                              NUMBER 13-09-00411-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


STEWART PIERCE, VIVIAN FINCH, GENE VOORHIES,
DONALD EUDALY, AND MARGARET FABIAN,                                           Appellants,

                                             v.

CRB PARTNERS, LLC,                                                               Appellee.


                    On appeal from the 197th District Court
                         of Cameron County, Texas.


                          MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Benavides and Vela
            Memorandum Opinion by Chief Justice Valdez

       In this accelerated interlocutory appeal, appellants, Stewart Pierce, Vivian Finch,

Gene Voorhies, Donald Eudaly, and Margaret Fabian, complain about a trial court order

granting a temporary injunction filed by appellee, CRB Partners, LLC. By one issue,

appellants argue that the trial court abused its discretion in granting a temporary injunction
in favor of appellee because: (1) appellee failed to allege a cause of action against

appellants and establish a probable right to recovery after a trial on the merits; and (2) the

temporary injunction is impermissibly over-broad. We dissolve the temporary injunction,

reverse the judgment of the trial court, and remand for proceedings consistent with this

opinion.

                                      I. BACKGROUND

       The dispute in this case centers on various disagreements pertaining to the control

and management of common areas and a golf course in an active adult retirement

community called Cottonwood Creek XXI, a property owned and operated by appellee.

The community is comprised of two subdivisions, Cottonwood Creek Number 1 (“Number

1") and the Fairways at Cottonwood Creek (the “Fairways”). The Number 1 subdivision

was established in January 1984, by a developer known as California Investments, Inc.,

and the Fairways subdivision was established in April 1998. Appellee purchased both

sections in 2006, and began to manage common areas in the community, such as the

swimming pool, jacuzzi, tennis courts, and the clubhouse and an adjoining golf course, a

non-common area.       The Number 1 subdivision is governed by documents entitled,

“Amended Declaration of Covenants, Conditions and Restrictions of Cottonwood Creek No.

1 Subdivision” (the “Number 1 declarations”), and the Fairways subdivision is governed by

documents entitled, “Declaration of Covenants, Conditions and Restrictions for the

Fairways at Cottonwood Creek Subdivision” (the “Fairways declarations”). Shortly after

appellee purchased the property, numerous disputes with appellants arose.

       Appellants claim to be members of the “Cottonwood Creek Property Owners, Inc.”

(“CCPO”), an organization allegedly formed with the intent to be the official representative


                                              2
and liaison for property owners in the community with appellee.1 Appellants allegedly

made numerous requests to have items repaired on the property and asked appellee to

allow the CCPO to inspect appellee’s books and records because the CCPO suspected

that annual dues and assessments routinely paid to appellee were not being used for the

benefit of the community but, rather, to run appellee’s other business ventures.

Apparently, appellee secured bids to repair the items that appellants had deemed broken,

but appellants believed that the bids were unreasonably costly.

        Per various provisions in the subdivisions’ governing documents, appellee was

authorized to recoup its costs of repair by requiring property owners in the community to

pay a special assessment. As such, appellee notified the property owners of the costs of

the repairs and the necessity of a special assessment on January 1, 2009. However, in

order to recoup the costs of the repairs, the subdivisions’ governing documents required

that the community’s property owners vote to approve the repairs. Therefore, appellee

sent the CCPO’s acting president at the time, Ted Machner, several letters requesting that

the repairs and the accompanying special assessment be voted on by the property owners.

On January 14, 2009, Machner sent appellee a letter stating that the CCPO believed that

the costs of the repairs were unreasonably high and notifying appellee that the CCPO

would not be submitting the repairs and the special assessment proposals to the

community’s property owners for a vote.

        Appellee also allegedly denied appellants access to appellee’s books and records

        1
          The record reflects that the Cottonwood Creek Property Owners, Inc. (the “CCPO”) filed docum ents
with the Texas Secretary of State’s Office and was subsequently incorporated on January 5, 1995. Appellee,
however, argued at the June 17, 2009 hearing that the CCPO did not follow the procedures set forth in the
subdivision’s governing docum ents to becom e a registered property owners association for the com m unity.
Appellee appeared to rely on the fact that the CCPO left out the term “Association” in its nam e to support its
argum ent that the CCPO was not the property owners association for the com m unity. In any event, at the
alleged suggestion of appellee, several other owners of the com m unity form ed the Cottonwood Creek
Property Owners Association, Inc., which was incorporated on May 15, 2009, and purports to be the true
property owners association for the com m unity.
                                                      3
because the CCPO had previously conducted an inspection of appellee’s books and

records. In fact, on October 8, 2008, the CCPO issued a report indicating that the

information provided by appellee was complete and accurate and stating that appellee was

not charging the community’s property owners for some of the expenses appellee incurred

in the management of the property. The report also mentioned that appellee had incurred

heavy losses in the managing of the property and that subsequent dues should be

increased to allow appellee to break even after making necessary repairs to the

community. Patricia M. Lopez, former treasurer of the CCPO from February 2008 to

January 2009, filed a statement indicating her role in the creation of the report and noted

that “[a]ll documents presented to the Committee by CRB Partners, LLC were originals and

were examined by the Commission in great detail before the final assessment review

report was written” and that “the final report was thorough and accurate in all respects.”

       Finally, on April 22, 2009, the CCPO sent appellee and all community property

owners a letter stating that appellee had allegedly violated several contractual obligations,

including the following:

       FAILURE TO ACCOUNT for expenditures of monthly assessment fees paid
       directly to CRB. These monies are to be used exclusively for upkeep and
       maintenance of the common area; any request for [an] increase in the
       amount of assessments must be justified and supported by financial records
       acceptable to the [B]oard.

       MULTIPLE BUSINESSES are being operated out of the clubhouse in
       violation of the covenants. No attempt has been made by CRB to discuss
       these matters with the [B]oard or seek approval for such use.

       ALL REVENUE derived from use or rental of the common area, other than
       use authorized by the Board for the property owners, are to be accounted for
       and used exclusively for the benefit and enjoyment of the members of the
       corporation.

       PROOF OF INSURANCE required by the covenants for the benefit and
       protection of the property owners is denied by CRB.
                                             4
        THE BOARD OF DIRECTORS is the designated liaison between CRB and
        the Cottonwood Creek Property Owners Association, Inc., and is confirmed
        by vote of the members. CRB has no right to contravene this authority in any
        manner involving interpretation or application of the by-laws and covenants
        governing this relationship.

Also in its letter, the CCPO requested that “all due monthly assessment fees be withheld

from CRB” to be held in “a trust account established to escrow these funds pending

resolution of these matters.” This letter was signed by each of the appellants in their

representative capacity as officers of the CCPO.

        In response to the CCPO’s April 22, 2009 letter and appellants’ other actions,

appellee filed a verified petition and, among other things, an application for a temporary

injunction, a temporary restraining order, and a permanent injunction. In this filing,

appellee alleged that appellants were tortiously interfering with contracts pertaining to the

creation of the community, the Number 1 and Fairways declarations, by circulating letters

to residents of the community that: (1) “fabricated allegations implying [appellee] was in

violation of [its] duties to the residents”2; (2) “falsely accused [appellee] of many acts which

are unsubstantiated by any evidence”; and (3) encouraged residents to not pay

assessment dues directly to appellee but, rather, to the trust account created by

appellants. As a result of appellants’ instructions regarding the payment of annual

assessment dues, appellee asserted that more than $7,000 had been diverted into

appellants’ trust account.3 Appellee further alleged that appellants’ actions had forced

appellee into “dire financial straits” and that it will be “irreparably injured if Defendants are


        2
          Additionally, appellee alleged, at trial and on appeal, that appellants repeatedly m ade disparaging
com m ents regarding the com m unity to prospective buyers, which, in turn, caused buyers to avoid purchasing
property in the com m unity.


        3
         At the hearing on appellee’s tem porary injunction, appellee asserted that appellants had “convinced
approxim ately 40 or so of the property owners to pay” their annual assessm ent fees to the trust account.
                                                      5
not immediately enjoined from tortuously [sic] interfering in [appellee’s] day to day

business.” Moreover, appellee requested that the trial court issue a temporary injunction:

        (A) restraining Defendants and their officers, agents, servants, employees,
        representatives, assigns and/or any other persons or entities acting on their
        behalf or in concert or participation with them from directly or indirectly doing,
        any of the following:

                 (a)      interfering in any way with the management, operation, and
                          maintenance of Cottonwood Creek including, but not limited to:

                 (b)      interfering with or thwarting the collection of dues and[/]or
                          assessments;

                 (c)      interfering with or thwarting the imposition of assessments for
                          needed repairs;

                 (d)      interfering with or thwarting [appellee’s] ability to manage,
                          operate, and maintain the property in a professional manner to
                          the satisfaction of the abiding . . . and paying residents.

                 (e)      interfering with or thwarting the sale of potential homes,
                          and[/]or lots by spreading malicious and false rumors.

On June 4, 2009, the trial court granted appellee’s request for a temporary restraining

order and set the hearing on appellee’s temporary injunction request for June 17, 2009.

        Appellants filed their original answer on June 15, 2009, generally denying all of the

allegations contained in appellee’s verified petition. Appellants’ original answer also

included a plea supported by verified affidavits stating that appellants were not proper

parties to the underlying suit because the actions about which appellee complains were

allegedly engaged in by appellants as “duly elected officers and board members” of the

CCPO.4 See TEX . R. CIV. P. 93(2) (providing that a pleading verified by affidavit must be

filed where it is alleged that “plaintiff is not entitled to recover in the capacity in which he

        4
           The record reflects that, at the tim e of this suit, the Board of Directors for the CCPO was com prised
of the following individuals: (1) Stewart Pierce as President; (2) Vivian Finch as Vice-President; (3) Gene
Voorhies as Secretary; (4) Donald Eudaly as Treasurer; and (5) Margaret Fabian as Director. It is not entirely
clear from the record before us as to when appellants assum ed their positions with the CCPO.
                                                        6
sues, or that the defendant is not liable in the capacity in which he is sued”). Also, on June

15, 2009, the CCPO filed a verified original petition in intervention, seeking equitable relief,

a declaratory judgment, and a temporary and permanent injunction against appellee.

       In its verified petition in intervention, the CCPO alleged that appellee: (1) “failed and

refused to make the books and records, including financial records of Cottonwood

Subdivision[,] reasonably available to homeowners”; (2) improperly operated “[v]arious

businesses” out of the subdivision clubhouse; (3) “used the assessments for purposes

other than those exclusive purposes set out in the covenants”; (4) “failed to use all fees

collected for use of the common area ‘ . . . exclusively to promote the recreation, health,

safety and welfare of the residents . . .’ as required by Cottonwood Creek No. 1 Covenants,

page 5, Article IV, Section 4.2"; (5) “failed to maintain the insurance required by

Cottonwood Creek Subdivision No. 1 Covenants, page 7, Article IV, Section 4.9(a)”; and

(6) “harassed owners, intimidated owners and attempted to run the Cottonwood

Subdivision in a dictatorial fashion despite the protections set out in the applicable

covenants.”

       On June 19, 2009, after conducting a hearing, the trial court extended appellee’s

temporary restraining order. On June 23, 2009, the trial court amended its order extending

appellee’s temporary restraining order by adding the following language: “The Court

further orders that all monies collected by the Defendants as representatives of

Cottonwood Creeks [sic] Property Owners[,] Inc. be returned to CRB Partners[,] LLC . . . .”

       Subsequently, on August 5, 2009, the trial court conducted a hearing on the CCPO’s

request for injunctive relief. After hearing arguments from all parties involved, the trial court

took the matter under advisement. On September 3, 2009, the trial court entered its first

supplemental order granting appellee’s request for a temporary injunction. In its order, the
                                           7
trial court ordered appellants enjoined from the following actions pertaining to the

subdivision:

        (a) interfering in any way with the management, operation, and maintenance
        of Cottonwood Creek including, but not limited to:

        (b) intrfering with or thwarting the collection of due and[/]or assessments;

        (c) interfering with or thwarting the imposition of assessments for needed
        repairs;

        (d) interfering with or thwarting CRB Partners L.L.C.’s ability to manage,
        operate and maintain Cottonwood Creek.[5]

The order further stated that the cause was set for a trial on the merits for January 19,

2010, and that appellee had deposited $1,000 with the Court Clerk in the form of a bond.

Appellants subsequently filed their notice of accelerated interlocutory appeal, challenging

the trial court’s September 3, 2009 order granting appellee’s temporary injunction request.

See TEX . R. APP. P. 28.1; see also TEX . CIV. PRAC . & REM . CODE ANN . § 51.014(a)(4)

(Vernon 2008).

                                      II. STANDARD OF REVIEW

        The decision to grant or deny a temporary injunction is within the sound discretion

of the trial court. See Yarto v. Gilliland, 287 S.W.3d 83, 89 (Tex. App.–Corpus Christi

2009, no pet.) (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)); see

also Freddie Records, Inc. v. Ayala, No. 13-07-00363-CV, 2009 Tex. App. LEXIS 7681, at

**9-10 (Tex. App.–Corpus Christi Sept. 30, 2009, no pet.) (mem. op.). A reviewing court

should reverse an order granting injunctive relief only if the trial court abused its discretion.

Yarto, 287 S.W.3d at 89. The reviewing court must not substitute its own judgment for the

trial court’s unless the trial court’s action was so arbitrary that it exceeded the bounds of

       5
          The trial court refused to enjoin appellants from m aking any disparaging com m ents regarding
appellee or the com m unity.
                                                   8
reasonable discretion. Id. In reviewing the trial court’s order granting injunctive relief, we

are to draw inferences from the evidence in the manner most favorable to the trial court’s

ruling.    London Mkt. Insurers v. Am. Home Assur. Co., 95 S.W.3d 702, 705 (Tex.

App.–Corpus Christi 2003, no pet.). A trial court does not abuse its discretion when it

bases its decision on conflicting evidence unless the evidence does not reasonably support

the trial court’s decision. See Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 717 (Tex.

App.–Corpus Christi 2001, no pet.). Moreover, on interlocutory appeal of an order granting

injunctive relief, we do not reach the merits of the dispute; instead, we only determine

whether the record supports the trial court’s exercise of discretion. See Bank of Tex., N.A.

v. Gaubert, 286 S.W.3d 546, 552 (Tex. App.–Dallas 2009, no pet.); see also Freddie

Records, Inc., 2009 Tex. App. LEXIS 7681, at *10.

                                    III. APPLICABLE LAW

          A temporary injunction is an extraordinary remedy that: (1) does not issue as a

matter of right; and (2) may not be granted when there is a plain and adequate remedy at

law. See McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984); see also Finnegan v.

Mercer, No. 10-09-00250-CV, 2009 Tex. App. LEXIS 9827, at *7 (Tex. App.–Waco Dec.

30, 2009, pet. filed) (mem. op.). The purpose of a temporary injunction is to maintain the

status quo between litigants.     Butnaru, 84 S.W.3d at 204.        To obtain a temporary

injunction, the applicant must plead and prove the following elements: (1) a cause of

action against the defendant; (2) a probable right to the relief sought; and (3) a probable,

imminent, and irreparable injury in the interim. Id. The party seeking the injunction bears

the burden of proving each of the elements articulated in Butnaru. City of McAllen v.

McAllen Police Officers Union, 221 S.W.3d 885, 893 (Tex. App.–Corpus Christi 2007, pet.

denied); see Butnaru, 84 S.W.3d at 204.
                                              9
                                        IV. ANALYSIS

       In their first issue, appellants argue that appellee was not entitled to a temporary

injunction because appellee did not assert a cause of action against appellants and

establish a probable right to recovery. Specifically, appellants assert that appellee “has no

claim or cause of action against [a]ppellants individually, and no claim or cause of action

against [a]ppellants as members of the board of directors of Cottonwood Creek Property

Owners, Inc.” Appellee contends that the CCPO is not a recognizable property owners

association within the context of the subdivisions’ governing documents, and, thus, the

CCPO does not have any legitimate claim to authority. Appellee further contends that

appellants have interfered with appellee’s ability to impose assessments on property

owners, collect payments, and maintain and operate the common areas in the subdivision;

therefore, the trial court did not abuse its discretion in granting the temporary injunction so

as to maintain the status quo, pending a trial on the merits of the injunction.

A.     Applicable Law

       We construe appellants’ first contention that appellee failed to assert a cause of

action against appellants as a capacity challenge. A party must have both standing to sue

and capacity to sue. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005).

Neither party has advanced a standing argument on appeal. “[T]he issue of capacity ‘is

conceived of as a procedural issue dealing with the personal qualifications of a party to

litigate.’” Id. (quoting 6A CHARLES ALAN W RIGHT , ARTHUR R. MILLER , & MARY KAY KANE,

FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D 1159, at 441 (2d ed. 1990)). “[A] party has

capacity when it has the legal authority to act, regardless of whether it has a justiciable

interest in the controversy.” Id. at 848-49 (citing Nootsie, Ltd. v. Williamson County

Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996)); see El T. Mexican Rests. v. Bacon, 921

S.W.2d 247, 250 (Tex. App.–Houston [1st Dist.] 1995, no writ) (stating that capacity is a

                                              10
party’s legal authority to go into court to prosecute or defend a suit). Standing may be

raised for the first time on appeal; however, capacity must be raised by verified plea in the

trial court or else it is deemed waived. See Lovato, 171 S.W.3d at 849; see also Sixth

RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003); Pledger v. Schoellkopf, 762

S.W.2d 145, 146 (Tex. 1988).

B.     Discussion

       As noted earlier, appellants filed verified affidavits ostensibly contesting their

capacity to be sued. See TEX . R. CIV. P. 93(1). Thus, we conclude that appellants have

preserved their capacity challenge for appeal. See Sixth RMA Partners, L.P., 111 S.W.3d

at 56; Pledger, 762 S.W.2d at 146; see also TEX . R. CIV. P. 93(1).

       In its verified petition, appellee alleged, among other things, that appellants, in their

individual capacities, tortiously interfered with the subdivisions’ governing documents,

which specify appellee’s duty to “manage, operate, and maintain Cottonwood Creek,” by

fabricating allegations and falsely accusing appellee of various violations and by

encouraging residents to not pay annual assessments to appellee directly but, rather, to

appellants’ trust account. In addition, appellee asserted that appellants’ “tortuous [sic]

actions have caused substantial injury to Plaintiffs [appellee] by ruining their reputation,

creating a hostile environment, and potentially loss of millions of dollars in lot and home

sales to potential buyers and[/]or investors and loss of the financial investment of abiding

residents.” See Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1995) (citing

Holloway v. Skinner, 898 S.W.2d 793, 795-96 (Tex. 1995)) (“To recover for tortious

interference with an existing contract, a plaintiff must prove: (1) the existence of a contract

subject to interference; (2) a willful and intentional act of interference; (3) the act was a

proximate cause of the plaintiff’s damages; and (4) actual damage or loss.”).
                                           11
        Despite the allegations contained in appellee’s verified petition, appellants argue

that they are not liable for any wrongdoing because they were acting as officers and

directors of the CCPO, and therefore, appellee should have sued the CCPO rather than

appellants individually. Appellee counters that the CCPO is a “sham” organization that was

not formed within the parameters of the subdivision’s governing documents.6

        Section 2.10 of the Number 1 subdivision’s amended declarations provides that:

        “PROPERTY OWNERS ASSOCIATION” shall mean the Cottonwood Creek
        Property Owners Association, Inc., a non-profit corporation organized under
        the laws of the State of Texas, formed by the OWNERS to:

                 (a) Act as liaison between DECLARANT [appellee] and OWNERS

                 (b) Perform such duties as are designated in the corporate By-laws

                 (c) In the future, to assume responsibility for the upkeep,
                 management, and maintenance of the COMMON AREA, located in
                 Cottonwood Creek Subdivision No. 1, for the benefit of the OWNERS,
                 and for managing the affairs of the subdivision after DECLARANT has
                 relinquished such responsibility.

In arguing on appeal that the CCPO is a “sham organization,” appellee seems to rely on

the fact that the CCPO left out the term “Association” in its corporate name when it was

incorporated with the State of Texas in 1995.

        A review of the record demonstrates that appellee and previous owners and

managers of the community have routinely corresponded with CCPO representatives as

if the CCPO was the property owners association for the community and essentially

recognized the CCPO as the community’s property owners association. In fact, the record

contains: (1) correspondence between Machner, a previous president of the CCPO, and

appellee; (2) reports and letters from the CCPO to appellee regarding a past inspection of
        6
           Appellee even goes as far as com paring the CCPO to the “Republic of Texas” and argues that the
CCPO “is a self-proclaim ed, self-anointed, and illegitim ate parody of a true property owners’ association that
does not even have the proper nam e called for under the Declarations that allow for the creation of a
legitim ate owners’ association.”
                                                      12
appellee’s books and records by the CCPO; and (3) correspondence between appellants

and appellee regarding this dispute. Furthermore, it was argued at the June 17, 2009

hearing that, since its 1995 incorporation, the CCPO has served as the community’s

property owners association and liaison with the owners and managers of the community.

The trial court even recognized at the June 17, 2009 hearing that: “To me, I think, you

know, they just incorporated incorrectly. They just didn’t title it correctly to go with the form,

but it [the CCPO] is the organization [the property owners association].” Therefore, based

on the record before us, we find appellee’s argument that the CCPO is a “sham

organization” to be unpersuasive.

       Because we have concluded that appellee’s argument that the CCPO is a “sham

organization” to be unpersuasive, we continue with our analysis as to whether appellants

had the capacity to be sued individually. The Texas Supreme Court has held that:

               Corporations, by their very nature, cannot function without human
       agents. As a general rule, the actions of a corporate agent on behalf of the
       corporation are deemed the corporation’s acts. For this reason, we have
       held that an officer or director [of a corporation] may not be held liable in
       damages for inducing the corporation to violate a contractual obligation,
       provided that the officer or director acts in good faith and believes that what
       he does is for the best interest of the corporation. Even the officers and
       directors of an ordinary corporation, while acting as such, are not personally
       liable even though they recommend a breach of a valid contract.

Holloway, 898 S.W.2d at 795 (internal citations and quotations omitted) (emphasis added).

       The April 22, 2009 letter, which instigated this lawsuit, was signed by each of the

appellants in their representative capacity as officers and directors of the CCPO. None of

the appellants signed the April 22, 2009 letter or, for that matter, any other documents in

the record in their individual capacity. Appellants argued in the trial court and on appeal

that they engaged in the complained-of actions as officers or directors of the CCPO.

Moreover, appellee has neither presented any evidence indicating that appellants engaged
                                          13
in the complained-of actions in their individual capacities rather than as representatives of

the CCPO, nor obtained a judgment against the CCPO regarding the complained-of

actions.

        Based on the foregoing, we cannot say that appellants would be liable in the

capacity in which they were sued; instead, appellee should have joined and obtained a

judgment against the CCPO.7 See TEX . R. CIV. P. 93(2); Pabich v. Keller, 71 S.W.3d 500,

507 (Tex. App.–Fort Worth 2002, pet. denied) (“The court will not hold individual officers,

directors, or stockholders liable on the obligations of a corporation except where it appears

the individuals are using the corporate entity as a sham to perpetrate a fraud, avoid

personal liability, avoid the effect of a statute, or in a few other exceptional situations.”)8

(citing Bell Oil & Gas Co. v. Allied Chem. Corp., 431 S.W.2d 336, 339 (Tex. 1968); J & J

Marine, Inc. v. Le, 982 S.W.2d 918, 927 (Tex. App.–Corpus Christi 1998, no pet.)); 3-D

Elec. Co., Inc. v. Barnett Constr. Co., 706 S.W.2d 135, 138 (Tex. App.–Dallas 1986, writ

ref’d n.r.e.) (same); see also Lovato, 171 S.W.3d at 848-49; Bacon, 921 S.W.2d at 250.

Because appellants lacked capacity in this case, appellee has failed to establish the first

        7
           The record does reflect that the CCPO intervened in this dispute on June 15, 2009; however, the
trial court’s first supplem ental order granting appellee’s tem porary injunction states that the injunction is
effective against Pierce, Finch, Voorhies, Eudaly, and Fabian in their individual capacities. The record does
not contain an order enjoining the CCPO from engaging in the com plained-of actions.

         In any event, we note that rule 683 of the Texas Rules of Civil Procedure provides that a tem porary
injunction against the CCPO would be “binding . . . upon the parties to the action, their officers, agents,
servants, em ployees, and attorneys . . . .” T EX . R. C IV . P. 683. Thus, appellants likely would be enjoined from
engaging in the com plained-of actions if appellee m ade the C CPO a party to the suit and the trial court
determ ined that injunctive relief is warranted in this case. See id.

           8
             On appeal, appellee argues that the Fort W orth Court of Appeals’ decision in Pabich v. Keller
supports appellee’s contention that appellants were proper parties to the underlying lawsuit because
appellants allegedly used the corporate structure of the CCPO as a sham to perpetrate a fraud or avoid
liability. See 71 S.W .3d 500, 507 (Tex. App.–Fort W orth 2002, pet. denied). W e do not find this argum ent
to be persuasive given that: (1) the owners of the com m unity have regularly corresponded and ostensibly
recognized the CCPO as the com m unity’s property owners association; and (2) the CCPO has only directed
that the annual assessm ents of the property owners be held in trust until this dispute is resolved. Appellee
has not provided any evidence that the CCPO has spent the m oney in the trust account so as to perpetrate
a fraud on appellee.
                                                        14
temporary injunction element—that it asserted a cause of action against a defendant. See

Butnaru, 84 S.W.3d at 204; see also McAllen Police Officers Union, 221 S.W.3d at 893.

Because appellee failed to establish the first temporary injunction element, we further

conclude that the trial court abused its discretion in granting appellee’s temporary

injunction request. See Butnaru, 84 S.W.3d at 204; see also Yarto, 287 S.W.3d at 89;

Harbor Perfusion, Inc., 45 S.W.3d at 717. Accordingly, we sustain appellants’ first issue

to the extent that appellants lacked the capacity to be sued individually.

                                     V. CONCLUSION

       Having sustained appellants’ first issue, we need not address their remaining

contentions. See TEX . R. APP. P. 47.1. Accordingly, we dissolve the temporary injunction,

reverse the judgment of the trial court, and remand for proceedings consistent with this

opinion.


                                                 ROGELIO VALDEZ
                                                 Chief Justice


Delivered and filed the
1st day of April, 2010.




                                            15
