Reversed and Remanded and Opinion Filed December 14, 2016




                                           S    In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-16-00968-CV

PLANO DATA, A RECORD MANAGEMENT COMPANY, L.P. AND PLANO DATA GP
                          LLC, Appellants
                                V.
  BP AMERICA PRODUCTION COMPANY, BP EXPLORATION & PRODUCTION,
       INC. AND BP CORPORATION NORTH AMERICA, INC., Appellees

                       On Appeal from the 429th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 429-02721-2016

                              MEMORANDUM OPINION
                           Before Justices Francis, Brown, and Whitehill
                                   Opinion by Justice Whitehill
       This is an interlocutory appeal of a temporary injunction in a contract dispute where the

trial court granted BP’s request for a temporary injunction ordering Plano Data to (i) facilitate

and participate in the permanent bulk removal of records and data from its warehouse after BP

terminated the parties’ contract and (ii) permit the permanent removal without attempting to first

collect a permanent removal fee allegedly due under their contract.

       Plano Data argues that (i) BP did not establish its entitlement to mandatory or prohibitory

interim injunctive relief, (ii) the bond is defective because it includes only one of the three BP

entities; and (iii) the order does not preserve the status quo.

       As discussed below, we conclude that the trial court abused its discretion because the

injunction does not preserve the status quo and effectively affords BP relief on the merits.
Accordingly, we reverse the trial court’s order granting the temporary injunction, dissolve the

temporary injunction, and remand to the trial court for further proceedings.

                                         I.     Background

       The facts and arguments are well known to the parties, so we need not recite them in

detail here. The dispute arises from a contract between Plano Data and BP for the storage of

records and data at Plano Data’s warehouse. When BP terminated the contract, Plano Data

claimed it was entitled to a removal fee before BP permanently removed its property from the

warehouse.    BP disagreed, sued for breach of contract among other causes of action, and

obtained a temporary injunction requiring Plano Data to assist with the data’s permanent removal

without charging any permanent removal fees.

                                              II. Analysis

A.     Standard of Review and Applicable Law

       In an appeal from an order granting or denying a temporary injunction, the scope of

review is restricted to the validity of the order granting or denying relief. See Argyle ISD ex rel.

Bd. of Trustees v. Wolf, 234 S.W.3d 229, 237 (Tex. App.—Fort Worth 2007, no pet.). We do not

review the merits of the underlying case. See Davis v. Huey, 571 S.W.2d 859, 861 (Tex. 1978).

Whether to grant a temporary injunction is within the trial court’s discretion. Butnaru v. Ford

Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

       A temporary injunction is an extraordinary remedy, the purpose of which is to preserve

the status quo of the litigation’s subject matter pending trial on the merits. Id. In this context,

the status quo is the last, actual, peaceable, noncontested status between the parties to the

controversy before the suit. In re Newton, 146 S.W.3d 648, 651 (Tex. 2004).




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       To obtain a temporary injunction, an applicant must plead and prove: (1) a cause of

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

the interim. Butnaru, 84 S.W.3d at 204.

       There are two types of temporary injunctions: prohibitive and mandatory. A prohibitive

injunction forbids conduct whereas a mandatory injunction requires it. RP&R, Inc. v. Territo, 32

S.W.3d 396, 400–01 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

         A mandatory injunction necessarily changes the status quo. Id. Thus, “[w]hile granting

a mandatory injunction is within the sound discretion of the trial court, the grant should be

denied absent a clear and compelling presentation of extreme necessity or hardship.” Tri-Star

Petroleum v. Tipperary Corp., 101 S.W.3d 583, 592 (Tex. App.—El Paso 2003, pet. denied).

B.     Does the order preserve the status quo?

       Plano Data contends that the trial court abused its discretion because the order alters the

status quo between the parties pending a trial on the merits. We agree.

       The injunction order enjoins Plano Data from, among other things:

               (c) preventing BP from assessing, collecting, boxing, palletizing, shrink-
               wrapping, labeling, lifting, moving, loading, destroying, and/or removing
               its property from Plano Data in accordance with the parameters and
               guidelines ordered below; and

               (d) requiring BP to agree to pay any sum of money, other than the
               amounts specifically identified in the parameters and guidelines below, in
               order to do those things itemized in subparagraph (c) above.

       The last, actual peaceable, non-contested status between the parties preceding the

controversy was the parties’ ordinary course operation under the contract’s terms following BP’s

one-year termination notice. When during the ordinary course BP requested documents or data

from the warehouse, Plano Data would retrieve, index, and deliver them and BP would return the

documents when it was done with them. The contract terms do not allow BP to collect, box,

palletize, shrink-wrap, label, lift, move or load its property in or from Plano Data’s warehouse

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and BP was not doing so. Because the injunction orders these things under threat of contempt, it

changes the status quo.1

C             Does the Order have the effect of adjudicating the merits?

              Plano Data argues that this is a breach of contract case and the injunction order

effectively provides BP with relief on the merits by adjudicating BP’s counterclaim for a

warehouse lien. We agree.

              A temporary injunction ruling may not be used to obtain an advance ruling on the merits.

See Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex. 1981). In addition,

courts should not enforce contract rights by injunction. Butnaru, 84 S.W.3d at 211.

              In response to BP’s breach of contract petition, Plano Data counterclaimed, alleging a

bailment and requesting foreclosure of its claimed warehouse lien under TEX. BUS. & COM.

CODE ANN. § 7.209(a). That statute provides:

                          A warehouse has a lien against the bailor on the goods covered by a
                          warehouse receipt or storage agreement . . . for charges for storage or
                          transportation, including demurrage and terminal charges, insurance,
                          labor, or other charges, present or future, in relation to the goods and for
                          expenses necessary for preservation of the goods or reasonably incurred in
                          their sale pursuant to local law.

Id.

              We do not opine on whether a lien attached, but note that there is at least a colorable

claim to be determined on the merits. The injunction order, however, essentially gives BP the

benefit of a win on this issue by enjoining Plano Data from requiring BP to pay any additional

sum of money (other than as specified in the order, which reflects the ordinary course monthly

fee that BP was paying Plano Data under the contract) for removing the documents or data. This

result effects an impermissible advance ruling on the merits by giving BP access to its


              1
                  Plano Data urges us to characterize the injunction as mandatory. Given our disposition, however, we need not and do not address
that issue.


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documents outside the ordinary course of business as though no such lien applied in this case.

See Iranian Muslim, 615 S.W.2d at 208.

                                                           III. Conclusion

          We conclude that the trial court abused its discretion because the temporary injunction

does not preserve the status quo and affords an advance ruling on the merits of Plano Data’s

counterclaim for foreclosure of a warehouse lien.2 We thus reverse the trial court’s order

granting the temporary injunction, dissolve the temporary injunction, and remand to the trial

court for further proceedings.




                                                                            /Bill Whitehill/
                                                                            BILL WHITEHILL
                                                                            JUSTICE


160968F.P05




   2
       Our resolution obviates the need to consider Plano Data’s remaining issues. TEX. R. APP. P. 47.1.




                                                                     –5–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

PLANO DATA, A RECORD                               On Appeal from the 429th Judicial District
MANAGEMENT COMPANY, L.P. AND                       Court, Collin County, Texas
PLANO DATA GP LLC, Appellants                      Trial Court Cause No. 429-02721-2016.
                                                   Opinion delivered by Justice Whitehill.
No. 05-16-00968-CV         V.                      Justices Francis and Brown participating.

BP AMERICA PRODUCTION
COMPANY, BP EXPLORATION &
PRODUCTION, INC. AND BP
CORPORATION NORTH AMERICA,
INC., Appellees

        In accordance with this Court’s opinion of this date, the order of the trial court is
REVERSED, the temporary injunction is DISSOLVED and this cause is REMANDED to the
trial court for further proceedings consistent with this opinion.

     It is ORDERED that appellant PLANO DATA, A RECORD MANAGEMENT
COMPANY, L.P. AND PLANO DATA GP LLC recover their costs of this appeal from appellee
BP AMERICA PRODUCTION COMPANY, BP EXPLORATION & PRODUCTION, INC.
AND BP CORPORATION NORTH AMERICA, INC..


Judgment entered December 14, 2016.




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