Reversed and Remanded and Majority and Concurring Opinions filed
November 13, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00442-CV

     HELIX ENERGY SOLUTIONS GROUP, INC., HELIX SUBSEA
    CONSTRUCTION, INC., AND HELIX WELL OPS INC., Appellants
                                       V.

                       MATTHEW HOWARD, Appellee

                   On Appeal from the 125th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2013-67699

                                OPINION


      In this case concerning a seaman’s entitlement to payments for maintenance
and cure, his employer argues that the trial court erred in granting the seaman’s
motion to compel such payments.       We agree that the order is a temporary
injunction and that it does not comply with Texas Rule of Civil Procedure 683.
We therefore declare the order void, dissolve it, and remand the case to the trial
court. We further direct the clerk of our court to issue the mandate immediately.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

      Appellee Matthew Howard sued appellants Helix Energy Solutions Group,
Inc., Helix Subsea Construction, Inc., and Helix Well Ops Inc. (collectively,
“Helix”) for a knee injury he allegedly received in the service of the vessel M/V
Q4000. He alleged that the vessel and its crew were unseaworthy, and he asserted
claims under the Jones Act and general maritime law.            As relevant here, he
asserted that Helix breached its duty to timely provide maintenance and cure.

      Howard filed a motion styled as “Plaintiff’s Motion to Compel Payment of
Maintenance and Cure Benefits,” and after an evidentiary hearing, the trial court
granted the motion. Under the terms of the order, Helix was ordered (a) to make
retroactive and continuing maintenance payments of $364 per week; (b) to pay the
reasonable and customary charges for Howard’s medical treatment “as directed by
his treating physician George Brindley, M.D.” or by others to whom Howard was
referred by Dr. Brindley; and (c) to continue paying for maintenance and cure until
the trial court made further orders concerning Helix’s maintenance-and-cure
obligations or the parties stipulated that Howard reached maximum medical
improvement.

      Helix filed this interlocutory appeal in which it argues that the trial court’s
order is an improperly issued temporary injunction. In the alternative, Helix asks
that we treat its appeal as a petition for a writ of mandamus and require the trial
court to vacate its order because it impermissibly requires Helix to make payments
for palliative care.1 We granted Helix’s motion to expedite this proceeding.


      1
        Although the order applies only to Helix Energy Solutions Group, Inc. and Helix
Subsea Construction, Inc., all three Helix parties have appealed.

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                                 II. JURISDICTION

      As a threshold matter, we must determine whether we have jurisdiction over
this case as an interlocutory appeal. Appellate courts can review final orders, but
as a general rule, they lack jurisdiction to review interlocutory orders unless review
is authorized by statute. Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334,
336 (Tex. 2000) (per curiam). Helix contends that we have jurisdiction over this
interlocutory appeal because the trial court’s order is a temporary injunction. See
TEX. CIV. PRAC. & REM. CODE ANN. 51.014(a)(4) (West Supp. 2014) (authorizing
an interlocutory appeal from an order granting a temporary injunction). We agree.

      Although styled as an order granting a motion to compel, “it is the character
and function of an order that determine its classification.” Del Valle Indep. Sch.
Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992).             An injunction may be
prohibitive or mandatory.     RP&R, Inc. v. Territo, 32 S.W.3d 396, 400 (Tex.
App.—Houston [14th Dist.] 2000, no pet.).          A prohibitive injunction forbids
certain conduct, whereas a mandatory injunction requires certain conduct. Id.
Thus, an interlocutory order that “directs the conduct of a party” is a mandatory
injunction. See Del Valle Indep. Sch. Dist., 845 S.W.2d at 809.

      Howard nevertheless asserts that “[a] pretrial order compelling the provision
of maintenance and cure is not a form of injunctive relief; it is a unique remedy
afforded under the general maritime law to seam[e]n who are injured or fall ill
while in the service of a vessel.” In support of this assertion, he cites two cases:
Billiot v. Toups Marine Transport, Inc., 465 F. Supp. 1265 (E.D. La. 1979) and
Sanfilippo v. Rosa S. Inc., Civ. A. No. 85–3915–Me, 1985 WL 4565 (D. Mass.
Dec. 9, 1985). Not only do these cases fail to support Howard’s position, but in
each, the court denied the “motion to compel” and pointed out that there is no



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provision for such pretrial relief.2 In other cases, however, federal courts have
determined entitlement to the remedy of maintenance and cure using a motion-to-
compel procedure.3

       We need not decide whether or under what circumstances a motion to
compel is an available procedure for deciding a maintenance-and-cure claim in
federal court under general maritime law.             In state court actions—even those
applying federal maritime law—state procedural laws and rules apply. See 28
U.S.C. § 1333(1) (2012); Am. Dredging Co. v. Miller, 510 U.S. 443, 453, 114 S.
Ct. 981, 988, 127 L. Ed. 2d 285 (1994) (“Uniformity of process . . . is assuredly not
what the law of admiralty seeks to achieve, since it is supposed to apply in all the
courts of the world.”); In re GlobalSanteFe Corp., 275 S.W.3d 477, 485 (Tex.
2008) (orig. proceeding) (“[F]ederal maritime law follows a ‘reverse Erie’ doctrine
of sorts, employing the use of substantive federal maritime law in state courts but
recognizing that state procedural law can be followed.”); Mar. Overseas Corp. v.
Ellis, 971 S.W.2d 402, 406 (Tex. 1998) (“When a state court hears an admiralty

       2
          In Billiot, the plaintiff moved for a preliminary injunction to compel the payment of
maintenance at a particular daily rate. 465 F. Supp. at 1265. The court held that “a motion for
summary judgment is the only permissible pre-trial procedure” to obtain that relief, and that
absent summary judgment, “the maintenance issue was one relegated to a trial on the merits.”
Id. at 1267 (citing Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 531–32, 58 S. Ct. 651, 655, 82 L.
Ed. 993 (1938)). The plaintiff in Sanfilippo similarly filed a “Motion for Maintenance and
Cure.” 1985 WL 4565, at *1. As in Billiot, the court in Sanfilippo denied the motion and
explained that the plaintiff could move for an expedited trial, or could move for summary
judgment “[i]f the plaintiff believes that there is no dispute over the material facts,” but “a
seaman seeking a preliminary injunction mandating the payment of maintenance and cure would
be faced with the problem that the denial of payments is clearly compensable by the payment of
damages . . . .” Id., 1985 WL 4565, at *2. See also Rory Bahadur, Protecting Cruise Line
Employees’ Right to Maintenance and Cure: The Need for Pre-Trial Adjudication, 18 U.S.F.
MAR. L.J. 221, 237, 240 (2006) (arguing that a seaman should be able to seek maintenance and
cure in federal court via a motion to compel, but characterizing this as “injunctive relief”).
       3
        See, e.g., Connors v. Iqueque U.S.L.L.C., No. C05–334JLR, 2005 WL 2206922, at *1–3
(W.D. Wash. Aug. 25, 2005); Sefcik v. Ocean Pride Alaska, Inc., 844 F. Supp. 1372, 1373–74
(D. Alaska 1993).

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case, that court occupies essentially the same position occupied by a federal court
sitting in diversity: the state court must apply substantive federal maritime law but
follow state procedure.”).

      Whether a claim for maintenance and cure may be decided by the court on a
motion to compel is a procedural question, not a matter of substantive federal
maritime law that would preempt contrary state procedure. See Perry v. Allied
Offshore Marine Corp., 618 So. 2d 1033, 1036 (La. Ct. App. 1993). Accordingly,
using Texas procedural law to determine the nature and validity of the trial court’s
maintenance-and-cure order in this case will not “work material prejudice to a
characteristic feature of maritime law.”      See In re GlobalSantaFe Corp., 275
S.W.3d at 489.

      Howard has not cited, and we have not found, any provision of Texas
procedural law authorizing a litigant to obtain “an interlocutory order on the
merits” from a state court while avoiding both the rules governing summary
judgments and those governing injunctive relief. Because the interlocutory order
in this case requires Helix to perform certain actions—specifically, to make
continuing payments to Howard—it is a classic example of a mandatory
injunction. See Qwest Commc’ns Corp., 24 S.W.3d at 336 (“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.”); RP&R,
Inc., 32 S.W.3d at 400 (“The temporary injunction in this case is mandatory
because it requires [appellant] to pay weekly paychecks to appellee.”).          We
accordingly conclude that we have jurisdiction over this interlocutory appeal.

                        III. CLEAR ABUSE OF DISCRETION

      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.,
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84 S.W.3d 198, 204 (Tex. 2002) (op. on reh’g). To obtain a temporary injunction,
an applicant is not required to establish that it will prevail upon a final trial on the
merits, but must plead and prove that (a) it has a cause of action against the
opposing party; (b) it has a probable right on final trial to the relief sought; and
(c) it faces probable, imminent, and irreparable injury in the interim. Sharma v.
Vinmar Int’l, Ltd., 231 S.W.3d 405, 419 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (citing Butnaru, 84 S.W.3d at 204). Litigants generally are not entitled to
temporary injunctive relief as a matter of right. Walling v. Metcalfe, 863 S.W.2d
56, 57 (Tex. 1993) (per curiam). The decision to grant or deny such relief instead
is committed to the trial court’s discretion, and we will uphold its ruling absent a
clear abuse of discretion. Id. at 58.

      Helix argues that the trial court not only clearly abused its discretion in
issuing the challenged order, but that the order is void because it does not comply
with Texas Rule of Civil Procedure 683. Rule 683 provides that an injunction
“shall set forth the reasons for its issuance; shall be specific in terms; [and] 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
injunction also must “include an order setting the cause for trial on the merits with
respect to the ultimate relief sought.” Id. An order that fails to comply with Rule
683 “is subject to being declared void and dissolved.” InterFirst Bank San Felipe,
N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986) (per curiam). Helix
correctly points out that the trial court’s order does none of these things.

      Howard does not dispute that the order does not comply with Rule 683. He
instead argues that the trial court did not clearly abuse its discretion in granting the
requested relief because “it arrived at the correct result” under federal maritime
law. But see Intex Livingspace, Ltd. v. Roset USA Corp., No. 14-10-00855-CV,

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2011 WL 1466416, at *3 (Tex. App.—Houston [14th Dist.] Apr. 19, 2011, no pet.)
(mem. op.) (“[A] trial court abuses its discretion if it issues a temporary injunction
order that does not comply with the Rule 683 requirements.”). We cannot consider
Howard’s argument that he is entitled to maintenance and cure under federal
maritime law, because “appellate courts do not have jurisdiction to address the
merits of appeals from void orders or judgments; rather, they have jurisdiction only
to determine that the order or judgment underlying the appeal is void and make
appropriate orders based on that determination.” Freedom Commc’ns, Inc. v.
Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (per curiam).

      Because the trial court’s order does not comply with the requirements of
Rule 683, we conclude that the order is void and must be dissolved.

                                 IV. CONCLUSION

      We declare the trial court’s order void, dissolve the order, and remand the
cause for proceedings in accordance with this opinion. We further direct the clerk
of this court to issue the mandate immediately. See TEX. R. APP. P. 18.6; Bruns v.
Top Design Inc., No. 01-08-00070-CV, 2008 WL 4965365, at *2 (Tex. App.—
Houston [1st Dist.] Nov. 20, 2008, no pet.) (mem. op.) (dissolving a void
temporary injunction and directing the clerk of the appellate court to issue the
mandate immediately).


                                       /s/       Tracy Christopher
                                                 Justice



Panel consists of Chief Justice Frost and Justices Christopher and Busby (Frost,
C.J., concurring; Busby, J., concurring).



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