's motion for partial
summary judgment. Intervenors 2 Partnership and Van Jr. also filed a response to Diane's motion.

Later in September, Diane filed a third amended petition restating her previous claims; and adding a claim for piercing the
corporate veil against Rhetta, seeking to hold her individually liable for disregarding the corporate form of PEI. A week later,
Diane filed a “notice of disobedience of the temporary injunction,” asking the court to hold PEI and Rhetta, individually and
as president of PEI, in contempt. In this notice, she asserted:

             The Defendants [PEI] and [Rhetta] were served with the Plaintiff's Motion for Partial Summary Judgment
             on Thursday, September 15, 2011. In a calculated bad faith attempt to defeat the partial summary
             judgment motion, the Defendants [PEI] and [Rhetta] violated the Court's Temporary Injunction Order
             on Friday, September 23, 2011 by filing an amended and alleged corrected Warranty Deed to the subject
             property Lot 9 with the county clerk.


The trial court heard this motion on October 12. After the hearing, the trial court signed an order holding PEI and Rhetta in
contempt. In this order, the trial court declared the deed executed by PEI and Rhetta on September 22, 2011 (filed on September
23) void and fined Rhetta “$500.00 as punishment for contempt” of the temporary injunction. The trial court further ordered
PEI and Rhetta to obey the contempt order and the February 13, 2009 temporary injunction. In the order, the trial court stated
the temporary injunction “remains in effect for any and all purposes.” The trial court also signed *779 a trial setting that day,
setting the case for trial on January 23, 2012.

Two days before the hearing on Diane's motion for contempt, Diane filed a motion to strike the intervention of Partnership and
Van Jr. At a hearing on October 19, 2011, Diane orally dropped her conspiracy claims against all the parties. The trial court
signed a partial non-suit with prejudice of these claims that same date. The trial court also signed an order granting Diane's
motion to strike the intervention of Partnership and Van Jr. According to the trial court's findings, Partnership and Van Jr. filed
a motion for new trial/motion for reconsideration in response to the trial court's order striking their intervention. 3

Diane filed an amended petition on November 7 naming only PEI and Rhetta as defendants. In this petition, Diane sought to set
aside the September 22, 2007 deed, a declaratory judgment that this deed was void, and alternative relief for fraudulent transfer,
piercing the corporate veil, and fraud. She further alleged that the February 13, 2009 temporary injunction remained in effect.

On January 17, 2012, Partnership and Van Jr. filed an action to quiet title to the subject property in Harris County Probate
Court No. 1, which was overseeing the probate of the estate of Van Sr. This quiet-title action was based on the September 22,
2007 deed. On January 19, PEI and Rhetta filed a motion in the underlying cause here to transfer venue to the probate court.
The motion also complained that, due to the amount in controversy, the court did not have jurisdiction, and that the court had


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improperly excluded necessary parties by striking Partnership/Van Jr.'s petition in intervention. Although Diane responded to
the motion, it appears that the motion was neither set for hearing nor ruled upon.

On January 23, 2012, the trial court signed an order granting Diane's September 19 motion for partial summary judgment against
PEI. Specifically, the trial court's order: “GRANTS Plaintiff's motion for partial summary judgment against the Defendant
Parham Enterprises, Inc. regarding the issue that the warranty deed executed on September 22, 2007 is void.”

The next day, the trial court signed an order denying Partnership and Van Jr.'s motion for new trial/motion for reconsideration.
Also on January 24, Diane and PEI proceeded to a jury trial on the issue of attorney's fees only. 4 After a brief jury trial, the
jury returned a verdict finding Diane's reasonable and necessary attorney's fees for preparation and trial to be $75,000, for an
appeal to the court of appeals to be $25,000, and for an appeal to the Supreme Court of Texas to be $15,000.

Following the trial, Diane filed an amended petition on February 6, 2012, listing Partnership and Van Jr. as “intervenors.” In
addition to the claims listed above that Diane had raised in her previous pleadings, she sought an anti-suit TRO and temporary
injunction against Partnership and Van Jr., enjoining them from pursuing their “mirror lawsuit” to quiet title. The trial court
granted the TRO on February 8 and set the temporary injunction for a hearing on February 20. Counsel for Partnership and Van
Jr. appeared *780 at the February 8 hearing on the TRO as “amici curiae.”

Diane's February 15 motion for temporary injunction against Partnership and Van Jr. cited Texas Civil Practice & Remedies
Code section 65.011, which provides, “A writ of injunction may be granted if a party performs or is about to perform ... an
act relating to the subject of pending litigation, in violation of the rights of the applicant, and the act would tend to render the
judgment in that litigation ineffectual; the applicant is entitled to a writ of injunction under the principles of equity and the
statutes of this state relating to injunction.” 5 She noted in this motion that “on the eve of trial,” she was served with citation
and a copy of the intervenors' original petition for declaratory judgment in the probate court regarding the deed/title to the
subject property. She alleged that in this “mirror lawsuit,” Partnership and Van Jr. were attempting to re-litigate the identical
issues regarding the deed/title to the subject property, which was the subject of “this pending litigation.” She stated that on
January 23, the trial court had signed a partial summary judgment in her favor, in which the court had issued an order that the
September 22, 2007 deed issued by PEI was void. She further noted that on January 24, 2012, the trial court signed an order
denying Partnership's motion for new trial or motion for reconsideration. She asserted that the trial court had jurisdiction over
Partnership and Van Jr. because they consented to the court's jurisdiction regarding their motion for new trial, which was not
denied until January 24, 2012. Diane also alleged she was entitled to an anti-suit temporary injunction to address a threat to
the court's jurisdiction, to prevent the evasion of important public policy, to prevent a multiplicity of suits, or to protect a party
from vexatious or harassing litigation, citing Bridas Corp. v. Unocal Corp. and Golden Rule Insurance v. Harper. 6

Partnership and Van Jr. responded to this motion, “without waiving citation, service of process, or making a general appearance.”
They asserted that the trial court lacked subject matter jurisdiction to hear this case because the property in question was valued
at over $300,000, which exceeded the jurisdictional limits of the maximum amount in controversy for statutory county courts
in Harris County. They further claimed that, rather than maintaining the status quo, as a temporary injunction was intended
to do, granting a temporary injunction in this case would destroy the status quo. They asserted that the probate court had now
obtained dominant jurisdiction over their claims, which was evidenced by the need for Diane to seek leave of court to amend her
pleadings, post-jury trial and concurrently with the temporary injunction hearing. Citing United States Fidelity & Guaranty Co.
v. Beuhler, they alleged that a plaintiff may not dismiss claims against defendants, proceed to a jury trial without them, and after
a trial on the merits, rejoin them as a party in the same case, particularly as intervenors. 7 Finally, they contended that Diane
was judicially estopped from obtaining injunctive relief against them because she had them struck and dismissed from the case.

 *781 After an evidentiary hearing on February 20, 2012, at which counsel for all parties and putative parties appeared, the
trial court granted the temporary injunction, as well as granting Diane leave to amend her petition. Bond was set at $1,000, and
the case was set for trial on the permanent injunction on June 4, 2012.



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Partnership and Van Jr. filed a plea to the jurisdiction and answer on February 27. In their plea to the jurisdiction, they asserted
that the trial court lacked subject matter jurisdiction because the property at issue was valued above the jurisdictional limits of
the statutory county court at law. They also filed a verified denial, urging that there was a defect in parties—they were named as
intervenors after their petition in intervention had been struck. They asserted that no such intervention existed and that because
Diane had proceeded to a jury trial on the merits, she could no longer, post-trial, sue them as intervenors in an adjudicated
matter. Subject to several affirmative defenses, they filed a general denial.


Also on February 27, the trial court signed an interlocutory judgment. 8 In this interlocutory judgment, the trial court included
the following regarding summary judgment regarding the void deed:


  Plaintiff Diane Morgan timely filed a motion for partial summary judgment against the Defendant Parham Enterprises, Inc.
  regarding the issue that the warranty deed attempting to transfer the title to [the subject property] was void.

     On January 23, 2012, the Court, after considering the pleadings, the motion, the affidavits, the response of the Defendant,
     the response of the Interveners, the law, and the facts, granted the Plaintiff's motion for partial summary judgment against
     the Defendant Parham Enterprises, Inc. The Order is attached as Exhibit ‘A’ and incorporated by reference.

     The court hereby renders judgment for Plaintiff Diane Morgan that the warranty deed attempting to transfer title to the
     subject property ... and executed on or about September 22, 2007 is void.

   (emphasis added). This interlocutory judgment also iterated the jury verdict on fees against PEI, and the February 13, 2009
   temporary injunction against Partnership and the February 20, 2012 temporary injunction against Partnership and Van Jr.
At the June 4, 2012 evidentiary hearing on the permanent injunction, counsel for Partnership and Van Jr. again raised the issue
that they had been brought into the case as intervenors even though their petition in intervention had been struck and Diane
had non-suited her claims against them:

  This Court on October the 12th [2011] had a hearing. And at that hearing Diane Morgan's counsel nonsuited my clients
  and nonsuited with prejudice. The Court signed off on an order on October 19th nonsuiting with prejudice any conspiracy
  claims. Then what transpired is the Court in—well, actually Diane Morgan filed a fourth amended petition. And in that fourth
  amended petition, she dropped all claims against Parham Family Limited Partnership and Dr. Van E. Parham, Jr.

  The Court also struck the intervention that my clients filed back in October as well. Therefore, they ceased being parties at
  the very latest at the beginning of November. The Court proceeded to go to trial on the merits. It was a jury *782 trial. The
  Court granted a motion for summary judgment at the end of January prior to trial and then went right into a jury trial to which
  the Parham Family Limited Partnership and Dr. Van E. Parham were not parties, nor were they given notice of the trial.

  Your Honor, I'm not sure what—the Court granted a post-trial leave to amend for Diane Morgan in which she has sued my
  clients as intervenors which the Court struck back in October.

  Your Honor, under the Rules of Procedure, once you proceed to trial, anything that's not submitted at that point in time is
  abandoned and under 165 that's exactly what we have here. Is Ms. Morgan asking the Court for a new trial?

The trial court responded that it had already ruled on Partnership's and Van Jr.'s motion to dismiss by denying it and asked the
parties to proceed on the permanent injunction hearing. Both sides presented evidence and argument. On June 11, 2012, the trial
court signed an order granting a permanent injunction “restraining the Interveners from prosecuting a mirror lawsuit regarding
the deed/title to Lot 9 in Harris County Probate court No. [1] or any other Court.”
The trial court signed a final judgment on August 8, 2012. This judgment provides, in pertinent part, as follows:




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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)




  The Defendants in this litigation are Parham Enterprises, Inc.... and Rhetta Parham. Van Parham Sr. was a defendant in this
  litigation, but he died during the pendency of this litigation on November 2, 2010 and was non-suited on or about September
  20, 2011.

  The Interveners in this litigation are Van Parham Jr. and Parham Family Limited Partnership ....

  On January 23, 2012, the Court after considering the pleadings, the motion, the affidavits, the response of the Defendants,
  the response of the Interveners, the law, and the facts granted the Plaintiff's motion for partial summary judgment against
  the Defendant Parham Enterprises, Inc ....

  The court hereby RENDERS judgment for Plaintiff Diane Morgan that the warranty deed attempting to transfer the title to
  the subject property ... and executed on or about September 22, 2007 is void.

  On January 24, 2012, this case was called for trial regarding the fact issue of attorney fees. Plaintiff, Diane Morgan, appeared
  in person and through her attorney and announced ready for trial. Defendant, Parham Enterprises, Inc., appeared through its
  representative (President), Ms. Rhetta Parham and through its attorney and announced ready for trial.

  After a jury was impaneled and sworn, it heard the evidence and arguments of counsel.... Because it appears to the Court
  that the verdict of the jury was for the Plaintiff, Diane Morgan, and against the defendant Parham Enterprises, Inc., judgment
  should be rendered on the verdict in favor of the Plaintiff, Diane Morgan and against the Defendant Parham Enterprises, Inc.

***



                                                        INJUNCTIONS

  On February 13, 2009, this Court issued a Temporary Injunction against the Defendant Parham Enterprises, Inc. and restrained
  the Defendant from deeding, transferring or conveying all or any part of the subject property ... from the date of the Order
  and while this cause is pending or until further order of the Court. This Temporary Injunction remains in effect for any and
  all purposes *783 against the Defendant until further order from this Court.
  The final judgment also incorporated the permanent injunction against Partnership and Van Jr., described above. All court
  costs were taxed against PEI.
From this judgment, PEI, Rhetta, Partnership, and Van Jr. timely appealed. 9



                                                         II. ANALYSIS

A. Jurisdictional Issues
In their first two issues, Partnership and Van Jr. challenge the trial court's subject matter jurisdiction over the case below and
Diane's standing to seek injunctive relief against them. Because these issues attack the jurisdiction of the trial court, we address
them first.


1. Subject Matter Jurisdiction
Partnership and Van Jr. assert that the trial court lacked subject matter jurisdiction over the proceedings below because the
amount in controversy exceeded the trial court's statutory authority. Subject matter jurisdiction may not be conferred by consent
or waiver, and its absence may be raised at any time. Carroll v. Carroll, 304 S.W.3d 366, 367 (Tex.2010) (citing Tex. Ass'n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993)). Whether a trial court has subject matter jurisdiction is a
question of law we review de novo. Tex. Natural Res. Conservation Comm'n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.2002).



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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)


 [1] Here, Partnership and Van Jr. contend that Diane alleged the property at issue in this case was worth $340,000, which
exceeds the Texas Legislature's grant of jurisdiction to statutory county courts at law over amounts in controversy between
$500 and $200,000. See Tex. Gov't Code Ann. § 25.0003(c)(1). 10 Section 25.0003 of the Texas Government Code governs
the general jurisdiction of statutory county courts and proscribes the monetary jurisdictional limits of them. See id. § 25.0003.
But section 25.1032 of the Government Code contains additional jurisdictional provisions particular to Harris County civil
courts at law. See id. § 25.1032. Subsections 25.1032(c)(1) and (3) provide the Harris County civil courts at law jurisdiction
to “decide the issue of title to real or personal property” and to “hear a suit for the enforcement of a lien on real property.”
Id. § 25.1032(c)(1), (3).

Diane brought this suit to decide the issue of title to real property. She sought a determination of whether title to Lot 9 remained
with PEI or had been conveyed to another. See id. § 25.1032(c)(1). Additionally, Diane sought to enforce the judgment lien
from her prior suit in County Civil Court at Law No. 3 against Lot 9 if it found the deed void. See id. § 25.1032(c)(3). Indeed,
Partnership and Van Jr. acknowledge in their briefing that Diane is “trying to establish and determine title to real property,”
albeit they claim it is “regarding a sale to which she was not a party or has a justiciable interest.” The jurisdiction provided by
section 25.1032 is based on the subject matter of the claim, not the amount in controversy. See AIC *784 Mgmt. v. Crews,
246 S.W.3d 640, 644 (Tex.2008) (“Section 25.1032(c)(1) thus bases the county civil courts' jurisdiction on the type of claim,
not the amount of money in dispute.”); see also Haas v. Ashford Hollow Comty. Improvement Ass'n, Inc., 209 S.W.3d 875, 880
(Tex.App.-Houston [14th Dist.] 2006, no pet.) (same). Thus, we conclude that County Court at Law No. 3 properly exercised
subject matter jurisdiction over this matter based on the type of claims Diane brought.

 [2] Further, we review de novo whether a pleader has alleged facts that affirmatively demonstrate subject matter jurisdiction.
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). We construe pleadings liberally in favor of the
plaintiff and look to the pleader's intent. See id. (citing Tex. Air Control Bd., 852 S.W.2d at 446). The plaintiff's allegations in the
petition regarding the amount in controversy control for jurisdictional purposes unless the party challenging jurisdiction pleads
and proves that the allegations were made fraudulently to obtain jurisdiction. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d
444, 449 (Tex.1996); see also Miranda, 133 S.W.3d at 224 n. 4; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000).

 [3] Here, in her original petition, Diane alleged damages exceeding $84,000 but “within the jurisdictional limits of this court.”
Partnership and Van Jr. neither pleaded nor proved that Diane's allegations of the amount in controversy were made fraudulently
for the purpose of obtaining jurisdiction. Thus, the allegations in her petition regarding the amount in controversy control for
jurisdictional purposes. Miranda, 133 S.W.3d at 224 n. 4; Cont'l Coffee, 937 S.W.2d at 449. Section 25.0003(c)(1) of the Texas
Government Code provides jurisdiction for statutory county courts over matters in controversy between $500 and $200,000 “as
alleged on the face of the petition.” Tex. Gov't Code Ann. § 25.0003(c)(1) (emphasis added). As noted above, the jurisdictional
maximum amount in controversy at the time Diane filed her suit was $100,000. Diane's allegation of damages on the face of her
petition falls below this maximum amount; thus, the trial court had jurisdiction over this matter even under the more general
provision of jurisdiction provided by section 25.0003. 11

 [4] Finally, with certain exceptions not relevant here, when jurisdiction is lawfully and properly acquired, no later fact or event
deprives the court of jurisdiction. Cont'l Coffee, 937 S.W.2d at 449; Kubovy v. Cypress–Fairbanks Indep. Sch. Dist., 972 S.W.2d
130, 133 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Thus, once the trial court properly obtained subject matter *785
jurisdiction over this matter, it did not later lose it based on the contents of its judgment, as asserted by Partnership and Van Jr.

For the foregoing reasons, we conclude that County Civil Court at Law No. 3 properly acquired subject matter jurisdiction over
Diane's suit. We therefore overrule Partnership's and Van Jr.'s first issue.


2. Diane's Standing
Partnership and Van Jr. assert that Diane lacked standing to seek an anti-suit injunction against them because she lacked any
interest in the subject property “without a perfected judgment lien.” A party must have standing to maintain suit. See Tex. Ass'n



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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)


of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex 1993). Under Texas law, a plaintiff has standing to bring suit if
she has suffered a distinct injury, and there exists a real controversy between the parties that will be determined by the judicial
determination sought. Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2011). The requirement that a real controversy exist between
the parties that will be determined by the trial court refers to the presentation of a justiciable interest. Salas v. LNV Corp., 409
S.W.3d 209, 216 (Tex.App.-Houston [14th Dist.] 2013, no pet.).

 [5] Partnership and Van Jr. assert that there is no real controversy between the parties that will be determined by any judicial
declaration sought because PEI sold the subject property to Partnership before Diane's “failed attempts to perfect a judgment
lien or interest in the property.” In other words, Partnership and Van Jr. argue that Diane cannot have standing because the
transfer about which she complains took place nine months prior to Diane's claim against PEI resulting in judgment. 12 But
their assertion ignores the provisions of the Texas Uniform Fraudulent Transfer Act that include “creditor's claim[s that] arose
before or within a reasonable time after the transfer was made or the obligation was incurred.” Tex. Bus. & Com.Code Ann. §
24.005(a) (emphasis added). Thus, Partnership and Van Jr.'s argument begs the entire question of Diane's case: Is the September
22, 2007 deed purporting to transfer the subject property void as a fraudulent conveyance or otherwise?

If the purported conveyance failed to transfer the property to Partnership, then title of the property remained with PEI, and
Diane's judgment lien against PEI attached. Thus, Diane had a clear justiciable interest in whether her judgment lien attached to
a property she alleges was fraudulently transferred to Partnership to defeat her monetary claim against PEI; the Texas Uniform
Fraudulent Transfer Act provides that justiciable interest because she was not a party to the transaction. For the foregoing
reasons, we overrule Partnership's and Van Jr.'s challenge to Diane's standing to bring this suit. 13

Having addressed the jurisdictional issues presented by Partnership and Van Jr., we turn to the trial court's summary *786
judgment declaring the September 22, 2007 deed void.


B. Validity of the Deed
In PEI and Rhetta's first issue, they assert that the trial court erred in declaring this deed void by traditional summary judgment
because Diane failed to conclusively establish that the deed lacked the legal requisites to qualify as a deed.

We review the trial court's granting of a summary judgment de novo. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d
642, 644 (Tex.2009) (per curiam). To be entitled to summary judgment under Rule 166a(c), a movant must establish that there
is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). We take as true all evidence favorable to the nonmovant and
resolve any doubt in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.2008). We consider the evidence
presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable fact finders
could, and disregarding evidence contrary to the nonmovant unless reasonable fact finders could not. Mann Frankfort, 289
S.W.3d at 848.


1. The Trial Court Grants Summary Judgment on All Bases
 [6] PEI and Rhetta argue that the trial court's summary judgment should be reversed because their evidence conclusively
established the grantee's existence. They do not urge an issue concerning Diane's fraudulent transfer claim. Instead, they state
that the trial court granted the motion for summary judgment solely on the basis of the declaratory judgment act claim. We
disagree.

Diane sought partial summary judgment. By her motion, Diane asked the trial court to set aside the deed and return the subject
property to PEI. Diane argued both that (a) PEI failed in its attempt to transfer the subject property because the deed was
defective and (b) PEI violated Texas Uniform Fraudulent Transfer Act section 24.005. See Tex. Bus. & Com.Code Ann. §
24.005. The trial court granted the motion for partial summary judgment. The trial court did not grant the motion for partial



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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)


summary judgment in part. When it incorporated the summary judgment order into the judgment, the trial court stated: “On
January 23, 2012, the Court, after considering the pleadings, the motion, the affidavits, the response of the Defendants, the
response of the Interveners, the law, and the facts granted Plaintiff's motion for partial summary judgment against the Defendant
Parham Enterprises, Inc.”

Nevertheless, PEI and Rhetta urge that the motion was granted in part. They appear to rely upon a single sentence in the summary
judgment order as a limit on the grounds for granting. Specifically, the trial court's summary judgment order also stated: “The
Grantee, Parham Family Limited Partnership No. 2, was not in existence at the time the deed was executed.” However, this
is merely a statement of an undisputed fact. The order does not purport to resolve only the legal effect of the undisputed fact.
Instead, the summary judgment order declares the deed void, which is precisely the relief Diane sought on both her declaratory
judgment claim and her fraudulent transfer claim. Based upon the plain language of the order, we conclude that the trial court
granted Diane's motion for partial summary judgment on both her Declaratory Judgment action and her fraudulent transfer claim.

*787 Further, to the extent that there was any confusion about whether the trial court granted a fraudulent transfer summary
judgment, 14 the trial court clarified it when, at the trial on the permanent injunction, the following colloquy occurred:


  Mr. Toups [Partnership/Van Jr.]: Your Honor, you granted a motion for summary judgment on the declaratory judgment.

     The Court: They both said yes, I set it aside. So, I'm not sure why we're all on a different page.

     Mr. Thomas [Diane]: You declared it void.

     The Court: I declared it void. Okay. Same thing, in my mind. When I declared it void, I considered it in my mind fraudulent
     and set it aside, hence, the declaring it void.

   (emphasis added).
 [7] For PEI and Rhetta to obtain a reversal of the motion for partial summary judgment, they must attack every ground relied
on for which summary judgment could have been granted. See Malooly Bros. Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).
Where an appellant fails to challenge even one of the grounds, the appellate court may affirm the summary judgment on that
ground alone. See Trevino & Assoc. Mech., L.P., 400 S.W.3d 139, 144 (Tex.App.-Dallas 2013, no pet.). Although PEI and
Rhetta do not include an issue on appeal attacking the trial court's summary judgment on fraudulent conveyance, they argue the
merits of the claim in the body of their brief. Therefore, we construe the brief to adequately raise the point.


2. Declaratory Judgment
 [8] [9] This court has previously stated that “in Texas, a deed is void if the grantee is not in existence at the time the deed
is executed.” Lighthouse Church of Cloverleaf v. Tex. Bank, 889 S.W.2d 595, 600 (Tex.App.-Houston [14th Dist.] 1994, writ
denied). Diane attached evidence to her summary judgment motion that established that Parham Partnership No. 2 was not in
existence at the time the deed was executed; she provided a certificate from the Texas Secretary of State stating that there was
no record of the existence of this entity. As outlined above, PEI and Rhetta do not dispute this point.

Instead, PEI and Rhetta assert that a deed is not void if the grantee exists but receives the deed in an assumed name, citing
Buist v. Connell, 233 S.W.2d 458, 462 (Tex.Civ.App.-Eastland 1950, writ. ref'd). They contend that “the fact that Partnership
directed that the deed be taken in the name of Parham Family Limited Partnership No. 2[ ] would not void or invalidate the
deed under the assumed name statutes of Texas.”

 [10] In considering grounds for reversal, we are limited to those grounds expressly set forth in the summary-judgment motions,
answers, or other responses, and may not rely on the appellate briefs or summary-judgment evidence. D.M. Diamond Corp. v.
Dunbar Armored, Inc., 124 S.W.3d 655, 659–60 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (op. on reh'g) (citing Tex.R.
Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993)). These grounds were not presented


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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)


to the trial court by PEI or Rhetta. Instead, PEI and Rhetta maintained *788 in the trial court that both the conveyance to
“Parham Family Partnership No. 2” and the conveyance of Lot 1, rather than Lot 9, were “clerical errors” that properly could
be corrected by a “correction deed” relating back to September 22, 2007. Thus, we may not consider this argument raised for
the first time on appeal as a ground for reversing summary judgment.

In sum, Diane presented conclusive evidence that the deed from PEI, dated September 22, 2007, attempted to convey the subject
property to a non-existent entity. “[I]n Texas, a deed is void if the grantee is not in existence at the time the deed is executed.”
Lighthouse Church of Cloverleaf, 889 S.W.2d at 600. Accordingly, Diane established as a matter of law that the September 22,
2007 deed was void. The trial court did not err in so declaring.


3. Fraudulent Transfer
 [11] PEI and Rhetta argue that Diane was not entitled to summary judgment on her fraudulent transfer claim because there is
a genuine issue of material fact as to both PEI's intent to fraudulently transfer the property and the reasonably equivalent value
received for the property. PEI and Rhetta correctly argue that PEI's intent is an element running through several of Diane's
theories of fraudulent transfer. For example, section 24.005(a)(1) permits Diane to avoid the transfer if the “debtor made the
transfer ... with actual intent to hinder, delay, or defraud any creditor of the debtor.” Tex. Bus. & Com.Code Ann. § 24.005(a)
(1). Alternatively, section 24.005(a)(2) permits Diane to avoid the transfer without proving PEI's intent if she establishes that
PEI made the transfer without receiving a reasonably equivalent value in exchange for the transfer. Diane sought summary
judgment on both subsections (1) and (2).

PEI and Rhetta responded with, inter alia, the affidavit of Rhetta. She averred that she was an officer and owner of PEI on
September 22, 2007, when PEI made the subject transfer. She further stated that it was her intent to transfer the subject property
to Partnership. Rhetta describes the conveyance and the amount paid for the subject property. Finally, Rhetta states that “[t]he
sale of the property was done to either hinder, delay or defraud Diane Morgan fka Diane Parham.” Thus, Rhetta's affidavit
supplies conclusive evidence that she, on behalf of PEI, transferred the subject property with actual intent to hinder, delay,
or default Diane as creditor in satisfaction of 24.005(a)(1). With such evidence of intent, the parties' dispute over whether the
transferor paid reasonably equivalent value for the property under subsection (2) became immaterial. The trial court properly
granted the summary judgment on the alternative basis urged.

We overrule PEI's and Rhetta's first issue.


C. Injunctive Relief
In their second issue, PEI and Rhetta assert that the trial court abused its discretion in granting and enforcing a procedurally
flawed temporary injunction and continuing it in its final judgment. Partnership and Van Jr. complain in their third issue that the
trial court abused its discretion in issuing a “post-trial anti-suit permanent injunction against dismissed non-parties prohibiting
them from prosecuting a quiet-title suit for real property.” We address each of these issues in turn.


1. The Temporary Injunction Against PEI and Rhetta
We review a trial court's decision to grant a temporary injunction for an abuse of discretion. Butnaru v. Ford Motor Co., 84
S.W.3d 198, 204 (Tex.2002). A temporary *789 injunction is an extraordinary remedy that does not issue as a matter of right.
Id. Temporary injunction orders are strictly construed to ensure that they comply with Rule 683 of the Texas Rules of Civil
Procedure. Kaufmann v. Morales, 93 S.W.3d 650, 653 (Tex.App.-Houston [14th Dist.] 2002, no pet.). An order that does not
comply with this rule “is subject to being declared void and dissolved.” Qwest Comm'ns Corp. v. AT & T Corp., 24 S.W.3d
334, 337 (Tex.2000).

 [12] First, PEI and Rhetta assert that the temporary injunction issued against them in February 2009 in this case violates Rule
683 by referring to another document, the September 2007 warranty deed, as grounds for issuance and to describe the acts sought



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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)


to be enjoined. A temporary injunction shall be specific in its terms and shall describe in reasonable detail, not by reference to
the complaint or other document, the act or acts to be restrained. Tex.R. Civ. P. 683. The order at issue here does not simply
refer to another document; rather, it attaches the deed as an exhibit to the temporary injunction. “Rule 683 is not violated when
documents are attached to the injunction and referred to it as part of the injunction because the attachments become part of the
injunction itself.” Layton v. Ball, 396 S.W.3d 747, 753 (Tex.App.-Tyler 2013, no pet.) (citing Tex. Pet Foods, Inc. v. State, 529
S.W.2d 820, 829 (Tex.Civ.App.-Waco 1975, writ. ref'd n.r.e.)).

 [13] [14] Next, PEI and Rhetta assert that the temporary injunction expired because the order stated it was set for trial on
July 15, 2009. As noted above, however, there were numerous trial continuances. Further, at the hearing on Diane's motion for
contempt filed against PEI and Rhetta for violation of the temporary injunction, held on October 12, 2011, counsel for PEI and
Rhetta never asserted that the temporary injunction was no longer in effect. Instead, counsel asserted that their actions in filing
a correction deed did not violate the temporary injunction. In the court's order of contempt against PEI and Rhetta, the trial
court stated, “The Temporary Injunction issued by this Court was effective from February 13, 2009 and while this litigation is
pending or until further order of this court ....” 15 Thus, PEI and Rhetta have not met their burden, as appellants, to establish that
the February 2009 temporary injunction was not still in effect until the trial court entered a judgment on the merits of Diane's
claim. See, e.g., Butnaru, 84 S.W.3d at 204 (providing that the purpose of a temporary injunction is to preserve the status quo
pending a trial on the merits of the litigation's subject matter). 16

 [15] Finally, PEI and Rhetta assert that the trial court erred by continuing the February 2009 temporary injunction in the final
judgment of the trial court. We agree with this portion of their issue. As noted above, the purpose of a temporary injunction
is to preserve the litigation's *790 subject matter pending a trial on the merits. Id. This purpose is not served by continuing
a temporary injunction in a final judgment; such a process effectively transforms a temporary injunction into a permanent
injunction without a trial. See EMC Mortgage Corp. v. Jones, 252 S.W.3d 857, 866 (Tex.App.-Dallas 2008, no pet.) (op. on
reh'g); EOG Resources, Inc. v. Gutierrez, 75 S.W.3d 50, 53 (Tex.App.-San Antonio 2002, no pet.); cf. Kaufmann, 93 S.W.3d
at 657 (“There are at least two reasons for requiring a trial date on the [temporary injunction] order. One is to prevent the
injunction from becoming permanent.”). Thus, the trial court erred by continuing the February 2009 temporary injunction in
the final judgment.

Accordingly, we sustain this portion of PEI and Rhetta's second issue and modify the trial court's judgment to remove the
following language from it:

             The Court issued a Temporary Injunction against the Defendant Parham Enterprises, Inc. on February
             13, 2009 and restrained the Defendant from deeding, transferring or conveying all or part of the subject
             property 18610 Tomato Street, Spring, Harris County, Texas 77379 from the date of the Order and while
             this cause was pending or until further order of the Court. This Temporary Injunction continues against
             the Defendant until 180 days after all appeals are completed or until further order from this Court.

We overrule this issue to the extent that it involves complaints about the temporary injunction prior to entry of the final judgment
and the order of contempt based on it.


2. The Permanent Anti–Suit Injunction Against Partnership and Van Jr.
Partnership and Van Jr. assert that the trial court abused its discretion in entering a permanent “post-trial” anti-suit injunction
against them because (a) they were no longer parties to the suit, (b) they had a legal right to pursue the action to quiet title in
another court, and (c) the anti-suit injunction lacks both a cause of action and evidentiary support.

We begin by noting what is not disputed within this issue. First, Partnership and Van Jr. do not appeal the trial court's order
striking their intervention. As such, Partnership and Van, Jr. do not have a justiciable interest in Diane's fraudulent transfer/
declaratory judgment action. Second, Partnership and Van Jr. did not file a motion to strike Diane's post-trial, pre-judgment
amended petition naming them as intervenors and they do not appeal the trial court's grant of leave to file that petition.


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Finally, although Partnership and Van Jr. complain that the court held a trial (against PEI on fees) without their participation,
they do not complain that they were without notice or an opportunity to be heard on the anti-suit injunction. To the contrary,
Partnership and Van Jr. participated in the hearing on the anti-suit injunction. Thus, we only address the sufficiency of the
evidence to enter the anti-suit injunction.

 [16] [17] We review an order granting a permanent injunction for an abuse of discretion. Operation Rescue–Nat'l v. Planned
Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 560 (Tex.1998). “An anti-suit injunction is appropriate in four
instances: (1) to address a threat to the court's jurisdiction; (2) to prevent the evasion of important public policy; (3) to prevent
a multiplicity of suits; or (4) to protect a party from vexatious or harassing litigation.” Golden Rule Ins. Co. v. Harper, 925
S.W.2d 649, 651 (Tex.1996). Although there are “no precise guidelines” for reviewing an anti-suit injunction, we *791 will
uphold an injunction issued to protect a court's dominant jurisdiction where, if the enjoined party were allowed to proceed, the
dominant court would lose its ability to proceed with the case. See, e.g., Owens–Illinois, Inc. v. Webb, 809 S.W.2d 899, 902
(Tex.App.—Texarkana 1991, no writ).

 [18] Diane supported her request for anti-suit injunction with evidence that her suit pertained to title to the subject property,
and that she filed the suit prior to Partnership and Van Jr.'s suit to quiet title in the subject property—also a suit pertaining to
title. The evidence showed that Diane, a judgment creditor, filed her suit alleging that PEI, a judgment debtor, made a fraudulent
conveyance of the subject property. Her pleading sought to set aside “the purported transfer” of the subject property.

At the time of Diane's request for anti-suit injunction, the trial court had already granted an affirmative motion for summary
judgment on Diane's claims and declared the September 22, 2007 deed void. The trial court had already held the attempted
correction deed of September 22, 2011, void as a violation of the court's injunction. Finally, the trial court determined that
Partnership and Van Jr.'s lawsuit regarding the “deed/title to” the subject property is a “mirror lawsuit.”

Partnership and Van Jr. offer no argument about how the two suits did not or would not interfere with one another. Partnership
and Van Jr. confine their arguments to the impairment of their rights in the subject property. As noted above, however,
Partnership and Van Jr. have not appealed the striking of their intervention, and they offer no argument on appeal in support
of their rights to the fraudulently transferred property. Given the trial court's unchallenged ruling that Partnership and Van Jr.
do not have a justiciable interest in the property, that court had the authority to enjoin them from contending otherwise in the
probate court. If Partnership and Van Jr. are implying that Partnership accepted the transfer in good faith and for reasonably
equivalent value, as recognized by Texas Uniform Fraudulent Transfer Act section 24.009(a), they neglected to preserve that
argument in these proceedings through an appeal of their justiciable interest in the property. 17 See Tex. Bus. & Com.Code
Ann. § 24.009(a) (“A transfer or obligation is not voidable under Section 24.005(a)(1) of this code against a person who took
in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee.”)

We therefore conclude that the trial court did not abuse its discretion in entering an anti-suit injunction to protect its jurisdiction
over the subject property.


D. Segregation of Attorney's Fees
 [19] In PEI's third issue, it asserts that Diane failed to segregate her attorney's fees. PEI further asserts that the appellate
attorney's fees are not conditioned on Diane's prevailing on appeal.

 [20] A failure to segregate attorney's fees can result in the recovery of no such fees. Green Int'l, Inc. v. Solis, 951 S.W.2d 384,
389 (Tex.1997). But if no one objects to a jury charge in which the jury is not asked to segregate fees, then the objection is
waived. Jackson v. LongAgriBusiness, L.L.C., No. 14–11–01073–CV, 2013 WL 84921, at *4 (Tex.App.-Houston [14th Dist.]
Jan. 8, 2013, no pet.) (mem. op) (citing Tex.R.App. P. 33.1(a); *792 Solis, 951 S.W.2d at 389; Ogden v. Ryals, No. 14–10–
01052–CV, 2012 WL 3016856, at *4 (Tex.App.-Houston [14th Dist.] July 24, 2012, no pet.) (mem. op)). PEI-the only party



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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)


against whom fees were assessed-made no objection to the jury charge on attorney's fees. Thus, we do not address this portion
of its issue. See id.

As to the remainder of PEI's third issue, the judgment conditions the award of appellate attorney's fees on PEI's failure on appeal:

             In the event of an appeal by the Defendant Parham Enterprises, Inc. to the court of appeals, if the appeal
             is unsuccessful, Plaintiff Diane Morgan will be further entitled to $25,000.00 as a reasonable attorney's
             fee; in the event of an appeal by the Defendant Parham Enterprises, Inc. to the Supreme Court of Texas, if
             the appeal is unsuccessful, Plaintiff Diane Morgan will be further entitled to $15,000.00 as a reasonable
             attorney's fee.

Such an award is tantamount to conditioning it on Diane's appellate success against PEI; for Diane to succeed on appeal, PEI
must fail on its issues.

For the foregoing reasons, we overrule PEI's third issue.



                                                            III. CONCLUSION

In sum, we have concluded that the trial court had subject matter jurisdiction over this case and that Diane had standing to bring
her claims. We have accordingly overruled Partnership's and Van Jr.'s first and second issues. We have further determined that
the trial court properly granted Diane's partial summary judgment on all bases; thus we have overruled PEI's and Rhetta's first
issue. Further, we have overruled PEI's and Rhetta's third issue regarding segregation of attorney's fees.

The trial court did not abuse its discretion by enforcing the February 13, 2009 temporary injunction against PEI, and we lack
jurisdiction to consider that portion of PEI's and Rhetta's complaint regarding the trial court's contempt order. However, the
trial court did improperly include this temporary injunction in the final judgment, and we therefore have sustained in part PEI's
second issue. We modify the trial court's judgment to remove the language concerning this temporary injunction from the final
judgment. Finally, we have concluded that the trial court did not abuse its discretion in entering a permanent anti-suit injunction
against Partnership and Van Jr. We thus overruled the third and final issue of Partnership and Van Jr.

We affirm the trial court's judgment as modified.



Footnotes
1      This certificate notes that a similarly named entity, Partnership, had been identified through the Secretary of State's record search.
2      The parties variously spell this word as “intervenor” and “intervener.” For consistency's sake, we spell it “intervenor” throughout
        this opinion, except where it has been quoted from the record.
3       Our record does not contain a copy of the motion for new trial/motion for reconsideration filed by Partnership and Van Jr.
4       The reporter's record from the pretrial conference reflects that Diane non-suited her claims against Rhetta for piercing the corporate
        veil regarding responsibility for attorney's fees. According to the trial transcript, the only issue thus remaining was Diane's attorney's
        fees against PEI.
5       Tex. Civ. Prac. & Rem.Code Ann. § 65.011.
6       See Golden Rule Ins. v. Harper, 925 S.W.2d 649, 651 (Tex.1996); Bridas Corp. v. Unocal Corp., 16 S.W.3d 887, 891 (Tex.App.-
        Houston [14th Dist.] 2000, pet. dism'd w.o.j.).
7       U.S. Fid. & Guar. Co. v. Beuhler, 597 S.W.2d 523, 524 (Tex.Civ.App.-Beaumont 1980, no writ).
8       The word “Final” was struck out by the trial court and the word “Interlocutory” was handwritten above it. Language of finality was
        also struck from the end of the judgment.
9       The trial court filed findings of fact and conclusions of law on October 4, 2012, after Partnership and Van Jr. filed a notice that such
        findings and conclusions were past due and they had filed both a first and second request for them.



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Parham Family Ltd. Partnership v. Morgan, 434 S.W.3d 774 (2014)


10    At the time this suit was filed, the amount in controversy ceiling for statutory county courts was $100,000. However, this amount
      was raised to $200,000 effective January 1, 2012. See Tex. Gov't Code Ann. § 25.0003(c)(1). Because Partnership and Van Jr. assert
      that Diane's allegations exceed even the current amount, we will refer to the current enactment for ease of reference.
11    Partnership and Van Jr. cite Eris v. Giannakopoulos, a case from our sister court, for the proposition that “[w]hen a suit is for an
      interest in real property or to foreclose a lien on real property, rather than damages, the value of the property interest at issue determines
      the amount in controversy.” 369 S.W.3d 618, 622 (Tex.App.-Houston [1st Dist.] 2012, no pet.). In Giannakopoulos, the plaintiff did
      not contain a statement of jurisdiction or otherwise identify the amount in controversy. Id. at 622. Here, Diane's petition did contain
      a jurisdictional statement identifying an amount in controversy. Further, the plaintiff in Giannakopoulos brought suit to partition
      three separate but adjacent and contiguous properties, of which he owned a fifty percent interest. Id. at 619. The trial court granted
      a partition of the properties, dividing them into two equal-sized lots and awarding one to the plaintiff. Id. at 620. Diane, on the other
      hand, sued to have a title declared void, for fraudulent transfer, and for damages. Nowhere in her pleadings does she seek to obtain
      an interest in the property. Thus, the analysis in Giannakopoulos is inapplicable to the facts of this case.
12    See infra section B.3 regarding the trial court's summary judgment in favor of Diane on her fraudulent transfer claim.
13    As discussed above, Diane initially sued PEI and Rhetta, seeking to set aside the deed and for fraudulent transfer. Partnership and Van
      Jr. then intervened in the lawsuit asserting their interest as the purported grantee of the subject property. Diane added claims against
      them for conspiracy, but later nonsuited those claims. Their intervention was also struck on Diane's motion; they filed a motion for
      reconsideration/new trial. A permanent anti-suit injunction was entered against them in the trial court's final judgment, the propriety
      of which is addressed later in this opinion.
14    Diane does not appear to have been confused about the order. As PEI and Rhetta point out, Diane did not attempt to try the fraudulent
      transfer claim to the court or a jury. PEI and Rhetta characterize such failure as waiver. But Diane did not need to submit this claim
      to the jury; the trial court had already granted her summary judgment on it.
15    PEI and Rhetta also complain about the order of contempt, signed October 12, 2011, against them based on their violation of the
      temporary injunction. However, we lack jurisdiction to address complaints about the contempt order. See Cadle Co. v. Lobingier,
      50 S.W.3d 662, 671 (Tex.App.-Fort Worth 2001, pet. denied) (“Decisions in contempt proceedings cannot be reviewed on appeal
      because contempt orders are not appealable, even when appealed along with a judgment that is appealable.”); see also In re B.A.C.,
      144 S.W.3d 8, 10–12 (Tex.App.-Waco 2004, no pet.) (listing cases).
16    We note that even if we were to declare the temporary injunction void, the contempt order based upon it is not reviewable by direct
      appeal. See supra note 15.
17    We note that Partnership and Van, Jr. have abandoned their claim in the trial court that they were necessary parties to the fraudulent
      transfer action.


End of Document                                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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Poole v. U.S. Money Reserve, Inc., Not Reported in S.W.3d (2008)
28 IER Cases 629



                                                     2008 WL 4735602

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
                                  MEMORANDUM OPINION
                                    Court of Appeals of Texas,
                                           Beaumont.

                              Chad POOLE and Terry Fendley, Appellants
                                                  v.
             U.S. MONEY RESERVE, INC. d/b/a United States Rare Coin & Bullion Reserve, Appellee.

                No. 09–08–137CV.           |   Submitted on June 26, 2008.       |   Delivered Oct. 30, 2008.

Synopsis
Background: Coin business filed suit against two of its former employees, alleging that defendants worked together to divert
sales of coins from business's customers, and asserting violations of Deceptive Trade Practices Act, breach of employment
agreement signed by former employees, and other claims. The 58th District Court, Jefferson County, Bob Wortham, J., issued
temporary injunction prohibiting defendants from subsequent employment in gold coin industry for period of three years.
Defendants filed interlocutory appeal.



Holdings: The Court of Appeals, Charles Kreger, J., held that:

[1] temporary injunction enforcing covenant not to compete executed by former employees, which prohibited them from
engaging in any subsequent employment in that business throughout the United States, was overbroad;

[2] evidence supported trial court's implied finding that business would suffer a probable imminent and irreparable injury prior
to trial; and

[3] temporary injunction order was void.


Reversed and remanded.



 West Headnotes (3)


 [1]    Injunction       Non-competition and non-solicitation issues
        Temporary injunction enforcing covenant not to compete executed by former employees of coin business, which
        prohibited former employees from engaging in any subsequent employment in that business throughout the United
        States, was overbroad; former employees were salesmen, such that extension of prohibition to clients with whom
        former employees had no dealings during their employment was unreasonable, and, while former employees
        acknowledged in covenant that limitations as to time, geographic area, and scope of activity to be restrained were
        reasonable, this language alone was not outcome determinative.

        3 Cases that cite this headnote




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 [2]    Injunction       Non-competition and non-solicitation issues
        Evidence supported trial court's implied finding that coin business, prior to trial in its suit against former employees
        asserting breach of covenants not to compete contained in employment agreements signed by business's former
        employees, would suffer a probable imminent and irreparable injury, as necessary to support issuance of temporary
        injunction against former employees; former employee stipulated that he sold coins to customers on business's
        customer list after leaving business, business's chief executive officer (CEO) testified that he did not believe business's
        damages could be calculated exactly, former employee testified that he did not believe that he or other former
        employee could pay a substantial judgment, and former employees contractually agreed that business would suffer
        irreparable injury if restrictive covenants were breached.

        1 Cases that cite this headnote


 [3]    Injunction       Non-competition and non-solicitation issues
        Injunction       Determination
        Temporary injunction order enforcing covenant not to compete executed by former employees of coin business was
        void, as it did not set forth any reasons for issuance of temporary injunction or otherwise state any reason why the
        identified probable injury was an irreparable one for which business has no legal remedy, nor did order include a
        date setting matter for trial, as required by rule governing form and scope of injunctions, but instead, order attempted
        to enjoin former employees through a date certain in the future, and order was overly broad. Vernon's Ann.Texas
        Rules Civ.Proc., Rule 683.

        2 Cases that cite this headnote




On Appeal from the 58th District Court, Jefferson County, Texas, Trial Cause No. A–180,741, Bob Wortham, J.

Attorneys and Law Firms

Todd C. Collins, Glast, Phillips & Murray, P.C., Mark E. Dykes, Houston, TX, for appellants.

Glen W. Morgan, Chris Portner, Reaud, Morgan & Quinn, LLP, Beaumont, TX, for appellee.

Before GAULTNEY, KREGER, and HORTON, JJ.



                                                 MEMORANDUM OPINION

CHARLES KREGER, Justice.

 *1 Appellants, Chad Poole and Terry Fendley, filed this interlocutory appeal after the trial court issued a temporary injunction
prohibiting them from subsequent employment in the gold coin industry for a period of three years. See TEX. CIV. PRAC. &
REM.CODE ANN. § 51.014(a)(4) (Vernon 2008). We hold that, while the trial court did not abuse its discretion in granting a
temporary injunction to preserve the status quo, it did abuse its discretion in crafting the temporary injunction order. We declare
the temporary injunction order void and dissolve the order because it is overly broad and fails to comply with Rule 683 of the
Texas Rules of Civil Procedure. TEX.R. CIV. P. 683.




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                                     FACTUAL AND PROCEDURAL BACKGROUND

U.S. Money Reserve, Inc. d/b/a United States Rare Coin & Bullion Reserve (“U.S. Money Reserve”) filed suit against a group
of former employees, including appellants, Chad Poole and Terry Fendley, alleging that appellants orchestrated a conspiracy
to defraud U.S. Money Reserve and its customers. U.S. Money Reserve alleged specifically that defendants worked together
to divert sales of coins from customers of U.S. Money Reserve and set up a scheme to abscond customer leads and divert
sales to other defendant companies. The petition alleged that defendants received cash payments for diverting sales to the other
companies. The petition sought among other remedies, a temporary restraining order, temporary injunction, and permanent
injunctive relief. The petition asserted that the acts of defendants constituted violations of the Deceptive Trade Practices Act as
well as a breach of the employment agreement signed by defendant-employees. U.S. Money Reserve further alleged tortious
interference with its business relationships and misappropriation of trade secrets.


The trial court entered a temporary injunction on February 22, 2008, preventing Poole and Fendley 1 from soliciting existing
or potential clients of U.S. Money Reserve or otherwise engaging in any similar business in the United States through January
25, 2011. The Temporary Injunction states in part that Poole and Fendley:


  shall not call upon, solicit, divert, take away, and/or attempt to call upon, solicit, divert, or take away any existing or potential
  clients, customers, suppliers, businesses, and/or accounts of U.S. Money Reserve, Inc. d/b/a United States Rare Coin &
  Bullion Reserve (hereinafter referred to as “Company”) in connection with any business similar or related to the business in
  the United States, nor will Defendant[s] ... interfere or compete with the Company in connection with such clients, customers,
  suppliers, businesses, and accounts in the United States before 01/25/2011.
  The Order further provides:

     Defendant[s] ... shall not solicit the hiring of any present or future salesman or consultant of the Company before
     01/25/2011.

     Defendant[s] ... shall not engage in, or give any advice to any person, firm, partnership, associations, corporation, and/
     or other entity engaged in a business similar to or related to the business of the Company or any portion thereof in the
     United States before 01/25/2011.

      *2 Defendant[s] ... shall not lend credit, money, or reputation for the purpose of establishing or operating a business
     similar or related to the business of the Company or any portion thereof in the United States before 01/25/2011.
Fendley and Poole contend in three issues that the trial court abused it discretion 1) in reaching the implied finding that U.S.
Money Reserve had a probable right to the relief sought; 2) by entering a temporary injunction that was overbroad; and 3) in
reaching the implied finding that U.S. Money Reserve would suffer a probable, imminent, and irreparable injury. Appellants
argue in conjunction with their third issue that the trial court's order granting the temporary injunction is void because it fails
to comply with Rule 683 of the Texas Rules of Civil Procedure.



                                                   STANDARD OF REVIEW

“A temporary injunction is an extraordinary remedy and does not issue as a matter of right.” Butnaru v. Ford Motor Co., 84
S.W.3d 198, 204 (Tex.2002) (citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.1993)). Its purpose is to preserve the status
quo of the litigation's subject matter pending a trial on the merits. Wright v. Sport Supply Group, Inc., 137 S.W.3d 289, 292
(Tex.App.-Beaumont 2004, no pet.) (citing Butnaru, 84 S.W.3d at 204). “The decision to grant or deny a temporary injunction
lies in the sound discretion of the trial court, and the court's grant or denial is subject to reversal only for a clear abuse of that
discretion.” CRC–Evans Pipeline Int'l, Inc. v. Myers, 927 S.W.2d 259, 262 (Tex.App.-Houston [1st Dist.] 1996, no writ) (citing
Walling, 863 S.W.2d at 58).


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Likewise, we review only the trial court's exercise of discretion in determining whether U.S. Money Reserve showed a
probability of success on the merits at trial and that it would suffer imminent, irreparable injury if the temporary injunction
were not granted. Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 882–83 (Tex.App.-Dallas 2003, no pet.). “In making
that determination on appeal, we do not substitute our judgment for that of the trial court, but determine only whether the court's
action was so arbitrary as to exceed the bounds of reasonable discretion.” Id . at 883. “[W]e must view the evidence in the
light most favorable to the trial court's order, indulging every reasonable inference in its favor....” IAC, Ltd. v. Bell Helicopter
Textron, Inc., 160 S.W.3d 191, 196 (Tex.App.-Fort Worth 2005, no pet.). “When the trial court bases its decision on conflicting
evidence, there is no abuse of discretion.” Tom James, 109 S.W.3d at 883. A trial court

             abuses its discretion when it misapplies the law to established facts or when the evidence does not
             reasonably support the trial court's determination of the existence of probable injury or probable right of
             recovery. We review de novo any determinations on questions of law the trial court made in support of
             its order. However, we only review the trial court's decision on the issues before the court.

 *3 Id. (citations omitted). We recognize that the trial court's order is “based on the record presented at the temporary injunction
hearing.” ,Id. at 885. “We will not assume that the evidence taken at a preliminary hearing will be the same as the evidence
developed at a full trial on the merits.” Id. Thus, our review of the trial court's order is limited to whether the trial judge abused
its discretion in granting the temporary injunction on the record before it. Id.



                                         PROBABLE RIGHT TO RELIEF SOUGHT

“To obtain a temporary injunction, an applicant 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 before trial.” Wright,
137 S.W.3d at 292. The first element is not disputed. Appellants contend that the trial court erred in impliedly finding that a
probable right to relief existed and in entering the temporary injunction. Specifically, appellants contend that the covenant not
to compete is overbroad in that it contains an industry-wide exclusion preventing appellants from calling upon or soliciting any
existing or potential clients within the United States and prevents appellants from engaging in any business similar to or related
to the business of U.S. Money Reserve throughout the United States.

 [1] An interlocutory appeal from “an order granting or denying a temporary injunction based on a convenant not to compete
does not present for appellate review the ultimate question of whether the covenant is enforceable under section 15.50 of the
[Texas] business and commerce code.” Tom James, 109 S.W.3d at 882–83 (citing TEX. BUS. & COM.CODE ANN. § 15.50
(Vernon 2002)). We will only address the enforceability of those provisions insofar as it affects our analysis of whether the
elements required for issuance of a temporary injunction have been satisfied. See id. at 883–85. The employment agreements
which contain the covenants at issue in this lawsuit provide as follows:

  15. Unauthorized Competition Prohibited. The Employee expressly agrees that the Employee shall not, for a period of
  five (5) years after termination of the Association or employment between Employer and Employee, without prior written
  consent of the Employer, directly or indirectly through any corporation, organization or entity owned or controlled by the
  Employee, or as principal, agent, joint venture, employee, employer, consultant, partner, stock holder or holder of any equity
  or security ..., in any other individual, representative or corporate capacity whatsoever:

  a) Call upon, contact, solicit, divert, take away, or attempt to call upon, contact, solicit, divert or take away any existing or
     potential clients, customers, suppliers, businesses, or accounts of the Employer in connection with any business similar
     or related to the business within the above defined geographical area; nor will the Employee interfere with or compete
     with the Employer in connection with such clients, customers, suppliers, businesses, and accounts in the geographical
     area. The term client or customer as referenced in this covenant includes: (1) any clients or customers for whom
     Employer provided services at any time during Employee's employment with Employer; and (2) any prospective clients



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     or customers to whom Employer had submitted a proposal for services as of the effective date of Employee's termination
     of employment with Employer.

   *4 b) Solicit for hiring, or hire, any past, present or future employee, agent, representative or consultant of the Employer.

  c) Engage in, or give any advice to any person, firm, partnership, associations, corporation, or other entity engaged in a
     business similar to or related to the business of the Employer or any portion thereof in the geographical area.

  d) Lend credit, money, or reputation for the purpose of establishing or operating a business similar to the business, or any
     portion thereof, of the Employer in the geographical area.

  e) Accept employment or pay from any person, firm, operation, partnership, association, or any other entity engaged
     in a business similar to or related to the business of the Employer anywhere within the United States, United
     Kingdom and Canada. This provision specifically includes existing competitors of the Employer, and any potential, future
     competitors of Employer. This provision also specifically prohibits Employee from forming a competitive Employer or
     organization as an owner, sole proprietor, partner, joint venturer (or in any other ownership capacity) competing against
     Employer. Similarly, this provision specifically prohibits Employee from getting or giving any advice, knowledge or
     information from or to any person, firm, partnership, association, corporation, or other entity engaged in a business similar
     to or related to the business of Employer or any portion thereof, within the United Kingdom, Canada or the United States.

  f) It is expressly agreed, stipulated and understood by the Employee that the services of the Employer have been and are
     currently being marketed and sold in the geographical area described above, and it is the Employer's intent to continue
     to expand the marketability of its services and products. Accordingly, these covenants are intended to restrict the
     Employee from competing in any manner with the Employer in the activities, which have heretofore been carried
     on, by the Employee or any portion thereof or any activities similar or related thereto within the geographical area....

(Emphasis added). 2 The geographical area is not specifically defined in the agreements of Poole and Fendley, however, at the
hearing Poole and Dean Liepsner, C.E.O of U.S. Money Reserve, testified the geographic area encompassed the entire United
States. This is consistent with both the trial court's order and the terms of the restrictive covenants.

Appellants contend that because the covenant contains an industry-wide exclusion it is overbroad and unenforceable and does
not give rise to a probable right to the relief sought. Appellants further contend that because the trial court's order implements
the industry-wide exclusion set forth in the restrictive covenants, it is likewise overbroad and unenforceable. While we do not
undertake to consider the ultimate issue of whether the covenant is enforceable under current law, we hold, based on the facts
established by the record, that the trial court abused its discretion in enjoining appellants from engaging in any subsequent
employment in that industry throughout the United States.

 *5 U.S. Money Reserve argues that this case is governed by Alex Sheshunoff Management Services, L.P. v. Johnson, 209
S.W.3d 644 (Tex.2006), while appellants contend it is governed by Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381
(Tex.1991) and Wright, 137 S.W.3d at 289. The parties argued the enforceability of the covenants not to compete at the
temporary injunction hearing. “The enforceability of a covenant not to compete ... is a question of law for the court.” Light v.
Centel Cellular Co. of Tex., 883 S.W.2d 642, 644 (Tex.1994). Our analysis merits a discussion of the cases cited by both parties.

Section 15.50(a) of the Texas Business & Commerce Code provides that

            a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement
            at the time the agreement is made to the extent that it contains limitations as to time, geographical area,
            and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is
            necessary to protect the goodwill or other business interest of the promisee.




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Additionally, section 15.51(b) provides that “[i]f the primary purpose of the agreement to which the covenant is ancillary is
to obligate the promisor to render personal services, for a term or at will, the promisee has the burden of establishing that the
covenant meets the criteria specified by Section 15.50....” Id. § 15.51(b) (Vernon 2002).

In Haass, the Texas Supreme Court held that “a damages provision affecting the right to render personal services operates as a
restraint of trade and must be judged by the reasonableness standards for covenants not to compete [.]” Haass, 818 S.W.2d at
382. The underlying dispute in Haass began with the merger of two accounting firms, CJ and MH. Id. The Court recognized
that the relevant reasonableness questions with respect to the contractual provision at issue were whether the restraint imposed
by the provision was greater than required to protect MH's legitimate interests and whether MH's need outweighed the hardship
to Haass or the damage to the public. Id. at 386. The Court in Haass found significant that the contract provisions operated
prospectively to include clients that became clients after the departing partner had already left the firm. Id. In addition, the
provision also expressly included any of MH's clients worldwide, not just those with whom Haass had some actual contact.
Id. The Court stated,

  These aspects of the provision the court of appeals concluded were unreasonable because they were overbroad, oppressive
  to Haass because he “would have to, in effect, take a prospective client's accounting history,” and injurious to the public by
  limiting the choice of accountants.

  The court of appeals' conclusion is supported by decisions from other jurisdictions. The fundamental legitimate business
  interest that may be protected by such covenants is in preventing employees or departing partners from using the business
  contacts and rapport established during the relationship of representing the accounting firm to take the firm's customers with
  him.

*6 Id. at 386–87 (citations omitted).

The Court concluded that in the context of the accounting firm merger at the center of dispute in Haass, the protectible
fundamental business interest included preserving the client base that MH acquired by merging with CJ. Id. at 387. The Court
recognized that in order to meet the reasonableness standard there should be a “connection between the personal involvement
of the former firm member with the client.” Id. The Court stated that “[i]nhibiting departing partners from engaging accounting
services for clients who were acquired after the partner left, or with whom the accountant had no contact while associated with
the firm, does not further and is not reasonably necessary to protect” the relevant business interest. Id. at 388. Therefore, the
Court held the provision was “overbroad and unreasonable.” Id. Notably, Haass was not a case involving a review of the trial
court's grant of a temporary injunction; however, our decision in Wright was such a case. See Wright, 137 S.W.3d at 291.

In Wright, we considered whether the trial court abused its discretion in entering a temporary injunction to enforce a covenant,
which like the restrictive covenant in the present case, contained an industry-wide exclusion, prohibiting the former employee
from engaging in any sales activities in any related business across several counties. See id. Specifically, the agreement
prohibited Wright, a former salesman for Sport Supply Group, Inc. (“SSG”) from, “either directly or indirectly, conducting
any sales related activities for a business related to the promotion, marketing, distribution, manufacturing, sourcing, importing
and/or sale of sports related equipment and/or supplies to institutional customers” in twenty-nine counties. Wright, 137 S.W.3d
at 291, 298. The agreement further prohibited Wright from doing business with the “customers, suppliers, clients, licensors,
licensees, distributors, dealers, or independent salespersons of SSG, or any [of] its affiliates” that conducted business in Wright's
sales district. Id. at 298.

In Wright we stated that “[a] restrictive covenant is unreasonable unless it bears some relation to the activities of the employee.”
Id. (citing Haass, 818 S.W.2d at 386–87). Additionally, we recognized that “[a] covenant not to compete that contains an
industry-wide exclusion from subsequent employment is unenforceable.” Id. (citing John R. Ray & Sons, Inc. v. Stroman, 923
S.W.2d 80, 85 (Tex.App.-Houston [14th Dist.] 1996, writ denied)). Further, we stated, “a covenant not to compete that extends
to clients with whom a salesman had no dealings during his employment is unenforceable.” Id. We held the covenants at issue



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were unreasonable restraints of trade because they did not limit the prohibitions to customers with whom Wright had dealings
while he was employed by SSG. Id. Consequently, we held that the trial court abused its discretion by granting the temporary
injunction. Id.

 *7 In Sheshunoff, the Texas Supreme Court addressed the enforceability of a restrictive covenant with no geographic restriction
that prohibited a former employee, Kenneth Johnson (“Johnson”) from providing consulting services to any former customers
of his former employer, Alex Sheshunoff Management Services, L.P. (“ASM”), or from soliciting any affiliation member or
previously identified prospective client or affiliation member. Sheshunoff, 209 S.W.3d at 646–47. ASM provided consulting
services to banks and other financial institutions. Id. Johnson was the director of the company's “Affiliation Program,” a program
designed to maintain relationships with clients and prospective clients. Id. A few months after being promoted to director of the
affiliation program, Johnson signed an employment agreement, which he was told was a condition of his continued employment.
Id. The agreement provided in pertinent part:

  (a) In consideration of the training and access to Confidential Information provided by Employer ... for a period of one (1)
  year following the termination of Employee's employment for any reason, Employee will not

  (i) directly or indirectly, as an owner, employee, independent contractor or otherwise, provide consulting services to banks,
  savings and loans or other financial institutions where the Employee has provided fee based services in excess of 40 hours
  within the last year of employment, or with which Employee has conducted significant sales activity, including, but not
  limited to, more than one sales call, preparation of a sales proposal and actual sales, within the last year of employment.
  This restriction applies regardless of geographic location, it being acknowledged by the parties that Employer's clients are
  not confined to a particular geographic area;

  (ii) solicit or aid any other party in soliciting any affiliation member or previously identified prospective client or affiliation
  member; or

  ....

  (b) Employee understands and acknowledges that Employer has made substantial investments to develop its business interests
  and goodwill, and to provide special training to Employee for the performance of Employee's duties under this Agreement.
  Employee agrees that the limitations as to time, geographical area, and scope of activity to be restrained contained in this
  Paragraph 6 are reasonable and are not greater than necessary to protect the goodwill or other business interests of Employer.

Id. at 656.

ASM brought an action to enforce the agreement after Johnson left and went to a competitor, Strunk & Associates, L.P.
(“Strunk”). Id. at 647. Johnson argued that the covenant was overbroad because 1) its restriction on his solicitation of certain
ASM's prospective clients and “affiliation members” was unrelated to any training or confidential information he received; 2)
ASM's protection of its goodwill was unrelated to any such information; and 3) there was no basis for restricting Johnson from
calling on ASM's clients of whom he was aware before signing the agreement. Id. at 657. The Court disagreed noting that with
Johnson's help, as director of affiliation, ASM continued to develop clients for four years after the agreement was signed. Id.
In addition, Johnson helped develop ASM's goodwill and could have tried to unfairly capitalize on it after going to Strunk. Id.

 *8 The Court found significant that Johnson was privy to ASM's development of an overdraft protection product, while Strunk
was the market leader for such products. Id. at 647, 657. The Court noted that the record established that the covenant would
have prevented Johnson from calling on 821 ASM clients for one year. Id. at 657. Finally, the Court took into consideration the
fact that Johnson had admitted in his agreement that his covenant with ASM was reasonable 3 and had testified that “[w]hen
[he] began work with Strunk, he agreed he would not sell an overdraft protection product ... to anyone in the industry ... for
two years after leaving Strunk's employment,” which Johnson further testified was reasonable. Id. The Court concluded the
covenant in Johnson's agreement with ASM was reasonable. Id.




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Sheshunoff is distinguishable from the present case in that while ASM's restrictive covenant contained no geographic limitation,
it only prevented Johnson from soliciting prior clients with whom he had personal contact or any “previously identified
prospective client or affiliation member.” Id. at 647. Here, in addition to preventing Poole or Fendley from contacting existing
and potential clients, the temporary injunction order prevents Poole and Fendley from engaging in any similar or related
business, in any capacity. Moreover, Johnson's job duties specifically involved client development and maintaining relationships
with prospective clients. Therefore, the restrictions in the covenant were directly related to Johnson's activities as an employee
of the company. Like the defendant-employees in Haass and Wright, Poole and Fendley were salesmen. The law is well settled
in Texas that “[i]n the case of covenants applied to a personal services occupation, such as that of a salesman, a restraint on
client solicitation is overbroad and unreasonable when it extends to clients with whom the employee had no dealings during his
[or her] employment.” Stroman, 923 S.W.2d at 85 (citing Haass, 818 S.W.2d at 386–88; Daytona Group of Tex., Inc. v. Smith,
800 S.W.2d 285, 288 (Tex.App.-Corpus Christi 1990, writ denied)). As the Court stated in Haass, there should be a connection
between the personal involvement of the former employee and the client. Haass, 818 S.W.2d at 387. The Court's subsequent
decision in Sheshunoff did not change the law in this regard. 4

U.S. Money Reserve argues that the court's order is reasonable based on the express provisions of the covenant wherein
the employees acknowledged “that the limitations as to time, geographic area, and scope of activity to be restrained are
reasonable....” The Court in Sheshunoff analyzed the reasonableness of a covenant which included virtually identical language.
Sheshunoff, 209 S.W.3d at 656. Notably, while the Court considered the language in making its determination, the language
alone was not outcome determinative. See id. at 657. Likewise, this court addressed an agreement in Wright which contained
a provision that remedies at law for any breach or attempted breach of the agreement would be inadequate and waived as a
defense that either party had an adequate remedy at law. Wright, 137 S.W.3d at 293–94. We noted that we were unaware of
any Texas case holding that such agreements, alone, were controlling on those issues; however, we recognized Texas's strong
public policy in favor of preserving freedom of contract. Id. at 294. We considered the language of the agreement together with
other evidence established by the record, including testimony that SSG's damages would have been difficult to calculate. Id. at
293–94. Following this approach, we conclude that the language of the agreement at issue here is but one consideration in our
analysis to be viewed in conjunction with the record in its entirety. See Wright, 137 S.W.3d at 293–94; see also Sheshunoff,
209 S.W.3d at 657. 5

 *9 In addition to relying on the contract's express language, U.S. Money Reserve argues that the restraints found in the
temporary injunction are reasonable because of the nature of its business. U .S. Money Reserve asserts that the key to its success
in the coin business is its marketing. It further argues that because of its tremendous investment and experience in marketing
in the coin industry, it has learned which techniques are effective, and its salesman are provided with confidential information
about the company's marketing techniques, which would give them an unfair advantage in the national coin market if they were
allowed to work for a competitor. Leipsner testified that in addition to the company's customer list, the marketing materials the
company puts together are protected confidential information. Leipsner explained that the company discusses the marketing
materials with its salesmen before the materials are distributed to the public. This is done so that the company's salesmen will
be adequately prepared to answer sales calls from the public following the company's advertising or media campaigns.

Nonetheless, it is undisputed that Poole and Fendley worked in sales. While marketing and advertising materials may have
been reviewed or discussed with Poole or Fendley prior to public distribution, neither Poole nor Fendley were shown during
the hearing to have been hired to head up or develop the company's marketing efforts. Poole testified that he had “no idea”
how the company determined what to include in its advertising. Poole testified that his job responsibilities as a salesman were
limited to making sales calls and acting as a team leader for his sales team. Likewise, Poole testified that his job responsibilities
did not include determining which cities the ads would run in. While Leipsner testified that his salespeople were privy to “the
rationale and the way that we put things together” in terms of marketing and advertising, he admitted that crafting this type of
information was not part of Poole's or Fendley's job responsibilities.

Viewing the record in its entirety and in the light most favorable to the trial court's order, we hold that the trial court abused its
discretion in entering a temporary injunction order that was overbroad. 6 Therefore, we overrule issue one and sustain issue two.


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Courts are generally required to reform overbroad convenants to the extent necessary to protect the business interest at issue. See
TEX. BUS. & COM.CODE ANN. § 15.51(c); see also TEX.R.APP. P. 43.3. An exception to this rule exists where remand is
necessary for further proceedings. TEX.R.APP. P. 43.3(a); see also Wright, 137 S.W.3d at 299. Our determination of appellants'
final issue requires that we dissolve the order granting the temporary injunction.



                                                   IRREPARABLE INJURY

 [2] Appellants argue in issue three that the trial court abused its discretion in reaching the implied finding that U.S. Money
Reserve would suffer a probable, imminent, and irreparable injury. Specifically, appellants argue that there is an adequate legal
remedy when damages for breach of contract are available thus, precluding injunctive relief. U.S. Money Reserve argues that
the trial court did not abuse its discretion in reaching the implied finding that U.S. Money Reserve would suffer a probable,
imminent, and irreparable injury because 1) Poole testified that he does not believe that he or Fendley would have the money
to pay a substantial judgment; 2) the damages suffered by U.S. Money Reserve are incapable of being measured by any certain
pecuniary standard—particularly, the damage to its relationship with its client-base; and 3) appellants contractually agreed that
U.S. Money Reserve would suffer an irreparable injury if the restrictive covenants were breached and that damages would be
difficult, if not impossible, to calculate.

 *10 “An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be
measured by any certain pecuniary standard.” Butnaru, 84 S.W.3d at 204. Damages are inadequate, so as to support a temporary
injunction, if they are difficult to calculate. Rollins v. Universal Coin & Bullion Ltd., No. 09–06–150 CV, 2006 Tex.App. LEXIS
8764, at *13, 2006 WL 2883122 (Tex.App.-Beaumont Oct.12, 2006, no pet.) (mem.op.). Additionally, “[a]n abuse of discretion
does not occur when [a] trial court bases its decision on conflicting evidence.” NMTC Corp. v. Conarroe, 99 S.W.3d 865, 868
(Tex.App.-Beaumont 2003, no pet.). Here, Poole stipulated that he sold coins to customers on U.S. Money Reserve's customer
list after leaving the company. He also admitted that U.S. Money Reserve could no longer “take [him] at [his] word” when he
says he will not contact their customers.

In support of their argument that the trial court abused its discretion, appellants point out that Leipsner testified that U.S. Money
Reserve suffered a twenty percent decline in revenues since appellants left the company, as well as a five percent increase in
gold orders returned to the company since appellants left. Based on this testimony, appellants argue that damages are capable
of ready calculation. However, Leipsner also testified that he did not believe that damages could be calculated exactly. While
Leipsner admitted placing a $250,000 liquidated damage value on aspects of appellants' conduct, he testified additionally that
the long-term effects of appellants conduct also needed to be taken into account. Moreover, while Poole testified that he may
be able to take out a loan to satisfy a judgment in the nature of $20,000, he also testified that he did not think he would be
able to satisfy a judgment in the neighborhood of $50,000 and certainly not a judgment for $250,000. Poole testified that in his
opinion Fendley would also not be able to satisfy such a judgment. 7

U.S. Money Reserve points to the contract language, arguing that appellants expressly agreed in the employment agreement that
U.S. Money Reserve would suffer an irreparable injury if the restrictive covenants contained within the contracts are breached.
Further, appellants expressly acknowledge in the contract that it would be difficult, if not impossible, to calculate damages as a
result of a breach of the restrictive covenants. Considering the language in the contract in conjunction with the testimony in the
record, we cannot say the trial court erred in making the implied finding that U.S. Money Reserve, prior to trial, would suffer
a probable imminent and irreparable injury. Issue three is overruled.



                                              COMPLIANCE WITH RULE 683




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Poole v. U.S. Money Reserve, Inc., Not Reported in S.W.3d (2008)
28 IER Cases 629

 [3] In conjunction with their final issue, Appellants argue that the order granting the temporary injunction is void under Rule
683 of the Texas Rules of Civil Procedure. U.S. Money Reserve argues that appellants have waived any right to raise that issue
on appeal. Rule 683 provides in pertinent part:

   *11 Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be
  specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or
  acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees,
  and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order
  by personal service or otherwise.

  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. We recognized in International Brotherhood of Electrical Workers Local Union 479 v. Becon Construction
Co. Inc., 104 S.W.3d 239, 244 (Tex.App.-Beaumont 2003, no pet.), that “[t]he reasons given by the trial court for granting a
temporary injunction must be specific and legally sufficient, and not mere conclusory statements.” We stated,

            [B]ecause probable injury subsumes the elements of irreparable injury and no adequate remedy at law,
            a valid injunction must articulate the reasons why the identified probable injury is an irreparable one for
            which [applicants] have no adequate legal remedy. Consequently, the specificity required by Rule 683
            is not satisfied by the mere recital of no adequate remedy at law and irreparable harm.

Id. (citations and internal quotation marks omitted). We concluded that “ ‘[t]he failure to include in the order a reason why
the court deems issuance of the writ proper for preventing injury to the applicant is reversible error.’ ” Id. (quoting Stoner v.
Thompson, 553 S.W.2d 150, 151 (Tex.Civ.App.-Houston [1st Dist.] 1977, writ ref'd n.r.e.)).

In Int'l Brotherhood, we addressed the issue of whether the requirements of Rule 683 could be waived. Id. at 243. We recognized
that in InterFirst Bank San Felipe, N.A. v. Paz Construction Co., the Texas Supreme Court held that the requirements of Rule
683 are mandatory and must be strictly followed. Id. (citing InterFirst, 715 S.W.2d 640, 641 (Tex.1986)). “[W]hen an order
of temporary injunction fails to adhere to these requirements it is subject to being declared void and dissolved.” Id. In Int'l
Brotherhood we rejected the argument that appellants waived any issues concerning failure to comply with Rule 683 and held,
in line with the great weight of authority following InterFirst, that a defective order granting a temporary injunction could not
be validated by means of waiver. Id.

Here, U.S. Money Reserve argues that appellants waived the right to raise this issue on appeal not only because they failed to
raise it in the trial court, but also because appellants agreed to the court's judgment, wherein the phrase “Agreed as to Form
Only” prefaced appellants' counsel's signature. The San Antonio Court of Appeals recently addressed this very issue. See In re
Garza, 126 S.W.3d 268 (Tex.App.-San Antonio 2003, orig. proceeding [mand. denied] ).

 *12 In Garza, appellant argued that because “the temporary injunction failed to (1) set a trial setting pursuant to Texas Rule of
Civil Procedure 683 and (2) set bond pursuant to Texas Rule of Civil Procedure 684, the temporary injunction [was] void.” Id.
at 270. In response, appellee argued that Garza “waived her complaint by agreeing to the terms of the temporary injunction.” Id.
Specifically, the temporary injunction stated that the parties agreed to the terms of the order as evidenced by their signatures,
which were prefaced by the phrase “Approved as to Form Only.” Id. Appellee argued that appellant was barred from complaining
about the order on appeal relying on case law stating that “a party may not appeal from or attack a judgment to which he has
agreed, absent allegation and proof of fraud, collusion, or misrepresentation.” Id. (citing Henke v. Peoples State Bank, 6 S.W.3d
717, 720 (Tex.App.-Corpus Christi 1999, pet. dism'd w.o.j.)).

The court in Garza recognized that “[a] void order has no force or effect and confers no rights; it is a mere nullity.” Id. at 271
(citing Slaughter v. Qualls, 139 Tex. 340, 345, 162 S.W.2d 671, 674 (1942)). Thus, the court concluded, “a party who agrees
to a void order has agreed to nothing.” Id. The court then undertook to determine whether the trial court's order granting the


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28 IER Cases 629

temporary injunction was “void” or merely “voidable .” Id. The court recognized that the Texas Supreme Court spoke to this
issue in Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334 (Tex.2000) (per curiam).

In Qwest appellants argued that the trial court's order was not a temporary injunction because it failed to set the case for trial
on the merits or set a bond as required by Rules 683 and 684 of the Texas Rules of Civil Procedure. Quest, 24 S.W.3d at 337
(citing TEX.R. CIV. P. 683, 684). The Court disagreed stating,

             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. In InterFirst Bank, however, the order
             failed to set the case for trial on the merits. Yet rather than dismissing the appeal for want of jurisdiction,
             we declared the temporary injunction void and ordered it dissolved. We have also held that a temporary
             injunction was void when there was no bond. Here, these procedural requirements may render the trial
             court's order void but they do not change the order's character and function defining its classification.

Id. (citations omitted). Based on this language, the court of appeals in Garza concluded that unless a temporary injunction
complies with Rules 683 and 684, it is void. Garza, 126 S.W.3d at 273; see also Int'l Brotherhood, 104 S.W.3d at 244. Based
on the Court's holding in Qwest, the court in Garza held that the temporary injunction, which failed to comply with Rules 683
and 684, was void even though the parties expressly agreed to the temporary injunction order. Garza, 126 S.W.3d at 273. The
Texas Supreme Court recently clarified its holding in Interfirst stating “[o]rders that fail to fulfill [the] requirements [of Rule
683] are void.” In re Office of the Attorney General, 257 S.W.3d 695, 697 (Tex.2008) (per curiam).

 *13 The trial court's order granting the temporary injunction in favor of U.S. Money Reserve does not set forth any reasons
for issuance of the temporary injunction or otherwise state any reason why the identified probable injury is an irreparable one
for which U.S. Money Reserve has no legal remedy. Further, the order does not include a date setting the matter for trial as
required by Rule 683. TEX.R. CIV. P. 683. Instead, the order attempts to enjoin the parties through a date certain in the future,
January 25, 2011. The purpose of a temporary injunction is to preserve the status quo through the date of trial. See Butnaru,
84 S.W.3d at 204.

While the trial court did not abuse its discretion in granting a temporary injunction to maintain the status quo, it did abuse its
discretion in entering the temporary injunction order as crafted. We hold that the temporary injunction order is void as it is
overly broad and fails to comply with the requirements of Rule 683. TEX.R. CIV. P. 683. We dissolve the temporary injunction.

REVERSED AND REMANDED.


Parallel Citations

28 IER Cases 629


Footnotes
1      We note that the court's order appears to have erroneously misspelled Terry Fendley's name as “Terry Finley.”
2      We note that while appellants argue that the trial court's order follows the language of the restrictive covenants in their employment
        agreements verbatim, this is not the case. The language in Poole's and Fendley's agreements differed from the language in some
        of the older employment agreements, which appear to have been inadvertently referenced by appellants in their brief. A significant
        difference in the agreements at issue and the agreement referenced is that the term “clients” is defined in the agreements of Poole and
        Fendley as set forth above. Likewise, the agreement set forth above is the agreement that Poole authenticated and testified to during
        the hearing. While existing and potential customers and clients are defined in these employment agreements, the trial court's order
        granting the temporary injunction made no attempt whatsoever to define “existing or potential clients or customers.”
3       See Sheshunoff, 209 S.W.3d at 656.
4       We note that Texas decisions analyzing the reasonableness of time, geography, and scope of activities restricted in covenants not
        to compete are fact-specific and those decisions vary depending largely on the particular facts and circumstances of each individual


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Poole v. U.S. Money Reserve, Inc., Not Reported in S.W.3d (2008)
28 IER Cases 629

      case. The nature of the employer's business and the job responsibilities and involvement of the subject employee are usually taken
      into account. For example, we note that other courts have found nation-wide exclusions reasonable where the covenant accompanied
      the sale of a business and was enforced against its prior owner. See Vais Arms, Inc. v. Vais, 383 F.3d 287, 295–96 n. 20 (5th Cir.2004)
      (citing Williams v. Powell Elec. Mfg. Co., 508 S.W.2d 665, 668 (Tex.Civ.App.-Houston [14th Dist.] 1974, no writ) (nationwide
      injunction not an abuse of discretion where business sold was national in character)) (geographic scope of noncompete agreement was
      reasonable and enforceable against prior business owner where business owner had advertised his product in nationally-distributed
      trade publications, mail order catalogues, and the internet). In those cases, the individual restricted by the covenant had a more
      unique and specialized knowledge of the business and the business interests at issue. See also Curtis v. Ziff Energy Group, Ltd., 12
      S.W.3d 114, 118–19 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (restrictive covenant upheld against the former Vice President
      of Pipelines and Energy Marketing, which prevented him from working for any similar company in North America for a period of
      six months, where former Vice President was hired to “head up and build up the U.S. practice in the areas of consulting regarding
      pipeline/transportation issues, and energy marketing).
5     We note that this analysis is in line with the analysis employed by courts in other jurisdictions when analyzing covenants containing
      similar acknowledgments. See Webster Ins., Inc. v. Levine, NNHCV074026861S, 2007 Conn.Super. LEXIS 3410, at *11–12, 2007
      WL 4733105 (Conn.Super.Ct. Dec. 21, 2007) (unpublished) (“Private parties cannot dictate a conclusion that injunctive relief is
      required.... The agreement to this effect is probably some evidence ....” (quoting Custard Ins. Adjusters Inc. v. Nardi,, CV 980061967S,
      2000 Conn.Super. LEXIS 1003, at *158, 2000 WL 562318 (Conn.Super.Ct. Apr. 20, 2000))) (Levin's concession in the agreement
      is merely evidence the court may weigh in determining whether Webster met his burden of proof with regard to irreparable harm
      and lack of an adequate remedy at law.); see also Herring Gas Co. v. Magee, 813 F.Supp. 1239, 1241, 1245–46 (S.D.Miss.1993)
      (evaluating the reasonableness of the restrictive covenants without regard to contract language wherein the employees expressly
      acknowledged that the restrictions were reasonable); Jackson Hewitt Inc. v. Childress, No. 06–CV–0909, 2008 U.S. Dist. LEXIS
      24460, at *20–23 (D.N.J. Mar. 27, 2008) (unpublished) (considering acknowledgments of reasonableness along with other evidence
      in the record); Hagemeyer N. Am. Inc. v. Thompson, No. 2:05–3425, 2006 U.S. Dist. LEXIS 19468, at *5, 12–16 (D.S.C. Mar. 1,
      2006) (unpublished) (employee's acknowledgment of reasonableness of the restrictive covenants was considered in conjunction with
      other evidence in the record).
6     Notably, U.S. Money Reserve acknowledged at the temporary injunction hearing that the industry-wide exclusions such as the one
      at issue here have been held unreasonable and that the covenant at issue may need to be reformed. Counsel stated,
            Now, the only area that this thing would possibly need to be reformed on is something we're willing to stipulate for the Court. It
            does have a nationwide, industrywide exclusion and to start off we're willing to tell the Court that we are willing to reform that
            to make it no competition if they are located in the state of Texas or any of the surrounding states with the state of Texas.
            Therefore, if they want to sell coins in the state of Kentucky or the state of Georgia or Alaska or on the West Coast, we feel
            that's fine....
         Counsel additionally stated: “What I'm saying is that an industrywide, nationwide exclusion has been held unreasonable; .... [s]o,
         what I'm suggesting is, ... the trial court merely has to make a decision on the trial court's own as to the scope of the geographic
         restriction.” Appellant-employees, on the other hand, argued that the covenant needed to be reformed to prevent the employees from
         soliciting clients with whom they had contact while working for U.S. Money Reserve or who were clients of the company. In fact,
         there is evidence in the record that Poole agreed to enter into an injunction prohibiting him from contacting U .S. Money Reserve
         clients. The trial court refrained from reforming the covenant prior to hearing testimony and allowed the parties to move forward.
7     While there is evidence in the record that Fendley was subpoenaed, he failed to appear at the injunction hearing.


End of Document                                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        12
Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334 (2000)
43 Tex. Sup. Ct. J. 600



                                                       24 S.W.3d 334
                                                   Supreme Court of Texas.

   QWEST COMMUNICATIONS CORPORATION and Qwest Communications International, Inc., Petitioners,
                                            v.
         AT & T CORPORATION and AT & T Communications of the Southwest, Inc., Respondents.

                      No. 99–0306.         |   April 6, 2000.   |    Rehearing Overruled June 8, 2000.

Telecommunications company filed negligence suit against competitor, seeking injunctive and compensatory relief for alleged
damage to buried cable. The District Court, Travis County, 261st Judicial District, John K. Dietz, J., entered order, which
asserted it was correct rendition of parties' prior agreement. Competitor appealed. The Austin Court of Appeals, 983 S.W.2d
885, dismissed appeal. Competitor filed petition for review. The Supreme Court held that order was temporary injunction, and
thus was appealable.

Court of Appeals reversed and remanded.



 West Headnotes (8)


 [1]    Appeal and Error         Power to review in general
        Supreme Court has jurisdiction to determine whether a court of appeals correctly decided its jurisdiction over an
        interlocutory appeal.

        8 Cases that cite this headnote


 [2]    Appeal and Error         Necessity of final determination
        Appellate court lacks jurisdiction to review an interlocutory order unless a statute specifically authorizes an exception
        to the general rule, which is that appeals may only be taken from final judgments.

        53 Cases that cite this headnote


 [3]    Injunction        Nature of remedy in general
        Injunction        Equitable nature of remedy
        Injunction is a remedial writ that depends on the issuing court's equity jurisdiction.

        4 Cases that cite this headnote


 [4]    Injunction        Purpose or function of remedy
        One function of injunctive relief is to restrain motion and to enforce inaction.

        7 Cases that cite this headnote


 [5]    Appeal and Error         Injunction
        Injunction        Operation and effect



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Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334 (2000)
43 Tex. Sup. Ct. J. 600

        Trial court's order, which purported to be correct rendition of parties' agreement in negligence action brought by
        telecommunications company against competitor seeking compensatory and injunctive relief for damages to cable,
        which commanded competitor of telecommunications company to undertake certain monitoring and give notice when
        conducting certain boring operations, was temporary injunction, and thus was appealable, even though it went beyond
        what was necessary to preserve status quo, and instead, applied to all of competitor's operations in nation, governed
        competitor's conduct for period of three years, did not set bond or trial date, and did not order issuance of writ of
        injunction, where trial court's order placed restrictions on competitor, and was made effective immediately, so that it
        operated during pendency of suit. V.T.C.A., Civil Practice & Remedies Code § 51.014(a)(4).

        22 Cases that cite this headnote


 [6]    Injunction        Operation and effect
        Whether an injunction is effective for a fixed period of time or is made effective only until further order of the court
        or final judgment is only one of the factors in determining the character and nature of the order.

        5 Cases that cite this headnote


 [7]    Injunction        Form and requisites
        Injunction        Necessity and waiver in general
        Procedural requirements imposed by the Texas Rules of Civil Procedure, which 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,
        are mandatory, and an order granting a temporary injunction that does not meet them is subject to being declared void
        and dissolved. Vernon's Ann.Texas Rules Civ.Proc., Rules 683, 684.

        73 Cases that cite this headnote


 [8]    Appeal and Error         Injunction
        Injunction        Form and requisites
        Injunction        Amount
        Procedural requirements for temporary injunctions, which 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, may render the trial
        court's order void, but they do not change the order's character and function defining its classification for purposes
        of determining whether order is appealable.

        54 Cases that cite this headnote




Attorneys and Law Firms

*335 Claude E. Ducloux, Austin, P. Michael Jung, Dallas, Delno J. Grosenheider, J. Stephen Ravel, Michael Shaunessy, Diane
Barlow-Sparkman, Austin, Bruce A. Featherstone, Nancy C. Shea, Denver, CO, for Petitioner.

Joseph Latting, John K. Schwartz, G. Alan Waldrop, C. W.“ Rocky” Rhodes, Barbara M. Ellis, Kamela Bridges, Austin, for
Respondent.




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Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334 (2000)
43 Tex. Sup. Ct. J. 600


Opinion

PER CURIAM.

The single issue in this petition is whether the trial court's interlocutory order is a temporary injunction and thus appealable under
Texas Civil Practice and Remedies Code section 51.014(a)(4). The court of appeals held that the order was not an appealable
temporary injunction and dismissed the appeal for want of jurisdiction. 983 S.W.2d 885. Because we hold that the trial court's
order grants a temporary injunction, we grant the petition and remand the case to the court of appeals to consider the merits
of the appeal.

In 1997, AT & T Corporation and AT & T Communications of the Southwest, Inc. (collectively “AT & T”) sued Qwest
Communications Corporation, Qwest Communications International, Inc. (collectively “Qwest”), and others for damages to
AT & T's fiber optic cables. In addition, AT & T sought a temporary restraining order, a temporary injunction, and a permanent
injunction. On the same day that the petition was filed, the trial court issued an ex parte temporary restraining order.

At the temporary injunction hearing, the parties informed the trial court that they had resolved the matters set for the temporary
injunction hearing, and then read the agreement into the record. Among other restrictions applicable to all activities within the
United States, the agreement required Qwest to notify AT & T of any construction operations within thirty feet of an AT & T
underground facility, and to electronically monitor the location of the drill borehead used during boring and pullback operations.
Further, the agreement dissolved the previous temporary restraining order bond, left open any claims for damages, and expired
three years from the date it became effective unless extended or modified in a signed writing by the parties. At the conclusion of
this hearing, the judge stated that “[w]ith respect to the plaintiff's application for temporary injunction, judgment is rendered”
and told counsel for AT & T to prepare a written order, deliver it to Qwest's counsel for comment, and then submit it to the trial
court. Ultimately, the parties could not agree to the terms of the written order to be submitted to the trial court. The trial court,
after a “clarification” hearing, signed an order following the terms recited into the record at the temporary injunction hearing.

Qwest appealed. But the court of appeals dismissed the appeal for want of jurisdiction, holding that the order did not grant a
temporary injunction. The court concluded that the order did not meet the “traditional requirements” of a temporary injunction
because the order did not preserve the status quo, require a bond, set a trial date, require the clerk to issue a writ of injunction,
nor was the order's duration limited until final judgment or further order of the court. 983 S.W.2d at 888. Qwest then petitioned
this Court for review.

 [1]    [2] This Court has jurisdiction to determine whether a court of appeals correctly decided its jurisdiction over an
interlocutory *336 appeal. See Lesikar v. Rappeport, 899 S.W.2d 654, 655 (Tex.1995) (determining whether interlocutory
order being appealed was temporary injunction). An appellate court lacks jurisdiction to review an interlocutory order unless a
statute specifically authorizes an exception to the general rule, which is that appeals may only be taken from final judgments.
See Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex.1998); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992).
In this case, Texas Civil Practice and Remedies Code section 51.014(a) states: “[a] person may appeal from an interlocutory
order of a district court, county court at law, or county court that: ... (4) grants or refuses a temporary injunction....” TEX. CIV.
PRAC. & REM.CODE § 51.014(a)(4).

 [3] [4] [5] An injunction is a remedial writ that depends on the issuing court's equity jurisdiction. See State v. Morales,
869 S.W.2d 941, 947 (Tex.1994). One function of injunctive relief is to restrain motion and to enforce inaction. See Boston v.
Garrison, 152 Tex. 253, 256 S.W.2d 67, 70 (1953). The trial court's order here commands Qwest to undertake certain monitoring
and notice provisions when conducting certain boring operations. Thus, the order is an injunction.

AT & T argues, however, that the order cannot be a temporary injunction because it lacks the defining characteristics of a
temporary injunction. First, it contends that the order goes beyond what is necessary to preserve the status quo because it applies
to all of Qwest's operations in the United States. Second, AT & T asserts that one of the hallmarks of a temporary injunction is



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Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334 (2000)
43 Tex. Sup. Ct. J. 600

that it is effective for an indefinite period, operating only until dissolved by another interlocutory order or until final hearing.
Here, the order governs Qwest's conduct for a period of three years, until December 2000, a period well beyond the original
scheduled trial date of July 6, 1998. Finally, AT & T notes that the order did not set a bond or trial date and did not order
issuance of a writ of injunction.

The order's features that AT & T identifies do not necessarily control the classification of this order as a temporary injunction. In
Del Valle Independent School District v. Lopez, we rejected the notion that “matters of form control the nature of the order itself
—it is the character and function of an order that determine its classification.” 845 S.W.2d 808, 809 (Tex.1992). We reasoned
that if errors in the form of the order determined the order's status, then those errors would deny review of the very defects that
render the order void. See Del Valle, 845 S.W.2d at 809–10; Brines v. McIlhaney, 596 S.W.2d 519, 523 (Tex.1980).

Here, AT & T requested and received a court order restricting Qwest's conduct. The order recites that it is effective for a set
three-year period from the date it was rendered unless it is extended or modified in writing signed by the parties. AT & T notes
that this Court has previously stated that a temporary injunction “operates until dissolved by an interlocutory order or until the
final hearing.” Brines, 596 S.W.2d at 523; see also J.C. Matlock v. Data Processing Sec., Inc., 618 S.W.2d 327, 328 (Tex.1981)
(stating the purpose of a temporary injunction is to preserve the status quo pending trial on the merits). Thus, we must decide
whether the fixed three-year term precludes the order's classification as a temporary injunction.

Some courts of appeals' opinions have held an order was a temporary injunction even when it granted the maximum duration of
relief to which the plaintiff would be entitled at a trial on the merits. See Glenn Advertising, Inc. v. Black, 454 S.W.2d 841, 844
(Tex.Civ.App.—Houston [14 th Dist.] 1970, writ ref'd n.r.e.). In Glenn Advertising, the court of appeals noted that the order
should correctly provide that the temporary injunction should remain in effect only until final hearing or until further order of
the court. Id. Yet, the court did not dismiss the appeal for *337 want of jurisdiction, but instead simply modified the order
to remain in full force and effect until final judgment was entered. Other courts of appeals have followed this reasoning and
exercised jurisdiction over appeals from orders that were not made effective until final judgment or further action by the trial
court. See Hailey v. Texas–New Mexico Power Co., 757 S.W.2d 833, 835 (Tex.App.—Waco 1988, writ dism'd w.o.j.); Owens
v. Texaco Inc., 368 S.W.2d 780, 783 (Tex.Civ.App.—Beaumont 1963, no writ).

But other courts of appeals have held that when an injunction is effective for a fixed period of time it is a permanent rather than
a temporary injunction. See Aloe Vera of America, Inc. v. CIC Cosmetics Int'l Corp., 517 S.W.2d 433, 436 (Tex.Civ.App.—
Dallas 1974, no writ). In Aloe Vera, the trial court signed an order styled “Permanent Injunction” and directed the clerk to issue
a “Writ of Injunction permanently enjoining until January 1, 1975.” The court of appeals held that limiting the restraint to the
period ending January 1, 1975, precluded the order from being a temporary injunction. “Whether the restraint continues for six
months or six years has no bearing on the question of permanency. No more permanent order could be made with respect to
this particular claim for injunctive relief.” Id. at 436. The court therefore held that the order was an interlocutory permanent
injunction rather than a temporary injunction and thus was not appealable. See id. Other courts of appeals have adopted the
reasoning of Aloe Vera. See James v. Hubbard, 985 S.W.2d 516, 518 (Tex.App.—San Antonio 1998, no writ); Brelsford v.
Old Bridge Lake Community Service Corp., 784 S.W.2d 700, 702 (Tex.App.—Houston [14 th Dist.] 1989, no writ); Kelso v.
Thorne, 710 S.W.2d 735, 736 (Tex.App.—Corpus Christi 1986, no writ); Zoning Bd. of Adjustment v. Graham, 664 S.W.2d
430, 434 (Tex.App.—Amarillo 1983, no writ); Gensco, Inc. v. Thomas, 609 S.W.2d 650, 651 (Tex.Civ.App.—San Antonio
1980, no writ).

 [6] The approach taken by Aloe Vera and the line of cases that follow it is problematic in that a burdensome interlocutory
order that has the same effect as a temporary injunction could be shielded from appellate review by the very defect that makes
it erroneous. See Del Valle, 845 S.W.2d at 809–10. Whether an injunction is effective for a fixed period of time or is made
effective only until further order of the court or final judgment is only one of the factors in determining the character and nature
of the order. Because the trial court's order places restrictions on Qwest and is made effective immediately so that it operates
during the pendency of the suit, it functions as a temporary injunction.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334 (2000)
43 Tex. Sup. Ct. J. 600

 [7] [8] Finally, AT & T argues that the order is not a temporary injunction because it does not set the case for trial on the
merits or set a bond. 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. See InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986) (stating that
requirements of Rule 683 are mandatory and must be strictly followed). In InterFirst Bank, however, the order failed to set the
case for trial on the merits. Id. at 641. Yet rather than dismissing the appeal for want of jurisdiction, we declared the temporary
injunction void and ordered it dissolved. See id. We have also held that a temporary injunction was void when there was no
bond. See Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956) (holding that bond provisions of Rule 684 are
mandatory). Here, these procedural requirements may render the trial court's order void but they do not change the order's
character and function defining its classification.

 *338 We hold that, in character and function, the trial court's order grants a temporary injunction and is appealable under
Texas Civil Practice and Remedies Code section 51.014(a)(4). We do not express any opinion, however, on the merits of the
appeal. Accordingly, the Court grants petitioner's petition for review and, without hearing oral argument, reverses the judgment
of the court of appeals and remands the case to that court for consideration of the merits of the appeal. TEX.R. APP. P. 59.1


Parallel Citations

43 Tex. Sup. Ct. J. 600

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  5
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900



                                                         341 S.W.3d 919
                                                     Supreme Court of Texas.

                                                 Larry ROCCAFORTE, Petitioner,
                                                               v.
                                                 Jefferson COUNTY, Respondent.

                          No. 09–0326.       |      Argued Oct. 14, 2010.    |   Decided April 29, 2011.

Synopsis
Background: Former chief deputy constable brought § 1983 wrongful termination action against county, county constable,
and county employees. After jury returned a verdict in favor of former chief with respect to the claims against constable, the
136th District Court, Jefferson County, Milton G. Shuffield, J., granted county's plea to jurisdiction, and former chief brought
interlocutory appeal. While interlocutory appeal was pending, the District Court rendered final judgment against constable.
Constable appealed, and former chief cross-appealed. The Beaumont Court of Appeals affirmed in part, reversed in part, and
rendered judgment that former chief take nothing. In the interlocutory appeal, the Beaumont Court of Appeals, 281 S.W.3d
230, modified the dismissal order to reflect that the dismissal was without prejudice and affirmed the order as modified. Former
chief petitioned for review.



Holdings: The Supreme Court, Jefferson, C.J., held that:

[1] even if court erred in rendering final judgment after it had issued a stay in proceedings, former chief waived such error;

[2] Court of Appeals would treat interlocutory appeal that was pending when trial court issued a final judgment as an appeal
from the final judgment;

[3] provision in statute requiring notice of suit against county via mail was not a jurisdictional requirement; and

[4] provision in statute requiring notice of suit against county via mail was satisfied by hand-delivery of notice.


Reversed and remanded.

Willett, J., concurred in part and filed opinion.



 West Headnotes (5)


 [1]     Appeal and Error         Judgment
         Even if court erred in rendering final judgment after it had issued a stay in proceedings pending an interlocutory appeal
         by plaintiff, former chief deputy constable waived such error in wrongful termination action brought by former chief
         deputy constable against county and other constable; trial court's final judgment was voidable, rather than void, and
         former chief deputy constable failed to object to entry of final judgment.

         4 Cases that cite this headnote




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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900


 [2]    Appeal and Error          Nature and grounds of right
        The right of appeal should not be lost due to procedural technicalities.

        1 Cases that cite this headnote


 [3]    Appeal and Error          Interlocutory Proceedings Brought Up in General
        Court of Appeals would treat interlocutory appeal that was pending when trial court issued a final judgment as an
        appeal from the final judgment; claims against defendant that were subject matter of interlocutory appeal were not
        severed prior to entry of final judgment, defendant remained a party to the underlying proceeding, and final judgment
        implicitly modified the interlocutory order, which merged with it. Rules App.Proc., Rule 27.3.

        15 Cases that cite this headnote


 [4]    Counties        Notice, Demand, or Presentation of Claim
        Provision in statute governing local government providing that, upon motion by the defendant, an action against a
        county or county official must be dismissed if plaintiff failed to provide written notice via mail to the county judge
        or district attorney, was not a jurisdictional requirement. V.T.C.A., Local Government Code § 89.0041.

        4 Cases that cite this headnote


 [5]    Counties        Service or presentation; timeliness
        Statute requiring that a plaintiff filing suit against a county or county official must provide notice of suit via mail to
        county judge or district attorney was satisfied by hand-delivery of notice, rather than delivery by mail, in wrongful
        termination action brought by former chief deputy constable against county and other constable. V.T.C.A., Local
        Government Code § 89.0041.

        5 Cases that cite this headnote




Attorneys and Law Firms

*920 Laurence W. Watts, Watts & Associates, P.C., Missouri City, TX, Brandon David Mosley, Cowan & Lemmon, LLP,
Houston, TX, for Larry Roccaforte.

Thomas F. Rugg, District Attorney's Office, First Assistant—Civil Div., Steven L. Wiggins, Jefferson County District Attorney
Office, Thomas E. Maness, Criminal District Attorney, Beaumont, TX, for Jefferson County.

Todd K. Sellars, Dallas County Assistant Attorney, Dallas, TX, for Amicus Curiae Dallas County, Texas.

Opinion

Chief Justice JEFFERSON delivered the opinion of the Court, joined by Justice HECHT, Justice WAINWRIGHT, Justice
MEDINA, Justice GREEN, Justice JOHNSON, Justice GUZMAN, and Justice LEHRMANN, and joined by Justice WILLETT
as to parts I through III.

The Local Government Code requires a person suing a county to give the county judge and the county or district attorney notice
of the claim. TEX. LOC. GOV'T CODEE § 89.0041. The plaintiff provided that notice here, but did so by personal service of
process, rather than registered or certified mail as the statute contemplates. We conclude that when the requisite county officials


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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

receive timely notice enabling them to answer and defend the claim, the case should not be dismissed. Because the court of
appeals concluded otherwise, we reverse its judgment and remand the case to the trial court for further proceedings.


I. Background
Former Chief Deputy Constable Larry Roccaforte sued Jefferson County and Constable Jeff Greenway, alleging that his
wrongful termination deprived him of rights guaranteed by the Texas Constitution. Roccaforte personally served County Judge
Carl Griffith with the suit, and fifteen days later, the County (represented by the district attorney) and Constable Greenway
answered, denying liability. The County propounded written discovery requests, deposed Roccaforte, and presented County
officials for depositions. The County also filed a plea to the jurisdiction, asserting that Roccaforte did not give requisite notice
of the suit. See TEX. LOC. GOV'T CODEE § 89.0041. Roccaforte disagreed, arguing that the statute applied only to contract
claims. Alternatively, he argued that 42 U.S.C. § 1983 preempted the notice requirements and that he substantially complied
with them in any event.

Although the trial court indicated that it would sustain the County's plea and sever those claims from the underlying case, it
did not immediately sign an order doing so. In the meantime, Roccaforte tried his claims against Greenway. A jury returned a
verdict in Roccaforte's favor. Afterwards, the trial court signed an order granting the County's jurisdictional plea. The order did
not sever the claims from the underlying case. Roccaforte then pursued this interlocutory appeal. His notice of appeal stated
that “[p]ursuant to Civ. P. Rem.Code § 51.014(b), all proceedings are *921 stayed in the trial court pending resolution of the
appeal.” But the proceedings were not stayed.

In the underlying case, Greenway moved for judgment notwithstanding the verdict, which the trial court granted as to
Roccaforte's property interest and First Amendment retaliation claims but denied as to Roccaforte's claimed violation of his
liberty interest. Roccaforte moved for entry of judgment. Notwithstanding the statutory stay referenced in Roccaforte's notice
of appeal, the trial court rendered judgment for Roccaforte and awarded damages, attorney's fees, and costs. The judgment
was titled “FINAL JUDGMENT”; it “denie[d] all relief no [sic] granted in this judgment”; and it stated “[t]his is a FINAL
JUDGMENT.” The County was included in the case caption. No one objected to the continuation of trial court proceedings
despite the statutory stay.

Greenway appealed, and Roccaforte cross-appealed, raising as his only issues complaints regarding the trial court's JNOV on
his claims against Greenway. The court of appeals affirmed in part and reversed in part, rendering judgment that Roccaforte
take nothing. Greenway v. Roccaforte, 2009 WL 3460683, at *6, 2009 Tex.App. LEXIS 8290, at *15 (Tex.App.-Beaumont
2009, pet. denied). 1

In Roccaforte's separate interlocutory appeal, the court of appeals made the following notation:

             Roccaforte notes that immediately after the dismissal order, the trial of the case proceeded to judgment
             without the County as a party. No one disputes that all the claims against all other parties have been
             resolved. The order of dismissal is therefore appealable whether or not the statute at issue is jurisdictional.

281 S.W.3d 230, 231 n. 1. The court ultimately concluded that Roccaforte's failure to notify the County of the suit by registered
or certified mail mandated dismissal of his suit against the County, but not because the trial court lacked jurisdiction. Id. at
236–37. Accordingly, the court modified the dismissal order to reflect that dismissal was without prejudice and affirmed the
order as modified. Id.


Roccaforte petitioned this Court for review, which we granted. 2 53 Tex.Sup.Ct.J. 1061 (Aug. 27, 2010).


II. Did the trial court's final judgment moot this interlocutory appeal?




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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

Before turning to the merits, we must decide a procedural matter: What happens when a party perfects an appeal of an
interlocutory judgment that has not been severed from the underlying action, and that action proceeds to trial and a final
judgment? The trial court did not sever Roccaforte's claims against the County 3 and denied “all relief not granted” in its final
judgment. Ordinarily, under these circumstances, Roccaforte would have to complain on appeal that the trial court erroneously
dismissed those claims. Roccaforte, however, did not complain about the County's dismissal in his appeal from the final
judgment. His separate interlocutory appeal, then, rests on a precipice of mootness.


*922 A. Roccaforte waived any complaint about the trial court's actions during the statutory stay.
Although Roccaforte's interlocutory appeal was supposed to stay all proceedings in the trial court pending resolution of the
appeal, 4 Roccaforte did not object to the trial court's rendition of judgment while the stay was in effect. To the contrary, he
affirmatively moved for entry of judgment. Because a final judgment frequently moots an interlocutory appeal, 5 we must
decide whether the trial court's failure to observe the stay made the final judgment void or merely voidable. If the final judgment
is void, it would have no impact on this interlocutory appeal. Lindsay v. Jaffray, 55 Tex. 626 (Tex.1881) (“A void judgment
is in legal effect no judgment.”) (quoting FREEMAN ON JUDGMENTS, § 117). 6 If voidable, then we must decide whether
it moots this proceeding. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.2010) (observing that voidable orders
must be corrected by direct attack and, unless successfully attacked, become final). We conclude it is voidable.

Two of our courts of appeals have held that the failure to object when a trial court proceeds despite the automatic stay waives any
error the trial court may have committed by failing to impose it. See Escalante v. Rowan, 251 S.W.3d 720, 724–25 (Tex.App.-
Houston [14th Dist.] 2008), rev'd on other grounds, 332 S.W.3d 365 (Tex.2011) (per curiam); Henry v. Flintrock Feeders, Ltd.,
No. 07–04–0224–CV, 2005 WL 1320121, at *1, 2005 Tex.App. LEXIS 4310, at *1 (Tex.App.-Amarillo June 1, 2005, no pet.)
(mem.op.). In Escalante, the court of appeals held that a party's failure to object to a trial court's ruling on summary judgment
motions during the statutory stay “failed to preserve error as to any objection that the summary judgment is voidable based on
the stay.” Escalante, 251 S.W.3d at 725. In Henry, the court held that a party's failure to object to the trial court's action in
violation of the stay waived any error resulting from that action. Henry, 2005 WL 1320121, at *1–2, 2005 Tex.App. LEXIS
4310, at *4 (holding that trial court's grant of summary judgment mooted interlocutory appeal challenging denial of special
appearance). We find particularly instructive a case involving a trial court's rendition of final judgment while an interlocutory
appeal of a class certification order was pending:

             [I]f a trial court proceeds to trial during the interlocutory appeal, the class action plaintiff must inform
             the court of section 51.014(b) and request that the stay be enforced. If a court proceeds to trial over the
             objection of a class action plaintiff, the class action plaintiff could request a mandamus and this court
             would grant it. However, if the class action plaintiff fails to inform the trial court of section 51.014(b),
             and allows the court to proceed to trial, as happened here, the *923 plaintiff waives the right to object
             or request any relief on appeal. See TEX.R.APP. P. 33.1(a). We see this as no different from any other
             trial court error that is not preserved—it is waived.

Siebenmorgen v. Hertz Corp., No. 14–97–01012–CV, 1999 WL 21299, at *3, 1999 Tex.App. LEXIS 311, at *10–11 (Tex.App.-
Houston [14th Dist.] Jan. 21, 1999, no pet.) (dismissing as moot interlocutory appeal of order denying class certification).

A third court of appeals has implicitly concluded that parties can waive the right to insist on a section 51.014(b) stay. See Lincoln
Property Co. v. Kondos, 110 S.W.3d 712, 715 (Tex.App.-Dallas 2003, no pet.). In that case, the court observed that the trial
court's grant of summary judgment while an interlocutory appeal was pending violated the statutory stay. Noting that “neither
party requested a stay from this Court” and “both parties sought to commence the ‘trial’ below by filing and/or arguing motions
for summary judgment while this appeal was pending,” the court of appeals did not conclude that the trial court's summary
judgment was void. Id. at 715. Instead, the appellate court held that the summary judgment mooted the interlocutory appeal.
Id. at 715–16 (noting that the interlocutory class certification order merged into the final judgment). The court concluded: “By




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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

rendering a final judgment during this appeal, the trial court also rendered itself powerless to reconsider its class certification
ruling were we to conclude here the ruling was entered in error.” Id. at 715.

We agree with those decisions that have held that a party may waive complaints about a trial court's actions in violation of the
stay imposed by section 51.014(b). That stay differs from a situation in which the relevant statute vests “exclusive jurisdiction”
in a particular forum. See, e.g., Kalb v. Feuerstein, 308 U.S. 433, 439, 60 S.Ct. 343, 84 L.Ed. 370 (1940) (noting that bankruptcy
law in effect at the time “vested in the bankruptcy courts exclusive jurisdiction” and “withdr[ew] from all other courts all power
under any circumstances”). For that reason, we have held that actions taken in violation of a bankruptcy stay are void, not just
voidable. Cont'l Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988). 7

 [1] But as we have noted, “a court's action contrary to a statute or statutory equivalent means the action is erroneous or
‘voidable,’ not that the ordinary appellate or other direct procedures to correct it may be circumvented.” Mapco, Inc. v. Forrest,
795 S.W.2d 700, 703 (Tex.1990); cf. Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex.2004) (noting that
failure to comply with a non-jurisdictional statutory requirement may result in the loss of a claim, but that failure must be timely
asserted and compliance can be waived). That is the case here. The trial court's rendition of final judgment while the stay was in
effect was voidable, not void, and Roccaforte's failure to object to the trial court's actions waived any error related to the stay.
We must, therefore, confront the fact that the trial *924 court signed a final judgment disposing of all parties and all claims
and that Roccaforte did not present in his appeal from that judgment the arguments he advances in this interlocutory appeal.


B. The trial court's final judgment implicitly modified its interlocutory order, and we treat this appeal as relating to
that final judgment.
 [2] We have repeatedly held that the right of appeal should not be lost due to procedural technicalities. 8 Roccaforte timely
perfected appeals from both the interlocutory order and the final judgment, and this is not a situation in which further proceedings
mooted the issues raised in Roccaforte's interlocutory appeal. 9

[3]   Our procedural rules provide that:

            After an order or judgment in a civil case has been appealed, if the trial court modifies the order or
            judgment, or if the trial court vacates the order or judgment and replaces it with another appealable
            order or judgment, the appellate court must treat the appeal as from the subsequent order or judgment
            and may treat actions relating to the appeal of the first order or judgment as relating to the appeal of
            the subsequent order or judgment. The subsequent order or judgment and actions relating to it may be
            included in the original or supplemental record. Any party may nonetheless appeal from the subsequent
            order or judgment.

TEX.R.APP. P. 27.3. Here, although the trial court's final judgment did not expressly modify its interlocutory order, it did
so implicitly. Because the claims against the County had not been severed, the County remained a party to the underlying
proceeding despite the interlocutory appeal. The final judgment necessarily replaced the interlocutory order, which merged into
the judgment, 10 even though Roccaforte's interlocutory appeal remained pending. Under our rules, however, we may treat this
interlocutory appeal as an *925 appeal from the final judgment. That permits us to reach the merits of Roccaforte's claims
rather than dismiss the interlocutory appeal as moot.

Although not relying on rule 27.3, the court of appeals took a similar approach, treating Roccaforte's appeal as though it were
from the final judgment. 281 S.W.3d at 231 n. 1. Similarly, we treat Roccaforte's appellate complaints about the trial court's
grant of the County's jurisdictional plea as though they related to the appeal of the final judgment. We turn now to the merits
of his claim.




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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900


III. The post-suit notice requirements are not jurisdictional.
Local Government Code section 89.0041 provides:

  (a) A person filing suit against a county or against a county official in the official's capacity as a county official shall deliver
     written notice to:

     (1) the county judge; and

     (2) the county or district attorney having jurisdiction to defend the county in a civil suit.

  (b) The written notice must be delivered by certified or registered mail by the 30th business day after suit is filed and contain:

     (1) the style and cause number of the suit;

     (2) the court in which the suit was filed;

     (3) the date on which the suit was filed; and

     (4) the name of the person filing suit.

  (c) If a person does not give notice as required by this section, the court in which the suit is pending shall dismiss the suit
     on a motion for dismissal made by the county or the county official.

TEX. LOC. GOV'T CODEE § 89.0041. In 2005, the Legislature amended the Government Code to provide that “[s]tatutory
prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental
entity.” TEX. GOV'T CODE § 311.034.

The County contends section 311.034 makes Roccaforte's failure to comply with section 89.0041's notice requirements
jurisdictional—an issue we have never decided. Our courts of appeals, however, have concluded that the notice requirements
are not jurisdictional, even in light of section 311.034. See El Paso Cnty. v. Alvarado, 290 S.W.3d 895, 898–99 (Tex.App.-El
Paso 2009, no pet.) (holding that section 89.0041 is not jurisdictional because section 311.034 applies only to prerequisites to
file suit, not post-suit notice requirements); Ballesteros v. Nueces Cnty., 286 S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009,
pet. denied) (same); 281 S.W.3d 230, 232–33 (same); Dallas Cnty. v. Coskey, 247 S.W.3d 753, 754–56 (Tex.App.-Dallas 2008,
pet. denied) (same); Dallas Cnty. v. Autry, 251 S.W.3d 155, 158 (Tex.App.-Dallas 2008, pet. denied) (same); Cnty. of Bexar v.
Bruton, 256 S.W.3d 345, 348–49 (Tex.App.-San Antonio 2008, no pet.) (same).

 [4] We presume “that the Legislature did not intend to make the [provision] jurisdictional[,] a presumption overcome only
by clear legislative intent to the contrary.” City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex.2009). The statutes' language
reflects no such intent here. Section 311.034 applies to prerequisites to suit, not notice requirements that can be satisfied only
after suit is filed. Compare TEX. GOV'T CODE § 311.034, with TEX. LOC. GOV'T CODEE § 89.0041 (requiring notice of
cause number, court in which case is filed, and date of filing). Nor does Local Government Code section 89.0041 show such
intent: that section states that a trial court may *926 dismiss a case for noncompliance only after the governmental entity has
moved for dismissal. TEX. LOC. GOV'T CODEE 89.0041(c) (“If a person does not give notice as required by this section, the
court in which the suit is pending shall dismiss the suit on a motion for dismissal made by the county or the county official.”).
The motion requirement means that a case may proceed against those governmental entities that do not seek dismissal—in other
words, that a county can waive a party's noncompliance. This confirms that compliance with the notice requirements is not
jurisdictional. See Loutzenhiser, 140 S.W.3d at 359 (“The failure of a non-jurisdictional requirement mandated by statute may
result in the loss of a claim, but that failure must be timely asserted and compliance can be waived.”). We find no basis upon
which to conclude that the Legislature intended section 89.0041 to be jurisdictional.




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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900


IV. Where the appropriate county officials receive timely notice of the suit, the case should not be dismissed if notice
was provided by some means other than mail.
Roccaforte provided timely notice of every item required by section 89.0041, and the requisite officials received that notice.
Did the Legislature intend to bar Roccaforte's claim, merely because that notice was hand-delivered rather than mailed?

Roccaforte argues that the County's actual notice of the suit and his substantial compliance with section 89.0041 should suffice.
A number of courts of appeals (though not the court of appeals in this case) agree with him. 11 The County disagrees, arguing
that the statute requires strict compliance with its terms, and dismissal is mandated if those terms are not satisfied.

 [5] Section 89.0041 ensures that the appropriate county officials are made aware of pending suits, allowing the county to
answer and defend the case. See Howlett, 301 S.W.3d at 846 (“The apparent purpose of section 89.0041 is to ensure that the
person responsible for answering and defending the suit—the county or district attorney-has actual notice of the suit itself.”);
Coskey, 247 S.W.3d at 757 (“Section 89.0041's notice of suit requirement against a county serves the purpose of aiding in
the management and control of the City's finances and property....”). That purpose was served here—the county judge and the
district attorney had notice within fifteen days of Roccaforte's filing, and they answered and defended the suit. Cf. Loutzenhiser,
140 S.W.3d at 360 (observing that “if in a particular case a governmental unit were not prejudiced by lack of notice and chose
to waive it, we do not see how the statutory purpose would thereby be impaired”). The statute was not intended to create a
procedural trap allowing a county to obtain dismissal even though the appropriate officials have notice of the suit. See *927
Southern Surety Co. v. McGuire, 275 S.W. 845, 847 (Tex.Civ.App.-El Paso 1925, writ ref'd) (holding that failure to present
written claim to commissioners' court as required by statute did not bar the claim, because “[t]he purpose of the statute was
fully accomplished by [oral presentment]”); see also Coskey, 247 S.W.3d at 757 (“The manner of delivery specified by the
statute assures that county officials will receive notice of a suit after it has been filed to enable it to respond timely and prepare
a defense.”). Because those officers had the requisite notice, we conclude that the trial court erred in dismissing Roccaforte's
claims.


V. Conclusion
Roccaforte's claims against the County should not have been dismissed for lack of notice. 12 We reverse the court of appeals'
judgment as to those claims and remand the case to the trial court for further proceedings. TEX.R.APP. P. 60.2(d).



Justice WILLETT delivered a concurring opinion.

Justice WILLETT, concurring in part.
I join Parts I–III of the Court's opinion. As for Part IV, I join the result but not the reasoning. There is a better approach, one
more allegiant to the Legislature's words. Roccaforte's claim should proceed, but the reason is rooted not in his substantial
compliance but rather the County's substantial dalliance.

***

Aristotle would have enjoyed this case, which perfectly illustrates the challenge he recognized of reconciling the “absoluteness”
of the written law with equity in the particular case. 1 Believing that “the equitable is superior” and that rigid laws must bend, 2
Aristotle urged “a correction of law where it is defective owing to its universality.” 3 From Athens, Greece to Athens, Texas
(and beyond), judges still debate the bounds of interpretive discretion—whether it is appropriate to temper the “absoluteness”
of statutory mandates and ameliorate their seeming harshness. Millennia may have passed since Aristotle's Lyceum, but this
great philosophical and jurisprudential debate endures.




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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900



                                                                 I

As the Court persuasively explains in Part III, the post-suit notice requirements in Section 89.0041 are not jurisdictional,
meaning a County can waive a plaintiff's noncompliance. 4 Here, the County objected to Roccaforte's noncompliance,
prompting the Court to ask: “Did the Legislature intend to bar Roccaforte's claim, merely because that notice was hand-delivered
rather than mailed?” 5 If phrased that way, our recent and unanimous precedent answers the question “yes,” since “the surest
guide to legislative intent” is the language lawmakers chose. 6 In other words, “Where text is clear, it is determinative of that
intent.” 7 The Court today agrees that nothing in Section 89.0041 relieves *928 Roccaforte from compliance. So, to escape
the statute's emphatic “shall dismiss the suit” mandate, 8 the Court pivots on “actual notice” and “substantial compliance” and
holds that the statute's purpose was fulfilled via hand-delivery.

Honoring a statute's plain words is indispensable, even if enforcing those words as written works an unpalatable result. To be
sure, courts deviate from otherwise-clear textual commands to avert “absurd” results or to vindicate constitutional principles. 9
But as a general matter, if the legal deck is stacked via technical statutory requirements, the Legislature should reshuffle the
equities, not us. 10


As for whether Section 89.0041's use of phrases like “shall deliver,” 11 “must be delivered,” 12 “as required,” 13 and “shall
dismiss” 14 mandates strict compliance, I would take the statute at face value. Beyond that, those desiring additional reassurance
that lawmakers intended what they enacted can find it in a properly contextual reading of other notice-related statutes.

First, the Legislature, while omitting an actual-notice exception from Section 89.0041, expressly included one in the Tort Claims
Act, stating the Act's pre-suit notice requirements “do not apply if the governmental unit has actual notice....” 15 The Legislature
understands how to let actual notice excuse technical noncompliance; it easily could have said actual notice suffices, thus
obviating the need for service via certified or registered mail. Instead, it opted against actual notice, presumably on purpose.
For better or worse, lawmakers enacted strict compliance, not substantial compliance. Our interpretive focus, both textual and
contextual, must be on the law as written, and we should refuse to engraft what the Legislature has refused to enact.

Second, reading “actual notice” into Section 89.0041's post-suit notice requirement robs it of any real meaning and also makes
Section 89.004's pre-suit notice requirement redundant. Section 89.004 forbids someone from suing a county or county official
“unless the person has presented the claim to the commissioners court and the commissioners court neglects or refuses to pay
all or part of the claim....” 16 This presentment requirement assures actual notice of a claim before it is filed and was already
on the books when Section 89.0041 was added in 2003. Logically then, Section 89.0041 must require something in addition
to the preexisting notice and presentment requirements. 17


*929 The requisite officials here received notice, but they did not receive “requisite notice,” as the Court states. 18 The Court
may deem it adequate, but it is irrefutably not requisite. As the Court reads Section 89.0041, it is not only nonjurisdictional (I
agree on this point), but also nonmandatory. I acknowledge the statute's no-exceptions mandate works a harsh result, 19 but to
the degree this seems a trap for the unwary, it is a trap the Legislature left well marked.



                                                                II

Having said all that, I agree with the Court that Roccaforte ultimately wins his notice dispute, but on different grounds. Instead
of asking whether the Legislature meant to bar Roccaforte's claim,



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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900


I would rephrase the question in a manner less assaultive to the statutory text: Did the County effectively waive Roccaforte's
noncompliance by not timely asserting it? I believe so. 20

 *930 True, the County, after waiting for limitations to expire, filed a motion for dismissal complaining that Roccaforte
provided notice via personal service rather than registered or certified mail. I believe that obscures the key point, which on
these facts is not whether the County sought dismissal, but when. A governmental body can raise a jurisdictional bar like
immunity from suit whenever it pleases because “the trial court does not have—and never had—power to decide the case,” 21
thus making judgments forever vulnerable to delayed attack. Not so with nonjurisdictional requirements like this, which are
waived if not timely raised. Under our precedent, dismissal delayed is sometimes dismissal denied: “The failure of a non-
jurisdictional requirement mandated by statute may result in the loss of a claim, but that failure must be timely asserted and
compliance can be waived.” 22 Moreover, “if a governmental unit is to avoid litigation to which it should not be subjected
because of lack of notice, it should raise the issue as soon as possible.” 23 On these facts, there was no timely assertion, much
less one made “as soon as possible.” 24


We have held that waiver is decided on a case-by-case basis, meaning courts look to the totality of the circumstances. 25 Here,
 *931 the County sought dismissal based on imperfect notice more than two years after suit was filed; more than two years
after the County filed its answer; more than two years after the County filed its special exceptions; after the County presented
three County officials for deposition and defended those depositions; after the County sent written discovery requests; after
the County deposed Roccaforte; and after the County filed a motion for continuance. If two-plus years qualifies as “timely
asserted” or “as soon as possible”—at least in the context of a statutory notice requirement commanding action—then these
phrases have been drained of all meaning. 26 Indeed, the only thing the County “timely asserted” was limitations. I would
disallow the County's belated insistence on dismissal given its decision to defend the case for so long, asserting noncompliance
only after seizing tactical advantage via limitations, and thus materially prejudicing Roccaforte. There is no countervailing
prejudice in allowing Roccaforte's suit to proceed against the County, which can hardly argue at this late stage that imperfect
notice has harmed its legal position (unlike its fiscal position, having underwritten years of legal and judicial expenses). On
these facts, two-plus years of litigation activity to run out the limitations clock betrays the County's too-little, too-late request
for dismissal and constitutes waiver.

The Court's understandable desire to work an eminently fair result has led it to revise the statute as desired rather than read it as
enacted. I favor a different approach to the same outcome. Roccaforte should win not because the Court waived the Legislature's
words but because the County did.


Parallel Citations

32 IER Cases 346, 54 Tex. Sup. Ct. J. 900


Footnotes
1      Today, we deny that petition for review.
2      Dallas County submitted an amicus curiae brief in support of Jefferson County.
3      “As a rule, the severance of an interlocutory judgment into a separate cause makes it final.” Diversified Fin. Sys., Inc. v. Hill, Heard,
        O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex.2001) (per curiam).
4       TEX. CIV. PRAC. & REM.CODE § 51.014(b); see also TEX.R.APP. P. 29.5 (providing that “[w]hile an appeal from an interlocutory
        order is pending, the trial court retains jurisdiction of the case and unless prohibited by statute may make further orders, including
        one dissolving the order complained of on appeal”) (emphasis added).
5       See, e.g., Hernandez v. Ebrom, 289 S.W.3d 316, 319 (Tex.2009) (“Appeals of some interlocutory orders become moot because the
        orders have been rendered moot by subsequent orders.”).



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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

6      See also Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.2010) (noting that “[a] judgment is void ... when it is apparent
       that the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction
       to enter the particular judgment, or no capacity to act”) (quoting Browning v. Prostok, 165 S.W.3d 336, 346 (Tex.2005)).
7      But see Sikes v. Global Marine, Inc., 881 F.2d 176, 178 (5th Cir.1989) (holding that, under the 1978 Bankruptcy Act, “the better
       reasoned rule characterizes acts taken in violation of the automatic stay as voidable rather than void”); see also Chisholm v. Chisholm,
       No. 04–06–00504–CV, 2007 WL 1481574, at *2–3, 2007 Tex.App. LEXIS 3936, at *6–7 (Tex.App.-San Antonio May 23, 2007,
       no pet.) (noting conflict between Sikes and Continental Casing ); In re De La Garza, 159 S.W.3d 119, 120–21 (Tex.App.-Corpus
       Christi 2004, no pet.) (same); Oles v. Curl, 65 S.W.3d 129, 131 n. 1 (Tex.App.-Amarillo 2001, no pet.)(same); Chunn v. Chunn, 929
       S.W.2d 490, 493 (Tex.App.-Houston [1st Dist.] 1996, no pet.) (same).
8      See, e.g., Guest v. Dixon, 195 S.W.3d 687, 688 (Tex.2006) ( “[W]e have repeatedly stressed that procedural rules should be construed
       and applied so that the right of appeal is not unnecessarily lost to technicalities.”); Crown Life Ins. Co. v. Estate of Gonzalez, 820
       S.W.2d 121, 121–22 (Tex.1991) (per curiam)(stating that procedural rules should be “liberally construed so that the decisions of the
       courts of appeals turn on substance rather than procedural technicality”).
9      See, e.g., Isuani v. Manske–Sheffield Radiology Grp., P.A., 802 S.W.2d 235, 236 (Tex.1991) (holding that final judgment mooted
       interlocutory appeal of order granting or denying temporary injunction); Providian Bancorp Servs. v. Hernandez, No. 08–04–00186–
       CV, 2005 WL 82197, at *1, 2005 Tex.App. LEXIS 288, at *2 (Tex.App.-El Paso Jan. 13, 2005, no pet.) (mem.op.)(dismissing as moot
       interlocutory appeal from order denying motion to compel arbitration, because trial court entered an order compelling arbitration);
       Mobil Oil Corp. v. First State Bank of Denton, No. 2–02–119–CV, 2004 WL 1699928, at *1, 2004 Tex.App. LEXIS 6940, at *2
       (Tex.App.-Fort Worth July 29, 2004, no pet.) (dismissing as moot interlocutory appeal from class certification order, because trial
       court subsequently vacated order, decertified class, and dismissed class action); Lincoln Property Co. v. Kondos, 110 S.W.3d 712,
       715–16 (Tex.App.-Dallas 2003, no pet.) (dismissing as moot interlocutory appeal of order granting class certification, as trial court
       subsequently granted summary judgment motion); see also Hernandez, 289 S.W.3d at 321 (acknowledging that a party may not,
       after trial and an unfavorable judgment, prevail on a complaint that the party's summary judgment motion should have been granted,
       nor could a party complain of a failure to dismiss a health care liability claim based on an inadequate expert report, after a full trial
       and evidence establishing the elements of that claim).
10     See Webb v. Jorns, 488 S.W.2d 407, 408–09 (Tex.1972) (holding that interlocutory judgment merged into final judgment, which
       was then appealable).
11     Compare Howlett v. Tarrant Cnty., 301 S.W.3d 840, 847 (Tex.App.-Fort Worth 2009, pet. denied) (holding that substantial
       compliance with section 89.0041 was sufficient because the purpose of the statute was to ensure notice, and that purpose was
       accomplished), Ballesteros v. Nueces Cnty., 286 S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009, pet. denied) (same), Dallas Cnty. v.
       Coskey, 247 S.W.3d 753, 757 (Tex.App.-Dallas 2008, pet. denied) (same), and Dallas Cnty. v. Autry, 251 S.W.3d 155, 158 (Tex.App.-
       Dallas 2008, pet. denied) (same), with 281 S.W.3d at 237 (holding that “[r]eading a broad actual notice or service exception into
       the statute—without any attempt by plaintiff to comply—would, in effect, largely eliminate the specified, additional written notice
       requirement of the statute”). That conflict gives us jurisdiction over this interlocutory appeal. TEX. GOV'T CODE § 22.225(c), (e).
12     Because this issue is dispositive, we do not reach Roccaforte's argument that 42 U.S.C. § 1983 preempts section 89.0041's notice
       requirements.
1      Aristotle, Nicomachean Ethics bk. V, ch. 10.
2      Id.
3      Id.
4      341 S.W.3d 919, 926 (explaining that compliance with the notice requirements of Section 89.0041 of the Local Government Code
       “is not jurisdictional”) (citation omitted).
5      341 S.W.3d at 926.
6      Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex.2010) (citation and quotation marks omitted).
7      Id.
8      See TEX. LOC. GOV'T CODEE § 89.0041(c).
9      The absurdity doctrine, rightly understood, is a safety valve reserved for truly exceptional cases, not just those where the mandated
       statutory outcome is thought unwise or inequitable. See generally John F. Manning, The Absurdity Doctrine, 116 HARV. L.REV..
       2387 (2003). As Chief Justice Marshall famously put it, a court's allegiance to the text ceases when applying the text “would be
       so monstrous that all mankind would, without hesitation, unite in rejecting the application.” Sturges v. Crowninshield, 17 U.S. (4
       Wheat.) 122, 203, 4 L.Ed. 529 (1819).
10     The Legislature can, of course, if it wishes, statutorily overturn today's holding that Section 89.0041 is nonjurisdictional and subject
       to an actual-notice exception.
11     TEX. LOC. GOV'T CODEE § 89.0041(a).


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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

12     Id. § 89.0041(b).
13     Id. § 89.0041(c).
14     Id.
15     TEX. CIV. PRAC. & REM.CODE § 101.101(c).
16     TEX. LOC. GOV'T CODEE § 89.004(a).
17     Another point: As the Court notes, some courts of appeals have concluded that a substantial-compliance exception lies hidden within
       Section 89.0041, notwithstanding the statute's emphatic “shall dismiss” mandate. 341 S.W.3d at 928 (citing Howlett v. Tarrant
       Cnty., 301 S.W.3d 840, 847 (Tex.App.-Fort Worth 2009, pet. denied) (holding that substantial compliance with Section 89.0041 was
       sufficient because the purpose of the statute was to ensure notice, and that purpose was accomplished); Ballesteros v. Nueces Cnty.,
       286 S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009, pet. denied) (same); Dallas Cnty. v. Coskey, 247 S.W.3d 753, 757 (Tex.App.-
       Dallas 2008, pet. denied) (same); Dallas Cnty. v. Autry, 251 S.W.3d 155, 158 (Tex.App.-Dallas 2008, pet. denied) (same)). Two
       of the three courts of appeals even cite as support two of our decisions involving notice in other contexts. Coskey, 247 S.W.3d at
       757 (“Both Artco–Bell Corp. and Cox Enterprises, Inc.. support a standard of substantial compliance with notice requirements under
       certain circumstances, and we conclude that standard applies in these circumstances.”) (citations omitted); Ballesteros, 286 S.W.3d
       at 571–72. A third court of appeals opinion in turn relies upon Coskey. See Autry, 251 S.W.3d at 158.
          Closer analysis reveals Coskey and Ballesteros offer feeble support, as they misinterpret this Court's holdings in Cox Enters., Inc.
          v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956 (Tex.1986), and Artco–Bell Corp. v. City of Temple, 616 S.W.2d 190
          (Tex.1981). The issue in Cox involved how much particularity was required in notice. 706 S.W.2d at 960 (noting that “less than
          full disclosure is not substantial compliance” and that “the Open Meetings Act requires a full disclosure of the subject matter of
          the meetings”). Artco–Bell is likewise inapposite. In Artco–Bell, the Court simply invalidated the notice requirement in a city's
          charter and held the plaintiff had provided sufficient notice. 616 S.W.2d at 193–94 (“[W]e hold that the requirement of verification
          represents an unreasonable limitation on the City's liability and is invalid as it is contrary to the limitation of authority placed upon
          home rule cities....”) (footnote omitted).
          Cox was about the specificity of notice; Artco–Bell resulted in the invalidation of notice. In neither case did the Court craft an
          exception for notice. The lower courts' treatment of these cases was thus strained, and should not be taken as a correct reading of
          our jurisprudence on statutory notice requirements.
18     341 S.W.3d at 927.
19     Had the County “timely asserted” Roccaforte's noncompliance, dismissal would have been mandatory under the statute's rigid, no-
       discretion mandate, thus raising the question of whether Section 89.0041's notice regime is preempted by 42 U.S.C. § 1983. See Univ.
       of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex.2004) (“The failure of a non-jurisdictional requirement mandated
       by statute may result in the loss of a claim, but that failure must be timely asserted and compliance can be waived.”). That question,
       while interesting legally, is not before us.
20     Waiver may actually be the wrong term; it may be more accurate to call this forfeiture. As the United States Supreme Court explains:
       “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional
       relinquishment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (emphasis
       added) (citations and quotation marks omitted). In any event, under our definition:
            “[W]aiver” is the intentional relinquishment of a right actually or constructively known, or intentional conduct inconsistent with
            claiming that right. The elements of waiver include (1) an existing right, benefit, or advantage held by a party; (2) the party's
            actual or constructive knowledge of its existence; and (3) the party's actual intent to relinquish the right or intentional conduct
            inconsistent with the right.
          Perry Homes v. Cull, 258 S.W.3d 580, 602–03 (Tex.2008) (citations omitted).
21     In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 306 (Tex.2010) (citation omitted).
22     Loutzenhiser, 140 S.W.3d at 359 (emphasis added).
23     Id. at 360. “Moreover, if in a particular case a governmental unit were not prejudiced by lack of notice and chose to waive it, we do
       not see how the statutory purpose would thereby be impaired.” Id.
24     Reading Section 89.0041 in tandem with our settled precedent distinguishing mandatory requirements (waivable) from jurisdictional
       ones (nonwaivable) is consistent with a textualist approach that integrates established interpretive norms. For example, even the most
       ardent textualist would read a statute of limitations in light of the common-law rules of equitable tolling. See Young v. United States,
       535 U.S. 43, 49, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002) (“It is hornbook law that limitations periods are customarily subject to
       equitable tolling, unless tolling would be inconsistent with the text of the relevant statute.”) (citations and quotation marks omitted);
       see also United States v. Beggerly, 524 U.S. 38, 48, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998). As Justice Scalia noted in Young, a
       limitations period is subject to the principles of equitable tolling, so long as the statutory text does not preclude such tolling. 535 U.S.




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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

       at 47, 122 S.Ct. 1036. Same here, where the Legislature drafts notice requirements in light of our decisions differentiating between
       mandatory and jurisdictional provisions and the consequences that flow from each characterization.
25     See Perry Homes, 258 S.W.3d at 589–91 (explaining that a party waives an arbitration clause by engaging in substantial litigation
       to the other party's detriment or prejudice).
           In Jernigan v. Langley, the Court considered whether a defendant physician waived his statutory right to contest the adequacy
           of the plaintiff's expert reports by waiting too long. 111 S.W.3d 153, 153 (Tex.2003). The Court held that delay does not always
           result in waiver, but it does when the defendant's silence or inaction for such a long period shows an intent to yield a known
           right. Id. at 157. I would hold that the County's actions are inconsistent with the intent to assert its statutory right to up-front
           dismissal based on defective notice. Moreover, Jernigan predates our 2004 decision in Loutzenhiser, which speaks specifically
           to statutorily mandated notice requirements involving governmental units and says notice-based objections should be asserted “as
           soon as possible.” 140 S.W.3d at 360.
26     It is true that defendants may assert defenses like limitations in the trial court even following extensive discovery and other pre-trial
       activity. See TEX.R. CIV. P. 94 (affirmative defenses including limitations must be pleaded); TEX.R. CIV. P. 63 (pleadings may
       be amended without leave of court until seven days before trial). Today's case, though, involves a statutory notice requirement that
       mandates action within a prescribed time, something Loutzenhiser held should be raised “as soon as possible” since the statutory
       purpose is to avoid litigation altogether. 140 S.W.3d at 360.
           Section 89.0041 may not be a prerequisite to bringing suit, but it is a postrequisite to maintaining suit. In my view, Section 89.0041,
           unlike the Tort Claims Act, does not allow actual notice to forgive defective notice, but that does not mean actual notice may not
           affect the waiver inquiry of whether a defendant “timely asserted” noncompliance. For reasons stated above, I believe a county that
           quickly asserts statutory noncompliance, even if it has actual notice, is entitled to dismissal under Section 89.0041. But a county
           with actual notice that untimely asserts noncompliance (here only after limitations had run two-plus years later) has waived its
           objection and is not entitled to dismissal. See City of DeSoto v. White, 288 S.W.3d 389, 400–01 (Tex.2009) (noting that a party that
           declines to act in light of “full knowledge” of a defect in a nonjurisdictional notice requirement generally waives any complaint).
           Any other result would incentivize counties to sit on their rights rather than assert them immediately. Here, the County would
           be rewarded for wasting over two-years' worth of judicial resources and taxpayer dollars in defending a suit it could have easily
           dismissed from the outset.
       ***


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Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997)
41 Tex. Sup. Ct. J. 165



                                                       959 S.W.2d 171
                                                   Supreme Court of Texas.

            SCHLUMBERGER TECHNOLOGY CORPORATION and Schlumberger Limited, Petitioners,
                                            v.
                              John SWANSON, et al., Respondents.

                                               No. 95–0355.       |   Dec. 11, 1997.

Consultants for offshore diamond mining project filed action against drilling company‘s parent company alleging claims of
common law and statutory fraud and breach of fiduciary duty owed concerning release of claims. After jury found in favor
of consultants and awarded actual damages, exemplary damages, and attorney fees, the 281st Judicial District Court, Harris
County, Louis M. Moore, J., granted judgment notwithstanding the verdict (JNOV) for parent company. Appeal was taken. The
Court of Appeals, 895 S.W.2d 719,reversed. Parent company filed application for writ of error. The Supreme Court, Enoch, J.,
held that: (1) lack of any evidence of agreement to share profits precluded existence of partnership; (2) confidential relationship
imposing fiduciary duty on part of parent company concerning negotiations for release did not arise in absence of evidence
of prior fiduciary relationship; and (3) consultants' unequivocal disclaimer of reliance on representations by parent company
about feasibility and value of offshore diamond mining project, contained in written release, conclusively negated, as matter of
law, element of reliance required to support their claims of fraudulent inducement, common law fraud, and statutory fraud.

Judgment of the Court of Appeals reversed, and judgment rendered.



 West Headnotes (17)


 [1]    Partnership        Creation and Requisites in General
        Partnership consists of express or implied agreement containing four required elements: (1) community of interest in
        venture, (2) agreement to share profits, (3) agreement to share losses, and (4) mutual right of control or management
        of enterprise.

        21 Cases that cite this headnote


 [2]    Mines and Minerals          Creation and existence
        Evidence that consultants were to receive royalty on any diamonds mined in offshore mining project and were paid
        consulting fee by drilling company's parent company did not constitute profit sharing required to prove existence of
        partnership. Vernon's Ann.Texas Civ.St. art. art. 6132b, § 7(3).

        3 Cases that cite this headnote


 [3]    Mines and Minerals          Creation and existence
        Fact that drilling company's parent company paid money to consultants in settlement and to obtain release of their
        claimed interests in offshore diamond mining project did not constitute evidence of agreement to share profits in
        project required to prove existence of partnership.

        4 Cases that cite this headnote




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997)
41 Tex. Sup. Ct. J. 165


 [4]    Mines and Minerals         Creation and existence
        Lack of any evidence of agreement to share profits precluded existence of partnership between consultants and drilling
        company's parent company concerning project for offshore mining of diamonds.

        2 Cases that cite this headnote


 [5]    Fraud       Fiduciary or confidential relations
        Informal relationship may give rise to fiduciary duty where one person trusts in and relies on another, whether relation
        is moral, social, domestic, or purely personal one, but not every relationship involving high degree of trust and
        confidence rises to stature of fiduciary relationship.

        114 Cases that cite this headnote


 [6]    Fraud       Fiduciary or confidential relations
        Although fiduciary or confidential relationship may arise from circumstances of particular case, imposition of such
        relationship in business transaction requires that relationship must exist prior to, and apart from, agreement that is
        made basis of suit.

        83 Cases that cite this headnote


 [7]    Fraud       Fiduciary or confidential relations
        Mere subjective trust does not, as matter of law, transform arm's-length dealing into fiduciary relationship.

        53 Cases that cite this headnote


 [8]    Release      Fraud and Misrepresentation
        Consultants' testimony that they relied on drilling company's parent company to negotiate fair price for withdrawal
        of offshore diamond mining project from joint venture, and that lease documents and testimony of parent company
        executives referred to consultants as partners, did not give rise to confidential relationship imposing fiduciary duty
        on part of parent company for purposes of consultants' claim that parent company fraudulently induced consultants to
        sign release of their alleged interests and claims relating to project and thereby allow parent company to sell project
        to other members in joint venture, absent evidence of prior fiduciary relationship.

        5 Cases that cite this headnote


 [9]    Release      Fraud and Misrepresentation
        Mere fact that consultants and parent company of drilling company were aligned together in negotiating with other
        participants in joint venture for withdrawal of their offshore diamond mining project from joint venture did not create
        confidential relationship giving rise to fiduciary duty on part of parent company for purposes of consultants' claim
        that parent company fraudulently induced consultants to sign release of their alleged interests and claims related to
        project, in absence of any prior fiduciary relationship.

        13 Cases that cite this headnote


 [10]   Release      Fraud and Misrepresentation




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Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997)
41 Tex. Sup. Ct. J. 165

        Misrepresentations by drilling company's parent company to consultants about technological feasibility or commercial
        viability of offshore diamond mining project were actionable as fraudulent inducement of release of consultants'
        alleged interests in project.

        1 Cases that cite this headnote


 [11]   Release      Mistake
        Release      Fraud and Misrepresentation
        Release is contract, and like any other contract, is subject to avoidance on grounds such as fraud or mistake.

        5 Cases that cite this headnote


 [12]   Release      Fraud and Misrepresentation
        Consultants' unequivocal disclaimer of reliance on representations by drilling company's parent company about
        feasibility and value of offshore diamond mining project, contained in written release of consultants' alleged interests
        and causes of action relating to project, conclusively negated, as matter of law, element of reliance required for claims
        of fraudulent inducement, in light of circumstances that release was executed when parties were attempting to end their
        deal and were embroiled in dispute over feasibility and value of project, that parties were represented by competent
        counsel, and that parties were sophisticated business players dealing at arm's length.

        117 Cases that cite this headnote


 [13]   Release      Fraud and Misrepresentation
        Release that clearly expresses parties' intent to waive fraudulent inducement claims, or one that disclaims reliance
        on representations about specific matters in dispute, can preclude claim of fraudulent inducement, but disclaimer of
        reliance or merger clause will not always bar fraudulent inducement claim.

        120 Cases that cite this headnote


 [14]   Fraud       Reliance on Representations and Inducement to Act
        Reliance is element of fraud.

        18 Cases that cite this headnote


 [15]   Fraud       Fraudulent Concealment
        Fraud by nondisclosure is simply subcategory of fraud because, where party has duty to disclose, nondisclosure may
        be as misleading as positive misrepresentation of facts.

        62 Cases that cite this headnote


 [16]   Release      Fraud and Misrepresentation
        Consultants' unequivocal disclaimer of reliance on representations by drilling company's parent company about
        offshore diamond mining project, contained in written release of consultants' alleged interest in project, covered both
        parent company's affirmative misrepresentations and alleged nondisclosures of geologic, economic, and technical
        information and thus precluded consultants' claims of common-law fraud based on alleged nondisclosures.




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Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997)
41 Tex. Sup. Ct. J. 165


        21 Cases that cite this headnote


 [17]   Fraud       Persons who may rely on representations
        Even assuming statutory fraud provision applied to parent company's purchase of written release of consultants'
        alleged interest in offshore diamond mining project, consultants' unequivocal disclaimer of reliance on representations
        by parent company, expressed in written release, negated any reliance by consultants on misrepresentations of
        parent company about commercial feasibility and value of project and therefore precluded claims of statutory fraud.
        V.T.C.A., Bus. & C. § 27.01(a)(1)(B).

        59 Cases that cite this headnote




Attorneys and Law Firms

 *172 Linda L. Addison, Roger Townsend, Joy M. Soloway, Hugh E. Tanner, Blake Tartt, *173 Houston, Ben Taylor, Dallas,
Joe R. Greenhill, Austin, for petitioners.

F. Eric Fryar, Evelyn Jo Wilson, Houston, Franklin Jones, Jr., Marshall, Douglas Laycock, Russell J. Weintraub, Austin, Kendall
C. Montgomery, Houston, Stephen D. Susman, Dallas, John M. O'Quinn, Houston, Luther H. Soules, III, San Antonio, William
Powers, Jr., Pamela Stanton Baron, Austin, for respondents.

Opinion

ENOCH, Justice, delivered the opinion of the court.

This is a commercial dispute. In settling this dispute, the Swansons signed a release that disclaimed reliance on the
representations of Schlumberger. The question is whether this disclaimer precludes, as a matter of law, the Swansons from
recovering damages against Schlumberger for fraudulently inducing them to settle. The trial court granted a judgment for
Schlumberger notwithstanding the jury's verdict for the Swansons. The court of appeals reversed, holding that the disclaimer
of reliance did not preclude the Swansons' fraudulent inducement claim. 895 S.W.2d 719. We agree with the trial court.
Accordingly, we reverse the court of appeals' judgment and render judgment for Schlumberger.



                                                          I. FACTS

In the 1970s, John Swanson and his brother George Swanson approached SEDCO, Inc. about a proposal to mine diamonds
from the ocean floor in deep waters off the South African coast. SEDCO had expertise in offshore oil and gas drilling and had
mined manganese nodules off the ocean floor. The Swansons, whose family had been in the mining industry in South Africa for
several decades, had contacts with the South African government. By letter dated October 17, 1978, SEDCO agreed to a three-
phase project. In Phase I, SEDCO would study the feasibility of the sea-diamond project. In Phase II, a lease was to be acquired
and prospecting was to begin. Phase III was to be commercial mining. The agreement provided that SEDCO had exclusive
authority to determine whether to proceed with Phases II and III.

The Swansons were to use their goodwill and contacts to obtain concession rights and any licenses or permits the South African
government required. They also were to provide SEDCO with information on diamond mining generally and offshore mining
specifically. For their part, the Swansons would be paid a consulting fee through Phases I and II and a royalty, if any, on any
diamonds mined during Phases II and III. Should the project ever become commercially productive, the Swansons had the right
to purchase five percent of the shares in the company contemplated to be formed to mine the diamonds. SEDCO was to bear the



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Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997)
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expense of all phases of the project, with the exception of the Swansons' own out-of-pocket expenses. Any diamond grants or
offshore concessions or leases were to be held by SEDCO, by the company to be formed, or by the Swansons, but as trustees.

SEDCO completed Phase I in 1979 and opted to proceed with Phase II. In July 1983, SEDCO and George E. Swanson
Enterprises, as co-lessees, obtained a prospecting lease, Lease 3C, from the South African government. At the same time,
the South African government issued leases on surrounding tracts to other companies. DeBeers Mining Consolidated Limited
(DeBeers) obtained Leases 4C and 5C immediately to the south; African Selection Trust Exploration (Pty.) Limited (Seltrust),
a subsidiary of British Petroleum, obtained Lease 2C to the north.

Almost immediately after receiving the leases, SEDCO, DeBeers, and Seltrust began negotiating a joint venture agreement
to jointly develop the mining project. In December 1984, before this joint venture agreement was finalized, Schlumberger
Technology Corporation acquired SEDCO by merger and formed Sedswan Diamonds (Pty.), Limited, a wholly-owned South
African subsidiary, to continue the sea-diamond project. Sedswan then entered into the joint venture with DeBeers and Seltrust
in February 1985. Around the same time, the South African government reissued Lease 3C in Sedswan's name only and without
reference to George E. Swanson Enterprises. Sedswan, DeBeers, and Seltrust participated in the joint venture through 1986.
In early January *174 1987, the Swansons became concerned about rumors that Schlumberger was going to stop funding
its share or withdraw from the joint venture. Further, they were disturbed about the lack of information they were receiving
on the project's progress. Consequently, the Swansons consulted a lawyer. Their objectives were to ensure that Schlumberger
stayed in the joint venture and that their rights under the original letter agreement, which predated the joint venture agreement,
were enforced. Of particular concern to the Swansons was the effect of the joint venture agreement on the Swansons' interests,
including Schlumberger's ability to dilute Sedswan's joint venture interest after an initial investment, the right of first refusal
given to the other joint venture members, and a confidentiality agreement.

Shortly after the Swansons hired their lawyer, Schlumberger gave notice to DeBeers and Seltrust of its intent to withdraw
Sedswan from the joint venture. As required by the joint venture agreement, Schlumberger offered to sell Sedswan's interest
to the remaining joint venture members. DeBeers and Seltrust rejected this offer, each refusing to buy out Sedswan's interest
so long as it was subject to any rights the Swansons may claim.

During the next thirteen months, Schlumberger negotiated its withdrawal from and a price for Sedswan's joint venture interest
with DeBeers and Seltrust. Schlumberger initially offered to sell Sedswan's interest for twenty-five million dollars plus a royalty.
DeBeers and Seltrust rejected this offer and countered at ten million rand. Schlumberger dropped its demand for a royalty and
offered to sell for thirty-five million dollars. Again, DeBeers and Seltrust rejected this offer, holding firm at ten million rand.

Throughout this time, Schlumberger discussed the various proposals with the Swansons, communicating mostly through their
lawyer. According to the Swansons, Schlumberger represented to them that the sea-diamond project was neither technologically
feasible nor commercially viable, but refused to give them joint venture progress reports and other information and data
supporting Schlumberger's views. During these negotiations, Schlumberger also disputed the validity of the Swansons' rights
and interests in the joint venture, claiming that the joint venture agreement altered whatever rights the Swansons had.
Displeased with Schlumberger's decision to withdraw Sedswan from the joint venture and concerned about Schlumberger's
assertions disputing their interests and its unwillingness to turn over joint venture information, the Swansons contemplated
suing Schlumberger but did not.

Instead, in February 1988, a little more than a year after Schlumberger gave notice of its withdrawal from the joint venture, the
Swansons agreed that Schlumberger would buy their interest for two million South African rand (about $814,000). In exchange,
the Swansons relinquished all rights, claims, and interests in the offshore diamond project and Lease 3C and released all causes
of action against Schlumberger, known or unknown. In the release, the Swansons specifically agreed that they were not relying
on any statement or representation of Schlumberger, SEDCO, or Sedswan, that they were relying on their own judgment, and
that they had been represented by counsel who had explained the entire contents and legal consequences of the release.




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Schlumberger thereafter sold Sedswan's interest to DeBeers and Seltrust for 10 million rand (about $4,100,000). After recouping
its investment in the project of 6.8 million rand (about $2,767,000), buying out the Swansons' interests for two million
rand (about $814,000) and paying them an additional $200,000 in consulting fees, Schlumberger netted 778,000 rand (about
$319,000) from the offshore diamond project.

Asserting that Schlumberger had misrepresented the project's viability and value, the Swansons then sued Schlumberger and
its parent corporation, Schlumberger Limited, Inc., for fraudulently inducing them to sell their interest at an undervalued price.
The Swansons also alleged breach of fiduciary duty.

The jury found for the Swansons and against Schlumberger on all issues. The jury awarded the Swansons fifteen million dollars
in actual damages, thirty-five million *175 dollars in exemplary damages on a statutory fraud claim under section 27.01 of
the Texas Business and Commerce Code, ten million dollars in exemplary damages on the common law claims, and attorney's
fees. As already mentioned, the trial court rendered a judgment notwithstanding the verdict, but the court of appeals reversed
and rendered judgment in accordance with the jury's findings. 895 S.W.2d 719.

Here, Schlumberger contends that the release precludes all of the Swansons' claims as a matter of law; that there is no evidence
of common law fraud, statutory fraud under section 27.01 of the Texas Business and Commerce Code, or breach of fiduciary
duty; and that the court of appeals erred in awarding prejudgment interest on future damages. We agree that the release precludes
all of the Swansons' claims as a matter of law. Accordingly, we reverse the court of appeals' judgment and render judgment for
Schlumberger. Because of our disposition, we need not reach the prejudgment interest issue.



                                           II. RELATIONSHIP OF THE PARTIES

Schlumberger argues that the Swansons' fraud claims are barred as a matter of law because the Swansons were represented
by legal counsel throughout the arm's-length negotiations between the parties. Schlumberger contends that when a party is
represented by counsel and that party agrees that, in signing a release, it is not relying on any statement or representation of the
party to be released, the presence of independent legal advice breaks the chain of both reliance and causation. Schlumberger
reasons that if parties can refute their reliance, even though they were represented by counsel when they settled their claims,
litigation never ends. This is so, Schlumberger says, because dissatisfied parties could always break their settlement by claiming
that the other party, through its misrepresentations, fraudulently induced them to enter into the settlement or release.

Important to Schlumberger's position is its assertion that it was negotiating with the Swansons at arm's length. Schlumberger
contends that it openly disputed the validity of the Swansons' interests in the sea-diamond project. Schlumberger further
contends that,by virtue of the extended adversarial negotiations through legal counsel over the Swansons' rights and the buyout
of their interests, if any, Schlumberger did not owe a fiduciary duty to the Swansons during the negotiations.

The Swansons respond, however, that there was a long-standing fiduciary relationship that arose either because Schlumberger
and the Swansons were partners or because they were parties to a confidential relationship. Given that relationship, the Swansons
argue, Schlumberger cannot unilaterally eliminate the fiduciary duty by generating a dispute with the Swansons.

As the relationship between the parties informs both parties' arguments on the effect of the disclaimer of reliance, we must first
determine the nature of that relationship.



                                                       A. PARTNERSHIP

In Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786, 788 (1938), we held that a partner selling his interest to another partner
has a fiduciary duty requiring full disclosure of all important information about the value of the interest. This is true, we said,



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Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997)
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even though the partners had strained relations and one partner had sued for an accounting and dissolution of the partnership.
Johnson, 120 S.W.2d at 788. “If the existence of strained relations should be suffered to work an exception [to the fiduciary
relationship], then a designing fiduciary could easily bring about such relations to set the stage for a sharp bargain.” Id. We
concluded that more mischief would result from relieving the fiduciary of his duty to make full disclosure than from requiring
adherence to his fiduciary responsibilities. Id. If Schlumberger and the Swansons were partners, Johnson counsels that their
negotiations terminating their relationship would not be at arm's length, but would be conducted under the higher fiduciary
standard requiring full disclosure.

Schlumberger does not challenge Johnson on principle, but contends that there is no evidence of a partnership between it and
the Swansons. We agree.

 *176 At the outset, we note that the Legislature revised the Texas Uniform Partnership Act in 1993, effective January 1994. Act
of May 31, 1993, 73d Leg. R.S., ch. 917, § 1, 1993 Tex. Gen. Laws 3887. As the Swansons and SEDCO originally formed their
enterprise in 1978, the pre–1993 statute and case law decided under that statute control our determination. See TEX.REV.CIV.
STAT. ANN.. art. 6132b, § 47.

 [1] Under the Texas Uniform Partnership Act, a partnership or joint venture is an association of two or more persons to carry
on as co-owners a business for profit. TEX.REV.CIV. STAT. ANN.. art. 6132b, § 6. As the issue was submitted to the jury, a
partnership consists of an express or implied agreement containing four required elements: (1) a community of interest in the
venture, (2) an agreement to share profits, (3) an agreement to share losses, and (4) a mutual right of control or management
of the enterprise. See Coastal Plains Dev. Corp. v. Micrea, Inc., 572 S.W.2d 285, 287 (Tex.1978). Accordingly, if there is no
evidence of any one element of a partnership, we cannot sustain the jury's affirmative finding.

 [2] We conclude that there is no evidence of an agreement to share profits. The undisputed evidence is that the Swansons were
to receive a royalty on diamonds mined in Phases II and III and that their royalty was to be paid before expenses. Entitlement
to a royalty based on gross receipts is not profit sharing. See TEX.REV.CIV. STAT. ANN.. art. 6132b, § 7(3) (sharing gross
returns does not itself establish partnership); see also Patton v. Callaway, 522 S.W.2d 252, 256 (Tex.Civ.App.—El Paso 1975,
writ ref'd n.r.e.). Of course, the payment of consultation fees is not the sharing of profits. Such payments are compensation for
services rendered and are unrelated to the venture's profits. See Grimmett v. Higginbotham, 907 S.W.2d 1, 2–4 (Tex.App.—
Tyler 1994, writ denied) (weekly compensation unrelated to financial requirements of business is no evidence of agreement
to share profits or losses); Gutierrez v. Yancey, 650 S.W.2d 169, 172 (Tex.App.—San Antonio 1983, no writ) (partners must
participate in profits and share them as principals of business and not as compensation).

 [3] The Swansons further urge, though, that an agreement to share profits is evidenced by the fact that they received part of
the sale proceeds for Sedswan's joint venture interest. But this is evidence only that the Swansons may have had an interest
in the sea-diamond project. It is circular to contend that the payment in settlement of the Swansons' disputed interests proves
those interests. The two million rand Schlumberger paid the Swansons to settle and release their claimed interests in the sea-
diamond project is no evidence of an agreement to share partnership profits.

 [4] Because there is no evidence of an agreement to share profits, there is no evidence of a partnership under the question
submitted to the jury. This conclusion renders unnecessary any consideration of Schlumberger's other evidentiary contentions
on the remaining elements of a partnership. We conclude that the Swansons and Schlumberger were not partners.



                                          B. CONFIDENTIAL RELATIONSHIP

The Swansons claim that even if the technical requirements of a partnership are not satisfied, they were nonetheless owed a
fiduciary duty by Schlumberger arising out of a confidential relationship. Agreeing with the Swansons, the jury found that
between January 1987 (when Schlumberger decided to withdraw Sedswan from the joint venture) and October 1988 (when



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41 Tex. Sup. Ct. J. 165

the release was finally signed and the transaction closed), Schlumberger and the Swansons had a relationship of special trust
and confidence and that Schlumberger breached its fiduciary duty arising from that relationship by making representations that
fraudulently induced the Swansons to sign the release.

 [5] [6] An informal relationship may give rise to a fiduciary duty where one person trusts in and relies on another, whether
the relation is a moral, social, domestic, or purely personal one. See Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex.1962); Fitz–
Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 261 (1951). But not every relationship involving a high *177 degree of trust and
confidence rises to the stature of a fiduciary relationship. See Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp., 823
S.W.2d 591, 594 (Tex.1992). In order to give full force to contracts, we do not create such a relationship lightly. See Thigpen,
363 S.W.2d at 253. Accordingly, while a fiduciary or confidential relationship may arise from the circumstances of a particular
case, to impose such a relationship in a business transaction, the relationship must exist prior to, and apart from, the agreement
made the basis of the suit. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 280 (Tex.1995). In this case, there is no evidence
that a prior fiduciary relationship had arisen between the Swansons and Schlumberger.

 [7] [8] We recognize that the Swansons testified that they trusted and relied on Schlumberger to negotiate a fair price
with DeBeers and Seltrust for Sedswan's interest in the joint venture. However, mere subjective trust does not, as a matter of
law, transform arm's-length dealing into a fiduciary relationship. See Crim Truck, 823 S.W.2d at 595. In addition, though, the
Swansons point out that certain Schlumberger and SEDCO executives testified that the Swansons were their “partners” in the
sea-diamond project, and that the original lease application to the South African government and the original lease from the
South African government provided that SEDCO and the Swansons were partners. The Swansons maintain that this evidence
established, at the very minimum, that both parties believed a confidential relationship existed, providing some evidence to
support the jury's finding. Again, the fact that the parties to a transaction trust one another will not, in and of itself, establish
a finding of a confidential relationship. See Thigpen, 363 S.W.2d at 253. Instead, to impose such a relationship in a business
transaction, “ ‘there must be a fiduciary relationship before, and apart from, the agreement made the basis of the suit.’ ” Tyra
v. Woodson, 495 S.W.2d 211, 213 (Tex.1973) (quoting Consolidated Gas & Equip. Co. v. Thompson, 405 S.W.2d 333, 336
(Tex.1966)). As we have said, there is no evidence of a prior fiduciary relationship in this case.

 [9] The Swansons next rely on evidence that Schlumberger thought it had an obligation to get the best deal it could for itself
and the Swansons, to “put the Swansons' interest at least equal” to its own, and that it was representing the Swansons' interest in
negotiating with DeBeers and Seltrust. This evidence proves only that Schlumberger's interests were aligned with the Swansons'
to obtain the best possible price for Sedswan's joint venture interest and, to that end, Schlumberger spoke not only for itself,
but also for the Swansons. To permit any further inference would impose a fiduciary relationship in every contract because all
contracting parties presumably contract for their mutual benefit. Once again, the fact that Schlumberger and the Swansons were
aligned does not create a confidential relationship giving rise to a fiduciary duty in the absence of a prior relationship.

Finally, the Swansons argue that Manges v. Guerra, 673 S.W.2d 180 (Tex.1984), imposes a fiduciary duty on Schlumberger. In
Manges, we recognized that a holder of executive rights to a mineral estate owes a fiduciary duty to the non-executive interest.
673 S.W.2d at 183. That is not the situation here. Manges simply is inapposite.

We conclude that there is no evidence of a partnership or confidential relationship between Schlumberger and the Swansons
that would give rise to a fiduciary duty on Schlumberger's part.



                                             III. DISCLAIMER OF RELIANCE

Given that Schlumberger and the Swansons were dealing with each other at arm's length, we now turn to Schlumberger's
contention that the disclaimer of reliance clause in the release precludes the Swansons' fraudulent inducement claim. It does.




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41 Tex. Sup. Ct. J. 165

To support their fraudulent inducement claim, the Swansons alleged that Schlumberger made several affirmative
misrepresentations during their negotiations over the withdrawal of Sedswan from the joint venture. The Swansons had seen
an April 1986 Schlumberger evaluation that described the project as “economical,” but noted that the “commerciality” of the
project would not be *178 determined until 1988 or 1989. Despite the 1986 evaluation, and without having undertaken any
later studies, Schlumberger represented to the Swansons that the project was neither technologically feasible nor commercially
viable. In addition, Schlumberger represented that the project had a negative value and that Sedswan would be lucky to get
out with its costs.

 [10] At trial, the evidence was undisputed that there are diamonds on the ocean floor off South Africa. It was further undisputed
that, as of the time of trial in 1993, no one had begun mining diamonds. Also, it was undisputed that Seltrust's successor sold its
interest to DeBeers in 1992 for only slightly more than its project costs. On the other hand, there was substantial dispute about
whether the project was technologically feasible or commercially viable. Schlumberger brings a point of error asserting that
there is legally insufficient evidence of fraud, but it does not argue in its briefing in this Court that its representations about the
project's technological or commercial infeasibility were immaterial, were merely opinion, or were either not knowingly made
or not made without knowledge of the truth. See Prudential Ins. Co. v. Jefferson Assocs., 896 S.W.2d 156, 163 (Tex.1995).
Accordingly, we assume, as we must, that Schlumberger misrepresented the project's technological feasibility and commercial
viability and that such misrepresentations are actionable as fraudulent inducement.

In this light, Schlumberger asks us to adopt a per se rule that the presence of independent legal counsel always precludes a
claim that a party fraudulently induced a release. Texas law does not support such a rule.

 [11] Texas law favors and encourages voluntary settlements and orderly dispute resolution. However, a release is a contract,
and like any other contract, is subject to avoidance on grounds such as fraud or mistake. See Williams v. Glash, 789 S.W.2d
261, 264 (Tex.1990); Dallas Farm Mach. Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233, 236–37 (1957). Yet our early decisions
are not entirely consistent. Several of our opinions conclude that a release could be set aside if it was induced by a fraudulent
representation or promise—even if the release contained language disclaiming that any such representation had been made.
Other cases hold to the contrary.

In Texas & Pacific Railway Co. v. Presley, 137 Tex. 232, 152 S.W.2d 1105 (Tex.1941), an injured worker settled his claim
against his employer for $50, executing a release providing that he relied upon his own judgment as to the extent and duration
of his injuries and that no promise of employment or other agreement not mentioned in the release had been made to him. Id.
at 1106. The worker later sued to set aside the release, contending that his employer's doctor had misrepresented the extent
of his injuries and that the employer had promised him permanent employment for executing the release, with no intention of
fulfilling that promise. See id. We held that proof of these contentions would be sufficient to set aside the release. Id. at 1108.
This could be done, we decided, even though the plaintiff may have read and understood the release. Id. at 1107.

Similarly, in Edward Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W. 873 (1921), a buyer purchased a set of legal
encyclopedias based on the seller's oral promise that it would continue to publish and deliver annual supplements for at least
fifteen years. The buyer proved that the seller made this promise with no intention of fulfilling it. We held that this constituted
fraud sufficient to set aside the agreement, even though the written contract provided that no representations or guaranties had
been made by the seller that were not expressed therein. “Promises made without intention of fulfillment, in order to induce
others to make contracts, are as culpable and as harmful as are willful misrepresentations of existing facts. Hence contracts
may be avoided alike for such fraudulent promises and for such misrepresentations.” Id. at 874. We explained that, where a
contract is induced by fraud, there is in reality no contract because there is no “real assent” to the agreement. Id. Thus, the
defrauded party is not bound by any of the contractual provisions, “including those relating to representations or guaranties
which induced its execution.” Id. at 874–75.

*179 There are other early cases, however, that reach the opposite result. For example, in Distributors Investment Co. v.
Patton, 130 Tex. 449, 110 S.W.2d 47 (Tex.1937), the seller of a tractor sued the buyer on his promissory note. In defense,



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the buyer contended that the seller had fraudulently induced the transaction by orally misrepresenting the tractor's capabilities.
The contract provided that the tractor was sold “as is,” and further provided that no other representations had been made. Id.
at 48. We held that, in light of these contract provisions, an action for rescission could not be maintained on account of oral
representations. Although recognizing that “fraud vitiates a contract,” we concluded that the fraud must be something more
than merely oral representations that conflict with the terms of the written contract. Id. Instead, to vitiate the contract, the fraud
must be such that it “prevents the coming into existence of any valid contract at all.” Id.; see also Avery Co. v. Harrison Co.,
267 S.W. 254, 256 (Tex. Com. App.1924, judgm't adopted); J.I. Case Threshing Mach. Co. v. Manes, 254 S.W. 929, 931 (Tex.
Com. App.1923, judgm't adopted); Wright v. Couch, 54 S.W.2d 207, 209 (Tex.Civ.App.—Eastland 1932, no writ).

In Dallas Farm Machinery Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233 (1957), we considered whether parol evidence was
admissible, despite a merger clause in a written contract, to establish that a contract was induced by fraud. The seller brought
suit against the purchaser of a tractor and loader for the balance due on the purchase contract. The buyer counterclaimed for
rescission, claiming that he was fraudulently induced to contract by false representations about the work capacities of the tractor
and loader. The seller argued that a merger clause providing that the contract was “the entire contract relating to the sale and
warranty” of the equipment and that “no warranty is made or authorized to be made other than herein set forth” precluded the
buyer's fraudulent inducement claim. Id. at 234. In resolving the parties' dispute, we considered the two lines of cases discussed
previously and concluded that they represented conflicting lines of authority that could not be distinguished on any principled
ground. See id. at 238–39. We resolved the conflict by holding, as a matter of policy, that a merger clause can be avoided based
on fraud in the inducement and that the parol evidence rule does not bar proof of such fraud. See id. at 239. In doing so, we
brought the law on the subject “into harmony with the great weight of authority, with the rule of the Restatement of the Law
of Contracts, and with the views of eminent textwriters.” Id. (citations omitted).

Juxtaposed to this authority, we have a competing concern—the ability of parties to fully and finally resolve disputes between
them. Parties should be able to bargain for and execute a release barring all further dispute. This principle necessarily
contemplates that parties may disclaim reliance on representations. And such a disclaimer, where the parties' intent is clear and
specific, should be effective to negate a fraudulent inducement claim. As an example, a disclaimer of reliance may conclusively
negate the element of reliance, which is essential to a fraudulent inducement claim. See Prudential, 896 S.W.2d at 161–62
(holding that agreement to buy property “as is,” in which buyer included “voluntary, freely negotiated affirmation that he was
depending on his own assessment of the building,” precluded claim for damages when building was found to contain asbestos);
Estes v. Hartford Accident & Indem. Co., 46 S.W.2d 413, 417–18 (Tex.Civ.App.—El Paso 1932, writ ref'd) (affirming directed
verdict upholding release where evidence conclusively negated reliance on alleged misrepresentations). The question is under
which circumstances such disclaimers are binding.

 [12] In this case, the Swansons contend that they agreed to Schlumberger's low-price buyout offer only after they were induced
by misrepresentations about the value and feasibility of the sea-diamond project. We conclude that our well-established rules
of contract interpretation govern whether the Swansons gave the requisite clear and unequivocal expression of intent necessary
to disclaim reliance on these specific representations by Schlumberger. The contract and the circumstances surrounding its
formation determine whether the disclaimer of reliance is binding. See Columbia Gas Transmission *180 Corp. v. New Ulm
Gas, Ltd., 940 S.W.2d 587, 591 (Tex.1996); National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995);
Prudential, 896 S.W.2d at 162. Because the parties were attempting to put an end to their deal, and had become embroiled in a
dispute over the feasibility and value of the project, we conclude that the disclaimer of reliance the Swansons gave conclusively
negates the element of reliance.

In negotiating the release, highly competent and able legal counsel represented both parties and, as we have said above,
the parties were dealing at arm's length. Further, both Schlumberger and the Swansons are knowledgeable and sophisticated
business players. The Swansons have been involved in traditional diamond mining in South Africa for several decades. They
and Schlumberger, a multinational corporation, were engaged in a business venture involving tens of millions of dollars and in
negotiations to sell their interests ultimately for several million dollars.




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Significantly, throughout the parties' negotiations, the Swansons disagreed with Schlumberger about the feasibility and value
of the sea-diamond project. Schlumberger never convinced the Swansons that DeBeers' offer was a good deal; four days
before he signed the release, John Swanson wrote to his attorney that the Swansons' lease interest was “worth billions.” The
Swansons seriously considered suing Schlumberger even before the sale to DeBeers and Seltrust. Indeed, the release states that
the Swansons claimed that they had an interest in the mining consortium and in Schlumberger's prospecting lease, and that
Schlumberger was “liable to the Swansons in connection with the prospecting or exploration of diamonds or other precious
stones or minerals in South Africa.” In this connection, the release recites that

            there is considerable doubt, disagreement, dispute and controversy with reference to the validity of the
            Swansons' claim against [Schlumberger] and as to the legal or moral liability of [Schlumberger] for any
            amount of damages or justification for legal relief, and there is further doubt, disagreement, uncertainty
            and confusion as to the amount of said liability, if any.

Further, the Swansons released all “causes of action of whatsoever nature, or any other legal theory arising out of the
circumstances described above, from any and all liability damages of any kind known or unknown, whether in contract or tort.”
The sole purpose of the release was to end the dispute about the value of this commercial project between Schlumberger and
the Swansons once and for all.

In this context and in clear language, the Swansons unequivocally disclaimed reliance upon representations by Schlumberger
about the project's feasibility and value. They said:

            [E]ach of us [the Swansons] expressly warrants and represents and does hereby state ... and represent ...
            that no promise or agreement which is not herein expressed has been made to him or her in executing
            this release, and that none of us is relying upon any statement or representation of any agent of the
            parties being released hereby. Each of us is relying on his or her own judgment and each has been
            represented by Hubert Johnson as legal counsel in this matter. The aforesaid legal counsel has read and
            explained to each of us the entire contents of this Release in Full, as well as the legal consequences of
            this Release .... (emphasis added)


Because courts are to assume that the parties intended every contractual provision to have some meaning, see Columbia Gas,
940 S.W.2d at 591; Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex.1996), we must presume
that the parties contemplated, by the inclusion of this clause, that the Swansons would not rely on any representations of
Schlumberger about the commercial feasibility and value of this project, which, after all, was the very dispute that the release
was supposed to resolve. Therefore, we conclude that the disclaimer of reliance is binding and, as a matter of law, precludes
the Swansons' claim that they were fraudulently induced to sell their interest in the sea-diamond project.

 *181 [13] In sum, we hold that a release that clearly expresses the parties' intent to waive fraudulent inducement claims, or
one that disclaims reliance on representations about specific matters in dispute, can preclude a claim of fraudulent inducement.
We emphasize that a disclaimer of reliance or merger clause will not always bar a fraudulent inducement claim. See Prudential,
896 S.W.2d at 162 (identifying some circumstances in which “as is” clause would not preclude fraudulent inducement claim).
We conclude only that on this record, the disclaimer of reliance conclusively negates as a matter of law the element of
reliance on representations about the feasibility and value of the sea-diamond mining project needed to support the Swansons'
claim of fraudulent inducement. As there is no evidence of a fiduciary or confidential relationship, the trial court correctly
rendered a judgment notwithstanding the verdict against the Swansons on their claims of breach of fiduciary duty and fraudulent
inducement.



                                               IV. COMMON–LAW FRAUD




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          11
Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997)
41 Tex. Sup. Ct. J. 165

The Swansons contend that even if the disclaimer of reliance precludes their claim that they were fraudulently induced to sign
the release by Schlumberger's affirmative misrepresentations, it does not preclude their claim of fraud by non-disclosure. Under
common-law fraud, the Swansons assert, Schlumberger had an affirmative duty to disclose material information about the sea-
diamond project because Schlumberger knew that the Swansons did not have an equal opportunity to discover the information,
that the Swansons lacked accurate information on the project's value and feasibility, and that the Swansons were relying on this
inaccurate information in selling their interests in the project. See Smith v. National Resort Communities, Inc., 585 S.W.2d 655,
658 (Tex.1979). In addition, the Swansons claim that Schlumberger, having made only partial disclosures that were misleading,
had a duty to disclose the whole truth about the value and feasibility of the project. See Spoljaric v. Percival Tours, Inc., 708
S.W.2d 432, 435 (Tex.1986). The Swansons contend that Schlumberger withheld geologic, economic, and technical information
that would have permitted the Swansons to make their own assessment of the sea-diamond project. Again, we assume that
Schlumberger had a duty to disclose pertinent information and failed to do so.

 [14] [15] The Swansons assert that the jury's verdict must be sustained because reliance is not an element of a claim for fraud
by non-disclosure. We disagree. Reliance is an element of fraud. See Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185
(Tex.1977). Fraud by non-disclosure is simply a subcategory of fraud because, where a party has a duty to disclose, the non-
disclosure may be as misleading as a positive misrepresentation of facts. See Smith, 585 S.W.2d at 658.

The Swansons rely on Johnson, 120 S.W.2d at 787, in which we said that partners owe each other a duty to make full disclosure
of all material facts within their knowledge relating to partnership affairs. Because of that duty, we held that the issue of
one partner's reliance on the other to discharge that duty to disclose was immaterial. Id. at 788. Johnson is not pertinent
to our discussion because, as we have said, there is no evidence of a partnership or other confidential relationship between
Schlumberger and the Swansons.

 [16] Even so, the Swansons assert that the disclaimer of reliance is nonetheless immaterial because it does not disclaim reliance
on Schlumberger's non-disclosures; it does not say, for example, that “none of us is relying on Schlumberger for accurate
reports about the project.” Schlumberger responds that the language of the disclaimer of reliance expressly covers claims for
both affirmative statements and non-disclosures. In particular, Schlumberger asserts that the alleged non-disclosures are merely
the converse of the misrepresentations; the disclaimer of reliance covers any “non-disclosures” that are the equivalent of the
representations on which the Swansons disclaimed reliance. We agree with Schlumberger.

In support of their argument, the Swansons reiterate the evidence that in April 1986 Schlumberger had a report that positively
 *182 assessed the technological and economic feasibility of the sea-diamond project, yet in 1987 and 1988, after Schlumberger
decided to withdraw Sedswan from the joint venture, Schlumberger made statements and disclosures to the Swansons indicating
that the technology was unworkable and the project would not be commercially feasible. Had Schlumberger disclosed the
geological, economic, and technical data available to it, the Swansons contend that they would have been able to make their own
assessment and determine that there had been no adverse developments since April 1986. In short, had Schlumberger disclosed
all the true facts about the project, it would not have affirmatively misrepresented the truth. The Swansons' non-disclosure
allegations are simply the converse of Schlumberger's affirmative misrepresentations and are covered by the disclaimer of
reliance.



                          V. SECTION 27.01 OF THE TEXAS BUSINESS & COMMERCE CODE

In addition to finding breach of fiduciary duty and common-law fraud, the jury found that Schlumberger committed fraud in
connection with a real estate transaction in violation of section 27.01 of the Texas Business and Commerce Code. TEX. BUS.
& COM.CODE § 27.01. Schlumberger contends that section 27.01 does not apply to the Swansons' interest in the sea-diamond
project. Schlumberger argues that the Swansons' interest at most was an interest in a prospecting lease off the South African
coast, which under both South African and Texas law is a personal property interest, and not an interest in real estate.




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Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997)
41 Tex. Sup. Ct. J. 165

 [17] We need not consider the choice-of-law and applicability issues Schlumberger raises. Nor do we approve or disapprove
of the court of appeals' discussion on the application and construction of section 27.01 in this case. For our purposes, we assume,
without deciding, that section 27.01 applies to Schlumberger's purchase of the Swansons' interest. Given that assumption, we
hold that the disclaimer of reliance precludes the Swansons' statutory fraud claim.

As with the common law, reliance is a necessary element of a statutory fraud claim under section 27.01. TEX. BUS. &
COM.CODE § 27.01(a)(1)(B). As is clear from our previous discussion, the disclaimer of reliance in this case conclusively
negates the Swansons' allegation that they relied on misrepresentations about commercial feasibility and value by Schlumberger
in selling their interest in the sea-diamond project. The trial court's judgment notwithstanding the verdict was in all respects
proper.

******

We reverse the judgment of the court of appeals and render judgment that the Swansons take nothing.



OWEN, J., not sitting.

Parallel Citations

41 Tex. Sup. Ct. J. 165

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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Scott-Richter v. Taffarello, 186 S.W.3d 182 (2006)




                                                        186 S.W.3d 182
                                                    Court of Appeals of Texas,
                                                           Fort Worth.

       Allison SCOTT–RICHTER, Individually, a/k/a Allison Scott, Allison L. Scott, as Trustee of the Thomas
       Eugene Scott, Jr. Living Trust, and Allison L. Scott, as Trustee of the Allison L. Scott Trust, Appellants,
                                                           v.
                              Diana TAFFARELLO and Robert L. Soltis, Jr., Appellees.

                                             No. 2–05–122–CV.           |   Feb. 2, 2006.

Synopsis
Background: Lessee, who was a prospective purchaser of leased property, brought action against lessor seeking declaratory
judgment, and asserting claims for breach real estate contract, fraud, and breach of lease agreement. Lessor also asserted a third-
party claim. Lessee and third-party filed motion to enforce settlement agreement. Lessor moved to continue the hearing on
motion to enforce. The 16th District Court, Denton County, Carmen Rivera-Worley, J., recessed the hearing, ordered parties to
return to mediation, and awarded lessee and third-party attorney fees. After mediation failed, lessee and third-party reasserted
claims and added claim for breach of the memorandum of settlement. Denying lessor's request for jury trial, the District Court
granted motion to enforce settlement agreement. Lessor moved for new trial and District Court denied. Lessor appealed.



Holdings: The Court of Appeals, Dixon W. Holman, J., held that:

[1] lessor's failure to timely file notice of appeal of denial of its motion for new trial did not require dismissal of appeal;

[2] lessor's claim of error for denial of jury trial on lessee's breach of contract claim was moot;

[3] lessor was foreclosed from challenge the motion to enforce; and

[4] award of attorney fees was warranted.


Affirmed.



 West Headnotes (9)


 [1]     Appeal and Error          Relief from effect of failure
         Lessor's failure to timely file notice of appeal of trial court denial of its motion for new trial on lessee's breach of lease
         and fraud claims did not require appeal to be dismissed for lack of jurisdiction; letter from appellate court granted
         lessor twelve days to show reasonable explanation of late filing of the notice of appeal, lessor provided a reasonable
         explanation for the late filing, and, although the notice of appeal recited that it was being taken to a different appellate
         court, the lessor timely amended its notice to cure the error. Rules App.Proc., Rules 25.1(d, f), 26.3, 44.3.

         1 Cases that cite this headnote




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Scott-Richter v. Taffarello, 186 S.W.3d 182 (2006)




 [2]    Appeal and Error         Review of specific questions in general
        Lessor's claim that trial court erred by denying request for jury trial on lessee's breach of contract claim was moot;
        lessee withdrew breach of contract claim during hearing on enforcement of settlement agreement, and order granting
        the motion to enforce settlement agreement expressly dismissed the breach of contract claim. U.S.C.A. Const.Amend.
        7; Vernon's Ann.Texas Const. Art. 5, § 10; Vernon's Ann.Texas Rules Civ.Proc., Rule 216.

        Cases that cite this headnote


 [3]    Compromise and Settlement            Necessity of writing
        The rule requiring agreements between parties to be in writing in order to be enforceable aims to eradicate the
        misunderstandings and controversies commonly associated with verbal agreements among parties and counsel.
        Vernon's Ann.Texas Rules Civ.Proc., Rule 11.

        1 Cases that cite this headnote


 [4]    Compromise and Settlement            Necessity of writing
        Agreements in writing and filed with the court allow the writings to speak for themselves so that the court can judge
        of their import, and proceed to act upon them with safety. Vernon's Ann.Texas Rules Civ.Proc., Rule 11.

        2 Cases that cite this headnote


 [5]    Compromise and Settlement            Enforcement
        A trial court has a ministerial duty to enforce a valid written settlement agreement between parties. Vernon's
        Ann.Texas Rules Civ.Proc., Rule 11.

        3 Cases that cite this headnote


 [6]    Compromise and Settlement            Necessity of writing
        Compromise and Settlement            Enforcement
        Attorneys, on behalf of their clients, lessor and lessee, entered into a valid written settlement agreement, and thus,
        trial court had a ministerial duty to enforce the agreement; clerk's record contained a “Notice of Filing of Rule 11
        Agreement” which stated that it was an enforceable agreement under Rule 11, contained signatures of both parties'
        attorneys, was filed with the trial court as part of the record, and contained statement that lessor agreed not to challenge
        amended motion to enforce settlement agreement filed by lessee. Vernon's Ann.Texas Rules Civ.Proc., Rule 11.

        5 Cases that cite this headnote


 [7]    Appeal and Error         Agreements and stipulations
        Compromise and Settlement            Enforcement
        Fact that the written settlement agreement filed with clerk regarding dispute between lessor and lessee contained
        statement that lessor agreed not to challenge lessee's amended motion to enforce the settlement agreement foreclosed
        lessor's ability to challenge the motion to enforce or to complain on appeal regarding the terms of the motion and
        subsequent order granting the motion. Vernon's Ann.Texas Rules Civ.Proc., Rule 11.

        Cases that cite this headnote




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Scott-Richter v. Taffarello, 186 S.W.3d 182 (2006)




 [8]     Appeal and Error         Scope and Effect of Objection
         Appeal and Error         Form and requisites in general
         Lessor failed to preserve for appellate review its claim that trial court abused its discretion by awarding attorney fees
         to lessee, although lessor's counsel stated at trial court hearing that it opposed lessee's request for attorney fees, where
         lessor failed to present arguments to trial court and failed to cite any authority for its argument in its appellate brief.
         Rules App.Proc., Rules 33.1(a)(1)(A), 38.1(h).

         1 Cases that cite this headnote


 [9]     Compromise and Settlement            Enforcement
         Trial court decision awarding lessee attorney fees from lessor in its action to enforce settlement agreement was
         warranted; despite lessor's contention that award was granted at a time that lessor was without legal representation,
         trial court granted award prior to granting motion to withdraw from lessor's counsel, and the award was not premature,
         as trial court upheld the award at two subsequent occasions.

         Cases that cite this headnote




Attorneys and Law Firms

*184 Law Office of James P. Moon, PLLC, James P. Moon, Desoto, for appellants.

Law Office of Bruce K. Thomas, Bruce K. Thomas, David Spoede, Dallas, for appellees.

PANEL A: CAYCE, C.J.; HOLMAN and McCOY, JJ.



                                                             OPINION

DIXON W. HOLMAN, Justice.


                                                       I. INTRODUCTION

Appellants Allison Scott–Richter, Individually, a/k/a Allison Scott, Allison L. Scott, as Trustee of the Thomas Eugene Scott,
Jr. Living Trust, and Allison L. Scott, as Trustee of the Allison L. Scott Trust (“Appellants,” if jointly) appeal from an order
granting an amended motion to enforce a settlement agreement between Appellants and Appellees Diana Taffarello and Robert
L. Soltis (“Appellees,” if jointly). In five issues, Appellants complain that the trial court erred as a matter of law by granting
the amended motion to enforce the settlement agreement, that the trial court abused its discretion by denying their request for
a jury trial and by awarding attorneys' fees to Appellees, and that the filing of a notice of settlement constitutes an unlawful
taking of property in violation of the United States and Texas Constitutions. We affirm.



                                   II. FACTUAL AND PROCEDURAL BACKGROUND

Taffarello filed her original plaintiff's petition on January 29, 2004. Taffarello alleged that she had entered into a real property
lease with Appellants and that Appellants later agreed to sell her the leased property. According to the petition, however,
Appellants subsequently advised Taffarello that they would not sell the property to her. In addition to seeking a declaratory



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Scott-Richter v. Taffarello, 186 S.W.3d 182 (2006)


judgment regarding her right to continued possession of the property, Taffarello asserted claims for breach of the real estate
contract, fraud, and breach of a lease agreement. Appellants answered Taffarello's petition and asserted a third-party claim
against Soltis.

The parties went to mediation on July 14, 2004 and agreed to a number of terms as evidenced in a written Memorandum
of *185 Settlement (“Memorandum”). The Memorandum, among other things, indicates that Taffarello's lawsuit is to be
dismissed, describes how the net proceeds of the sale are to be divided after the property is sold, provides for the drafting of
a “compromise settlement agreement” and “trust agreement,” and designates a settlement closing date of August 13, 2004,
which the parties later agreed to extend by two weeks. In mid-August, counsel for Appellants allegedly advised Taffarello that
they would no longer negotiate regarding the settlement documents. Appellants' counsel also filed a motion to withdraw and
a motion to abate the case.

Appellees responded with a letter dated August 24, 2004, which demanded that Appellants engage in good faith negotiations
in regard to the remaining settlement documents and that the parties return to mediation. Appellees received no response to the
letter, and consequently, the parties were unable to reach an agreement regarding the preparation of the additional documents
contemplated by the Memorandum. As such, the parties did not close on the designated date, and Appellees filed a motion to
enforce the settlement agreement on September 17, 2004; they amended the motion on October 7.

Appellees' amended motion to enforce the settlement agreement requested that the trial court declare, among other things, that
the Memorandum is a binding Rule 11 settlement agreement, 1 that the “Compromise and Settlement Agreement” attached to
the motion is the compromise settlement agreement specified in the Memorandum, that the “Cole Richter Irrevocable Trust
Agreement” also attached to the motion is the trust instrument specified in the Memorandum, and that the “Notice of Settlement”
attached to the motion is “proper and appropriate.”

On October 13, 2004, the trial court heard arguments on the pending motions, which included a motion filed by Appellants to
continue the hearing on the motion to enforce because of their attorney's pending motion to withdraw. The trial court ultimately
granted Appellants' counsel's motion to withdraw, recessed the hearing on the amended motion to enforce the settlement
agreement until a later date, ordered the parties to return to mediation, and awarded Appellees $5,000 in attorneys' fees.

The parties returned to mediation but were unable to reach a compromise regarding the terms of the Memorandum calling for
further agreement. On November 15, 2004, Appellees filed their first amended petition and third-party defendant counterclaims,
which, in addition to re-asserting claims for breach of the real estate contract and lease agreement, asserted a claim for breach
of the Memorandum. On November 19, 2004, the parties entered into a second Rule 11 agreement, which partially provided:

            We have agreed that your clients, Allison Scott, a/k/a Allison Scott–Richter, individually, and as Trustee
            of the Thomas Eugene Scott, Jr., Living Trust, and as Trustee of the Allison L. Scott Trust (collectively,
            “Scott”), will not challenge the validity or enforceability of the Memorandum of Settlement dated July
            14, 2004 (the “Memorandum”) by and between Scott and Diana Taffarello (“Taffarello”) and Robert
            Soltis, Jr. (“Soltis”). In particular, but without limiting the generality of the foregoing, Scott agrees not
            to raise lack of competency, duress, lack of essential term(s), tax effect or consequences, violation of
            any other trust, or any other matter as a *186 bar or defense to the Memorandum. Scott further agrees
            that she will not challenge or contest the Amended Motion to Enforce Settlement Agreement filed by
            Taffarello and Soltis. [Emphasis added.]


Notwithstanding this language, Appellants filed a request for a jury trial on December 14, 2004. The trial court heard the
amended motion to enforce the settlement agreement three days later on December 17, and despite Appellants' arguments that
they were entitled to a jury trial on Taffarello's breach of contract claim, the trial court granted the motion to enforce.

Appellants filed a motion for new trial on January 18, 2005, which the trial court subsequently denied. This appeal followed.



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Scott-Richter v. Taffarello, 186 S.W.3d 182 (2006)




                                                      III. JURISDICTION

We begin our analysis by determining whether we have jurisdiction to consider this matter. Appellees assert that this appeal
should be dismissed for lack of jurisdiction because Appellants' notice of appeal was not timely filed. We disagree.

 [1] The trial court signed its final judgment on December 17, 2004. Appellants timely filed a motion for new trial; therefore,
Appellants' notice of appeal was due on or before March 17, 2005. SeeTEX.R.APP. P. 26.1(a)(1). On March 30, 2005, Appellants
filed their notice of appeal with the District Clerk of Denton County, Texas. On April 6, 2005, we notified Appellants of our
concern that the notice of appeal was not timely filed. We informed Appellants that if we did not receive a response from them
within twelve days showing a reasonable explanation for the late filing of the notice of appeal, the appeal could be dismissed for
want of jurisdiction. SeeTEX.R.APP. P. 10.5(b), 26.3(b), 42.3(a); Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.1998);
Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997).

Appellants responded by filing a motion for extension of time to file their notice of appeal. Because Appellants' motion was
not filed within fifteen days of the date the notice of appeal was due, we were not authorized to grant the motion, and we took
no action on the motion. SeeTEX.R.APP. P. 26.3. However, inasmuch as Appellants filed their notice of appeal with the proper
trial court clerk within fifteen days of the due date, a motion for extension of time was necessarily implied. See Verburgt, 959
S.W.2d at 617 (holding a motion for extension of time is necessarily implied when an appellant acting in good faith files a
document attempting to perfect the appeal beyond the time allowed by the appellate rules, but within the fifteen-day period in
which the appellant would be entitled to move to extend the filing deadline).

Accordingly, we construed Appellants' motion as a response to our April 6, 2005 letter questioning our jurisdiction.
Consequently, the question before us was whether Appellants provided a reasonable explanation for the late filing of their
notice of appeal within the fifteen-day period of Rule 26.3. SeeTEX.R.APP. P. 26.3; Hone v. Hanafin, 104 S.W.3d 884, 886–87
(Tex.2003); Jones, 976 S.W.2d at 677;Verburgt, 959 S.W.2d at 617. Appellants explained that their failure to timely file their
notice of appeal was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance in the calculation of
the deadline and the mis-docketing of such date on the calendar of Appellants' counsel. On April 18, 2005, we issued an order
finding that Appellants had provided a reasonable explanation for the late filing of their notice of appeal.

 *187 Appellees filed a motion asking us to reconsider our order. Appellees asserted that the notice of appeal was not timely
filed, and they further contended that this appeal must be dismissed because the body of Appellants' notice of appeal recites,
“This appeal is taken to the Fifth Court of Appeals of the State of Texas in Dallas, Texas.”

On May 9, 2005, we denied Appellees' motion for reconsideration and permitted Appellants ten days to file an amended notice
of appeal reciting that they were appealing to the Court of Appeals for the Second District of Texas. SeeTEX.R.APP. P. 25.1(d)
(4), (f) (providing that an “amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the
appellate court”), TEX.R.APP. P. 44.3 (“A court of appeals must not ... dismiss an appeal for formal defects or irregularities
in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.”); Maxfield v.
Terry, 888 S.W.2d 809, 811 (Tex.1994) (holding that if an appellant makes a bona fide attempt to invoke the jurisdiction of
the appellate court, the appellant must be permitted to file an amended notice of appeal); Crown Life Ins. Co. v. Estate of
Gonzalez, 820 S.W.2d 121, 121–22 (Tex.1991) (“[T]he decisions of the courts of appeals [should] turn on substance rather
than procedural technicality.”). Appellants timely filed an amended notice of appeal that complied with the requisites of Rule
25.1(d). SeeTEX.R.APP. P. 25.1(d).


Accordingly, we hold that Appellants offered a reasonable explanation for the late filing of their notice of appeal, 2 which they
timely amended, and we have jurisdiction over this appeal. 3



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Scott-Richter v. Taffarello, 186 S.W.3d 182 (2006)




                                              IV. REQUEST FOR JURY TRIAL

 [2] In their first issue, Appellants argue that the trial court abused its discretion by denying their request for a jury trial. They
contend that their demand for a jury trial was timely and that their federal constitutional rights under the Seventh Amendment
to the United States Constitution, their state constitutional rights under Article 5, Section 10 of the Texas Constitution, and
their statutory rights under Texas Rule of Civil Procedure 216 were violated. Appellees respond that Appellants' request for a
jury trial pertains only to Appellees' breach of contract claim, which was abandoned by Appellees and dismissed by the order
granting the amended motion to enforce the settlement agreement and final judgment. We agree.

Appellants argued repeatedly during the hearing on the amended motion to enforce the settlement agreement that they were
entitled to a jury trial on Appellees' breach of contract (Memorandum) claim. Counsel for Appellants argued,

             In that First Amended Petition ... Mr. Spoede asserted a claim for breach of contract of the Settlement
             Agreement and a claim for declaratory judgment. Both of those claims are claims that under *188 Article
             5, Section 10 of the Texas Constitution, these defendants are entitled to a trial by jury on those claims.

Counsel continued,

  [I]f the Court construes, and we believe the Court cannot reach any other conclusion but that there are still two breaches
  of Settlement Agreement—two causes of action still outstanding, then this matter needs to go ahead and proceed to trial in
  February as the Court currently has it set.

  ....

  [I]f they are asserting a claim for breach of contract, they're required to prove the breach of contract.... My clients have
  the right, based on the current state of the pleadings, to do discovery on this claim of breach of contract and declaratory
  judgment, to call witnesses, to have documents produced, to take depositions, and most important, to try to have a jury trial
  in connection with this.

Finally, counsel argued,

             We believe that the Court ought to set this matter for trial, that Ms. Scott and the remaining defendants
             ought to be allowed the opportunity as they are given the right under the Texas Constitution to defend
             against the claims of breach of contract and the declaratory judgment claims....

Counsel for Appellees, however, responded that they were withdrawing the breach of contract claim. He said,

             Once he [opposing counsel] signed the Rule 11 Agreement saying that he wouldn't oppose our Amended
             Motion to Enforce, it made everything moot. Everything settled except for the issue of attorney's fees.
             So to the extent we do have other—the same claims couched as other causes of action, we withdraw
             those causes of action because [the trial court's] order gives us all the relief we were seeking in the first
             place. [Emphasis added.]


At the conclusion of the hearing, the trial court, in response to a question by Appellants regarding the effect of the order as it
relates to the breach of contract claim, stated it understood that Appellees were “abandoning or waiving many of those claims.”
Counsel for Appellees responded that the order “speaks for itself.” Indeed, the order signed by the trial court provides that
“[a]ny claims in this lawsuit that are not specifically addressed in this Order and Judgment, including all claims, counter-claims,
cross-claims, and third-party claims, are dismissed with prejudice to the refiling of same.”




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Scott-Richter v. Taffarello, 186 S.W.3d 182 (2006)


Our review of the order indicates that it does not address Appellees' breach of contract claim, specifically or as part of its
declarations. Thus, because Appellees withdrew their breach of contract claim during the hearing and because the order granting
the amended motion to enforce the settlement agreement expressly dismisses the breach of contract claim, Appellants' argument
that they are entitled to a jury trial on Appellees' breach of contract claim is moot. SeeTEX.R.APP. P. 47.1; Williams v. Lara,
52 S.W.3d 171, 184 (Tex.2000) (reasoning that case is moot if live controversy ceases to exist); In re Guardianship of Keller,
171 S.W.3d 498, 500 (Tex.App.-Waco 2005, pet. filed) (reasoning that appellate courts lack jurisdiction to consider issues
that have been rendered moot). Moreover, to the extent Appellants' argument can be interpreted as challenging the denial of
a jury trial on the declaratory judgment claims as violative of Article 5, Section 10 of the Texas Constitution and the Seventh
Amendment to the United States Constitution, the record reflects that Appellants agreed by the November 19, 2004 Rule 11
agreement not to challenge or contest the amended motion to enforce the settlement agreement, *189 which the order tracks
substantially verbatim. Accordingly, the trial court did not abuse its discretion by denying Appellants' request for a jury trial.
We overrule Appellants' first issue.



                                V. AMENDED MOTION TO ENFORCE SETTLEMENT
                                AGREEMENT AND CONSTITUTIONAL CHALLENGES

In their second issue, Appellants argue that the trial court erred as a matter of law by granting the amended motion to enforce
the settlement agreement because it had the effect of imposing additional material terms to the agreement that the parties had
yet to negotiate and agree upon. Appellants contend that there is no evidence or insufficient evidence that they agreed to be
bound by the compromise settlement agreement, trust agreement, and notice of settlement and that the issue of whether they
agreed to be bound by the terms of these agreements should have been set for a jury trial. In their third issue, Appellants argue
—without citing any authority—that the denial of their right to a jury trial on these issues denied them due process under the
Texas and federal constitutions and constituted an unlawful taking of property under the Fifth Amendment to the United States
Constitution. In their fourth issue, Appellants argue—without citing any authority-that the filing of the “Notice of Settlement”
in Denton County results in an unconstitutional taking of property. Appellees respond that the November 19, 2004 Rule 11
agreement resolved any dispute as to the enforceability of the settlement agreement and the documents drafted to effectuate
it. We agree.

 [3] [4] [5] Pursuant to Rule 11, no agreement between the parties or their attorneys shall be enforceable unless the agreement
is either (1) in writing, signed by the parties, and filed with the papers as part of the record or (2) made orally in open court
and entered as part of the record. TEX.R. CIV. P. 11. Rule 11 aims to eradicate the misunderstandings and controversies
commonly associated with verbal agreements among parties and counsel. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex.1995).
Agreements in writing and filed with the court allow the writings to “speak for themselves” so that “the court can judge of their
import, and proceed to act upon them with safety.” Id. A trial court has a ministerial duty to enforce a valid Rule 11 agreement.
ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 309 (Tex.App.-Houston [1st Dist.] 2005, pet. filed).

 [6] Here, the clerk's record contains a “Notice of Filing of Rule 11 Agreement.” The document states that it “is an enforceable
agreement under Rule 11 of the Texas Rules of Civil Procedure,” contains the signatures of both Appellants' and Appellees'
attorneys, and was filed with the trial court as part of the record on December 8, 2004. Dated November 19, 2004, the agreement
states that Scott 4 “agrees that she will not challenge or contest the Amended Motion to Enforce Settlement Agreement filed
by Taffarello and Soltis.” [Emphasis added.] We hold that the attorneys, on behalf of their clients, entered into a valid Rule 11
Agreement that the trial court had a ministerial duty to enforce. SeeTEX.R. CIV. P. 11; ExxonMobil Corp., 174 S.W.3d at 309.

 [7] The amended motion to enforce the settlement agreement that Appellants agreed not to contest sought a declaration
by the trial court that the Memorandum entered into by the parties on July 14, 2004 is a binding and enforceable Rule
11 *190 settlement agreement; that the “Compromise and Settlement Agreement” attached to the amended motion as exhibit
“B” constitutes the compromise settlement agreement specified in paragraph 4 of the Memorandum; that the “Cole Richter
Irrevocable Trust Agreement” attached to the amended motion as exhibit “C” is the trust instrument or agreement specified in


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Scott-Richter v. Taffarello, 186 S.W.3d 182 (2006)


paragraphs 4 and 5 of the Memorandum; and that the “Notice of Settlement” attached to the amended motion as exhibit “D”
is “proper and appropriate” and may be filed in the real property records of Denton County, Texas. Despite the valid Rule 11
agreement entered into by the parties, Appellants now attempt to challenge the “Compromise and Settlement Agreement,” the
“Cole Richter Irrevocable Trust Agreement,” and the “Notice of Settlement” by arguing that they never agreed to the terms
contained therein and by arguing that their rights under the United States and Texas Constitutions have been denied. This
they cannot do. Appellants expressly agreed not to challenge the amended motion to enforce the settlement agreement. By so
agreeing, they foreclosed their ability to complain on appeal regarding the terms of the motion and subsequent order granting
the same. As Appellees state in their brief,

            By executing the Nov. 19 Rule 11 Agreement, counsel resolved the very issues he now attempts to
            challenge in this appeal: the enforceability of the mediated settlement agreement and the documents
            drafted to effectuate it.... Moreover, the amended motion to enforce incorporates each of the documents
            Scott now claims go beyond the settlement agreement. Appellants agreed to each one by agreeing not
            to contest the amended motion to enforce.


The trial court's order granting Appellees' motion to enforce the settlement agreement and final judgment tracks the language
in the motion closely and states,

  1. The Memorandum of Settlement entered into by the parties and dated July 14, 2004, is declared to be a binding and effective
  settlement agreement that is enforceable under contract law and under Rule 11of the Texas Rules of Civil Procedure....

  2.... The Compromise and Settlement Agreement is hereby declared to constitute the compromise settlement agreement
  specified in paragraph 4 of the Memorandum of Settlement, and to be a final and binding agreement of all of the parties as
  if each party hereto had properly signed and executed it....

  3.... The Cole Richter Irrevocable Trust Agreement is hereby declared to be that trust instrument or agreement specified
  or referenced in paragraphs 4 and 5 of the Memorandum of Settlement, and in paragraphs 2 and 3 of the Compromise and
  Settlement Agreement, and shall be fully enforceable and effective as if properly signed and executed by each of the parties....

  4. The document attached as Exhibit “B” to the Compromise and Settlement Agreement [entitled Notice of Settlement and
  Net Sales Proceeds Interest] is hereby declared to be proper and appropriate. Taffarello may sign and file the Memorandum
  in the real property records of Denton County, Texas.

Appellants never challenged the validity and enforceability of the November 19, 2004 Rule 11 agreement (e.g., by attacking it
on the grounds of fraud or mistake or by arguing that an exception applies), and they do not raise such a challenge on appeal.
And the Rule 11 agreement is clear and unambiguous. Accordingly, because Appellants agreed not to challenge or contest the
amended motion to enforce the settlement agreement pursuant to a *191 valid Rule 11 agreement, the trial court did not err by
performing its ministerial duty and granting Appellees' amended motion to enforce the settlement agreement. SeeTEX.R. CIV.
P. 11; ExxonMobil Corp., 174 S.W.3d at 309;see also Childers v. King Ranch, Inc., No. 13–03–006–CV, 2005 WL 774512,
at *5 (Tex.App.-Corpus Christi April 7, 2005, no pet.) (mem.op.) (holding trial court did not abuse its discretion by granting
relief in strict accordance with parties' rule 11 agreements). We overrule Appellants' second, third, and fourth issues.



                                                   VI. ATTORNEYS' FEES

In their fifth issue, Appellants argue that the trial court abused its discretion by awarding Appellees attorneys' fees. Appellants
contend that the trial court should not have considered Appellees' request for attorneys' fees because Appellants were without
legal representation at the time of the award, the award was premature, and Appellants were entitled to a jury trial on the issue
of attorneys' fees.




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Scott-Richter v. Taffarello, 186 S.W.3d 182 (2006)


 [8] We initially note that Appellants failed to present any of these arguments during the October 13, 2004 hearing at which the
trial court awarded Appellees attorneys' fees; thus, they failed to put the trial court on notice of their objections to the award.
SeeTEX.R.APP. P. 33.1(a)(1)(A). After counsel for Appellees requested $5,000 in attorneys' fees, the trial court asked for a
response from Appellants' counsel, who stated, “Well, obviously, we oppose that.” The trial court indicated thereafter that it was
awarding Appellees the attorneys' fees. Appellants also fail to cite one single authority for each of the three arguments raised
in their brief. SeeTEX.R.APP. P. 38.1(h). Accordingly, Appellants failed to preserve these arguments for appellate review.

 [9] Nonetheless, Appellants' arguments are unpersuasive. Appellants were not without counsel at the time the trial court
awarded Appellees attorneys' fees. The record clearly indicates that the trial court awarded Appellees attorneys' fees before
granting Appellants' counsel's motion to withdraw. Moreover, as demonstrated above, the trial court afforded Appellants an
opportunity to argue against the request for attorneys' fees. Regarding Appellants' prematurity argument, the trial court had
two subsequent opportunities to consider the award; Appellants filed their “Motion for Reconsideration or to Set Aside Order
Granting Attorney's Fees” on December 16, 2004 and motion for new trial on January 18, 2005. The trial court ultimately
upheld the award of attorneys' fees. Appellants lastly argue that they are entitled to a jury trial on the issue of attorneys' fees
because “the right to such recovery was necessarily predicated upon Appellees' successful prosecution of their claims that the
Memorandum was an enforceable agreement and that the Appellants had breached it.” However, as we discussed in Section IV
above, Appellees waived their breach of contract claim in open court, and the order granting their amended motion to enforce
the settlement agreement expressly dismisses all claims not addressed in the order, which includes Appellees' breach of contract
claim. We hold that the trial court did not abuse its discretion by awarding Appellees attorneys' fees. Accordingly, we overrule
Appellants' fifth issue.



                                                           VII. CONCLUSION

Having overruled all of Appellants' issues, we affirm the trial court's judgment.



Footnotes
1      TEX.R. CIV. P. 11.
2      On appeal, Appellees do not challenge the reasonableness of Appellants' explanation for the late filing of their notice of appeal. See
        Hone, 104 S.W.3d at 886–87 (discussing what constitutes a reasonable explanation for late filing of a notice of appeal).
3       Appellees' brief states that Appellants filed a motion for extension of time to file their notice of appeal in the Court of Appeals for
        the Fifth District of Texas, which refused to act. Our record does not contain any such motion, but even if it did, the motion would
        not have any significance in our decision that Appellants offered a reasonable explanation for the filing of their notice of appeal with
        the proper trial court clerk within fifteen days of the due date.
4       In the agreement, Scott refers to Appellants, i.e., Scott in all of her capacities.


 End of Document                                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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State v. Ruiz Wholesale Co., 901 S.W.2d 772 (1995)




                                                      901 S.W.2d 772
                                                  Court of Appeals of Texas,
                                                           Austin.

                       The STATE of Texas, the Texas Alcoholic Beverage Commission, and
                        Jeannene Fox, in Her Capacity as Acting Administrator, Appellants,
                                                          v.
                                     RUIZ WHOLESALE CO., et al., Appellees.
                                     RUIZ WHOLESALE CO., et al., Appellants,
                                                          v.
                      TEXAS ALCOHOLIC BEVERAGE COMMISSION, Jeannene Fox, Acting
                     Administrator; State of Texas; and Silver Eagle Distributors, Inc., Appellees.

                            Nos. 03–93–00618–CV, 03–94–00269–CV.                   |   June 21, 1995.

Local beer distributor sought to enjoin Texas Alcoholic Beverage Commission (TABC) from requiring or enforcing
manufacturers' territorial agreements in connection with resale of beer. The 53rd Judicial District Court, Travis County,
Margaret A. Cooper, J., initially granted temporary injunction and then, on rehearing, dissolved it. After trial court also denied
second application for temporary injunction, distributor perfected interlocutory appeal. The Court of Appeals, Jones, J., held
that: (1) order granting temporary injunction to distributor was moot after temporary injunction was dissolved on rehearing; (2)
second application for temporary injunction provided no valid basis from which trial court could grant relief; and (3) testimony
of local distributor would not show probable injury from failure to grant injunction prohibiting enforcement of manufacturers'
territorial agreements.

Dismissed in part; affirmed in part.



 West Headnotes (12)


 [1]    Injunction       Mootness and ripeness; ineffectual remedy
        Issue of whether injunction is valid becomes moot when injunction ceases to have effect.

        2 Cases that cite this headnote


 [2]    Appeal and Error         Effect of delay or failure to take proceedings
        Denial of temporary injunctive relief, from which no timely appeal is taken, is interlocutory order not reviewable
        by court.

        4 Cases that cite this headnote


 [3]    Injunction       Successive injunctions or applications therefor
        Dissolution of temporary injunction ordinarily bars second application for injunctive relief, unless second request is
        based on changed circumstances not known at time of first application.

        1 Cases that cite this headnote




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State v. Ruiz Wholesale Co., 901 S.W.2d 772 (1995)




 [4]   Injunction       Successive injunctions or applications therefor
       Successive application for injunctive relief on grounds that could have been raised in connection with earlier request
       for that relief are not allowed if there is insufficient reason why grounds were not urged in earlier application.

       1 Cases that cite this headnote


 [5]   Injunction       Successive injunctions or applications therefor
       Intoxicating Liquors        Judicial review and enforcement
       Challenges to procedural and substantive validity of requirements and constitutional due process and equal protection
       arguments in second request for injunction with regard to Texas Alcoholic Beverage Commission (TABC) enforcing
       territorial agreements in connection with resale of beer duplicated challenges raised in initial request, and, thus, there
       was no basis on which trial court could have abused its discretion in denying second request. U.S.C.A. Const.Amends.,
       5, 14.

       Cases that cite this headnote


 [6]   Injunction       Successive injunctions or applications therefor
       Intoxicating Liquors        Judicial review and enforcement
       Brief notice from Texas Alcoholic Beverage Commission (TABC) to beer distributors that previous injunction
       had been dissolved was not change in circumstances which would warrant second attempt by manufacturers and
       distributors at injunctive relief where TABC consistently maintained that all beer distributors must have territorial
       agreements before purchasing beer from another distributor for resale.

       1 Cases that cite this headnote


 [7]   Appeal and Error         Refusing injunction
       Appellate review of order denying temporary injunction is strictly limited to determination of whether there has been
       clear abuse of discretion.

       Cases that cite this headnote


 [8]   Appeal and Error         Abuse of discretion
       Trial court abuses its discretion only if it acts in unreasonable and arbitrary manner or if it acts without reference to
       any guiding principles.

       Cases that cite this headnote


 [9]   Injunction       Entitlement to Relief
       Injunction       Likelihood of success on merits
       Injunction       Injury, Hardship, Harm, or Effect
       To prevail on request for temporary injunction, applicant must show probable right to recover at trial on merits and
       probable injury in interim.

       1 Cases that cite this headnote




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State v. Ruiz Wholesale Co., 901 S.W.2d 772 (1995)




 [10]   Appeal and Error         Injunction
        In reviewing order denying temporary injunction, court draws all legitimate inferences from evidence in light most
        favorable to trial court order.

        Cases that cite this headnote


 [11]   Appeal and Error         Necessity of finding facts
        Appeal and Error         Scope and theory of case
        If no findings of fact or conclusions of law are filed, trial court's order will be upheld on any legal theories supported
        by record.

        1 Cases that cite this headnote


 [12]   Injunction       Intoxicating liquors
        Intoxicating Liquors        Judicial review and enforcement
        Testimony of local distributor that Texas Alcoholic Beverage Commission (TABC) had not cited distributor or
        threatened him with action for failure to have territorial agreement did not show that injunction to prohibit TABC
        from requiring enforcement of agreement was necessary.

        Cases that cite this headnote




Attorneys and Law Firms

*773 Jennifer S. Riggs, Jennifer S. Riggs, P.C., Austin.

Lowell Lasley, Austin.

Jim L. DeFoyd, Houston.

Dan Morales, Atty. Gen., W. Reed Lockhoof, Asst. Atty. Gen., Austin.

John K. Schwartz, Liddell, Sapp, Zivley, Hill & La Boon, L.L.P., Austin.

Before CARROLL, C.J., and ABOUSSIE and JONES, JJ.

Opinion

JONES, Justice.

These interlocutory appeals involve two trial-court orders, the first granting a temporary injunction and the second denying one.
Tex.Civ.Prac. & Rem.Code Ann. § 51.014(4) (West Supp.1995). Ruiz Wholesale Company and other local beer distributors
(collectively “Ruiz”) sought to enjoin the Texas Alcoholic Beverage Commission (“TABC”) from requiring or enforcing
manufacturers' territorial agreements in connection with the resale of beer. 1 The trial court initially granted a temporary
injunction, from which the TABC perfected an interlocutory appeal. On rehearing, however, the trial court dissolved that
injunction. Ruiz then made a second application for a temporary injunction. Concluding that Ruiz had failed to show sufficient
evidence of a probable right to recover or probable injury, the trial court denied this second request, from which Ruiz perfected




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State v. Ruiz Wholesale Co., 901 S.W.2d 772 (1995)


an interlocutory appeal. We will affirm the trial court's order denying Ruiz's second application; *774 we will dismiss the
TABC's appeal as moot.



                                     FACTUAL AND PROCEDURAL BACKGROUND

The procedural background of this case is complex. Because the procedural posture defines the parameters of the issues before
this Court, we will describe the history of this dispute in detail.

At the core of this controversy is the proper construction of section 102.52 of the Alcoholic Beverage Code as amended by the
73rd Legislature in 1993. Before its amendment, the section provided:

             (a) Nothing in Section 102.51 of this code limits or alters the right of a holder of a general, local, or
             branch distributor's license to sell beer to any other holder of a general, local, or branch distributor's
             license, except that a distributor who has purchased beer from another distributor may distribute and
             sell the beer only within a territory for which the manufacturer of the brand has designated that it may
             be sold by a distributor.

Act of March 29, 1979, 66th Leg., R.S., ch. 33, § 9, 1979 Tex.Gen.Laws 53, 55 (Tex.Alco.Bev.Code Ann. § 102.52(a), since
amended) (emphasis added).

In 1993, the Legislature amended the last portion of the section to read “except that a distributor who has purchased beer from
another distributor may distribute and sell the beer only within a territory for which the manufacturer of the brand has designated
that it may be sold by the general, local, or branch distributor making the purchase.” Act of May 30, 1993, 73rd Leg., R.S.,
ch. 934, § 67, 1993 Tex.Gen.Laws 3950, 3975 (Tex.Alco.Bev.Code Ann. § 102.52) (emphasis added). Ruiz and the TABC
dispute whether this amendment to section 102.52 now requires local beer distributors to have territorial agreements with beer
manufacturers before such distributors can resell beer purchased from another distributor.

On September 28, 1993, Ruiz filed suit for declaratory judgment and injunctive relief against the TABC. Ruiz alleged
entitlement to a temporary injunction enjoining the TABC from enforcing section 102.52 on four grounds: (1) procedural
invalidity for noncompliance with the Administrative Procedure Act and due-course-of-law provision of the Texas Constitution
when the TABC announced its intent to enforce the section, (2) violation of constitutional rights to due process and equal
protection, (3) inconsistency with other sections of the Alcoholic Beverage Code, and (4) lack of authority for the TABC to
enact an unconstitutional rule.

On October 18, 1993, the trial court conducted an evidentiary hearing on Ruiz's application for temporary injunction. In its first
order, dated January 20, 1994, the court found section 102.52 ambiguous and construed it as not requiring local beer distributors
to obtain manufacturers' territorial agreements. Concluding there was a probable right to recover on the merits, the court issued
a temporary injunction against TABC enforcement of the provision. The TABC timely perfected an appeal from this order in
our cause number 3–93–618–CV.


Silver Eagle Distributors, Inc. (“Silver Eagle”), an intervenor below, did not appeal this initial order by the trial court. 2 Rather,
Silver Eagle filed a motion for rehearing, which the trial court granted. In a second order, dated January 27, 1994, the court
determined that the temporary injunction should not have been issued because the court's preliminary interpretation of amended
section 102.52 was incorrect. The court concluded that section 102.52 “requires that when a distributor (the ‘purchasing
distributor’) purchases beer from another distributor, the purchasing distributor may only resell that beer in the territory assigned
to the purchasing distributor by the manufacturer of the beer.” The court dissolved the temporary injunction it had issued only the
week before. Significantly, Ruiz did not appeal this January 27, 1994 order dissolving the temporary injunction and construing
section 102.52. Meanwhile, the TABC's appeal from the trial court's first order remained pending in this Court.



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State v. Ruiz Wholesale Co., 901 S.W.2d 772 (1995)




 *775 On January 31, 1994, the TABC issued a letter notifying all holders of general and local distributors' licenses of the trial
court's January 27, 1994 order. This notification letter, which included a copy of the trial court's order, simply stated that the
order was “self-explanatory” and advised distributors to “make sure that you are in compliance with the law.”

On March 28, 1994, Ruiz filed in the trial court a second application for temporary injunctive relief. This second request
reiterated all of the grounds asserted in Ruiz's initial application and also included three claims that were essentially new: (1) the
requirement of territorial agreements constitutes an unconstitutional delegation of power to beer wholesalers; (2) the requirement
is an unconstitutional suspension of law; and (3) territorial agreements operate as an unreasonable restraint violating the Texas
Antitrust Act. 3 Following another hearing, the trial court, in an order dated May 10, 1994, denied Ruiz's second application for
temporary injunctive relief on the grounds that Ruiz had failed to show probable right to recover and probable injury. Further, the
court found that claims of adverse action by the TABC were not ripe for consideration. Finally, the court expressed no opinion
“on the alleged absence of standards to guide the discretion of the licensing authority in the implementation or application of
Section 102.52.” Ruiz perfected an interlocutory appeal from this May 10, 1994 order in our cause number 3–94–269–CV.



                                                          DISCUSSION

In its first point of error, Ruiz asserts that the trial court adopted an erroneous construction of section 102.52 of the Alcoholic
Beverage Code. Given the procedural history described above, it is imperative that we identify precisely the issues that are
properly before this Court in these interlocutory appeals.


A. January 20, 1994 Order Granting Temporary Injunction
 [1] The TABC properly appealed the validity of the initial January 20, 1994 order granting Ruiz a temporary injunction.
However, the trial court subsequently granted a rehearing and, in its January 27, 1994 order, dissolved the injunction. The issue
of whether an injunction is valid becomes moot when the injunction ceases to have effect. University Interscholastic League v.
Buchanan, 848 S.W.2d 298, 304 (Tex.App.—Austin 1993, no writ). Because the trial court dissolved the temporary injunction
on rehearing, the TABC's appeal of the January 20, 1994 order is moot. We lack jurisdiction when an appeal is moot. See id.


B. January 27, 1994 Order Dissolving Temporary Injunction
 [2] When the trial court reconsidered its temporary injunction, it renounced its earlier interpretation of section 102.52 and
concluded that the statute requires that all purchasing distributors, including local distributors, have manufacturers' territorial
agreements. Consequently, the court dissolved the previously granted temporary injunction. This order constituted a denial of
temporary injunctive relief, from which Ruiz did not appeal. An interlocutory order that is not timely appealed is not reviewable
by this Court. See Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640, 641 (Tex.App.—Houston [14th Dist.] 1991, no writ);
Cellular Mktg., Inc. v. Houston Cellular Tel. Co., 784 S.W.2d 734, 735 (Tex.App.—Houston [14th Dist.] 1990, no writ); Tober
v. Turner of Texas, Inc., 668 S.W.2d 831, 833–34 (Tex.App.—Austin 1984, no writ). Although Ruiz argues vigorously that
the trial court did not correctly construe section 102.52 in its January 27, 1994 order, Ruiz's failure to perfect an interlocutory
appeal from that order precludes this Court from reviewing its validity.


C. May 10, 1994 Order Denying Second Request for Temporary Injunction
After the time to appeal the dissolution of the previously granted temporary injunction had passed, Ruiz filed a second
application for temporary injunctive relief. Following *776 another evidentiary hearing, the trial court denied this second
request. Ruiz perfected an interlocutory appeal from this May 10, 1994 order.

In points of error two and three, Ruiz asserts that the trial court erred in “refusing to restrain the TABC's enforcement of its
interpretation of section 102.52” and in “refusing to enjoin the application of section 102.52.” However, in the subparts of these


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State v. Ruiz Wholesale Co., 901 S.W.2d 772 (1995)


arguments, Ruiz directly challenges only one aspect of the trial court's May 10, 1994 decision: “ripeness.” The remainder of
Ruiz's contentions focus on the merits of whether the TABC “rules” are: procedurally and substantively invalid, violative of
due process and equal protection, an improper delegation of authority, an invalid suspension of law, an invalid special law, 4
and violative of the Texas Antitrust Act. Because of Ruiz's misconception of the scope of a second request for injunctive relief
and the appropriate standard of review in this interlocutory appeal, the issues we must address are considerably narrowed.


1. Scope of a Second Request for Injunctive Relief
 [3] [4] Ordinarily, the dissolution of a temporary injunction bars a second application for such injunctive relief, unless the
second request is based on changed circumstances not known at the time of the first application. See Ellis v. Lamb–McAshan Co.,
278 S.W. 858, 862 (Tex.Civ.App.—Fort Worth 1925, writ dism'd); Birchfield v. Bourland, 187 S.W. 422, 425 (Tex.Civ.App.—
Fort Worth 1916, no writ); see also 43A C.J.S. Injunctions § 278 (1978). Successive applications for injunctive relief on grounds
that could have been raised in connection with an earlier request for such relief are not allowed where there is insufficient
reason why the grounds were not urged in the earlier application. Ellis, 278 S.W. at 862. This restriction on the scope of
successive requests for the extraordinary remedy of a temporary injunction sensibly deters piecemeal litigation, conserves
judicial resources, and prohibits litigants from receiving “two bites at the apple.” Cf. Tober, 668 S.W.2d at 835.

 [5] Ruiz's second application for temporary injunction provides no valid basis on which the trial court could have granted
relief. The challenges to the procedural and substantive validity of the requirement and the constitutional due process and equal
protection arguments in Ruiz's second request duplicate those in its initial request. Moreover, all of the “new grounds” alleged
in the second application—improper delegation of power, invalid suspension of law, and violation of the Texas Antitrust Act
—were clearly available to Ruiz when it made its initial request for injunctive relief. Consequently, there is no basis on which
the trial court could have abused its discretion in denying Ruiz's second request.

 [6] Additionally, there are no changed circumstances that would allow Ruiz to reurge its request for an injunction or generate
new grounds for relief. The only thing that occurred between the dissolution of the injunction and Ruiz's second request was the
TABC notification letter. 5 This brief notice merely informed beer distributors that the previous injunction had been dissolved
and that distributors should comply with section 102.52. This in no way amounts to a change in circumstances warranting a
second attempt at injunctive relief. Throughout the proceedings, the TABC consistently maintained that section 102.52 required
all beer distributors to have manufacturers' territorial agreements before purchasing beer from *777 another distributor for
resale. A letter restating this position is not a changed circumstance, nor was it unknown at the time of the initial application.
It does not, therefore, permit a second request for an injunction. Accordingly, the trial court did not abuse its discretion in
denying Ruiz's second request.


2. Review of a Denial of a Temporary Injunction
 [7] [8] An equally fundamental misconception also pervades Ruiz's appeal. This is an appeal of an interlocutory order.
Appellate review of an order denying a temporary injunction is strictly limited to a determination of whether there has been a
clear abuse of discretion. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978). We must confine our review to abuse of discretion
and cannot give full consideration to the merits of the underlying lawsuit. Id. at 861–62. A trial court abuses its discretion only
when it acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. Beaumont
Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

Ruiz fails to recognize the abuse-of-discretion standard that controls this appeal. Rather, the entire thrust of Ruiz's argument
goes to the merits of its many challenges to section 102.52 and its enforcement by the TABC. We decline to reach the merits of
these claims without allowing the trial court an opportunity to render a final judgment on them. The sole issue on review here
is whether the trial court abused its discretion in denying Ruiz's second request for injunctive relief.




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State v. Ruiz Wholesale Co., 901 S.W.2d 772 (1995)


 [9] [10] [11] Moreover, even if the present appeal were from the trial court's initial refusal to grant injunctive relief, Ruiz
would still not be entitled to a reversal on this record. To prevail in its request for a temporary injunction, Ruiz had to demonstrate
a probable right to recover at trial on the merits and probable injury in the interim. See Sun Oil Co. v. Whitaker, 424 S.W.2d
216, 218 (Tex.1968). In reviewing an order denying a temporary injunction, we must draw all legitimate inferences from the
evidence in the light most favorable to the trial court's order. Hartwell's Office World, Inc. v. Systex Corp., 598 S.W.2d 636,
638 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref'd n.r.e.); see W.C. Larock, D.C., P.C. v. Enabnit, 812 S.W.2d 670, 671
(Tex.App.—El Paso 1991, no writ). When 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. Davis, 571 S.W.2d at 862.

 [12] In its May 10, 1994 order, the trial court found that the second request for injunctive relief should be denied because, inter
alia, the evidence presented was insufficient to show probable injury. At the hearing on its second request, Ruiz offered the
testimony of only one witness, Reecie Dunn, a local distributor. Dunn testified that the TABC had not cited him or threatened
him with any action for failure to have a territorial agreement.


The only other evidence admitted at the hearing consisted of two letters from beer manufacturers to Mary Boggs. 6 The first,
from Miller Brewing Company, dated January 28, 1994, responds to a January 26, 1994 inquiry by stating that Miller was aware
of the court ruling but was unable to respond to “your request” until the TABC informs the company what manufacturers can
and cannot do. Given that it is unclear what the request was and whether the court ruling mentioned was the initial January 20,
1994 order or later January 27, 1994 order, this is not conclusive evidence of probable injury.

The second letter, from Anheuser–Busch, also dated January 28, 1994, merely states that the company already has a contractual
agreement granting an exclusive territorial agreement to another distributor. Given this paucity of evidence, the trial court
certainly did not abuse its discretion when it refused to find probable injury.



                                                          *778 CONCLUSION

We dismiss the TABC's appeal in cause number 3–93–618–CV as moot, because the trial court has dissolved the injunction
from which the appeal was taken. In cause number 3–94–269–CV, we overrule Ruiz's points of error and affirm the trial-court
order denying Ruiz's second application for an injunction. The trial court did not abuse its discretion in denying this relief,
both because Ruiz was not entitled to seek successive injunctive relief and because Ruiz failed to carry its burden of proof
on probable injury.



Footnotes
1      The Ruiz Wholesale Co. litigants also include: Ruiz Wholesale Co. No. 2, Ruiz Wholesale Co. No. 4, Ruiz Cash N Carry Co. No.
       1, Ruiz Cash N Carry No. 5, AAA Wholesale Beer Co., Port Houston Wholesale, Bill's Wholesale Beer Co., Simon G. Garza d/b/
       a G & S Wholesale Beer, and Prevost Wholesale No. 2.
2      Silver Eagle, a general distributor licensed by the TABC, intervened in the lawsuit following the initial temporary injunction hearing,
       but before the trial court issued its ruling.
3      Ruiz contended at oral argument that its constitutional due process argument was also new. However, the initial request for injunctive
       relief included this constitutional challenge.
4      This contention was not raised to the trial court in Ruiz's second request for injunctive relief. Consequently, it is not properly before
       this Court and will not be addressed further.
5      The brief notification letter, signed by acting TABC administrator Jeannene Fox, consists of only four sentences. The entire text is:
             On the reverse side you will find a copy of the order signed by Judge Margaret Cooper of the 53rd District Court of Travis County,
             Texas on January 27, 1994, dissolving the temporary injunction previously issued in Cause No. 93–11542, Ruiz Wholesale, et
             al. v. Texas Alcoholic Beverage Commission, et al.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          7
State v. Ruiz Wholesale Co., 901 S.W.2d 772 (1995)


           Judge Cooper's order is self-explanatory. Therefore, § 102.52, Texas Alcoholic Beverage Code, as amended by the 73rd
           Legislature, is in full force and effect as of the date of the dissolution of the injunction. Please make sure that you are in
           compliance with the law.
6     Mary Boggs did not testify at the hearing. Presumably, she is another local beer distributor, but there is no record evidence to this
      effect.


End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        8
Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999)




                                                        8 S.W.3d 727
                                                  Court of Appeals of Texas,
                                                           Austin.

                         TEXAS DEPARTMENT OF TRANSPORTATION, et al., Appellants, 1
                                                  v.
                                    CITY OF SUNSET VALLEY, Appellee.

                                          No. 03–98–00660–CV.           |    Dec. 16, 1999.

City filed inverse condemnation action against Texas Department of Transportation (TxDOT) concerning highway expansion.
The District Court, Travis County, 353rd Judicial District, Peter M. Lowry, J., overruled TxDOT's plea to the jurisdiction and
rendered partial summary judgment for city. TxDOT filed appeal. The Court of Appeals, Kidd, J., held that: (1) city had standing
to bring inverse condemnation suit for appropriation of city street in highway expansion and seeking compensation for alleged
increases in circuity of travel and light and noise pollution, and (2) TxDOT did not have sovereign immunity from city's suit.

Affirmed.



 West Headnotes (14)


 [1]    Pleading       Plea to the Jurisdiction
        In a proper plea to the jurisdiction, a defendant contends that, even if all the allegations in a plaintiff's pleadings are
        taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings.

        3 Cases that cite this headnote


 [2]    Appeal and Error         Extent of Review Dependent on Nature of Decision Appealed from
        In reviewing the grant or denial of a plea to the jurisdiction, the reviewing court does not look at the merits of the case.

        2 Cases that cite this headnote


 [3]    Appeal and Error         On Motions Relating to Pleadings
        Government unit's plea to the jurisdiction need not be based upon a claim of sovereign immunity in order for it to bring
        an interlocutory appeal from grant or denial of the plea. V.T.C.A., Civil Practice & Remedies Code § 51.014(a)(8).

        4 Cases that cite this headnote


 [4]    Appeal and Error         On Motions Relating to Pleadings
        Because the statute authorizing interlocutory appeals from a grant or denial of a governmental unit's plea to the
        jurisdiction is a narrow exception to the general rule that only final judgments and orders are appealable, it must be
        given a strict construction by the reviewing court. V.T.C.A., Civil Practice & Remedies Code § 51.014(a)(8).

        21 Cases that cite this headnote




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Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999)




 [5]    Eminent Domain          Persons Entitled to Sue
        City had standing to bring inverse condemnation suit against Texas Department of Transportation (TxDOT) for its
        appropriation of city street in highway expansion, based on city's justiciable interest in street that was taken and its
        interest in maintaining streets for its residents, regardless of whether city could ultimately prevail on merits of it suit.

        Cases that cite this headnote


 [6]    Action       Persons Entitled to Sue
        In order for a court to have subject matter jurisdiction, the party bringing suit must have standing.

        Cases that cite this headnote


 [7]    Action       Persons Entitled to Sue
        To establish standing, a party must show that (1) a real controversy exists between the parties and (2) the controversy
        will actually be determined by the judicial relief sought.

        Cases that cite this headnote


 [8]    Eminent Domain          Appeal and Error
        Whether city could prevail on its action against Texas Department of Transportation (TxDOT) for taking of its streets
        in highway expansion was issue of merits of case that could not be reviewed on interlocutory appeal from denial of
        TxDOT's plea to the jurisdiction of the trial court.

        5 Cases that cite this headnote


 [9]    Pleading       Plea to the Jurisdiction
        Plea to the jurisdiction of the trial court is not sustainable where the contention is to the effect that the plaintiff has
        falsely stated a claim which, in fact, is nonexistent, for this is a matter of defense on the merits.

        Cases that cite this headnote


 [10]   Eminent Domain          Persons Entitled to Sue
        City's allegation of injury to public it represented was enough to confer standing to bring inverse condemnation suit
        against Texas Department of Transportation (TxDOT) seeking compensation for alleged increase in circuity of travel
        and for light and noise pollution resulting from highway expansion.

        1 Cases that cite this headnote


 [11]   Eminent Domain          Appeal and Error
        Whether alleged increase in circuity of travel and light and noise pollution resulting from highway expansion were
        compensable damages in city's inverse condemnation suit against Texas Department of Transportation (TxDOT)
        was issue of merits of case that could not be reviewed on interlocutory appeal from denial of TxDOT's plea to the
        jurisdiction of the trial court.

        7 Cases that cite this headnote




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Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999)




 [12]   States       Declaratory Judgment
        States       Eminent Domain
        Texas Department of Transportation (TxDOT) did not have sovereign immunity from city's inverse condemnation
        action which was in nature of takings claim concerning highway expansion and which sought declaratory relief
        involving nuisance claim for noise and light pollution from highway expansion. Vernon's Ann.Texas Const. Art. 1,
        § 17.

        3 Cases that cite this headnote


 [13]   Eminent Domain           Corporations or Persons Liable
        Municipal Corporations            Destruction of Property
        When a governmental entity takes, damages, or destroys property for public use, the State Constitution waives the
        governmental entity's immunity from both suit and liability. Vernon's Ann.Texas Const. Art. 1, § 17.

        Cases that cite this headnote


 [14]   Municipal Corporations            Nuisances
        Claim for nuisance is an alternative ground of recovery to an inverse condemnation action under the provision of the
        State Constitution prohibiting the taking of property without adequate compensation and thus is also an exception to
        the State's sovereign immunity. Vernon's Ann.Texas Const. Art. 1, § 17.

        3 Cases that cite this headnote




Attorneys and Law Firms

*728 Kirk Kuykendall, Asst. Atty. Gen., Transp. Div., Austin, for appellant.

Brad Rockwell, Scanlan, Buckle & Young, P.C., Austin, for appellee.

Before Chief Justice ABOUSSIE, Justices KIDD and YEAKEL.

Opinion

MACK KIDD, Justice.

The Texas Department of Transportation (“TxDOT”) brings this interlocutory appeal from a district court decision overruling
its plea to the jurisdiction and rendering a partial summary judgment for the City of Sunset Valley (“Sunset Valley”) in a suit
for inverse condemnation. In three issues, TxDOT complains that the district court erred in denying its plea to the jurisdiction
because (1) Sunset Valley lacks standing to sue for the physical taking of its streets, (2) Sunset Valley lacks standing to sue for
any injuries that may result from the increased circuity of travel and noise and light pollution caused by the highway's expansion,
and (3) TxDOT is immune from suit by virtue of the doctrine of sovereign immunity. We will affirm the district court's ruling.



                                                       BACKGROUND

Sunset Valley is a small general-law municipality that is bifurcated by U.S. Highway 290 and virtually surrounded by the City
of Austin. This dispute arose when *729 TxDOT expanded U.S. Highway 290 from a small ground-level highway into a multi-


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999)


level, limited-access divided highway. As a result of TxDOT's decision to make Highway 290 a controlled-access highway
along the length of Sunset Valley, several streets that had previously crossed or run alongside the old ground-level highway
were affected. Jones Road, an important municipal artery, was one of the streets affected, and a substantial portion of it had to
be closed. This street had served as a vital transportation link that the residents of Sunset Valley, as well as its police officers and
other emergency personnel, had used to commute between the central and southwestern portions of the city. After the closure,
travel between the two portions was possible only by traveling along Highway 290's access road to a point outside the city,
crossing under, and then doubling back along the opposite side of Highway 290.

Sunset Valley has since found it necessary to construct a substitute street in order to regain the transportation connection it lost
as a result of the expansion. The question of who should pay for this substitute street, along with a multitude of other issues
involved in the construction and completion of Highway 290, was presented to the district court. Sunset Valley also raised
issues of noise and light pollution, charging that TxDOT had failed to perform state and federally mandated noise-abatement
procedures and studies. Sunset Valley moved for partial, interlocutory summary judgment, and TxDOT responded by filing a
plea to the jurisdiction along with several special exceptions to Sunset Valley's pleadings. The district court denied TxDOT's
plea and special exceptions and granted Sunset Valley's motion for partial, interlocutory summary judgment on November 9,
1998. The court found that Sunset Valley proved all the elements of inverse condemnation as a matter of law and that the
substitute facilities doctrine was the proper method of determining the amount of damages incurred by Sunset Valley. The trial
court also found that Sunset Valley was entitled to declaratory relief with respect to its noise pollution claims, but that it was
not entitled to relief in the form of an injunction or mandamus. TxDOT now challenges the district court's denial of its plea to
the jurisdiction in this interlocutory appeal, arguing (1) that Sunset Valley lacks standing to sue for inverse condemnation, (2)
that Sunset Valley lacks standing to bring its claims for damages resulting from increased circuity of travel and noise and light
pollution, and (3) that TxDOT is immune from suit for declaratory relief by virtue of the doctrine of sovereign immunity.



                                                           DISCUSSION

Interlocutory Appeal
 [1] [2] [3] [4] In bringing this appeal, TxDOT must of necessity rely solely on section 51.014(a)(8) of the Texas Civil
Practice and Remedies Code, which provides that “[a] person may appeal from an interlocutory order of a district court that
grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001.” 2 Tex. Civ. Prac. &
Rem.Code Ann. § 51.014(a)(8) (West Supp.1999). A plea to the jurisdiction contests the trial court's authority to adjudicate the
subject matter of the cause of action. See Dolenz v. Texas State Bd. of Med. Exam., 899 S.W.2d 809, 811 (Tex.App.—Austin
1995, no writ); Schulz v. Schulz, 726 S.W.2d 256, 257 (Tex.App.—Austin 1987, no writ). In a proper plea to the jurisdiction, a
defendant contends that, even if all the allegations in a plaintiff's pleadings are taken as true, there is an incurable jurisdictional
defect apparent from the face of the pleadings. See *730 Firemen's Ins. Co. v. Board of Regents of Univ. of Tex. Sys., 909
S.W.2d 540, 541 (Tex.App.—Austin 1995, writ denied) (citing Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 331 S.W.2d
910, 917 (1960)); Washington v. Fort Bend Indep. Sch. Dist., 892 S.W.2d 156, 159 (Tex.App.—Houston [14th Dist.] 1994, writ
denied). In reviewing the grant or denial of a plea to the jurisdiction, we do not look at the merits of the case. See Firemen's Ins.
Co., 909 S.W.2d at 541. This Court recently held that a governmental unit is free to appeal a trial court's denial of its plea to
the jurisdiction under section 51.014(a)(8), regardless of the basis on which it asserts a lack of jurisdiction. See City of Austin
v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex.App.—Austin 1998, no pet.). Thus, a government unit's plea to the jurisdiction
need not be based upon a claim of sovereign immunity in order for it to bring an interlocutory appeal under section 51.014(a)
(8). See id. Nevertheless, because the statute authorizing interlocutory appeals is a narrow exception to the general rule that
only final judgments and orders are appealable, we must give it a strict construction. See id. at 753; America Online, Inc. v.
Williams, 958 S.W.2d 268, 271 (Tex.App.—Houston [14th Dist.] 1997, no pet.); Tober v. Turner of Texas, Inc., 668 S.W.2d
831, 835 (Tex.App.—Austin 1984, no writ). Thus, we will limit our discussion to the narrow issue that is before us, the question
of whether the trial court erred in denying TxDOT's plea to the jurisdiction.




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Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999)




Standing
 [5] [6] [7] We first address TxDOT's argument that the district court erred in overruling its plea to the jurisdiction because
Sunset Valley lacks standing to sue TxDOT for the appropriation of Jones Road. In order for a court to have subject matter
jurisdiction, the party bringing suit must have standing. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440,
443–46 (Tex.1993). To establish standing, a party must show that (1) a real controversy exists between the parties and (2) the
controversy will actually be determined by the judicial relief sought. See id. at 446.

 [8] TxDOT argues that because a city's interest in its streets is subordinate to the interests of the State, and since the legislature
has provided TxDOT statutory authority to appropriate city streets for the construction of controlled-access highways, Sunset
Valley cannot successfully bring an action against the State for TxDOT's appropriation of its streets. See City of Mission v.
Popplewell, 156 Tex. 269, 294 S.W.2d 712, 715 (1956) (holding that legal title to city streets belongs to State and that cities'
authority and control limited to extent delegated by legislature or state constitution); Tex. Transp. Code Ann. § 203.003 (West
Supp.1999) (authorizing transportation commission to exercise powers to lay out, construct, maintain, and operate a state
highway in a county or municipality without consent of county or municipality). TxDOT contends that because Sunset Valley
cannot successfully bring an action for the taking of its streets, it has no claim and ultimately lacks standing to bring suit. We
disagree with this analysis.

Although TxDOT characterizes this as an issue of standing, in reality TxDOT is seeking a determination of this case on the
merits. TxDOT confuses the jurisdictional question of whether Sunset Valley has standing to bring a cause of action for the
State's appropriation of city streets with the substantive issue of whether Sunset Valley should prevail on the merits of its
case. TxDOT is attempting to meld its appeal of the denial of its plea to the jurisdiction with an appeal of the partial summary
judgment rendered against it by the trial court. 3 As we have stated previously, *731 this Court is not authorized to review
the merits of Sunset Valley's claims in this interlocutory appeal. We decline to permit TxDOT to use this interlocutory appeal
as a vehicle to circumvent the bounds set by the statute in order to obtain judicial review of the merits of Sunset Valley's case
before the district court has rendered a final judgment. 4

Certainly, a city has standing to bring suit against the State for appropriation of that city's streets, regardless of whether its
action is ultimately unsuccessful. TxDOT cites no case law in support of its contention that municipalities lack standing to sue
the State for the physical appropriation of city streets. Likewise, we are unable to find any authority supporting this argument.
Here, Sunset Valley has pleaded that it has a justiciable interest in the street that was taken and that as a city, it has an interest
in maintaining its streets for its residents. Cities have always had standing to litigate issues involving their entitlement to public
property in suits against other state governmental entities. 5

 [9] In asserting a claim to the streets that run within its boundaries, Sunset Valley has shown that a controversy exists as
to the nature and extent of its interest in its streets and the State's responsibility for compensation. The ultimate question of
whether Sunset Valley can prevail in its suit against TxDOT is a matter for the trial court to decide on the merits. “A plea to
the jurisdiction of the trial court is not sustainable where the contention is to the effect that the plaintiff has falsely stated a
claim which, in fact, is nonexistent, for this is a matter of defense on the merits.” Bernard Hanyard Enters., Inc. v. McBeath,
663 S.W.2d 639, 642 (Tex.App.—Austin 1983, writ ref'd n.r.e.). Because TxDOT has not presented this Court with a true
jurisdictional issue, we overrule appellant's first issue.


Circuity of Travel, Noise and Light Pollution
 [10] Having determined that Sunset Valley has standing to sue for the physical taking of its streets, we now address TxDOT's
argument that Sunset Valley has no standing to sue TxDOT for any injuries resulting from increased circuity of travel and the
light and noise pollution resulting from the expansion of Highway 290. In *732 support of this argument, TxDOT states in its
brief that whether there has been a material and substantial impairment of access or whether there exists an issue of increased
circuity of travel is a question of law that must be decided by the trial court. See State v. Wood Oil Distrib. Co., 751 S.W.2d 863,



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Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999)


865 (Tex.1988). TxDOT adds that the burden of proving a compensable impairment of access is upon the landowner and that
if the reconfiguration has caused only an increased circuity of travel, any injury suffered by Sunset Valley is noncompensable.
See id.; State v. Westgate, 798 S.W.2d 903, 906–7 (Tex.App.—Austin 1990), aff'd, Westgate v. State, 843 S.W.2d 448 (1992).

 [11] Once again, TxDOT is attempting to reach beyond the narrow jurisdictional issue before us in order to argue its case
on the merits. If a judicial determination of the issue of increased circuity of travel is necessary and the burden of proof is
upon the landowner to prove a compensable impairment of access, surely that same landowner has standing to bring the action
necessary to receive this judicial determination. TxDOT cannot successfully argue that because a defense of circuity of travel
may exist, Sunset Valley has no standing to bring suit in the first place. TxDOT's circuity-of-travel contentions concern questions
of compensable injuries and the measure of damages, which are questions on the merits, not jurisdictional issues. Likewise,
TxDOT's argument that Sunset Valley's claims for injuries resulting from the noise and light pollution caused by the highway
expansion are not compensable again goes to the merits of the case and not to the jurisdictional issue of standing. The fact that
Sunset Valley has alleged injury to the public it represents is enough to confer standing. We overrule TxDOT's second issue.


Sovereign Immunity
 [12] In its third and final issue, TxDOT argues that the district court erred in denying its plea to the jurisdiction because it
is immune from suit pursuant to the doctrine of sovereign immunity, specifically with respect to Sunset Valley's request for
declaratory judgment on its noise and light pollution claims. TxDOT complains that this declaratory relief compels the State
through its officials to perform certain acts without the required legislative consent. See Griffin v. Hawn, 161 Tex. 422, 341
S.W.2d 151, 153 (1960) (holding that where purpose of proceeding against state officials is to control action of State, suit is
against State and cannot be maintained without legislature's consent).

First, TxDOT mischaracterizes the trial court's judgment. In its partial, interlocutory summary judgment, the trial court granted
TxDOT's jurisdictional challenge to Sunset Valley's request for relief by mandamus and denied Sunset Valley's request for an
injunction. The only relief that the court granted Sunset Valley was a declaratory judgment with respect to its claim for noise
pollution. Contrary to TxDOT's assertions, this relief does not require the State to take any action. The trial court expressly
rejected any such relief when it denied Sunset Valley's requests for a mandamus and injunction.

[13]    [14]   Furthermore, although the State as sovereign is generally immune from both liability and suit without its consent,
actions for inverse condemnation brought pursuant to article I, section 17 of the Texas Constitution 6 comprise a limited
exception to the doctrine of sovereign immunity. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex.1997); State
v. Biggar, 848 S.W.2d 291, 295 (Tex.App.—Austin 1993), aff'd, 873 S.W.2d 11 (1994). When a governmental entity takes,
damages, or destroys property for public use, the Constitution waives the *733 governmental entity's immunity from both suit
and liability. See Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d
589, 596 (Tex.App.—Austin 1991, writ denied). A claim for nuisance is an alternative ground of recovery under article 1,
section 17 and is also an exception to sovereign immunity. See Tarrant County v. English, 989 S.W.2d 368, 374 (Tex.App.—
Fort Worth 1998, pet. denied); Golden Harvest Co. v. City of Dallas, 942 S.W.2d 682, 688–90 (Tex.App.—Tyler 1997, writ
denied) (holding sovereign immunity does not make city immune from action for nuisance caused by city's non-negligent or
intentional acts where suit brought under article I, section 17 of Constitution). Because Sunset Valley's entire claim is in the
nature of a takings claim and the declaratory relief of which TxDOT complains involves a nuisance claim for noise and light
pollution, TxDOT cannot successfully assert sovereign immunity from suit. Accordingly, we overrule TxDOT's final issue.



                                                        CONCLUSION

Having overruled all three issues TxDOT raised in this interlocutory appeal, we affirm the trial court's denial of TxDOT's plea
to the jurisdiction.




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Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999)




Footnotes
1      Appellants include the Texas Department of Transportation; Charles W. Heald, both individually and in his official capacity as
       Executive Director of the Texas Department of Transportation; Anne S. Wynne, both individually and in her official capacity as
       Commissioner of the Texas Department of Transportation; Robert L. Nichols, both individually and in his official capacity as
       Commissioner of the Texas Department of Transportation; and David M. Laney, both individually and in his official capacity as
       Commissioner of the Texas Department of Transportation.
2      Section 101.001 defines “governmental unit” to include “a political subdivision of this state, including any city.” Tex. Civ. Prac. &
       Rem.Code Ann. § 101.001(3)(B) (West Supp.1999).
3      We note that in its motion filed with the district court, entitled “Defendant's First Amended Pleas to the Jurisdiction and Special
       Exceptions to Plaintiff's Amended Motion for Partial, Interlocutory Summary Judgment,” TxDOT sought to attack Sunset Valley's
       motion for summary judgment on substantive as well as jurisdictional grounds. Our analysis is, of necessity, confined only to TxDOT's
       jurisdictional arguments.
4      TxDOT's attempt to appeal the merits of this case is especially troubling because this matter was set for a trial on the merits on the
       issue of damages in May 1999. Absent this interlocutory appeal, all the issues TxDOT wishes to raise here would properly be before
       us on a regular appeal.
5      See, e.g., Texas Antiquities Committee v. Dallas Community College Dist., 554 S.W.2d 924, 930 (Tex.1977) (reaffirming its holding
       in Milam County v. Bateman, 54 Tex. 153 (1880), and extending same state constitutional guaranties to local governments that
       shield individual property owners); Brazos River Auth. v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 108–10 (1961) (extending
       protection to municipalities under article 1, section 17 of state constitution and affirming award to municipality for state river
       authority's appropriation of city's sewage disposal plant); Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20, 29 (1931) (holding
       that rights associated with property acquired by school districts and cities protected by same constitutional guaranties that shield
       property of individuals); Fort Worth Improvement Dist. No. 1 v. City of Fort Worth, 106 Tex. 148, 158 S.W. 164, 168 (1913)
       (upholding injunction restraining State from erecting levee that would damage city water treatment plant, absent payment of necessary
       compensation); State v. City of Denton, 542 S.W.2d 224 (Tex.Civ.App.—Fort Worth 1976, writ ref'd n.r.e.) (holding city enjoys
       exclusive dominion over its streets and denying state university's attempt to exercise eminent domain over city's streets); State v. Waco
       I.S.D., 364 S.W.2d 263, 265–68 (Tex.Civ.App.—Waco 1963, writ ref'd n.r.e.) (awarding school district damages against TxDOT's
       predecessor on grounds that appropriation of public school's property in course of constructing highway improvement constituted
       violation of state constitutional takings clause).
6      This section provides that “[n]o person's property shall be taken, damaged, or destroyed for or applied to public use without adequate
       compensation being made, unless by the consent of such person.” Tex. Const. art. I, § 17.


End of Document                                                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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Texas State Bank v. Amaro, 87 S.W.3d 538 (2002)
45 Tex. Sup. Ct. J. 1302



                                                        87 S.W.3d 538
                                                    Supreme Court of Texas.

                                              TEXAS STATE BANK, Petitioner,
                                                             v.
                                             Rutilo Vargas AMARO, Respondent.

                           No. 00–1220.       |    Argued Oct. 3, 2001.      |    Decided Sept. 26, 2002.

Trustee sought declaratory relief, seeking determination of trust's status in light of another district court's decree in a separate
divorce action that beneficiary was no longer incapacitated. The 206th District Court, Hidalgo County, Joe B. Evins, J., entered
order terminating trust, approving trustee's accounting, and releasing trustee from any liability to trust or beneficiary. Beneficiary
appealed. The Corpus Christi Court of Appeals, 28 S.W.3d 789, affirmed as modified. Trustee filed petition for review.
Upon overruling motions for rehearing, the Supreme Court, Xavier Rodriguez, J., held that: (1) district court had continuing
jurisdiction over trust and was not bound by adjudication of beneficiary's capacity in divorce action; but (2) district court
exceeded the relief requested by approving trustee's investment philosophy and adjudicating trustee's potential tort liability;
(3) district court could approve all distributions, fees, costs, and expenses under its authority to approve the accounting; (4)
beneficiary did not waive his appeal from judgment by accepting payment of trust monies under that judgment; and (5) approval
of trustee's final accounting did not settle trustee's tort liabilities.

Affirmed as modified.



 West Headnotes (8)


 [1]     Mental Health         Particular Courts
         District court's decree creating trust and trust documents invoked that court's continuing jurisdiction over trust,
         including jurisdiction to determine whether beneficiary regained capacity thereby terminating trust, and thus, such
         court was not bound by prior adjudication of beneficiary's capacity in his divorce action, where decree creating trust
         stated that trust would “remain in full force and effect until further orders of this court,” and trust document provided
         that court retained right before termination “to mend, alter, modify, or revoke this trust.” V.T.C.A., Property Code
         § 142.005(d, f).

         Cases that cite this headnote


 [2]     Trusts       Judgment or Decree
         Approval of trustee's investment philosophy and adjudication of trustee's potential tort liability to the beneficiary were
         not components of an accounting, and thus, district court exceeded the relief requested by ruling on such matters,
         where trustee requested only determination of whether trust was terminated, removal as trustee if it was not terminated,
         and approval of final accounting. V.T.C.A., Property Code § 113.152.

         3 Cases that cite this headnote


 [3]     Trusts       Form and Requisites of Account
         All distributions, fees, costs, and expenses trustee paid from a trust, not merely those related to trust's termination,
         amounted to “disbursements,” and thus, were properly part of trustee's accounting at termination, such that district



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Texas State Bank v. Amaro, 87 S.W.3d 538 (2002)
45 Tex. Sup. Ct. J. 1302

        court, as court of continuing jurisdiction over trust, could approve such disbursements under its authority to approve
        the accounting. V.T.C.A., Property Code §§ 113.152(2), 142.005(b)(6).

        1 Cases that cite this headnote


 [4]    Declaratory Judgment            Scope and Extent of Review in General
        By objecting in the district court to the introduction and consideration of evidence that went beyond trustee's request
        for declaratory relief, beneficiary preserved for appellate review issue of whether district court's order exceeded the
        relief requested.

        Cases that cite this headnote


 [5]    Appeal and Error          Acceptance of Sum Absolutely Due or Admitted to Be Due
        Trust beneficiary's acceptance of the trust corpus was not inconsistent with his position on appeal that district court
        lacked authority to rule on trustee's potential tort liability, and thus, beneficiary did not waive his appeal from judgment
        by accepting payment of trust monies under that judgment, where neither party disputed winding up of trust and
        distribution of corpus.

        14 Cases that cite this headnote


 [6]    Appeal and Error          Acceptance of Sum Absolutely Due or Admitted to Be Due
        As long as an appellant accepts only that which appellee concedes, or is bound to concede, to be due him under the
        judgment he is not estopped to prosecute an appeal which involves only his right to a further recovery.

        25 Cases that cite this headnote


 [7]    Trusts       Hearing or Reference
        Trusts       Operation and Effect of Accounting
        District court's approval of trustee's final accounting, including the distributions, costs, and expenses, was not an
        adjudication of the trustee's tort liabilities, if any, and thus, beneficiary was not entitled to a jury or to 45 days' notice
        of the hearing that approved the accounting. Vernon's Ann.Texas Rules Civ.Proc., Rule 245; V.T.C.A., Property Code
        § 113.152.

        1 Cases that cite this headnote


 [8]    Trusts       Operation and Effect of Accounting
        The Trust Code does not contemplate that an accounting will settle the trustee's tort liability. V.T.C.A., Property Code
        § 113.152.

        Cases that cite this headnote




Attorneys and Law Firms

*539 Lisa Powell, Gary Gurwitz, Sofia Amabel Ramon, Atlas & Hall, McAllen, for petitioner.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  2
Texas State Bank v. Amaro, 87 S.W.3d 538 (2002)
45 Tex. Sup. Ct. J. 1302


*540 Benjamin L. Hall, III, Elizabeth B. Hawkins, Hall Law Firm, Russell S. Post, Hogan Dubose & Townsend, Jennifer
Bruch Hogan, Hogan Dubose & Townsend, L.L.P., John K. Leach, O'Quinn Laminack & Pirtle, Houston, for respondent.

Opinion

Justice RODRIGUEZ delivered the opinion of the Court.

We overrule Texas State Bank's and Rutilo Vargas Amaro's motions for rehearing. We withdraw our opinion of June 6, 2002,
and substitute the following in its place.

In this appeal from a modification of a district court's order, Texas State Bank (TSB) asks this Court to reinstate those parts of
the district court's order the court of appeals reversed. The issues here are whether the district court had continuing jurisdiction
over a trust it created under Chapter 142 of the Texas Trust Code, and whether the district court's order went beyond the
relief TSB's motion requested. Because the district court did have continuing jurisdiction over the trust but the district court's
judgment exceeded the relief TSB's motion requested, we reinstate only a part of the order and affirm the court of appeals'
judgment, as modified.



                                                                 I.

Rutilo Vargas Amaro (Vargas) 1 suffered severe injuries in a sugarcane field burn-off. He sued the field's owners, Rio Grande
Valley Sugar Growers, Inc. (Sugar Growers), for negligence in the 206th district court and received a substantial settlement.
In 1989, the district court adjudged Vargas incapacitated as defined by section 142.007 of the Texas Property Code, and, on
Vargas's guardian's motion, the court created a trust for him under section 142.005 of the Code. The trust document provided
that the trust would terminate when Vargas regained capacity, and the district court's decree stated that the trust would “take
effect immediately to remain in full force and effect until further orders of this Court.” TSB served as trustee during the trust's
nine-year existence.

In May 1997, Vargas filed a “Motion for Termination of Trust” in the 206th district court, alleging that he had regained capacity.
In September 1997, before the 206th district court had ruled on Vargas's motion, the 370th District Court of Hidalgo County
issued an order in Vargas's uncontested divorce action decreeing that Vargas was fully capable of acting as sole managing
conservator for his minor child and suffered no incapacity. Five days after the 370th district court issued its order, Vargas filed
a motion with the 206th district court to withdraw his request to terminate the trust and, the following day, he filed a notice
of nonsuit in the 206th district court. Vargas then sent a letter to TSB, demanding that TSB release the trust funds due to the
divorce court's adjudication of his regained capacity. In the letter, Vargas threatened TSB with legal action if TSB did not
promptly comply with the request.

TSB responded by tendering the trust funds to the 206th district court and filing a “Motion Regarding the Rutilo Vargas Amaro
Trust for Declaratory Judgment and for Other Relief” under the caption of the original personal-injury suit between Vargas
and Sugar Growers. In this motion, filed September 18, 1997, TSB asked the court: (1) to determine if the trust was terminated
because of Vargas's regained *541 capacity; (2) to allow TSB to resign as trustee and to appoint a substitute trustee in case
the trust was not terminated; (3) to “approve final accountings to be submitted to the Court;” and (4) to order any “other and
further relief, at law or in equity, to which TSB may be justly entitled.” TSB alleged jurisdiction under Chapter 142 of the Texas
Property Code, the Texas Uniform Declaratory Judgments Act, 2 and section 115.001 of the Texas Trust Code. 3

On October 6, Vargas filed a plea to the jurisdiction arguing that the 206th district court did not have continuing jurisdiction
over the trust, and that the 370th district court had jurisdiction to determine Vargas's capacity. At the same time, he filed a
“Notice of Determination of Capacity” with the 206th district court, informing the court that the 370th district court had found




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Texas State Bank v. Amaro, 87 S.W.3d 538 (2002)
45 Tex. Sup. Ct. J. 1302

capacity. Vargas argued that the trust had terminated by its own terms when the 370th district court ruled that Vargas was not
incapacitated.

Vargas then filed a new suit against TSB in the 93rd District Court, also in Hidalgo County. This suit alleged that TSB had
committed fraud, breach of fiduciary duty, negligence, breach of the duty of good faith and fair dealing, breach of contract, and
DTPA violations in administering the trust. Some of TSB's alleged misconduct, according to Vargas, had to do with improper
and imprudent investment decisions, failing to keep Vargas fully informed of trust decisions, and failing to keep proper records
regarding the trust. This suit is still pending and discovery is proceeding.

On November 25, 1997, the 206th district court denied Vargas's plea to the jurisdiction and claimed jurisdiction “to any matter
pertaining to the assets of Mr. Rutilo Vargas as it relates to matters of his Trust.” On February 26, 1998, Vargas filed a
“Supplemental Notice of Determination of Capacity and Request for Release of Monies Owed to Rutilo Vargas Amaro” and
scheduled a hearing for March 11, 1998. Through a letter to the court coordinator, sent six days before the hearing date, TSB gave
notice that it was also scheduling a hearing on its “Motion Regarding the Rutilo Vargas Amaro Trust for Declaratory Judgment
and for Other Relief.” Vargas objected to TSB's request to have the 206th district court “make final legal determinations,”
arguing that the notice requirements of Texas Rule of Civil Procedure 245 were not met.

The 206th district court held hearings on both parties' motions and, on March 17, issued an “Order Terminating Trust, Approving
Trust Administration, Investment Philosophy, Accounting, Actions and Fees, and Discharging Trustee Relating to the Rutilo
Vargas Amaro Trust.” In this order, the court terminated the trust due to Vargas's regained capacity and approved all accountings
TSB presented, including all distributions TSB made, all fees TSB received, and all fees, costs, and expenses TSB paid. In
addition, the court approved TSB's investment philosophy and ordered that “[s]ubject to the payment to Vargas ... as directed
above, the Court discharges TSB as trustee and releases TSB as trustee from any liability to the Trust or to Vargas.”

Vargas appealed, complaining that the 206th district court erred in absolving TSB *542 of liability for its handling of the
trust. Vargas argued that the Declaratory Judgments Act could not expand the district court's jurisdiction over the trust to allow
it to adjudicate Vargas's tort claims against TSB. The court of appeals agreed, and modified the district court's judgment by
reversing those parts of the district court's order: (1) approving all distributions, fees, costs, and expenses TSB paid, except for
the fees, costs, and expenses relating to the trust's termination; (2) approving TSB's investment philosophy; and (3) absolving
TSB from any liability to Vargas or the Vargas trust. 28 S.W.3d at 796.

TSB filed a petition for review, asking this Court to resolve four issues: 1) Did the 206th district court exercise continuing
jurisdiction over the Chapter 142 trust that it created, and thus have jurisdiction to issue its declaratory judgment in connection
with the trust, related issues, and parties? 2) Did the 206th district court have jurisdiction to and properly approve the investment
philosophy, distributions, and expenses of the trustee of the Vargas trust, to discharge the trustee from liability, and to issue its
declaratory relief? 3) Did Vargas waive his argument concerning the proper scope of declaratory relief by failing to make the
argument to the district court? and, 4) Did Vargas waive his arguments by accepting payment under the judgment?

Vargas counters by asking this Court to consider cross-points that would preclude reinstatement of those parts of the 206th
district court's judgment reversed by the court of appeals. Specifically, Vargas urges that the district court erred in rendering
judgment for TSB when Vargas was not given the required forty-five days notice of trial under Rule 245 of the Texas Rules
of Civil Procedure, and, alternatively, the district court erred in rendering judgment for TSB even though Vargas was denied
his right to a jury trial.



                                                                 II.

 [1] We first consider the district court's jurisdiction over a trust created under Texas Property Code section 142.005. By filing
a motion under the caption of the original Sugar Growers personal-injury suit, TSB invoked the 206th district court's continuing



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Texas State Bank v. Amaro, 87 S.W.3d 538 (2002)
45 Tex. Sup. Ct. J. 1302

jurisdiction over the trust created in that suit. TSB's motion specifically requested the 206th district court to determine whether
the trust was terminated due to Vargas's regained capacity, to allow TSB to resign if the trust was not terminated, and to approve
TSB's final accounting of the trust.

Chapter 142 provides that the trust will continue until terminated or revoked, and allows the court to amend, modify, or revoke
the trust at any time before its termination. TEX. PROP.CODE § 142.005(d),(f). The 206th district court's decree creating the
trust stated that the trust would “take effect immediately to remain in full force and effect until further orders of this court.” And
the trust document itself provides that the “Court shall retain the right at any time before the termination of this trust to amend,
alter, modify, or revoke this trust.” Taken together, these documents invoke the 206th district court's continuing jurisdiction
over the trust under Chapter 142. Therefore, the 206th district court had continuing jurisdiction over the Vargas trust until such
time that it terminated the trust. Thus, although the 370th district court adjudicated Vargas's capacity in the divorce action,
the 206th had jurisdiction to consider whether he regained capacity such that the trust was terminated, and the trust did not
terminate until the 206th so decreed.



                                                              *543 III.

 [2] Having determined that the 206th district court had continuing jurisdiction to determine issues related to the trust and its
termination, we now consider whether the court properly exercised that jurisdiction by ordering the relief that it did. As noted,
the district court has continuing jurisdiction to supervise, modify, revoke, and terminate the trust. Further, section 142.005(b)
(4) provides that the trust terminates when the beneficiary regains capacity and section 142.005(e) provides that upon the
trust's termination the principal and undistributed income shall be paid to the beneficiary. In this case, neither capacity nor
the district court's order terminating the trust are disputed. The question here is whether the remainder of the district court's
order—specifically, approval of TSB's accounting, approval of TSB's investment philosophy, and absolving TSB of liability
—was properly granted.

To determine the corpus due to the beneficiary, the trustee may provide the terminating court with a final accounting of the
trust funds for examination. In its motion to the 206th district court, TSB asked the court to “approve final accountings to be
submitted to the Court.” Property Code section 113.152 provides what an accounting should contain.

A written statement of accounts shall show:

  (1) all trust property that has come to the trustee's knowledge or into the trustee's possession and that has not been previously
  listed or inventoried as property of the trust;

  (2) a complete account of receipts, disbursements, and other transactions regarding the trust property for the period covered
  by the account, including their source and nature, with receipts of principal and income shown separately;

  (3) a listing of all property being administered, with an adequate description of each asset;

  (4) the cash balance on hand and the name and location of the depository where the balance is kept; and

  (5) all known liabilities owed by the trust.

TEX. PROP.CODE § 113.152. In the context of a terminating trust, the statutory requirements for an accounting form the
basis winding up the trust to ascertain the balance due to the beneficiary. Nowhere does section 113.152 mention investment
philosophy or potential tort liability to the beneficiary with regard to an accounting. Thus, these determinations are not
components of an accounting. Accordingly, although the 206th district court's approving TSB's accounting was appropriate
under TSB's motion to the court, the 206th district court's approving TSB's investment philosophy and absolving TSB's tort
liability, if any, were not. The 206th district court improperly granted relief that TSB did not request. TSB's motion asked the
district court only to determine whether the trust was terminated, to remove TSB as trustee if the trust was not terminated, and


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
Texas State Bank v. Amaro, 87 S.W.3d 538 (2002)
45 Tex. Sup. Ct. J. 1302

to approve TSB's final accounting. In its motion, TSB did not ask the district court to adjudicate TSB's potential tort liability
as trustee, nor to approve TSB's investment philosophy, and therefore the district court should not have ruled on these issues.
We conclude that the court of appeals was correct in reversing those parts of the district court's order.



                                                                IV.

 [3] The court of appeals further modified the district court's order by reversing that part of the order approving all distributions,
fees, costs, and expenses TSB paid from the Vargas trust except those relating to the trust's termination. But Chapter 142 of
the Property Code gives *544 the court of continuing jurisdiction the power to approve the trustee's fees, TEX. PROP.CODE
§ 142.005(b)(6), and the trust instrument also provided that “[t]he trustee shall receive reasonable compensation ... on
application to and approval of the 206th District Court.” And because the distributions, costs, and expenses of a trust would be
“disbursements” under Property Code section 113.152(2), and therefore properly part of the trustee's accounting, we hold that
the court of appeals erred by reversing that part of the district court's order. Accordingly, we reinstate that part.



                                                                 V.

 [4] TSB argues that Vargas waived his objections to the proper scope of the declaratory relief the district court granted by
failing to make the argument to the district court. We disagree. The error is that the district court's order exceeded the relief
TSB's motion requested. Vargas objected at the March hearing to the introduction and consideration of evidence that went
beyond TSB's request for relief. And, Vargas's brief to the court of appeals clearly objected to the fact that the district court
went far beyond the scope of TSB's motion in its final order. Vargas properly preserved his objections.



                                                                VI.

 [5] [6] Finally, TSB argues that Vargas waived his objection to the district court's judgment by accepting payment of his
trust monies under that judgment. This Court, in Carle v. Carle, stated that a “litigant cannot treat a judgment as both right and
wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom.” 149
Tex. 469, 234 S.W.2d 1002, 1004 (1950). There is a narrow exception to this rule that as long as an appellant “accepts only that
which appellee concedes, or is bound to concede, to be due him under the judgment he is not estopped to prosecute an appeal
which involves only his right to a further recovery.” Id.

Here, neither side disputes that capacity was regained and that the trust should have been terminated. And neither party argues
with winding up the trust and distributing the corpus. Vargas contested only the district court's ability to rule on TSB's potential
tort liability to Vargas as trustee. Therefore, Vargas's acceptance of the trust corpus is not inconsistent with his position and
falls within the Carle exception.



                                                                VII.

Because we reinstate the trial court's judgment approving the accounting, including the approval of distributions, fees, costs, and
expenses, we next consider Vargas's alternative grounds for affirming the court of appeals' judgment reversing these rulings.
Vargas argues that judgment cannot be rendered on these issues because he was not given the forty-five days notice of trial
required under Rule 245 of the Texas Rules of Civil Procedure. Vargas also argues that the 206th district court erred in rendering
judgment for TSB because it denied him the right to a jury trial.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               6
Texas State Bank v. Amaro, 87 S.W.3d 538 (2002)
45 Tex. Sup. Ct. J. 1302

 [7] As we stated above, the trustee may provide the court with a final accounting of the trust funds to determine the amount
due to the beneficiary, and we held that the court's approval of the accounting was within its jurisdiction and within the scope of
relief requested by TSB's motion. To properly assess Vargas's argument that the ruling violates his due process rights, we must
determine the nature of the trial court's ruling. TSB contends that “[a]pproval of an ‘accounting’ involves more than merely
approval of *545 the math involved in expenditure and disbursement: approval of an accounting disposes of all claims that
might be made in regard to matters relating thereto.” For support, TSB cites only one case—Coble Wall Trust Co., Inc. v. Palmer,
859 S.W.2d 475, 480–81 (Tex.App.-San Antonio 1993, writ denied). In that case, the court of appeals held that a probate court's
judgment, after a full hearing based on the new administrators' and others' objections, that approved the final accounts and
discharged Coble Wall from all liability barred the plaintiff's subsequent suit for negligence and DTPA violations. In that case,
full evidentiary hearings were conducted and the court of appeals noted that all of the contentions advanced by the plaintiffs
regarding the estate plan and fees were heard by the probate court and thus were placed in issue and adjudicated. Thus, the
guardian's liability had been fully litigated in the probate court. Coble Wall does not hold that a court's approval of an accounting
necessarily includes adjudication of the trustee's tort liability; it merely affirms that, in certain circumstances, it may. 4

 [8] Contrary to TSB's assertion, the Trust Code does not contemplate that an accounting will settle the trustee's tort liability.
As noted, section 113.152 establishes the contents of an accounting and requires the trustee to list trust property, transactions,
property, cash, and all known liabilities owed by the trust. It simply does not reach the trustee's tort liability. This conclusion
is supported by the Trust Code's structure, which includes Subchapter E “Accounting by Trustee” within Chapter 113, entitled
“Administration.” In contrast, Chapter 114 concerns “liabilities, rights, and remedies of trustees, beneficiaries, and third
persons.” Thus, the final accounting “form[s] the basis for a winding up of the trust to ascertain the balance due to the
beneficiary.” Supra at 543. As TSB states in its brief, “TSB's requested relief in essence provided for determination of what
amounts should be paid to Vargas by TSB and the closing of the trust and issues relating thereto.” Determining TSB's tort
liability is not necessary to the closing of the trust or ascertaining the trust balance due the beneficiary, and, as we held above,
was not within the scope of TSB's requested relief. Accordingly, because approving the accounting, including the distributions,
costs, and expenses, was not an adjudication of TSB's tort liabilities, Vargas was not entitled to a jury or to forty-five days
notice of the hearing.



                                                                 VIII.

In sum, we conclude that under Property Code section 142.005 and the trust documents, the district court had continuing
jurisdiction to rule on the issues requested by TSB's motion; specifically, the 206th district court had jurisdiction in this case to
terminate the trust and to approve TSB's final accounting, including all distributions, fees, costs, and expenses of the trust. We
hold that the 206th district court's order exceeded, in part, the relief TSB requested and should not have encompassed approving
TSB's investment philosophy, nor ruling on TSB's potential tort liability to Vargas. We modify the court of appeal's judgment
by reinstating that part of the 206th district court's order approving the distributions, fees, costs, *546 and expenses TSB paid
from the Vargas Trust. Accordingly, we affirm the court of appeal's judgment, as modified.



Justice SCHNEIDER did not participate in the decision.

Parallel Citations

45 Tex. Sup. Ct. J. 1302


Footnotes
1      The court of appeals referred to Rutilo Vargas Amaro as “Vargas.” For the sake of consistency, we do the same.
2      TEX. CIV. PRAC. & REM.CODE § 37.005.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               7
Texas State Bank v. Amaro, 87 S.W.3d 538 (2002)
45 Tex. Sup. Ct. J. 1302

3      TEX. PROP.CODE § 115.001 (providing for the original and exclusive jurisdiction of a district court “over all proceedings concerning
       trusts, including proceedings to: ... (4) determine the powers, responsibilities, duties, and liability of a trustee”).
4      In Bohlssen v. Bohlssen, 56 S.W.2d 913, 916 (Tex.Civ.App.-Galveston 1932, no writ), upon which the court in Coble Wall relied,
       the probate court not only approved the final accounting and discharged the guardian, but the ward expressly released the guardian
       from any further liability to him and acknowledged that he would not thereafter “have [a] claim against his guardian.”


End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       8
Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984)




                                                     668 S.W.2d 831
                                                 Court of Appeals of Texas,
                                                          Austin.

                                               Rick TOBER, Appellant,
                                                        v.
                                           TURNER OF TEXAS, INC., Appellee.

                                               No. 13881.     |    March 14, 1984.

Salesman appealed from an order of the 98th Judicial District Court, Travis County, Charles D. Mathews, P.J., overruling his
motion to dissolve an injunction which temporarily enjoined him from selling specialty advertising items in competition with
his former employer. The Court of Appeals, Phillips, C.J., held that: (1) since salesman made an untimely cash deposit in lieu of
an appeal bond, the Court of Appeals was without jurisdiction to consider an appeal of the order granting temporary injunction;
(2) salesman's cash deposit was made within 30 days of signing of order overruling his motion to dissolve the injunction; thus,
the Court of Appeals had jurisdiction to review trial court's order overruling such motion; (3) by failing to perfect an appeal
from the grant of the temporary injunction, salesman waived right to complain of errors allegedly committed by the trial court
in originally granting temporary injunction; and (4) trial court had no duty, upon filing of motion to dissolve, to reconsider
propriety of grant of the temporary injunction.

Affirmed.



 West Headnotes (23)


 [1]    Appeal and Error         Injunction
        While an order granting a temporary injunction is an appealable interlocutory order, appeal of such an order must
        conform to requirements for accelerated appeals. Vernon's Ann.Texas Rules Civ.Proc., Rule 385.

        Cases that cite this headnote


 [2]    Appeal and Error         Deposit as security
        In all accelerated appeals, deposit in lieu of appeal bond must be made within 30 days after order is signed. Vernon's
        Ann.Texas Rules Civ.Proc., Rule 385(d).

        Cases that cite this headnote


 [3]    Appeal and Error         Deposit as security
        Requirement for accelerated appeal that a deposit in lieu of appeal bond must be made within 30 days after order
        appealed from is signed is a prerequisite to invoking the Court of Appeals' jurisdiction. Vernon's Ann.Texas Rules
        Civ.Proc., Rule 385(d).

        1 Cases that cite this headnote


 [4]    Appeal and Error         Effect of failure to give or defects in security




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984)


        Salesman who made a cash deposit in lieu of an appeal bond more than 30 days after grant of order which temporarily
        enjoined him from selling specialty advertising items within a certain area could not appeal such order; the Court of
        Appeals was without jurisdiction to consider it. Vernon's Ann.Texas Rules Civ.Proc., Rule 385(d).

        Cases that cite this headnote


 [5]    Appeal and Error         Injunction
        An order overruling a motion to dissolve a temporary injunction is an appealable interlocutory order. Vernon's
        Ann.Texas Civ.St. art. 4662.

        1 Cases that cite this headnote


 [6]    Appeal and Error         Continuing, modifying, vacating, or dissolving
        Court of Appeals had jurisdiction to review a trial court order overruling salesman's motion to dissolve an order
        which temporarily enjoined him from selling specialty advertising items within a certain county and various cities in
        competition with his employer, where salesman's cash deposit in lieu of an appeal bond was made within 30 days of
        the overruling of such motion, though he had not timely appealed from original injunction order. Vernon's Ann.Texas
        Civ.St. art. 4662.; Vernon's Ann.Texas Rules Civ.Proc., Rule 385(d).

        1 Cases that cite this headnote


 [7]    Injunction       Authority and discretion of court
        Determination of question of whether to dissolve a temporary injunction is a matter lying within discretion of the
        trial court.

        1 Cases that cite this headnote


 [8]    Appeal and Error         Continuing, vacating, or dissolving
        Scope of Court of Appeals' review of a trial court order overruling a motion to dissolve a temporary injunction is
        limited to the narrow question of whether the action of the trial judge, in overruling motion to dissolve, constituted
        an abuse of discretion.

        4 Cases that cite this headnote


 [9]    Injunction       Evidence and affidavits
        Salesman who filed motion to dissolve an order which temporarily enjoined him from selling specialty advertising
        items within a particular county and various cities had burden to show that trial court abused its discretion.

        1 Cases that cite this headnote


 [10]   Appeal and Error         Continuing, vacating, or dissolving
        Salesman's four points of error, relating to errors allegedly committed by the trial court in originally granting temporary
        injunction enjoining salesman from selling specialty advertising items within a particular area, were not a proper basis
        upon which salesman could contend that the trial court abused its discretion in overruling his motion to dissolve such
        injunction; by failing to perfect an appeal from grant of temporary injunction, salesman waived right to complain of
        the specified alleged errors, where none of the alleged errors were fundamental in nature, and where the trial court




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984)


        was made aware of such alleged errors prior to signing temporary injunction. Vernon's Ann.Texas Rules Civ.Proc.,
        Rule 385(d).

        4 Cases that cite this headnote


 [11]   Appeal and Error        Injunction
        Since appeal was from denial of salesman's motion to dissolve an injunction which temporarily enjoined him from
        selling specialty advertising items within a particular area and was not an appeal of the grant of the temporary
        injunction, Court of Appeals would presume that record as a whole supported trial court's action in granting the
        temporary injunction, and would not look to statement of facts from hearing on motion to grant temporary injunction
        to ascertain if evidence supported such grant.

        2 Cases that cite this headnote


 [12]   Injunction      Authority and discretion of court
        Trial court has no duty, upon filing of a motion to dissolve a temporary injunction, to reconsider propriety of the
        granting of the temporary injunction, at least where the motion does not allege fundamental error, and also where
        motion is not based upon evidence of changed conditions, but is rather based upon evidence which was before the
        court at prior hearing on motion to grant the temporary injunction.

        8 Cases that cite this headnote


 [13]   Judgment        Discretion of court
        A trial court cannot be held to have abused its discretion where it refused to alter its prior decision in the absence
        of new evidence.

        Cases that cite this headnote


 [14]   Appeal and Error        Interlocutory appeals
        Purpose of rule providing that no motion for new trial should be filed in appeals from interlocutory orders appealable
        by law is to avoid duplicity of effort and to give some degree of finality to interlocutory orders. Vernon's Ann.Texas
        Rules Civ.Proc., Rule 385.

        Cases that cite this headnote


 [15]   Appeal and Error        Injunction
        A motion to dissolve a temporary injunction may not be used as a means of evading or expanding rules applicable
        to appealing interlocutory orders.

        Cases that cite this headnote


 [16]   Appeal and Error        Interlocutory and Intermediate Decisions
        A statute authorizing an appeal from an interlocutory order must be given a strict construction since the statute is in
        derogation of the general rule that only final judgments and orders are appealable.

        10 Cases that cite this headnote




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984)




 [17]   Injunction      Authority and discretion of court
        Trial court did not lack authority to reverse its prior temporary injunction order on a showing of changed conditions.

        2 Cases that cite this headnote


 [18]   Injunction      Evidence and affidavits
        A trial court will not be deemed to have abused its discretion by refusing to reverse a prior grant of a temporary
        injunction, absent pleading and proof of changed conditions, or perhaps upon pleading and proof of fundamental error.

        9 Cases that cite this headnote


 [19]   Injunction      Right or necessity
        A trial court may not enter a temporary injunction against a party before that party has presented its defenses and has
        rested its case. Vernon's Ann.Texas Rules Civ.Proc., Rule 681.

        Cases that cite this headnote


 [20]   Injunction      Authority and discretion of court
        Under rule precluding a trial court from entering a temporary injunction against a party before that party has presented
        its defenses and has rested its case, party opposing temporary injunction has an opportunity to fully litigate the issue
        of whether the temporary injunction should issue prior to the granting of such injunction; thus, there is no longer any
        reason for requiring a trial court to reexamine the legal and factual basis of a preliminary injunction upon a motion
        to dissolve. Vernon's Ann.Texas Rules Civ.Proc., Rule 681.

        1 Cases that cite this headnote


 [21]   Injunction      Terminating, Vacating, or Dissolving Injunction
        Purpose of motion to dissolve a temporary injunction is to provide a means to show that changed circumstances or
        changes in the law require modification or dissolution of the injunction; the purpose is not to give an unsuccessful
        party an opportunity to relitigate the propriety of the original grant.

        8 Cases that cite this headnote


 [22]   Injunction      Evidence and affidavits
        Trial court did not abuse its discretion in refusing to hear evidence of employer's alleged breach of employment
        contract with salesman in hearing on motion to dissolve temporary injunction; such evidence was not within proper
        scope of motion to dissolve.

        Cases that cite this headnote


 [23]   Appeal and Error         Sufficiency of offer of proof or showing of evidence excluded
        Even if the trial court had refused to hear testimony on motion to dissolve temporary injunction, movant showed
        no error where he did not direct the Court of Appeals to a bill of exceptions which would show what the witnesses
        would have testified to.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984)




        1 Cases that cite this headnote




Attorneys and Law Firms

*833 John L. Bates, Bates & Cates, Waco, for appellant.

Jeffrey M. Friedman, Friedman, Weddington, Hansen & Fisher, Austin, for appellee.

Before PHILLIPS, C.J., and POWERS and BRADY, JJ.

Opinion

PHILLIPS, Chief Justice.

Rick Tober appeals from the trial court's order overruling a motion to dissolve a temporary injunction.

We affirm that order.

Rick Tober was formerly employed by Turner of Texas, Inc. as a salesman of advertising specialty products. In September of
1982 Turner instituted this action against Tober. Turner contended that Tober had violated an agreement not to compete with
Turner; Turner sought damages for prior breaches of the agreement as well as an injunction precluding future breaches. Tober
lodged a counterclaim against Turner, seeking damages for Turner's alleged wrongful withholding of commissions earned by
Tober.

On October 11, 1982, following an evidentiary hearing at which both Tober and Turner participated, the trial court signed an
order which temporarily enjoined Tober from, inter alia, selling specialty advertising items within all of Travis County and the
city limits of San Antonio, Dallas, Fort Worth, and Houston. On November 9, 1982 Turner filed a motion requesting that the
trial court order Tober to appear and show cause as to why Tober should not be held in contempt. On November 16, 1982 Tober
filed a motion captioned “Defendant's Response To Plaintiff's Motion To Show Cause; Defendant's Amended Motion To Set
Aside the Temporary Restraining Order And/Or Alternatively Motion to Provide Adequate Bond.”

On December 1, 1982 the trial court, following a hearing at which Tober and Turner were represented, signed an order overruling
Tober's motion (apparently treating it as a motion to dissolve the temporary injunction). The trial court also found Tober in
contempt of the temporary injunction; the contempt order is not here challenged. Tober made a cash deposit in lieu of an appeal
bond on December 13, 1982.

 [1] [2] [3] [4] We initially note that although Tober purports to appeal from the order granting temporary injunction
as well as the order overruling his subsequently filed motion, he has not perfected an appeal from the initial order. While an
order granting a temporary injunction is an appealable interlocutory order, see Tex.Rev.Civ.Stat.Ann. art. 4662 (Supp.1982),
the appeal of such an order must conform to the requirements for accelerated appeals, Tex.R.Civ.P.Ann. 385 (Supp.1983). In
all accelerated *834 appeals, the deposit in lieu of appeal bond must be made within thirty days after the order is signed. Id.
385(d). Such a requirement is a prerequisite to invoking this Court's jurisdiction; since Tober made an untimely cash deposit,
we are without jurisdiction to consider an appeal of the order granting a temporary injunction. Marshall v. Good Times, Inc.,
537 S.W.2d 536 (Tex.Civ.App.1976, writ dism'd).

 [5] [6] However, Tober's cash deposit was made within thirty days of the signing of the order overruling Tober's subsequent
motion. Although that subsequent motion was rather awkwardly titled, to the extent possible we will treat it as a motion to
dissolve the temporary injunction. An order overruling a motion to dissolve a temporary injunction is an appealable interlocutory



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Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984)


order. Tex.Rev.Civ.Stat.Ann. art. 4662 (Supp.1982). Therefore, although we lack jurisdiction to entertain an appeal of the order
granting the temporary injunction, we have jurisdiction to review the trial court's order overruling the motion to dissolve the
injunction. Marshall v. Good Times, Inc., supra.

 [7] [8] [9] The determination of the question of whether to dissolve a temporary injunction is a matter lying within the
discretion of the trial court; the scope of this Court's review of a trial court order overruling a motion to dissolve a temporary
injunction is limited to the narrow question of whether the action of the trial judge, in overruling the motion to dissolve,
constituted an abuse of discretion. Marshall v. Good Times, Inc., supra. Tober, as movant, has the burden to show that the trial
court abused its discretion. Id.

As stated above, Tober was represented at the hearing on the application for temporary injunction. At that hearing Tober
presented evidence in opposition to the granting of the temporary injunction. Later, at the hearing on the motion to dissolve the
temporary injunction, Tober presented no evidence in support of dissolution; his case was based exclusively upon his attorney's
legal argument.

Appellant's first four points of error relate to errors allegedly committed by the trial court in originally granting the temporary
injunction; each of these matters were brought to the trial court's attention prior to the signing of the temporary injunction order,
and were obviously rejected by the trial court. These points of error provide that the trial court erred in granting the temporary
injunction because: (1) neither the contract of employment nor the restrictive covenant designate the market area of Turner,
(2) the restrictive covenant is not reasonable either as to limitation of time or limitation of geographical area, (3) under the
evidence presented Turner had breached the contract of employment prior to any breach upon the part of Tober, and (4) an
inadequate injunction bond was set by the court.

 [10] We hold that the above four points of error are not a proper basis upon which Tober may contend that the trial court
abused its discretion in overruling the motion to dissolve. They are a proper basis upon which Tober could have contended,
upon direct appeal of the order granting the temporary injunction, that the trial court abused its discretion in granting such. By
failing to perfect an appeal from the grant of the temporary injunction, Tober has now, upon appeal of the motion to dissolve,
waived the right to complain of the specified alleged errors; this is particularly true where, as here, none of the alleged errors
are fundamental (i.e. jurisdictional) in nature, and where, as here, the trial court was made aware of such alleged errors prior
to signing the temporary injunction.

 [11] Additionally, to the extent that appellant complains that the restrictive covenant was unreasonable as to geographic scope,
we note that the trial court has limited the scope of the temporary injunction in this regard, and has thereby reformed the
covenant. Since this is not an appeal of the grant of the temporary injunction, we will presume that the record as a whole supports
the trial court's action in granting the temporary injunction. See State v. Friedmann, 572 S.W.2d 373 (Tex.Civ.App.1978, writ
ref'd n.r.e.) We will not *835 look to the statement of facts from the hearing on the motion to grant the temporary injunction
to ascertain if the evidence supports such grant. Id.

 [12] [13] Finally, we hold that the trial court has no duty, upon the filing of a motion to dissolve, to reconsider the propriety
of the granting of a temporary injunction, at least where the motion does not allege fundamental error, and also where the
motion is not based upon evidence of changed conditions but is rather based upon evidence which was before the court at the
prior hearing on the motion to grant the temporary injunction. We will specify both practical and legal reasons for this holding
below; however, assuming it to be sound, the trial court cannot be held to have abused its discretion where, as here, it refused
to alter its prior decision in the absence of new evidence.

From a practical standpoint, if a litigant could, by motion to dissolve, force reconsideration of the original grant, without a
showing of changed conditions, then there is an incentive for him to do so at least once, or more often, in hope that he will be
able to wear down the resistance of the original trial judge, or in hope that he will be able to secure a hearing before a different
trial judge who may be more sympathetic. Such actions needlessly add to the judicial caseload, both at the trial and appellate



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Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984)


level. Recognition of the principle that the trial court has no duty to reconsider the validity of the original grant of temporary
injunction upon motion to dissolve enables the trial court to dispose of motions to dissolve solely upon the pleadings when the
motion to dissolve, on its face, shows that the litigant offers no new evidence.

 [14] There is a legal basis for holding that the trial court has no duty, upon motion to dissolve, to reconsider the original grant
of temporary injunction. Tex.R.Civ.P.Ann. 385 (Supp.1983) provides that no motion for new trial shall be filed in appeals from
interlocutory orders appealable by law. The purpose of this rule is to avoid duplicity of effort and to give some degree of finality
to interlocutory orders. If a litigant is permitted, upon motion to dissolve, to again challenge the original temporary injunction
grant, without an allegation of changed conditions, then the litigant could accomplish indirectly what he could not directly do
(make a motion for new trial). Cf. State v. Friedmann, supra. In such a manner, the litigant could thereby render meaningless the
appellate timetable applicable to accelerated appeals, see Tex.R.Civ.P.Ann. 385(d) (Supp.1983); a litigant, after unsuccessfully
opposing a temporary injunction, could wait for an indefinite period to perfect an appeal of the grant of the temporary injunction
(by filing a subsequent motion to dissolve, which raises the points of error which could have, and should have, been raised in
a direct appeal of the order granting temporary injunction).

 [15] [16] A motion to dissolve may not be used as a means of evading or expanding the rules applicable to appealing
interlocutory orders. A statute authorizing an appeal from an interlocutory order must be given a strict construction since the
statute is in derogation of the general rule that only final judgments and orders are appealable. 4 Tex.Jur.3d Appellate Review
§ 70 (1980). We note that Tober did not file his motion to dissolve until after it was too late to perfect an appeal from the order
granting a temporary injunction.

 [17] [18] We should not be understood to say that a trial court lacks the authority to reverse its prior temporary injunction order
absent a showing of changed conditions; it does have that power. City of Hudson v. Ivie, 592 S.W.2d 658 (Tex.Civ.App.1979,
no writ). We hold only that the trial court will not be deemed to have abused its discretion by refusing to reverse a prior grant
of temporary injunction, absent pleading and proof of changed conditions, State v. Friedmann, supra; see 6 L. Lowe Texas
Practice—Remedies § 186 (1973), or perhaps upon pleading and proof of fundamental (i.e. jurisdictional) error, but see Texas
Board of Examiners in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242 (1961).

 *836 In Carp, the Supreme Court held that a plea of privilege, as to which appeal had not been timely perfected, was not
reviewable in conjunction with review of an order granting temporary injunction, as to which appeal had been timely perfected.
The Supreme Court also held that the Court of Civil Appeals lacked jurisdiction to review pleas to the jurisdiction which had been
rejected by the trial court. The Supreme Court stated the rule that appellate courts lack jurisdiction to review an unappealable
interlocutory order in an appeal “from another interlocutory order which is appealable except insofar as the questions raised
might affect the validity of the latter order.” 343 S.W.2d at 243. We hold that the questions relevant to the grant of the temporary
injunction, raised by Tober in this appeal, do not affect the validity of the order overruling the motion to dissolve; however,
our holding does not here turn solely upon jurisdiction, but is also grounded upon Tober's failure to prove that the trial court
abused its discretion in overruling the motion to dissolve.

We should stress that most of what we have said above, especially as it relates to the trial court's duty in considering a motion
to dissolve, is applicable to temporary injunctions, which are granted only after notice and an opportunity for an evidentiary
hearing; the trial court's duty in considering a motion to dissolve an injunctive order rendered without notice and opportunity for
hearing would be broader. Compare State v. Friedmann, supra (motion to dissolve filed after full evidentiary hearing on grant
of temporary injunction) with Whitaker v. Wilson, 349 S.W.2d 753 (Tex.Civ.App.1961, writ ref'd n.r.e.) (temporary injunction
granted solely upon intervenor's sworn petition).

Much of the confusion as to the proper scope of a motion to dissolve arises from cases decided at a time when no distinction
was made as between injunctive relief granted before and injunctive relief granted after a full evidentiary hearing. Apparently,
under prior law it was standard procedure for a trial court to issue a temporary injunction solely upon the applicant's sworn
petition; therefore, upon filing a motion to dismiss, the opposite party had a right to a full evidentiary hearing upon the issue



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Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984)


of whether the temporary injunction should have, in the first instance, been granted. See Plateau Oil Co. v. Choate Oil Corp.,
235 S.W. 686 (Tex.Civ.App.1921, writ dism'd).

 [19] [20] [21] Under current rules the trial court may not enter a temporary injunction against a party before that party has
presented its defenses and has rested its case. Tex.R.Civ.P.Ann. 681 (1967); Great Lakes Engineering, Inc. v. Andersen, 627
S.W.2d 436 (Tex.App.1981, no writ); City of Austin v. Texas Public Emp. Ass'n, 528 S.W.2d 637 (Tex.Civ.App.1975, no writ).
Under this procedure the party opposing the temporary injunction has an opportunity to fully litigate the issue of whether the
temporary injunction should be granted prior to the granting of such; there is no longer any reason for requiring the trial court
to reexamine the legal and factual basis of the preliminary injunction upon motion to dissolve. See Nu-Tred Tire Co. v. Dunlop
Tire & Rubber Corp., 118 Ariz. 417, 577 P.2d 268 (App.1978). The purpose of the motion to dissolve is to provide a means to
show that changed circumstances or changes in the law require the modification or dissolution of the injunction; the purpose
is not to give an unsuccessful party an opportunity to relitigate the propriety of the original grant. Id.; see State v. Friedmann,
supra. Tober's first four points of error are overruled.

In his fifth point of error Tober contends that the trial court erred in granting a temporary injunction which by its terms restrained
persons who were not parties to this action. Although this point attacks the original grant of temporary injunction, apparently
it could not have been brought to the trial court's attention prior to entry of the judgment. However, it could have been raised
in a direct appeal from the order granting temporary injunction. For that reason, it is questionable, under the above analysis,
as to whether it can now be raised in the appeal of the order overruling the motion to dissolve. However, we need *837 not
resolve that question, since it is obvious from reading the temporary injunction order that Tober, and no other person, is thereby
enjoined. The fifth point of error is overruled.

Finally, Tober complains that the trial court abused its discretion in refusing to hear evidence of Turner's breach of the
employment contract. Tober contends that such evidence was relevant to showing that Turner lacked clean hands and that
Turner was therefore not entitled to equitable relief.

 [22] To the extent that Tober complains of the trial court's refusal to hear evidence at the hearing on application for temporary
injunction, we hold, for reasons given above, that such is not within the proper scope of a motion to dissolve. The same holds
true as to any complaint of the trial court's refusal, at the hearing on the motion to dissolve, to consider evidence not relevant
to changed conditions, unless, perhaps, there is an allegation that such evidence is newly discovered.

 [23] Also, we have examined the statement of facts from the hearing on the motion to dissolve. At no point did Tober offer
any evidence; the trial court certainly never prevented the introduction of any evidence. Even if the trial court had refused to
hear testimony, Tober does not direct us to a bill of exceptions which would show what the witnesses would have testified
to; therefore, no error is shown. Schutz v. Southern Union Gas Co., 617 S.W.2d 299 (Tex.App.1981, no writ). The final point
of error is overruled.

Having overruled all of appellant's points of error, we affirm the trial court's order.



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                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    8
Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884 (1985)




                                                     690 S.W.2d 884
                                                  Supreme Court of Texas.

                                      UVALDE COUNTRY CLUB, Petitioner,
                                                     v.
                                MARTIN LINEN SUPPLY COMPANY, INC., Respondent.

                        No. C–3920.       |   May 22, 1985.      |    Rehearing Denied June 26, 1985.

Supply company brought suit against country club to collect on contract for services rendered, and country club failed to file
an answer or enter an appearance. The 285th District Court, Bexar County, Paul Rivera, J., entered default judgment. Country
club appealed. The Court of Appeals, 685 S.W.2d 375, Tijerina, J., affirmed. On petition for review, the Supreme Court held
that record did not reflect strict compliance with Rules of Civil Procedure relating to issuance, service, and return of citation,
where petition alleged that registered agent was “Henry Bunting, Jr.” whereas sheriff's return on citation showed delivery to
“Henry Bunting.”

Reversed and remanded.



 West Headnotes (3)


 [1]    Appeal and Error         Judgment by Default
        There are no presumptions in favor of valid issuance, service, and return of citation in face of writ of error attack
        on default judgment.

        152 Cases that cite this headnote


 [2]    Process       Defects and Irregularities in Writ or Other Process or Notice
        Process       Defects and Irregularities in Service or Return or Proof Thereof
        Failure to affirmatively show strict compliance with Rules of Civil Procedure 101, 106, and 107, relating to issuance,
        service, and return of citation, renders attempted service of process invalid and of no effect. Vernon's Ann.Texas
        Rules Civ.Proc., Rules 101, 106, 107.

        165 Cases that cite this headnote


 [3]    Clubs       Actions by or Against Clubs
        Record in suit against country club did not reflect strict compliance with Rules of Civil Procedure 101, 106, and 107
        relating to issuance, service, and return of citation, where petition alleged that registered agent was “Henry Bunting,
        Jr.” whereas sheriff's return on citation showed delivery to “Henry Bunting.” Vernon's Ann.Texas Rules Civ.Proc.,
        Rules 101, 106, 107.

        142 Cases that cite this headnote




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884 (1985)




Attorneys and Law Firms

*884 Clemens, Spencer, Welmaker & Finck, George H. Spencer, Jr., San Antonio, for petitioner.

Cox & Smith, R. Laurance Macon, San Antonio, for respondent.

Opinion

PER CURIAM.

The question here is whether service of citation was proper in the face of a writ of error attack on a default judgment. The
plaintiff's original petition alleged that the defendant, Uvalde Country Club, could be served by serving its registered agent,
Henry Bunting, Jr., 137 West Nopal Street, in Uvalde, Uvalde County, Texas. The citation was directed to Uvalde Country
Club, by serving its registered agent, “Henry Bunting.” The sheriff's return on this citation showed delivery to “Henry Bunting.”
Uvalde Country Club failed to answer, and the trial court rendered a default judgment in favor of Martin Linen Supply Company,
Inc. Uvalde Country Club brought writ of error to the court of appeals within six months of the default judgment. In affirming
the trial court judgment, the court of appeals held that the lack of “Jr.” was immaterial because it did not constitute any part
of the name of the registered agent. 685 S.W.2d 375. We reverse the judgment of the court of appeals and remand the cause
to the trial court.

 [1] [2] The court of appeals holding conflicts with our holdings in Hendon v. Pugh, 46 Tex. 211, 212 (1876) and Faver v.
Robinson, 46 Tex. 204 (1876). In Hendon, we remanded a default judgment because the return reflected that it was served on
J.N. Hendon, not the named defendant, J.W. *885 Hendon. In Faver, we remanded a default judgment against John R. Faver
because the citation was addressed and served on John R. Favers. There are no presumptions in favor of valid issuance, service,
and return of citation in the face of a writ of error attack on a default judgment. McKanna v. Edgar, 388 S.W.2d 927, 929
(Tex.1965). Moreover, failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted
service of process invalid and of no effect. McKanna, 388 S.W.2d at 929.

 [3] The record does not show that the person served with citation, “Henry Bunting,” was authorized to receive service or that
he was connected with the appellant. Rather, the petition alleges that the registered agent is “Henry Bunting, Jr.” Thus, the
record in this case does not reflect strict compliance with the rules of civil procedure relating to the issuance, service, and return
of citation. See, e.g., Tex.R.Civ.P. 101, 106, and 107. In view of our holding we need not discuss the other points of error.

Pursuant to Tex.R.Civ.P. 483, without hearing oral argument, we reverse the judgment of the court of appeals and remand the
cause to the trial court.



End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   2
Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014)




                                                      439 S.W.3d 585
                                                  Court of Appeals of Texas,
                                                    Houston (14th Dist.).

                                Alice M. WOOD and Daniel L. Wood, Appellants
                                                     v.
                         HSBC BANK USA, N.A. and Ocwen Loan Servicing, L.L.C., Appellees.

                                          No. 14–13–00389–CV.          |    July 31, 2014.

Synopsis
Background: Borrowers, who obtained home-equity loan that encumbered their homestead with a lien, sued current lienholder,
loan servicer, and other defendants seeking declaratory judgment and relief for breach of security instrument. Current lienholder
counterclaimed, seeking declaration that it was equitably subrogated to rights of prior lienholders. The 268th District Court,
Fort Bend County, Brady G. Elliott, J., granted summary judgment in favor of current lienholder and loan servicer and denied
borrowers' motion for summary judgment.



Holdings: Court of Appeals, Marc W. Brown, J., held that:

[1] four-year residual statute of limitations applied to borrowers' constitutional claims;

[2] constitutional claims accrued on date home equity transaction closed; and

[3] breach of contract claim accrued on date hone equity transaction closed.


Affirmed.



 West Headnotes (15)


 [1]    Judgment         Particular defenses
        A defendant moving for summary judgment on the affirmative defense of limitations must: (1) conclusively prove
        when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pleaded or otherwise
        raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered,
        or in the exercise of reasonable diligence should have discovered the nature of its injury; if the movant establishes
        that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact
        issue in avoidance of the statute of limitations. Vernon's Ann.Texas Rules Civ.Proc., Rule 166a(c).

        Cases that cite this headnote


 [2]    Judgment         Weight and sufficiency
        A matter is conclusively established, for purposes of summary judgment, if reasonable people could not differ as to
        the conclusion to be drawn from the evidence. Vernon's Ann.Texas Rules Civ.Proc., Rule 166a(c).




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Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014)




       Cases that cite this headnote


[3]    Homestead         Exceptions from exemptions in general
       Homestead liens that do not comply with constitutional requirements are voidable, rather than void, in light of
       existence of cure provision in constitution. Vernon's Ann.Texas Const. Art. 16, § 50(a, c).

       1 Cases that cite this headnote


[4]    Declaratory Judgment            Limitations and laches
       Borrowers' declaratory judgment action to cancel home equity lien that secured their home equity loan, on the ground
       that lien was defective under State constitution in that the fees exceeded 3% of the loan amount, was not an action to
       recover real property, and thus four-year residual statute of limitations applied to constitutional claims, as claims would
       not support a trespass to try title action and required equitable powers of court to cancel lien. Vernon's Ann.Texas
       Const. Art. 16, § 50(a, c); V.T.C.A., Civil Practice & Remedies Code § 16.051.

       2 Cases that cite this headnote


[5]    Limitation of Actions        Recovery of Real Property
       An action for the recovery of real property, to which the four-year residual statute of limitations would not apply, is
       one that would support a trespass to try title suit without first invoking the equitable powers of the court to cancel a
       deed. V.T.C.A., Civil Practice & Remedies Code § 16.051; V.T.C.A., Property Code § 22.001(a).

       1 Cases that cite this headnote


[6]    Trespass to Try Title        Nature and scope of remedy
       A trespass to try title suit is generally used to clear problems in chains of title or to recover possession of land
       unlawfully withheld from a rightful owner. V.T.C.A., Property Code § 22.001(a).

       Cases that cite this headnote


[7]    Declaratory Judgment            Validity and construction of deeds
       A declaratory judgment action provides an efficient procedural method for seeking a declaration of rights regarding
       the construction or validity of deeds by those whose rights are affected by such instruments.

       Cases that cite this headnote


[8]    Limitation of Actions        Penalties and Forfeitures
       Borrowers' cause of action challenging the validity of home equity lien on ground that it was defective under State
       constitution, in that fees exceeded 3% of the loan amount, accrued, and four-year limitations period began to run,
       on the date that the home equity transaction closed, rather than after the 60–day period to cure deficiencies expired,
       in borrowers' declaratory judgment action against current lienholder and loan servicer to cancel lien; legal injury
       occurred when the transaction closed, the facts that would have alerted borrowers to potential constitutional violations
       existed when the transaction closed, as did their right to seek a judicial remedy, and nothing in constitution prevented
       borrowers from initiating declaratory judgment action as soon as the transaction closed. Vernon's Ann.Texas Const.
       Art. 16, § 50(a, c); V.T.C.A., Civil Practice & Remedies Code § 16.051.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014)




       Cases that cite this headnote


[9]    Limitation of Actions        Causes of action in general
       Generally, a cause of action accrues, for statute of limitations purposes, when a wrongful act causes a legal injury.

       1 Cases that cite this headnote


[10]   Limitation of Actions        Penalties and Forfeitures
       In cases involving a challenge to the validity of a home-equity lien on constitutional grounds, the legal injury occurs,
       and the cause of action accrues for statute of limitations purposes, on the date the transaction closes. Vernon's
       Ann.Texas Const. Art. 16, § 50(a, c); V.T.C.A., Civil Practice & Remedies Code § 16.051.

       1 Cases that cite this headnote


[11]   Declaratory Judgment            Appeal and Error
       Borrowers, in declaratory judgment action seeking to cancel home equity lien on ground that it was constitutionally
       defective, failed to adequately brief their arguments that statute of limitations was tolled due to current lienholder's
       alleged continuing and ongoing constitutional violations, and thus borrowers waived those arguments on appeal,
       where borrowers did not explain or cite any legal authority in support of their contention. Rules App.Proc., Rule
       38.1(i); V.T.C.A., Civil Practice & Remedies Code § 16.051.

       Cases that cite this headnote


[12]   Limitation of Actions        Effect of security
       Borrowers' breach of contract claim, alleging that current lienholder and loan servicer breached security agreement that
       created borrower's home equity lien by charging fees exceeding 3% of loan amount in violation of State constitution,
       accrued, and the four-year residual statute of limitations began to run, on the date that the excessive fees were charged,
       namely the date that the transaction closed, rather than the date on which borrowers sent current lienholder notice of
       the alleged constitutional violations; absent mitigating circumstances, which borrowers did not allege, borrowers had
       four years in which to demand a cure and file breach of contract action. Vernon's Ann.Texas Const. Art. 16, § 50(a)
       (6)(E); V.T.C.A., Civil Practice & Remedies Code § 16.051.

       Cases that cite this headnote


[13]   Limitation of Actions        Breach of contract in general
       A claim for breach of contract accrues, for statute of limitations purposes, when the contract is breached.

       Cases that cite this headnote


[14]   Limitation of Actions        Demand for performance of contract
       Generally, when demand is a condition precedent to the right to sue, the statute of limitations does not begin to run
       until demand is made, unless the demand is waived or unreasonably delayed.

       Cases that cite this headnote




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Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014)




 [15]   Limitation of Actions       Demand for performance of contract
        Where demand is a prerequisite to a right of action, the injured party must make the demand within a reasonable
        time after it may lawfully be made; the reasonableness of the delay is normally a fact question, but in the absence of
        mitigating circumstances, the law will ordinarily consider a reasonable time as being coincident with the running of
        the statute of limitations, and an action will be barred if a demand is not made within that period.

        Cases that cite this headnote




Attorneys and Law Firms

*587 Russell S. Post, Anh Dinh, Constance H. Pfeiffer, Robert Petersen, Robert C. Lane, Houston, for Appellants.

Valerie Anne Henderson, Houston, for Appellees.

Panel consists of Justices BOYCE, CHRISTOPHER, and BROWN.



                                                      *588 OPINION

MARC W. BROWN, Justice.

This case arises out of a home-equity loan obtained by appellants Alice M. Wood and Daniel L. Wood in 2004 that encumbered
their homestead with a lien. The Woods appeal the summary judgment granted in favor of appellees HSBC Bank USA, N.A.
and Ocwen Loan Servicing, L.L.C. The Woods presented a single issue on appeal, which we address in two separate sub-issues:

  (1) Whether the Texas Civil Practice and Remedies Code section 16.051 four-year statute of limitations bars the Woods'
     claims for monetary and declaratory relief based on HSBC's and Ocwen's alleged violations of the home-equity lending
     protections found in article XVI, section 50(a)(6), of the Texas Constitution.

  (2) Whether the section 16.051 statute of limitations bars the Woods' claim for monetary relief based on HSBC's and Ocwen's
     alleged breach of the security instrument creating the home-equity lien.

Because we conclude that the Woods' claims are barred by limitations, we affirm.



                                    I. FACTS AND PROCEDURAL BACKGROUND

On July 2, 2004, the Woods obtained a home-equity loan of $76,000 from Fremont Investment & Loan, secured by a first
lien on their homestead located in Fresno, Fort Bend County, Texas. On March 16, 2012, the Woods sent HSBC, the current
holder of the lien, a “Notice of Request to Cure.” The Notice alleged that the home-equity lien violated seven provisions of
article XVI, section 50(a)(6), of the Texas Constitution and demanded that HSBC cure the alleged violations. HSBC did not
respond to the Woods' letter.

On July 9, 2012, the Woods sued HSBC, Ocwen, Ameriapraise, Inc., and Joel Brock seeking forfeiture of principal and interest
for the constitutional violations, damages for breach of contract, damages for fraud, and a declaratory judgment that (1) the
loan and accompanying home-equity lien were void, (2) HSBC failed to cure the constitutional defects, and (3) HSBC must
forfeit all principal and interest paid on the loan. HSBC and Ocwen answered on August 10, 2012. HSBC filed a counterclaim
on February 28, 2013, seeking a declaration that it was equitably subrogated to the rights of the prior lienholders.



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Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014)




On January 3, 2013, the Woods filed a motion for summary judgment on their claim that the fees exceeded three percent of the
loan amount. On February 7, 2013, HSBC and Ocwen filed a hybrid traditional and no-evidence motion for summary judgment.
In their motion, HSBC and Ocwen asserted that all of the Woods' claims were barred by limitations, that no tolling rule delayed
the accrual of the Woods' claims, that the constitutional claims failed as a matter of law, that the Woods' breach of contract
claim failed as a matter of law, and that no evidence supported the Woods' fraud claim. 1 On April 4, 2013, the trial court
granted HSBC's traditional and no- *589 evidence motions and denied the Woods' motion for summary judgment. The Woods
then nonsuited defendants Ameriapraise, Inc. and Joel Brock, and HSBC nonsuited its counterclaim for equitable subrogation
against the Woods. The Woods timely appealed.



                                 II. SUMMARY JUDGMENT STANDARD OF REVIEW

 [1] [2] We review the trial court's granting of summary judgment de novo. Mid–Century Ins. Co. of Tex. v. Ademaj, 243
S.W.3d 618, 621 (Tex.2007). To prevail on a traditional motion for summary judgment, the movant must carry the burden of
showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Tex.R. Civ.
P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). When reviewing a
traditional summary judgment granted in favor of the defendant, we determine whether the defendant conclusively disproved
at least one element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Am. Tobacco Co.
v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997).

            A defendant moving for summary judgment on the affirmative defense of limitations ... must (1)
            conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and
            has been pleaded or otherwise raised, by proving as a matter of law that there is no genuine issue of
            material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have
            discovered the nature of its injury. If the movant establishes that the statute of limitations bars the action,
            the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute
            of limitations.

KPMG Peat Marwick, 988 S.W.2d at 748 (footnotes omitted). A matter is conclusively established if reasonable people could
not differ as to the conclusion to be drawn from the evidence. Farmers Ins. Exch. v. Rodriguez, 366 S.W.3d 216, 221 (Tex.App.-
Houston [14th Dist.] 2012, pet. denied). In deciding whether a disputed material fact issue exists precluding summary judgment,
we must take evidence favorable to the non-movant as true, and we must indulge every reasonable inference and resolve any
doubts in favor of the non-movant. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994). We will affirm
the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious.
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003).



                                                       III. DISCUSSION

A. The Woods' claims for monetary and declaratory relief under Texas Constitution article XVI, section 50(a)(6), are
barred by the section 16.051 four-year statute of limitations.
The Woods alleged in their petition that the home-equity lien on their residence violated article XVI, sections 50(a)(6)(B), 50(a)
(6)(E), 50(a)(6)(Q)(v), and 50(a)(6)(Q)(viii), of the Texas Constitution. The Woods contend that their home-equity lien is void
because of section 50(c), which states, “No mortgage, trust deed, or other lien on the homestead shall ever be valid unless it
secures a debt described by this section ....” Tex. Const. art. XVI, § 50(c). The Woods assert that section 50(c) renders “void
but curable” any home-equity lien that does not strictly comply with a provision of section 50(a)(6). Consequently, because an
action to remove a cloud on *590 title is not subject to the four-year residual statute of limitations if a lien is void, see Ford




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Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014)


v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex.2007), the Woods argue that the trial court erred in granting summary
judgment in favor of HSBC.

HSBC and Ocwen respond that the Woods' constitutional claims are barred by the four-year residual statute of limitations.
Relying on the Dallas Court of Appeals' decision in Williams v. Wachovia Mortg. Corp., 407 S.W.3d 391 (Tex.App.-Dallas
2013, pet. denied), and the Fifth Circuit Court of Appeals' decision in Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667
(5th Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 196, 187 L.Ed.2d 256 (2013), they contend a lien that violates section
50(a)(6) is voidable. They further assert that section 50(a)(6)(Q)(x) allows a lender to cure a lien that would otherwise be invalid.
HSBC argues that the trial court properly granted summary judgment on limitations grounds because a voidable lien is subject
to limitations and the Woods did not file suit until eight years after closing the transaction.


1. Home-equity liens that do not comply with section 50(a)(6) are voidable.
The fundamental question we face today is whether a home-equity lien that violates section 50(a)(6) of the Texas Constitution
is void or voidable. Two courts have recently concluded that constitutionally noncompliant homestead liens are voidable. First,
like the Woods, the plaintiffs in Priester obtained a home-equity loan that did not comply with the constitutional requirements.
708 F.3d at 671. Five years after the transaction closed, the plaintiffs sent a letter to the defendant, which had acquired the loan
from the original lender, requesting cure under section 50(a)(6)(Q)(x). Id. The defendant took no action to cure the perceived
infirmities. Id. The plaintiffs then sued the defendants for a declaratory judgment that the loan and lien on their home were void
ab initio, that the defendants had failed to cure, and that the defendants were required to forfeit all principal and interest. Id. In
deciding whether a statute of limitations applied to the plaintiffs' claims, the Priester court reasoned:

  The decision in Doody v. Ameriquest Mortgage Co., 49 S.W.3d 342 (Tex.2001), offers indirect support for the applicability
  of limitations. The court responded to a question certified by this court on the issue of cure, explaining that a lien cured under
  Section 50(a)(6)(Q) became valid even if it was “invalid” before the cure. Id. at 347. Discussing forfeiture, the court stated
  that “if a lien that secures such a loan is voided,” the lender loses all rights to recovery. Id. at 346. That language suggests that
  the Texas Supreme Court considers liens created in violation of Section 50(a)(6) to be voidable rather than void—a “void”
  lien could not be “voided” by future action.

708 F.3d at 674. The Priester court further noted that “[b]ecause a cure provision exists in Section 50(a)(6)(Q), liens that are
contrary to the requirements of § 50(a) are voidable rather than void from the start.” Id. at 674 n. 4. 2

 *591 Second, after the Priester decision was issued, the Dallas Court of Appeals faced a similar question in Williams. In
that case, the plaintiff's husband took out a loan on the couple's residence and represented himself to be an unmarried man.
Williams, 407 S.W.3d at 392. Six years after she discovered the home-equity loan and lien, the plaintiff sought declaratory
judgment that the home-equity lien was void. Id. at 392–93, 398. The trial court granted the defendants' motion for summary
judgment, which was based in part on the applicability of the four-year residual statute of limitations found in section 16.051
of the Texas Civil Practice and Remedies Code. Id. at 393. The plaintiff argued on appeal that the home-equity lien on her
homestead was void because she did not sign the agreement granting the lien or consent to it. Id. at 395; see Tex. Const. art.
XVI, § 50(a)(6)(A). Finding the Priester court's analysis persuasive, the Williams court held that the noncompliant home-equity
lien was voidable. Id. at 397.

We too find the Priester court's analysis persuasive not only because of its sound reasoning, but also because its conclusion
comports with Texas Supreme Court precedent on the key distinction between a void act and a voidable act, which is a party's
ability—either through its own action or through the judicial process—to disaffirm, ratify, or confirm a voidable act. See Brazzel
v. Murray, 481 S.W.2d 801, 803 (Tex.1972) (“A void act is one entirely null within itself, not binding on either party, and which
is not susceptible of ratification or confirmation.... A voidable act ... is binding until disaffirmed, and ... may be made finally
valid by failure within proper time to have it annulled, or by subsequent ratification or confirmation.”); Slaughter v. Qualls, 139
Tex. 340, 162 S.W.2d 671, 674 (1942); Murchison v. White, 54 Tex. 78, 81 (1880); Cummings v. Powell, 8 Tex. 80, 85 (1852);
see also Oles v. Curl, 65 S.W.3d 129, 131 n. 1 (Tex.App.-Amarillo 2001, no pet.) (“Simply put, if a supposedly void act can be


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Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014)


validated then the act cannot actually be void.”); In re Moreno, 4 S.W.3d 278, 280–81 (Tex.App.-Houston [14th Dist.] 1999,
no pet.); Bayoud v. Bayoud, 797 S.W.2d 304, 309 (Tex.App.-Dallas 1990, writ denied).

Keeping this distinction in mind, if we were to decide that a noncompliant home-equity lien is void from the start, then the lien
would not be susceptible to correction, ratification, confirmation, disaffirmation, or even cure. While this may have been the
case prior to the 1997 constitutional amendment that added the section 50(a)(6)(Q)(x) cure provisions, it is not the case now.
The 1997 home-equity loan amendment affords lenders the means to correct mistakes in order to validate a noncompliant home-
equity lien. Doody, 49 S.W.3d at 346 (discussing Collier v. Valley Bldg. & Loan Ass'n, 62 S.W.2d 82, 84 (Tex.Com.App.1933,
holding approved)). The section 50(a)(6)(Q)(x) cure provisions place noncompliant home-equity liens on the voidable side of
the void-voidable scale. 3

 *592 Despite the Woods' argument that a plain reading of section 50(c) necessitates finding a constitutionally noncompliant
lien void, our conclusion is consistent with the rules governing interpretation of the Texas Constitution:

            When interpreting our state constitution, we rely heavily on its literal text and must give effect to its plain
            language. We strive to give constitutional provisions the effect their makers and adopters intended. We
            construe constitutional provisions and amendments that relate to the same subject matter together and
            consider those amendments and provisions in light of each other. And we strive to avoid a construction
            that renders any provision meaningless or inoperative.

Doody, 49 S.W.3d at 344 (citations omitted). In adhering to these core principles, the Doody court stated:

            [T]he cure provision in section 50(a)(6)(Q)(x) applies to all the lender's obligations under the ‘extension
            of credit’ including section 50(c)'s requirements that to be valid a homestead must secure a debt described
            by this section.

Id. at 345. Accepting the Woods' position would require us to read section 50(c) in isolation and in contravention of Texas
Supreme Court precedent, which we decline to do.

[3] Accordingly, we hold that because a cure provision exists in the Texas Constitution, homestead liens that do not comply
with the constitutional requirements are voidable. Priester, 708 F.3d at 674; Williams, 407 S.W.3d at 396–97.


2. The four-year statute of limitations of Texas Civil Practice and Remedies Code section 16.051 applies to the Woods'
constitutional claims.
 [4] Having determined that noncompliant home-equity liens are voidable, and because such liens are subject to limitations,
we must decide which statute of limitations applies to the Woods' constitutional claims. “Every action for which there is no
express limitations period, except an action for the recovery of real property, must be brought not later than four years after the
day the cause of action accrues.” Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (West 2008). Section 50(a)(6) does not contain an
express limitations period. Williams, 407 S.W.3d at 394. Therefore, the Woods' causes of action based on HSBC and Ocwen's
alleged violations of section 50(a)(6) are subject to the section 16.051 four-year residual statute of limitations.

 [5] [6] [7] Anticipating the possibility that section 16.051 would apply to their constitutional claims, the Woods assert that
section 16.051 does not apply to their declaratory judgment action to cancel HSBC's lien because it constitutes an action for
the recovery of real property. An action for the recovery of real property is one that would support a trespass to try title suit
without first invoking the equitable powers *593 of the court to cancel a deed. Miles v. Martin, 159 Tex. 336, 321 S.W.2d
62, 69 (1959); Carr v. Weiss, 984 S.W.2d 753, 762 (Tex.App.-Amarillo 1999, pet. denied); see also Neill v. Pure Oil Co.,
101 S.W.2d 402, 404 (Tex.Civ.App.-Dallas 1937, writ ref'd); Landram v. Robertson, 195 S.W.2d 170, 175 (Tex.Civ.App.-
San Antonio 1946, writ ref'd n.r.e.). A trespass to try title suit is “the method of determining title to lands, tenements, or other
real property.” Tex. Prop.Code Ann. § 22.001(a) (West 2000). It is generally used to clear problems in chains of title or to



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Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014)


recover possession of land unlawfully withheld from a rightful owner. Martin v. Amerman, 133 S.W.3d 262, 265 (Tex.2004).
A declaratory judgment action, on the other hand, provides an efficient procedural method for seeking a declaration of rights
regarding the construction or validity of deeds by those whose rights are affected by such instruments. Jordan v. Bustamante,
158 S.W.3d 29, 35 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).

Initially, we note that the Woods' claim for forfeiture of principal and interest is an action to recover money damages. As such,
it is not an action for the recovery of real property. Nor is the Woods' declaratory judgment action to void the home-equity lien
—which does not implicate any of the issues resolved by a trespass to try title suit—an action for the recovery of real property.
Cf. Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14–10–00090–CV, 2011 WL 1364070, at *4 (Tex.App.-Houston [14th
Dist.] Apr. 12, 2011, pet. denied) (mem. op.) (where defendant did not dispute plaintiff's title to property and plaintiff did
not dispute defendant's ownership of deed of trust, plaintiff's claim that deed of trust was invalid did not implicate any issues
resolved by trespass to try title suit).

Citing the general principle that the legal and equitable estates in real property are severed when a mortgagor executes a deed
of trust, see Flag–Redfern Oil Co. v. Humble Expl. Co., Inc., 744 S.W.2d 6, 8 (Tex.1987), the Woods further contend that their
suit to invalidate the home-equity lien is an action to recover “equitable title.” Therefore, it is an action to recover real property.
The Woods then cite two cases, MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334 (1944), and In re Lemons, 281 S.W.3d
643 (Tex.App.-Tyler 2009, no pet.), for the proposition that “the Supreme Court has long held that suits for equitable title are
not subject to the 4–year residual statute of limitations.”

We reject the Woods' argument. In MacDonald, the plaintiff brought an action in trespass to try title seeking to impose a
constructive trust on the legal title to real property acquired by the defendant through an alleged breach of fiduciary duty. 180
S.W.2d at 335–36. The Texas Supreme Court held that if the plaintiff could successfully establish a relationship of trust and
confidence with the defendant, then the four-year statute of limitations would not apply to the plaintiff's suit because it would
be an action to recover real property. Id. at 338. In Lemons, the plaintiff sued to impose a constructive trust on the legal title to
real property purchased by the defendant with funds that were removed from the plaintiff's bank account without authority. 281
S.W.3d at 645. The defendant moved to transfer venue under section 15.011 of the Texas Civil Practice and Remedies Code. Id.
at 646. Section 15.011 is a mandatory venue provision stating that “[a]ctions for recovery of real property ... shall be brought in
the county in which all or a part of the property is located.” Tex. Civ. Prac. & Rem.Code Ann. § 15.011 (West 2002); Lemons,
281 S.W.3d at 646. The Tyler Court of Appeals held that *594 section 15.011 applied to the plaintiff's claim because “a suit
to impose a constructive trust on real property is a suit for the recovery of real property.” Lemons, 281 S.W.3d at 647.

Based on the context provided by the facts of MacDonald and Lemons, the more accurate proposition is that suits for equitable
title by reason of a constructive trust are not subject to the four-year residual statute of limitations because a beneficiary's
interest under a constructive trust will support an action in trespass to try title. See Binford v. Snyder, 144 Tex. 134, 189 S.W.2d
471, 476 (1945); Grunwald v. Grunwald, 487 S.W.2d 240, 245 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref'd n.r.e.); Gates
v. Coquat, 210 S.W.2d 614, 615 (Tex.Civ.App.-San Antonio 1948, no writ).

Here, the Woods are not attempting to impose a constructive trust on the home-equity lien and do not allege that HSBC has
acquired legal title through wrongdoing. To the contrary, the Woods have merely asserted a cause of action to cancel their
home-equity lien, which will not support an action in trespass to try title and which requires the equitable powers of the court to
determine. Cf. Neill, 101 S.W.2d at 403 (“[P]laintiffs' action [to cancel the voidable deeds] rests upon equitable title, assertion
of which requires the aid of a court of equity to determine, thus the action is not one to recover real estate but one to remove
the impediment to such title, and is barred by the [article 5529, now section 16.051] statute of limitation....”); Johnson v. Wood,
138 Tex. 106, 157 S.W.2d 146, 148 (Tex.Com.App.1941) (a cause of action to cancel a conveyance will not support an action
in trespass to try title); see also Groves, 2011 WL 1364070, at *4 (declaratory judgment action to cancel deed of trust did not
implicate issues resolved by trespass to try title suit).




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Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014)


Because the Woods' declaratory judgment action to cancel their home-equity lien would not support a trespass to try title action
and requires the equitable powers of the court to cancel their lien, their declaratory judgment action to cancel the home-equity
lien is not an action to recover real property.

We conclude that the section 16.051 four-year statute of limitations applies to the Woods' constitutional claims.


3. The Woods' constitutional claims accrued on July 2, 2004, the date the home-equity transaction closed.
 [8] [9] [10] We now address whether HSBC and Ocwen conclusively proved when the Woods' cause of action accrued.
Generally, a cause of action accrues when a wrongful act causes a legal injury. Etan Indus., Inc. v. Lehmann, 359 S.W.3d
620, 623 (Tex.2011); Williams, 407 S.W.3d at 398. In cases involving a challenge to the validity of a home-equity lien on
constitutional grounds, the legal injury occurs on the date the transaction closes. Priester, 708 F.3d at 676; Williams, 407
S.W.3d at 398; Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834, 840 (Tex.App.-Dallas 2008, no pet.); Schanzle v.
JPMC Specialty Mortg. LLC, No. 03–09–00639–CV, 2011 WL 832170, at *4 (Tex.App.-Austin Mar. 11, 2011, no pet.) (mem.
op.). Here, the Woods are challenging the validity of the home-equity lien on constitutional grounds. Therefore, the Woods'
constitutional claims accrued on July 2, 2004, the date the Woods' home-equity loan closed.

In reaching this conclusion, we reject the Woods' alternative arguments for a later accrual date. The Woods initially rely on
Dessommes v. Dessommes, 543 S.W.2d 165 (Tex.Civ.App.-Texarkana 1976, writ ref'd n.r.e.), in support of their position *595
that no controversy arose with respect to their declaratory judgment action until HSBC failed to cure. Essentially, the Woods
argue that, for purposes of determining the accrual date, their legal injury did not occur until the sixty-day period for cure
expired. See Tex. Const. art. XVI, § 50(a)(6)(Q)(x). However, Dessommes simply restates the general principle that a statute
of limitations begins to run when facts come into existence authorizing a party to seek a judicial remedy, i.e., when the legal
injury occurs. 543 S.W.2d at 169 (citing Williams v. Pure Oil Co., 124 Tex. 341, 78 S.W.2d 929, 931 (1935)); see also Knott,
128 S.W.3d at 221.

We have already held that the legal injury in this case occurred when the transaction closed on July 2, 2004. The facts that
would have alerted the Woods to potential constitutional violations—e.g., fees exceeding three percent of the loan amount—
existed when the transaction closed, as did their right to seek a judicial remedy for those violations. Furthermore, nothing in
the Texas Constitution prevented the Woods from initiating their declaratory judgment action as soon as the transaction closed.
See Priester, 708 F.3d at 675 n. 6 (“[T]here is nothing in the Texas Constitution that suggests that the borrower must seek
cure before filing suit.”).

 [11] The Woods next argue that the statute of limitations was tolled because of HSBC's “continuing and ongoing violations”
of the Texas Constitution. The Woods did not explain or cite any legal authority in support of their contention. This issue is
therefore inadequately briefed. See Tex.R.App. P. 38.1(i); In re S.A.H., 420 S.W.3d 911, 929 (Tex.App.-Houston [14th Dist.]
2014, no pet.). Because we conclude that the Woods have waived error on this particular argument, we decline to address it. 4

In sum, because a cure provision exists in the Texas Constitution, homestead liens that do not comply with the constitutional
requirements are voidable. The section 16.051 four-year residual statute of limitations applies to the Woods' constitutional
claims, and their constitutional claims are not actions for the recovery of real property. The Woods' constitutional claims accrued
when the home-equity transaction closed on July 2, 2004. The Woods had until July 2, 2008, to file their petition. The Woods
did not file their original petition until July 9, 2012.

With regard to the Woods' constitutional claims, we conclude that the trial court did not err in granting HSBC's motion for
summary judgment on limitations grounds. The Woods' first sub-issue is overruled. 5


*596 B. The Woods' breach-of-contract claim was barred by the section 16.051 four-year statute of limitations.



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Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014)


 [12] The Woods alleged in their second amended petition that HSBC and Ocwen breached paragraph 13 of the security
agreement that created the home-equity lien by charging fees exceeding three percent of the loan amount, in violation of section
50(a)(6)(E) of the Texas Constitution. 6 The Woods contend on appeal that because notice is a prerequisite to filing suit under
the security instrument, 7 their cause of action for breach of contract did not accrue until March 16, 2012, the date they sent
HSBC notice of the alleged constitutional violations. HSBC and Ocwen respond that the Woods' breach-of-contract claim is
barred by limitations because the Woods filed suit more than four years after their claim accrued on July 2, 2004, when the
transaction closed.

 [13] [14] [15] The limitations period for a breach-of-contract cause of action is four years. See Tex. Civ. Prac. & Rem.Code
Ann. § 16.051; Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.2002). A claim for breach of contract accrues when the contract is
breached. Barker v. Eckman, 213 S.W.3d 306, 311 (Tex.2006); Stine, 80 S.W.3d at 592. Generally, when demand is a condition
precedent to the right to sue, the statute of limitations does not begin to run until demand is made, unless the demand is waived
or unreasonably delayed. Gabriel v. Alhabbal, 618 S.W.2d 894, 896 (Tex.Civ.App.-Houston [1st Dist.] 1981, writ ref'd n.r.e.).

            Where demand is a prerequisite to a right of action, the injured party must make the demand within
            a reasonable time after it may lawfully be made.... The reasonableness of the delay is normally a fact
            question, but in the absence of mitigating circumstances, the law will ordinarily consider a reasonable
            time as being coincident with the running of the statute, and an action will be barred if a demand is not
            made within that period.

Barnes v. LPP Mortg., Ltd., 358 S.W.3d 301, 306 (Tex.App.-Dallas 2011, pet. denied) (quoting Stevens v. State Farm Fire &
Cas. Co., 929 S.W.2d 665, 671 (Tex.App.-Texarkana 1996, writ denied)).

 *597 Assuming, for the sake of argument, that HSBC did in fact breach the security agreement by charging fees in excess of
three percent of the loan amount, the breach occurred on the date the excessive fees were charged. The Woods referred to certain
itemized charges in the HUD–1 settlement statement as evidence that HSBC assessed excessive fees. 8 The HUD–1 identified
the settlement date as July 2, 2004, which coincides with the closing date of the transaction. Therefore, the alleged excessive
fees were charged, and the Woods' breach-of-contract claim accrued, on July 2, 2004. Absent mitigating circumstances, the
Woods had until July 2, 2008, to demand cure and file their breach-of-contract cause of action. The Woods did not demand
cure until March 16, 2012, and they did not file their original petition until July 9, 2012. The Woods did not allege in their live
petition any mitigating circumstances to justify waiting nearly eight years to demand cure.

Therefore, with regard to the Woods' breach-of-contract claim, we conclude that the trial court did not err in granting HSBC
and Ocwen's motion for summary judgment on limitations grounds. The Woods' second sub-issue is overruled.



                                                           IV. CONCLUSION

The trial court did not err by granting summary judgment in favor of HSBC and Ocwen on limitations grounds. We overrule
both of the Woods' sub-issues on appeal and affirm the trial court's judgment.



Footnotes
1      The Woods have abandoned their challenge to the no-evidence summary judgment in favor of HSBC and Ocwen on the fraud claim
       because the Woods have not raised the fraud issue on appeal. See Tex.R.App. P. 38.1(f), 47.1; Shafaii Children's Trust & Party &
       Reception Ctr., Inc. v. W. Am. Ins. Co., 417 S.W.3d 614, 622 n. 6 (Tex.App.-Houston [14th Dist.] 2013, pet. denied); Martinez v. El
       Paso Cnty., 218 S.W.3d 841, 844 (Tex.App.-El Paso 2007, pet. struck) (“When reviewing a civil matter, an appellate court has no
       discretion to consider an issue not raised in the appellant's brief, even if the ends of justice so require.”); see also Clonts v. Johnson,
       116 Tex. 489, 294 S.W. 844, 846 (Tex.Com.App.1927).



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Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014)


2     Priester effectively overruled prior federal district court cases that reached the opposite conclusion. See Ausmus v. Deutsche Bank
      Trust Co. Nat'l Ass'n, No. 3:13–CV–148, 2013 WL 3938515, at *2–*3 (S.D.Tex. Jul. 29, 2013); see also Moran v. Ocwen Loan
      Servicing, L.L.C., 560 Fed.Appx. 277, 277 (5th Cir.) (Priester is controlling precedent in Fifth Circuit); Smith v. JPMorgan Chase
      Bank Nat'l Ass'n, 825 F.Supp.2d 859, 868 (S.D.Tex.2011) (holding that noncompliant home-equity liens are void ab initio), adhered
      to on reconsideration sub nom.; Santos v. CitiMortgage, Inc., No. 3:11–CV–2592–M–BK, 2012 WL 1058159, at *3 (N.D.Tex. Feb.
      7, 2012) (same), rejected in part, 2012 WL 1065464 (N.D.Tex. Mar. 29, 2012).
3     The Woods cite Collier, in support of the proposition that the Doody court created a new “void but curable” status for section 50(a)
      (6) home-equity liens. Collier stands for the proposition that an invalid lien cannot be ratified unless the authority to ratify it exists
      under our Constitution or statutes. Collier v. Valley Bldg. & Loan Ass'n, 62 S.W.2d 82, 84 (Tex.Com.App.1933, holding approved).
      Referring to Collier, the Doody court made clear that the 1997 home-equity loan amendment affords lenders the authority to ratify
      an invalid lien. Doody, 49 S.W.3d at 346. The Doody court's statement supports our conclusion that constitutionally noncompliant
      liens are voidable.
         The Woods' further reliance on York v. State, 373 S.W.3d 32 (Tex.2012), in support of their “void but curable” argument is also
         misplaced. The York court held that a judgment that violates a bankruptcy automatic stay is void unless a federal bankruptcy court
         modifies the stay. Id. at 40. The Woods' situation is distinguishable because the lender in a home-equity transaction has the ability
         under our Constitution to cure the noncompliant lien without the involvement of the federal judiciary or any other third party.
         Furthermore, the Texas Supreme Court has noted that the rationale for classifying judgments in violation of an automatic stay
         as void was that bankruptcy law vests “exclusive jurisdiction” in the bankruptcy courts. See Roccaforte v. Jefferson Cnty., 341
         S.W.3d 919, 923 (Tex.2011) (citing Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940)). That rationale does
         not apply to the present case.
4     The Woods pleaded two alternative tolling theories in their second amended petition—the discovery rule and equitable tolling. Both
      theories were addressed in HSBC and Ocwen's motion for summary judgment and in the Woods' response to HSBC and Ocwen's
      motion for summary judgment. The Woods did not raise these theories on appeal and have therefore abandoned them. See Tex.R.App.
      P. 38.1(f), 47.1; Shafaii Children's Trust, 417 S.W.3d at 622 n. 6; Martinez, 218 S.W.3d at 844 (“When reviewing a civil matter,
      an appellate court has no discretion to consider an issue not raised in the appellant's brief, even if the ends of justice so require.”);
      see also Clonts, 294 S.W. at 846.
5     In an additional argument against the applicability of a statute of limitations to their constitutional claims, the Woods characterize
      their declaratory judgment action as a defense to foreclosure. According to the Woods, because defenses are not governed by the
      statutes of limitations, their declaratory judgment action is not barred by limitations. We have indicated in the foreclosure context
      that a lender's failure to comply with the constitutional requirements is in the nature of an affirmative defense. Wilson v. Aames
      Capital Corp., No. 14–06–00524–CV, 2007 WL 3072054, at *1 (Tex.App.-Houston [14th Dist.] Oct. 23, 2007, no pet.) (mem. op.).
      However, potential defendants like the Woods cannot “use a declaratory judgment to prematurely adjudicate defenses to liability that
      may not yet exist.” Transcon. Realty Investors, Inc. v. Orix Capital Mkts., LLC, 353 S.W.3d 241, 245 (Tex.App.-Dallas 2011, pet.
      denied) (citing Calderon v. Ashmus, 523 U.S. 740, 748, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998), for the proposition that under the
      federal constitution, a party cannot use a declaratory judgment to obtain an advance ruling on an affirmative defense). Nothing in the
      record before us indicates that the Woods were actually faced with foreclosure; thus, their liability may not yet exist, and because
      we are prohibited from issuing advisory opinions, Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993), we
      decline to treat the Woods' declaratory judgment action as a defense to foreclosure.
6     Paragraph 13 of the security agreement reads, in pertinent part: “Lender may not charge fees that are expressly prohibited by this
      Security Instrument or by Applicable Law.” The term “Applicable Law” is defined as “all controlling applicable ... state and local
      statutes ....”
7     Paragraph 19 of the security agreement states, in pertinent part:
            Neither Borrower nor Lender may commence ... any judicial action ... that arises from the other party's actions pursuant to this
            Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security
            Instrument, until such Borrower or Lender has notified the other party ... of such alleged breach and afforded the other party
            hereto a reasonable period after the giving of such notice to take corrective action.
8     For purposes of the HUD–1, “settlement means the process of executing legally binding documents regarding a lien on property that
      is subject to a federally related mortgage loan. This process may also be called ‘closing’ or ‘escrow’ in different jurisdictions.” 24
      C.F.R. § 3500.2(b) (2014).


End of Document                                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         11
24.1. Suspension of Enforcement, TX R APP Rule 24.1




  Vernon's Texas Rules Annotated
    Texas Rules of Appellate Procedure
      Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)
        Rule 24. Suspension of Enforcement of Judgment Pending Appeal in Civil Cases (Refs & Annos)

                                                TX Rules App.Proc., Rule 24.1

                                              24.1. Suspension of Enforcement

                                                           Currentness


(a) Methods. Unless the law or these rules provide otherwise, a judgment debtor may supersede the judgment by:


  (1) filing with the trial court clerk a written agreement with the judgment creditor for suspending enforcement of the judgment;


  (2) filing with the trial court clerk a good and sufficient bond;


  (3) making a deposit with the trial court clerk in lieu of a bond; or


  (4) providing alternate security ordered by the court.


(b) Bonds.


  (1) A bond must be:


     (A) in the amount required by 24.2;


     (B) payable to the judgment creditor;


     (C) signed by the judgment debtor or the debtor's agent;


     (D) signed by a sufficient surety or sureties as obligors; and


     (E) conditioned as required by (d).


  (2) To be effective a bond must be approved by the trial court clerk. On motion of any party, the trial court will review
  the bond.


(c) Deposit in Lieu of Bond.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
24.1. Suspension of Enforcement, TX R APP Rule 24.1




  (1) Types of Deposits. Instead of filing a surety bond, a party may deposit with the trial court clerk:


     (A) cash;


     (B) a cashier's check payable to the clerk, drawn on any federally insured and federally or state-chartered bank or savings-
     and-loan association; or


     (C) with leave of court, a negotiable obligation of the federal government or of any federally insured and federally or state-
     chartered bank or savings-and-loan association.


  (2) Amount of Deposit. The deposit must be in the amount required by 24.2.


  (3) Clerk's Duties; Interest. The clerk must promptly deposit any cash or a cashier's check in accordance with law. The clerk
  must hold the deposit until the conditions of liability in (d) are extinguished. The clerk must then release any remaining funds
  in the deposit to the judgment debtor.


(d) Conditions of Liability. The surety or sureties on a bond, any deposit in lieu of a bond, or any alternate security ordered
by the court is subject to liability for all damages and costs that may be awarded against the debtor--up to the amount of the
bond, deposit, or security--if:


  (1) the debtor does not perfect an appeal or the debtor's appeal is dismissed, and the debtor does not perform the trial court's
  judgment;


  (2) the debtor does not perform an adverse judgment final on appeal; or


  (3) the judgment is for the recovery of an interest in real or personal property, and the debtor does not pay the creditor the
  value of the property interest's rent or revenue during the pendency of the appeal.


(e) Orders of Trial Court. The trial court may make any order necessary to adequately protect the judgment creditor against
loss or damage that the appeal might cause.


(f) Effect of Supersedeas. Enforcement of a judgment must be suspended if the judgment is superseded. Enforcement begun
before the judgment is superseded must cease when the judgment is superseded. If execution has been issued, the clerk will
promptly issue a writ of supersedeas.


Credits
Eff. Sept. 1, 1997.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
24.1. Suspension of Enforcement, TX R APP Rule 24.1




Notes of Decisions (82)

Rules App. Proc., Rule 24.1, TX R APP Rule 24.1
Current with amendments received through 3/15/2015

End of Document                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Rule 11. Agreements To Be in Writing, TX R RCP Rule 11




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part I. General Rules (Refs & Annos)

                                           TX Rules of Civil Procedure, Rule 11

                                          Rule 11. Agreements To Be in Writing

                                                        Currentness


Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced
unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered
of record.


Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by order of July 15, 1987, eff. Jan. 1, 1988.


Editors' Notes

COMMENT--1988
   The amendment makes it clear that Rule 11 is subject to modification by any other rule of Civil Procedure.



Notes of Decisions (567)

Vernon's Ann. Texas Rules Civ. Proc., Rule 11, TX R RCP Rule 11
Current with amendments received through 3/15/2015

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
