Khraish v. Hamed , 1988 Tex. App. LEXIS 3378 ( 1988 )

HOWELL, Justice,

dissenting.

I dissent. The analysis contained in Hughes v. Houston Northwest Medical Center, 647 S.W.2d 5 (Tex.App.— Houston [1st Dist.] 1982, writ dism’d w.o.j.), is flawed in certain respects, but the result is correct, and it is controlling in this case.

The analysis presented by the majority is circuitous at best. The majority seeks to distinguish Hughes on the basis that the lis pendens under attack in that case was valid, whereas, in the opinion of the majority, the lis pendens under attack here is void. Thus, reasons the majority, while the Hughes court did have jurisdiction, we do not. In sum, our majority implicitly but necessarily holds that jurisdiction of the appellate court hinges upon the question of whether the trial court committed error. Certainly, this cannot be the law.

Likewise, our majority has disregarded the ancient rule of expressio unius est exclusio alterius. The legislature has specified a means whereby a trial court may, pendente lite, set aside lis pendens: After notice to the affected party, the party seeking removal must satisfy the trial court that the plaintiff can be adequately protected by a cash deposit or bond, and he must make such a deposit or bond. TEX. PROP.CODE ANN. § 12.008 (Vernon 1984). In the face of this specific provision, the majority would hold that if a trial court can be persuaded that the lis pen-dens is invalid, the trial court has authority to discharge the lis pendens without the showing and without the bond required by the statute.

Inasmuch as a procedure for the interlocutory discharge of a lis pendens was unknown to the common law and is not provided for by statute, its existence can be justified, if at all, only upon vague and sweeping generalizations of inherent power and natural law. This writer denies that such power exists. Lis pendens is a component of the constructive notice statutes, upon which our entire system of recording instruments relating to title is based. See Moran v. Midland Farms Co., 282 S.W. 608, 612 (Tex.Civ.App.— El Paso 1926, no writ); see also TEX.PROP.CODE ANN. § 13.004(a) (Vernon 1984) (recorded Us pen-dens is notice to the world of its contents). It follows that the only relief available from the procedure must be found within the constructive notice statutes. See Moran, 282 S.W. at 612.

The majority concludes that the trial court’s order in this case is not a temporary injunction. I disagree. In justification of the majority opinion, however, it must be pointed out that there is much dicta and much confusion in the authorities defining what is and what is not a temporary injunction order.

A resort to the basics is necessary. Under the English common law system upon which our courts are founded, it was axiomatic that courts of chancery acted only in personam whereas the courts of law primarily acted in rem. Although our Texas legal system has merged legal and equitable remedies in the same courts, the distinction between legal relief and equitable relief remains. An award of money damages is clearly legal relief.¹ It is equally clear that an order commanding that the defendant perform some act or refrain from the performance thereof is equitable relief. See J. Pomeroy, A Treatise on Equity Jurisprudence §§ 23, 428 (5th ed. 1941).

Although the maxim that equity acts only in personam is well established, it would be inapt to declare that the common law courts acted only in rem. See T. Pluck-nett, A Concise History of the Common Law 677-80 (1956). Thus, a money judgment recovered in a court of law was enforceable by the issuance of a writ of execution or a distraint calling for the seizure and sale of the defendant’s property. See Plucknett at 389-90 (1956). Those who attempted to hide their property or to obstruct the officer in seizing non-exempt property for the purpose of enforcing the execution could, without doubt, even at common law, be fined and imprisoned until they disgorged the purloined property. After the rites of compurgation had been dispelled and the concept of jury trial had evolved into the concept of evidentiary inquiry before a group of disinterested fact finders, the courts at law necessarily assumed the power to compel persons to appear and testify. See Plucknett at 383-85. In addition, the prerogative writs, particularly mandamus and prohibition, acted upon the person and were enforced against the person through fine and imprisonment until obedience was secured.

The pace of twentieth century life has created even greater complications, but the distinction between legal and equitable relief remains. Wherever a court acts in personam, the relief is presumptively equitable, specifically, injunctive in nature. The means for securing compliance from those who defy an in personam or injunc-tive order remains the same as it was in the courts of chancery four hundred years ago —a citation for contempt followed by imprisonment until compliance is secured. TEX.R.CIV.P. 692.

Without doubt, when a Texas court commands that a witness or party appear and give evidence, the court is not granting injunctive relief any more than the English courts at law were granting injunctive relief in commanding a person to give evidence. However, our modern day court system has gone far in building a scheme of statutes and rules whereby evidence may be gathered before a trial. By analogy, a discovery order, although inherently in personam and subject to enforcement through the contempt power, is not an in-junctive order. See Sobel v. Taylor, 640 S.W.2d 704, 707-08 (Tex.App.— Houston [14th Dist.] 1982, no writ).

An injunctive order, given pendente lite, is by definition either a temporary restraining order or an injunction. By law, the life of a restraining order can amount to but a few days. TEX.R.CIY.P. 680. Any other injunctive order issued pendente lite, by definition, amounts to a temporary injunction.

The power to issue temporary injunctions has been carefully circumscribed by our law and rightfully so. The potential for abuse is great. Therefore, temporary injunctions cannot be issued except after notice to the opposing party and the taking of evidence from both parties. Gibson v. Shaver, 434 S.W.2d 462 (Tex.Civ.App.— Tyler 1968, no writ); TEX.R.CIV.P. 681. Further, the applicant must show a probable right and probable injury, and he must give bond. See Southwestern Newspapers Corp. v. Curtis, 584 S.W.2d 362, 368 (Tex.Civ.App.—Amarillo 1979, no writ); TEX.R. CIV.P. 684. The power to issue temporary injunctions is further limited by the right of appeal. TEX.CIV.PRAC. & REM.CODE ANN. § 51.014 (Vernon Supp.1988).

Obviously, if we were ever to define the giving or withholding of interlocutory relief as being or not being a temporary injunction on the basis of whether the court below fulfilled the procedural requirements of notice, evidentiary hearing, findings of probable right and injury, and the giving of bond, we would be drawing a road map for those who might wish to circumvent the rights protecting those against whom in-junctive relief might be desired, including, but not limited to, the right of interlocutory appeal. To the extent that our majority implies that a trial court’s order is not a temporary injunction whenever a trial court proceeds by giving a simple order in response to a common motion, the majority has outlined a ready means to circumvent a well established procedural safeguard with respect to temporary injunctions. Such implication should be expressly denounced. The proper test is to analyze the nature of the relief granted. If the relief is in per-sonam by nature, or is historically equitable in nature, it is presumptively injunc-tive unless it falls within some special classification created either by statute or by decision.

As stated, it is doubtless true that the courts at law long asserted the right to require both party and non-party witnesses to appear and give evidence. In personam orders directed to this end cannot be classified as injunctive. In addition, our modern day courts have expanded the evidence gathering function through a system of rules and statutes providing for the gathering of evidence in preparation for trial. A discovery order is but an extension of the ancient power of the courts to issue writs and orders to aid in the gathering of evidence. Inasmuch as such orders have never been classified as injunctive, even though inherently in personam, they are non-appealable. See Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 434-39 (1959).

Likewise, statutory procedures such as writs of attachment, sequestration, and garnishment have been established for the peremptory seizure of money and property pendente lite. Just as the courts at law were possessed of the power to enforce their writs, the writs of attachment, sequestration, and garnishment may be enforced by in personam orders commanding persons resisting those writs to comply with them on penalty of contempt. Again, such orders, by tradition, are not classified as injunctive orders; no right of interlocutory appeal is available. This principle is illustrated by the cases of Bowden v. Hunt, 571 S.W.2d 550, 551 (Tex.Civ.App.— Dallas 1978, no writ), and McQuade v. E.D. Systems Corp., 570 S.W.2d 33 (Tex.Civ.App.— Dallas 1978, no writ).

For instance, in McQuade, cited by the majority, the district court entered an order in aid of a pre-judgment writ of attachment requiring a defendant to pay up to $15,-000.00 into the court’s registry. The defendant attempted to appeal this interlocutory order, arguing that it was, in essence, a temporary injunction. McQuade, 570 S.W.2d at 34. Noting that the order was in aid of a writ of attachment, this court concluded that it was not appealable. Id. at 35. Similarly, in Bowden, this court held that an interlocutory order denying a motion to quash writs of garnishment was not a temporary injunction from which an appeal would lie. Bowden, 571 S.W.2d at 550-51. Because they involved orders relating to procedures such as attachment or garnishment which have traditionally been considered non-injunctive, cases such as McQuade and Bowden were correctly decided even though some of the language employed was inappropriate.

The principle that relief which is historically equitable in nature is presumptively injunctive unless it falls within some special classification created either by statute or by decision provides a method of harmonizing opinions that would otherwise appear contradictory. For example, like McQuade, Pilot Engineering Co. v. Robinson, 470 S.W.2d 311 (Tex.Civ.App.— Waco 1971, no writ), was also an appeal from an interlocutory order requiring the appellants to place cashier’s checks in the amount of' $10,000 into the registry of the court. Id. at 312. Unlike McQuade, however, the trial court’s order was not in aid of a writ of attachment. Instead, in Pilot Engineering, the owner of a one-third interest in Pilot Engineering sued Pilot Engineering and the other two owners for an accounting and damages. Id. After an interlocutory hearing, the trial court denied the plaintiff’s request for appointment of a receiver but ordered the cashier’s checks placed in the court’s registry. Id. The court of appeals held this order to be a temporary injunction from which an appeal would lie. Id. Similarly, Whatley v. King, 151 Tex. 220, 249 S.W.2d 57 (1952), involved a trial court order, entered while the case was pending retrial after remand by the court of appeals, which required the plaintiff to restore replevied personal property to the defendant. The Supreme Court concluded that the trial court’s order was a mandatory injunction subject to appeal. Id. 249 S.W.2d at 58.

At first blush, the decisions in Pilot Engineering and Whatley may appear inconsistent with McQuade and Bowden. Nevertheless, Pilot Engineering and Whatley were also correctly decided because they were cases in which the parties were attempting to control the res of the litigation without recourse to any specific statutory remedy such as attachment, sequestration, or garnishment. Inasmuch as the court’s orders there entered were clearly of an in personam nature, were therefore presumptively injunctive, and were not pursuant to any specific procedure established by law, the orders were temporary injunctions although not styled as such. They were appealable because they were temporary injunctions. Because those temporary injunctions were issued without following the legal procedures provided in such cases, they were subject to peremptory dissolution. Pilot Engineering, 470 S.W.2d at 312.

Before directly addressing the facts of the case in bar, another historic rule must be noted. The English courts of chancery had no power to act directly upon title to real property. 2 J. Pomeroy, A Treatise on Equity Jurisprudence § 428 (5th ed. 1941). If the defendant asserted a false or fraudulent title to property, the remedy in equity was to cast him into prison until he executed a deed of acquittance. Id. Such is unnecessary in Texas. By statute, the legislature has empowered our courts to act directly upon real property even when the relief being granted is equitable in nature. TEX.CIY.PRAC. & REM.CODE ANN. § 31.001 (Vernon 1986); see also 4 J. Pomeroy, A Treatise on Equity Jurisprudence § 1317 (5th ed. 1941). Thus, under Texas law, if the defendant sets up a false or fraudulent claim of title to property, the court, by force of its decree alone, may expunge the false title and confirm the title of the true owner. See Anderson v. Anderson, 620 S.W.2d 815 (Tex.Civ.App.— Tyler 1981, no writ). Nevertheless, the relief granted is, by definition of history, injunctive in nature even where the court acts directly against the real estate rather than acting in personam by commanding the defendant to act.

One reason that we must recognize that transfers of an interest in property under the direct action statute are injunctive in nature is because the court is completely free, in every instance, to choose either route. By its decree, the court may either command the defendant to act or may act directly. To hold that the action is injunc-tive in the one instance and not injunctive in the other would place form above substance. Unless we hold that direct action upon the title to real property is injunctive in nature, we are again falling into the error of publishing a road map directing how to circumvent the procedural due process protection limiting the temporary injunction power.

The lis pendens statute must be also analyzed. TEX.PROP.CODE ANN. § 12.007 (Vernon 1984). What is the nature of a lis pendens? The statute merely provides persons litigating the title to property a means to give constructive notice to all those taking title to the property that the claimant is litigating a claim against the property. TEX.PROP.CODE ANN. §§ 12.007, 13.004 (Vernon 1984). This is accomplished through the simple expedient of filing a notice to such effect in the deed records. TEX.PROP.CODE ANN. § 12.007 (Vernon 1984). A lis pendens is not the writ or process or order of any court. It is accomplished by the plaintiff without recourse to the court in any way, without the assistance of the judge or any court personnel whatever. The lis pen-dens statute is nothing more than an adjunct to the recording statutes.

Undoubtedly, a court has the power to control its own writs and processes. Therefore, any attachment, any subpoena, or any citation may be quashed or modified by simple order in response to a common motion. Such action does not constitute injunctive relief; ergo, there is no right of interlocutory appeal. See Bowden, 571 S.W.2d at 551 (motion to quash writ of garnishment).

On the other hand, may a court pendente lite “quash” a deed by simple order in response to a common motion? The proposition is obviously untenable. What about other documents recorded in the deed records? Mortgages? Affidavits of heir-ship? Foreign wills? Mechanics lien affidavits? Or, lis pendens notices? As early as 1926, Texas courts recognized that, absent statutory authorization, a trial court had no such inherent authority to peremptorily cancel a lis pendens.

The Thirty-Ninth Legislature passed an act authorizing the cancellation of lis pendens notice by the court upon [certain conditions]_ In the absence of statutory authority for such action, there is no inherent power in the courts to suspend the operation and effect of the lis pen-dens statutes. If there be decisions by courts of other states recognizing such power without statutory authority, we regard them as unsound and decline to follow the same. Such action, in our opinion, is judicial suspension of valid statutory provisions and not permissible.

Moran v. Midland Farms Co., 282 S.W. 608, 612 (Tex.Civ.App.— El Paso 1926, no writ). If proper analysis be applied, we must hold that any such attempted assertion of power by a trial court amounts to the exercise of injunctive relief, operating through section 31.001 of the Civil Practice & Remedies Code which allows courts to give injunctive relief directly affecting the title to real estate.²

Nevertheless, certain recent cases have held that, when a lis pendens is invalid because it does not meet the requirements of section 12.007 of the Property Code, a trial court, through interlocutory order in response to a common motion, may directly cancel the lis pendens, the primary case being Helmsley-Spear of Texas, Inc. v. Blanton, 699 S.W.2d 643, 645 (Tex.App.— Houston [14th Dist.] 1985, no writ) (conditional writ of mandamus ordering trial court to cancel lis pendens). Helmsley was followed by Moss v. Tennant, 722 S.W.2d 762, 763 (Tex.App.— Houston [14th Dist.] 1986, no writ) (same facts as Helms-ley, Helmsley applied with scant discussion); see also Milberg Factors, Inc. v. Hurwitz-Nordlicht Joint Venture, 676 S.W.2d 613 (Tex.App.— Austin 1984, writ ref d n.r.e.) (affirming trial court order can-celling lis pendens). None of the cases just cited recognized the long prevailing authority of Midland Farms, 282 S.W. at 612. Instead, they are each grounded on the single authority of Lane v. Fritz, 404 S.W.2d 110 (Tex.Civ.App.— Corpus Christi 1966, no writ). However, Lane has been misinterpreted. The case does not involve interlocutory or pendente lite relief at all; it cannot define the circumstances under which such relief is proper.

In Lane, the court of appeals affirmed a summary judgment which cancelled lis pendens notices filed in a previous suit and removed the cloud on title cast by such notices. The court of appeals found that the lis pendens were invalid because they did not comply with the predecessor to section 12.007, article 6640 of the Texas Civil Statutes. Consequently, the court held that the lis pendens could be cancelled without meeting the statutory requirements for cancellation now found in section 12.008 of the Property Code.

The opinion does not elaborate on the nature of the action at the trial court level. It is clear, however, that the summary judgment represented a final judgment or a judgment that became final as a result of severance by the trial court.³ Furthermore, under the analysis set forth herein, the Lane judgment was necessarily injunc-tive, even though the court may have acted directly on the title to the property. It follows that Lane involved the propriety of a final judgment, not the propriety of an interlocutory order. It follows that Lane provides no authority to the effect that a trial court may cancel lis pendens by interlocutory order in response to a simple motion.

There is no basis to distinguish Midland Farms, 282 S.W. at 608, from the recent cases just cited, Moss, Helmsley, and Mil-berg. The latter cases are supported only by a misconstrued authority. We should expressly decline to follow them; the rule stated in Midland Farms should be recognized as controlling.

Repeating for emphasis, Lane has been misinterpreted; it is not authority for the interlocutory dissolution of a lis pendens in response to a common motion. However when properly interpreted, Lane illustrates a ready and proper avenue to obtain relief from an unfounded lis pendens — file a motion for summary judgment. Permanent injunctions may be had by way of summary judgment when the facts are not subject to reasonable dispute and the moving party is entitled to his decree as a matter of law. See Minton v. Frank, 545 S.W.2d 442 (Tex. 1976). If the moving party cannot obtain a summary judgment upon the whole case, he may request a severance if he establishes that he is entitled to immediate relief from the lis pendens.

In the ease before us, it follows from the analysis contained herein that the action of the court below was injunctive in nature. Being injunctive in nature, the right of interlocutory appeal attaches. We must reverse and dissolve because there was neither notice nor evidence taken; neither was there a finding of probable right and injury; nor was bond required. See Gibson v. Shaver, 434 S.W.2d 462, 464 (Tex.Civ.App.—Tyler 1968, no writ) (dissolving temporary injunction issued without allowing adverse party opportunity to present evidence).

The fact that the trial court undertook to act in personam makes it even more apparent that the relief granted was injunctive in nature. The decretal portions of the order read:

IT IS ORDERED, ADJUDGED and DECREED, that any and all notices of Lis Pendens ... are to be removed immediately.

IT IS FURTHER ORDERED, ADJUDGED and DECREED, the Plaintiff shall not cause to be filed any [additional] notice of Lis Pendens on any property [involved in this suit].

Plainly, the second proviso constitutes in personam relief of an injunctive nature. Hughes, 647 S.W.2d at 8. Properly construed, the former proviso is also injunctive in form. The court did not undertake to directly act against the real estate. If it had so undertaken, the first proviso would have read, in substance, “are hereby removed.” To the contrary, the language “are to be removed immediately” must be construed as a command that the plaintiff execute releases of lis pendens on pain of being imprisoned for contempt. Particularly inasmuch as the plaintiffs liberty is involved, due process commands us to interpret the language as being an injunctive command in order to protect his right of appeal and his right of personal freedom.

There are a number of reported cases debating whether the interlocutory relief there involved was or was not injunctive. The language contained in the several cases is most confusing, almost impossible of reconciliation. However, the majority of the cases in point fit the analysis herein contained. The heart of this dissent, if it has been missed by the reader, is the proposition that any order which is in personam in nature is presumptively injunctive and subject to interlocutory appeal if entered pendente lite. The same presumption must apply when the court undertakes to act directly against real property in lieu of acting in personam. There can be no doubt that there are various in personam procedures outlined by the law which, either by long established tradition or by specific statute or rule, are not injunctive in nature. However, exceptions may not be allowed to obscure the rule. Unless a clear exception exists, an in personam order is presumptively injunctive. If issued pendente lite, it is, by definition a temporary injunction, and the right of interlocutory appeal applies.

I dissent. The trial court below, acting only upon a common motion, entered a simple order which granted injunctive relief pendente lite. It was error for the court to grant injunctive relief without requiring the movant to comply with the statute and rules pertaining to temporary injunctions. See Sobel v. Taylor, 640 S.W.2d 704 (Tex.App.— Houston [14th Dist.] 1982, no writ) (dissolving temporary injunction for lack of compliance with rules of civil procedure). The order must be reversed and the injunction dissolved.

1 . Terminology must be clarified at this point. The statement that equity acts only in personam refers to the fact that, historically, the courts of chancery enforced their decrees only through the exercise of the contempt power. On the other hand, the judgments of the law courts, even if they were personal judgments, were, in the first instance, at least, enforceable only through the seizure and sale of the defendant's property. A judgment which was enforceable through the seizure of all non-exempt property of the defendant came to be referred to as a personal judgment, whereas a judgment only enforceable through the seizure and sale of certain specific property of the appellant came to be referred to as a judgment in rem. The distinction between personal judgments and judgments in rem is completely separate from the distinction between equitable and legal relief being discussed in this opinion.

2 . At the same time, the finding in Midland Farms that the trial court order being reviewed was a permanent injunction rather than a temporary injunction will not stand up to analysis.

The plaintiff in Midland Farms filed a suit claiming a lien on a large ranch and concurrently filed lis pendens notices. The C Ranch Cotton Lands Company, which had a contract to sell the ranch lands in question, filed a pleading in intervention alleging that the plaintiff’s claim was barred by limitations. The intervenor's petition, which was adopted by one of the defendants, asserted that the plaintiffs suit and the accompanying lis pendens had been filed to cloud title to the ranch lands and prevent their sale. On the day the intervenor’s pleading was filed, a show cause for the plaintiffs appearance was issued and served. One day later, the trial court issued an order dissolving the lis pendens and enjoining plaintiff from further clouding defendant’s title, apparently adopting the contention that plaintiffs claim was time-barred. The court of civil appeals (correctly under the analysis herein given) held that the trial court erred in cancelling the lis pendens. However, the court of civil appeals was incorrect in its companion holding that the order cancelling the lis pendens was not an injunction at all, that the injunction against further clouding title was a permanent injunction, and that the judgment was appealable because of implied severance of the intervention action.

There is much confusion between temporary injunctions and permanent injunctions. An injunction may be permanent in effect even though issued on an interlocutory basis. Where a trial court finds a prize show horse to be infected with a communicable disease and orders its immediate destruction, it has visited a permanent state of affairs upon the parties regardless of whether it styles its order as a temporary or permanent injunction. The same would be true where the court orders the immediate demolition of a building so that highway construction might proceed. Needless to say, it is generally reversible error to give relief that is permanent in effect before the case has been tried on its merits and the court is ready to issue its final order disposing of the case in full. City of Fort Worth v. Tarlton, 151 S.W.2d 268, 269-70 (Tex.Civ.App.— Fort Worth 1941, no writ); see also Texas Foundries, Inc. v. International Moulders and Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460, 464 (1952) (stating that it is error to grant a temporary injunction whose effect is to accomplish the object of the suit because to do so would be to determine rights without a trial); Ex parte Zuccaro, 106 Tex. 197, 163 S.W. 579, 580 (1914) (stating that a perpetual injunction is one which can be properly ordered only upon a final decree).

For the purpose of determining if the proper procedure has been followed, it is wrong to classify injunctions as temporary or permanent on the basis of the permanency of the relief granted. In the absence of special circumstances, such as consent (Aloe Vera of America, Inc. v. CIC Cosmetics International Corp., 517 S.W.2d 433 (Tex.Civ.App.— Dallas 1974, no writ) and separate trial of the issues under TEX.R.CIV.P. 174(b) (City of Garland v. Futerfas, 665 S.W.2d 140 (Tex.App.— Dallas 1983, no writ), no matter how permanent the effect, an injunction must be classified as a temporary injunction if given on an interlocutory basis, that is, if given without the entry of a final judgment disposing of all parties and all issues. Thus, the orders for destruction of the horse and for the demolition of the building, given pursuant to show cause notice within three days after suit has been filed and after denying a request for jury trial, are but temporary injunction orders regardless of their effect and regardless of how they may be labelled. Also, the failure to require a temporary injunction bond is not grounds for declaring the injunctions to be permanent; it is grounds for summary dissolution, the rules and statutes pertaining to temporary injunctions not having been followed.

Obviously, the procedure necessary to obtain a permanent injunction was not followed in Midland Farms. At least under current practice, implied severances are not recognized by the Texas courts. Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, 77-78 (1959). It follows that Midland Farms erred in holding that a permanent injunction had been issued. The error was "cured” by reversing on the ground that the trial court had no authority to cancel a lis pendens in the absence of express statutory authority.

3 . Lane is silent as to the precise means followed to bring the cancellation of the lis pendens before the appellate court. However, a summary judgment which fails to dispose of all parties and all issues is interlocutory and non-appeal-able. We must assume from the fact that the Court of appeals accepted the Lane appeal that a severance had been entered. The elementary rule of non-appealability of the partial summary judgments could not have escaped the court.