Town Plaza Fabrics, Inc. v. Monumental Properties of Texas, Inc. , 1976 Tex. App. LEXIS 3408 ( 1976 )

544 S.W.2d 775 (1976)

TOWN PLAZA FABRICS, INC., Appellant,
v.
MONUMENTAL PROPERTIES OF TEXAS, INC. (successor by merger to Arlington Properties, Inc.), Appellee.

No. 19087.

Court of Civil Appeals of Texas, Dallas.

December 2, 1976.

Richard F. McMullen, McMullen & Snyder, Dallas, for appellant.

Joe B. Harrison, Wynne & Jaffe, Dallas, for appellee.

AKIN, Justice.

This is an appeal from a denial of a temporary injunction which was sought by Town Plaza Fabrics to prohibit its landlord, Monumental Properties, from taking any action to evict it as a tenant or to interfere with its use and enjoyment of the leased premises. Because we hold that appellant failed to show that the temporary writ was necessary to preserve its rights prior to the time that it could obtain a trial on the merits, no abuse of the trial court's discretion is shown. Accordingly, we affirm. We also dissolve our temporary injunction previously granted appellant pursuant to Tex.Rev.Civ.Stat.Ann. art. 1823 (Vernon 1967).

Appellant operates a retail store in shopping mall premises leased from Monumental Properties. The lease gave the lessor the option to terminate the lease in the event Herb Owens, who was majority stockholder of Town Plaza at the time the lease was signed, sold his majority control. In early 1976, Herb Owens did in fact sell his stock to the current shareholders and, consequently, Monumental notified Town Plaza that it had elected to terminate the lease under its option. Town Plaza filed a declaratory judgment action to construe the lease; it is pursuant to this action that the temporary injunction was sought to prevent Monumental from bringing a threatened forcible detainer action to recover the premises. The record does not, however, disclose whether such an action has been filed.

Before a temporary injunction can be granted, the petitioner must show that it has a probable right of recovery and that it will probably suffer injury unless the injunction is granted. Manning v. Wieser, 474 S.W.2d 448, 449 (Tex.1971). Thus, if the movant fails to introduce evidence showing a probable injury, it is not only proper for the trial court to deny the injunction, but it is required to do so. Delaney v. Fidelity Lease Limited, 526 S.W.2d 543 (Tex.1975). The evidence introduced must also show that irreparable injury will occur before the cause can be heard on the merits, not merely that harm will occur. Sarris v. Christie, 217 S.W.2d 99, 102 (Tex. Civ.App.—Dallas 1949, writ ref'd n. r. e.); Upshur Rural Electric Cooperative Corp. v. Key, 469 S.W.2d 420, 423 (Tex.Civ.App.— Texarkana 1971, no writ); see Crawford Energy, Inc. v. Texas Industries, 541 S.W.2d 463, 467 (Tex.Civ.App.—Dallas 1976, no writ).

The evidence at the temporary injunction hearing showed that the landlord had taken the position that it was entitled to terminate the lease and that, if Town Plaza refused to vacate the premises within ten days after notice was given on July 12, Monumental would initiate a forcible entry and detainer suit in justice court. There was no evidence, however, that such an action had been filed or that it could be filed and finally determined both in the justice court and on appeal before the court could decide the declaratory judgment action. Although the president of Town Plaza testified that the business would suffer irreparable harm if it was forced to vacate the premises, Town Plaza failed to show the immediacy of this harm. We cannot assume that the trial court would be unable to try the merits before Monumental could obtain possession by forcible detainer proceedings because the court could properly give the case precedence over other pending cases, and presumably would have done so. See Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 422 (1959); SCM Corp. v. Triplett Co., 399 S.W.2d 583, 588 (Tex.Civ.App.—San Antonio 1966, no writ); and cf. Manning v. Wieser, 474 S.W.2d 448, 450 (Tex.1971), in which the trial court's denial of a temporary injunction was held to be within its discretion in view of its offer of an early setting on the merits. In this respect, we hold that Town Plaza had the burden of showing that it would likely be forced to vacate the premises before the district court could hear the declaratory judgment action on its merits. Because it failed to show irreparable harm occurring before the cause could be heard on its merits, no abuse of the trial court's discretion is shown.

We expressly decline to pass on whether appellant established a probable right of recovery because no necessity exists for this determination in view of our holding. Furthermore, in our view, justice is not served by using an interlocutory appeal, such as this, to obtain an advance ruling on the merits. Moreover, as we view this matter, no necessity for an appeal existed because this case could have been most likely tried on its merits in less time than the time required by this interlocutory appeal. See Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684, 689 (Tex.Civ.App.— Dallas 1976), and Crawford Energy, Inc. v. Texas Industries, Inc., 541 S.W.2d 463, 468 (Tex.Civ.App.—Dallas 1976, no writ).

Affirmed.