Priest v. Texas Animal Health Commission , 1989 Tex. App. LEXIS 3142 ( 1989 )

OPINION

THOMAS, Justice.

D. Priest and Van Zandt Commission Company (hereafter collectively “Priest”) appeal from a permanent injunction entered by summary judgment, enjoining Priest from: 1) failing to maintain proper cattle ownership records for cattle sold through them; 2) refusing to allow Texas Animal Health Commission (hereafter “Commission”) representatives to examine such records; and 3) failing to brand cattle exposed to brucellosis. In two points of error, Priest contends that the trial court erred in granting the Commission’s motion for summary judgment because: 1) the summary judgment evidence did not entitle the Commission to judgment ás a matter of law and did not establish that there were no genuine issues of material fact; and 2) the affidavits and attachments to the Commission’s motion for summary judgment were inadequate as a matter of law to establish that no material issue of fact existed. We agree that the proof failed to establish that Priest failed to keep records as required by law. We conclude, however, that the other grounds for injunction were properly established. Thus, the trial court’s judgment is affirmed in part and reversed and remanded in part.

STANDARDS OF REVIEW

A. Permanent Injunction

A successful applicant for injunctive relief must demonstrate the following four grounds for relief: 1) the existence of a wrongful act; 2) the existence of imminent harm; 3) the existence of irreparable injury; and 4) the absence of an adequate remedy at law. Frey v. DeCordova Bend Estates Owners Ass’n, 632 S.W.2d 877, 881 (Tex.App.—Fort Worth 1982), aff'd, 647 S.W.2d 246 (Tex.1983).

The grant or refusal of a permanent or temporary injunction is ordinarily within the sound discretion of the trial court and, on appeal, review of the trial court’s action is limited to the question of whether the action constituted a clear abuse of discretion. Janus Films Inc. v. City of Fort Worth, 163 Tex. 616, 617, 358 S.W.2d 589, 589 (1962) (temporary injunction); Mejerle v. Brookhollow Office Products, 666 S.W.2d 192, 193 (Tex.App.—Dallas 1983, no writ) (temporary injunction); Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex.Civ.App.—Dallas 1974, no writ) (temporary injunction, but suggesting that abuse of discretion standard applies to all injunctions); Lee v. Bowles, 397 S.W.2d 923, 926 (Tex.Civ.App.—San Antonio 1965, no writ) (permanent injunction). Where the facts conclusively show a party is violating the substantive law it becomes the duty of the court to enjoin the violation and in such case there is no discretion to be exercised. City of Houston v. Memorial Bend Util. Co., 331 S.W.2d 418, 422 (Tex.Civ.App.—Houston 1960, writ ref’d n.r.e.).

Although a litigant has the right to a trial by jury in an injunction action, only ultimate issues of fact are submitted for jury determination. State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex.1979). The jury does not determine the expediency, necessity or propriety of equitable relief. Id.; Alamo Title Co. v. San Antonio Bar Ass’n, 360 S.W.2d 814, 816 (Tex.Civ.App.—Waco 1962, writ ref d n.r.e.). As the supreme court has noted:

We do not consider the question of likelihood of [defendant’s] resumption or continuation of the acts enjoined as being an ultimate issue of fact for the jury.... A jury in equity, even under a blended system, does not decide the issue of expediency, necessity or propriety of equitable relief.... It was an element deducible from the circumstances for the court to consider in determining whether wrong or injury might be anticipated and whether chancery powers should be exercised. It constituted here, in effect, a mixed question of law and fact at most. Such questions are not for the jury in injunction cases.

Texas Pet Foods, 591 S.W.2d at 803, quoting Alamo Title Co., 360 S.W.2d at 816.

B. Summary Judgment

The function of a summary judgment is not to deprive a litigant of his right to a full hearing on the merits of any real issue of fact, but to eliminate patently un-meritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). Under rule 166a of the Texas Rules of Civil Procedure, summary judgment may be rendered only if the pleadings, depositions, admissions, interrogatory answers, and affidavits show 1) that there is no genuine issue as to any material fact and 2) that the moving party is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c).

The applicable standards for reviewing a summary judment may be summarized as follows:-

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.

3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). With the standards of review for injunction and for summary judgment in mind, we turn to the summary judgment proof offered in support of Priest’s violations of the Texas Agriculture Code.

FAILURE TO KEEP PROPER RECORDS

The Texas Agriculture Code requires that each livestock auction commission merchant keep a record of transportation of livestock to and from the place of sale, including the name and address of the original owner and the purchaser of the livestock. TEX.AGRIC.CODE ANN. § 147.042 (Vernon 1982). The statute provides that the commission merchant shall retain the records for at least one year after the date of sale. Id. § 147.042(d).

The Commission also points to section 147.041 of the Texas Agriculture Code and to rule 85.2(e) of the Texas Bovine Brucel-losis Regulations promulgated by the Commission pursuant to sections 161.046 and 163.061 of the Texas Agriculture Code, as requiring Priest to keep records of the names and addresses of sellers and purchasers of cattle. Section 147.041 requires Priest to keep records of all livestock sold. TEX.AGRIC.CODE ANN. § 147.041(a). It does not explicitly state that Priest must keep records including the name and address of sellers and purchasers of livestock, although the statute requires him to file with the commissioners court a quarterly report containing this information. TEX.AGRIC.CODE ANN. § 147.041(c). Because the statute does not specifically require Priest to keep the information the Commission contends he failed to keep, we conclude that violation of this provision will not support the injunction. Rule 35.2(e) provides that the market will supply certain information to the veterinarian making a market test of cattle, including the full name and address, including zip code, of the owner of the cattle at the time the cattle are delivered to the market. Again, although the rule certainly implies a requirement to keep records in order to supply the information to the veterinarian, there is no explicit requirement that Priest keep such records. The Commission has not alleged that Priest failed to give the required information to the veterinarian. Thus, violation of rule 35.2(e) will not support the injunction.

As proof that Priest failed to keep records including the name and address of the original owner and the purchaser, the Commission attached to its motion for summary judgment Priest’s answers to interrogatories, an affidavit of Wayne Rogers, a postmaster, and excerpts from the United States Government Manual pertaining to mail. The Commission served on Priest two sets of interrogatories. The sixty questions in the two sets each asked Priest to: “Provide full name, address including county and telephone number for seller/original owner of [certain cattle identified by back tag number] sold through Van Zandt Commission Company, Inc. on [a certain date].” The dates of sales were between January 4, 1986 and December 20, 1986. Priest’s answers to the interrogatories were served on counsel on June 17, 1988. Priest’s responses to a number of the interrogatories included name, address including route number and box number or street address, city and state, and zip code. Several interrogatory answers included a name and route number, city and state, but did not include a box number and zip code. Others included a name, city and state, or merely a name. In response to one interrogatory asking for the name and address of the seller/original owner of back tag #74 493 sold through Van Zandt Commission Company on November 22, 1986, Priest responded, “Information not available.” The affidavit of the postmaster and the excerpts from the Government Manual concerning the elements of a proper address were offered to show that the information provided by Priest did not, in many respects, constitute full names and addresses.

The Commission’s theory for summary judgment was that Priest’s inability to produce names and addresses for his responses to the interrogatories was proof that, as a matter of law, Priest did not keep the records required by the Agriculture Code. The hypothesis is compelling, except for one failing. The Agriculture Code required Priest to retain records from sales for only one year. TEX.AGRIC.CODE ANN. § 147.042(d). The fact that Priest could not produce information on June 17, 1988, concerning sales in 1986, constitutes no proof that Priest failed to keep the records of sale for one year as required by the Code. In fact, Priest stated in his affidavit that he has always maintained the proper records. Such statements of the nonmov-ant must be taken as true. Nixon, 690 S.W.2d at 548.

We recognize that Priest did not raise this precise argument in his response to summary judgment, nor in his brief on appeal. We note, however, that this point concerns a deficiency of proof that Priest is entitled to raise without first complaining in his response to the motion for summary judgment. No response from the nonmov-ant is required when the movant’s summary judgment proof is legally insufficient. Cove Investments, Inc. v. Manges, 602 S.W.2d 512, 514 (Tex.1980). Further, Priest’s points of error aver generally that the trial court erred in granting the summary judgment because the Commission failed to prove its entitlement to such judgment. These points embrace all reasons for the failure of proof which rendered the granting of the summary judgment improper. Id. at 517. We hold that the summary judgment proof failed to establish the Commission’s entitlement to summary judgment on the basis of a failure by Priest to maintain proper records. Without proof of unlawful conduct or proof of intent to commit such conduct, injunctive relief is improper. Frey, 632 S.W.2d at 881. We sustain that portion of point of error one contending that the Commission failed to establish its right to judgment on the ground of failure to keep proper records.

REFUSAL OF ACCESS TO RECORDS

Section 147.042 of the Texas Agriculture Code provides that the commission merchant shall prepare the transportation records referenced above and make them available for public inspection within twenty-four hours after receipt of the livestock and that these records are to be retained for at least one year after the date of sale. TEX.AGRIC.CODE ANN. § 147.042. The Commission contended that Priest had refused to allow Commission representatives to examine these records. As proof, the Commission offered the affidavit of Richard Hanson, Animal Health Inspector. Hanson averred that on several occasions in the exercise of his official duties he had attempted to examine the records of the Van Zandt Commission Company and was told by Priest or his wife, who acted as bookkeeper for the company, that he would not be allowed to view any of the records unless he brought a search warrant. He lists several dates upon which he was refused access to the records, such dates being within one year of sales referenced in the interrogatories.

Priest argues that Hanson’s affidavit will not support summary judgment because Hanson is an interested witness. Rule 166a of the Texas Rules of Civil Procedure provides that a summary judgment may be based on uncontroverted evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. TEX.R.CIV.P. 166a(c); Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986). We conclude that the statements in Hanson’s affidavit that on several listed dates he was refused access to records by Priest and his wife are clear, positive, direct and could have been readily controverted. Further, this evidence was not controverted by Priest. Thus, the summary judgment could be based upon Hanson’s affidavit. Hanson clearly stated that he was not allowed to view records which the Agriculture Code required Priest to retain and make available for public inspection. We hold that this evidence established the Commission’s entitlement to summary judgment on this ground as a matter of law.

FAILURE TO BRAND CATTLE EXPOSED TO BRUCELLOSIS

The Texas Bovine Brucellosis Regulations require cattle infected with brucello-sis and cattle exposed to infected cattle to be appropriately branded. Cattle identified as being infected with brucellosis are branded on the left jaw with the letter “B.” Cattle from the same herd as any infected cattle are considered suspects, and are to be branded on the left jaw with the letter “S.” Tex. Animal Health Comm’n, 4 TEX. ADMIN. CODE § 35.2(h) (West Oct. 15, 1988) (brucellosis). All exposed cattle are to be branded prior to moving, except that cattle on the premise of origin may be moved to a livestock market where they are to be indentified by “S” brand upon arrival. Id. § 35.2(h)(2).

As proof that Priest had moved suspect cattle without first “S” branding them, the Commission offered the affidavits of Rick Nabors, director of the State-Federal laboratories in Texas, and veterinarian Edward L. Ptacek. In addition, Nabors’s affidavit was accompanied by documents reflecting the results of brucellosis tests of cattle passing through the Van Zandt market. Nabors stated that he is a microbiologist and that the attached documents correctly reflect that brucellosis tests were conducted on blood samples received from a herd of cattle owned by the Malouf Ranch. The test results on two animals, identified by backtag numbers, were positive. Nabors averred further, “Based on the card test, the veterinarian classified both animals as reactors [infected with bru-cellosis]. The State-Federal laboratory tests confirm his results.” Edward Ptacek stated that he had been employed by the Commission as the director of Area 5; the area in which the Van Zandt Commission Company conducted business. On a certain date, he personally observed seventy-three head of cattle from the Malouf Ranch, which herd contained two brucello-sis-infected animals, being moved without proper “S” branding as required for the seventy-one exposed cattle.

Priest argues that Nabors’s affidavit and attachments do not support the summary judgment because the affidavit contains hearsay, is not based upon personal knowledge, and fails to establish the admissibility of the attachment. Priest’s hearsay complaint is directed to the statement that “the veterinarian classified both animals as reactors.” We agree that such statement is inadmissible hearsay, properly objected to in Priest’s response to the motion for summary judgment, and should be disregarded. Priest further contends that this hearsay statement shows that Nabors’s affidavit is not based on personal knowledge, but rather upon the statement of some unknown veterinarian. We disagree. The affidavit states that Nabors confirmed this statement from his own laboratory tests. Priest also argues that the documents attached to Nabors’s affidavit are inadmissible because the documents are not directly referenced or identified in the affidavit, the affidavit does not reflect whether the attachments are true and correct copies of the originals, and the affidavit does not establish the admissibility of the documents.

Priest is mistaken in stating that the affidavit does not refer to the documents. The affidavit clearly states, “The attached documents correctly reflect ... ”; thus, the affidavit does directly reference the documents. Priest’s argument that the affidavit fails to state that the copies are true and correct copies is more troublesome. Priest correctly states that such words are not used. Rule 166a states that attachments referred to in an affidavit shall be sworn or certified copies. TEX.R. CIV.P. 166a(e). Documents which are not sworn to or certified in any way do not constitute summary judgment proof. Lopez v. Hink, 757 S.W.2d 449, 450 (Tex.App.—Houston [14th Dist.] 1988, no writ).

The supreme court has held, however, that copies of documents which are attached to a properly prepared affidavit are sworn copies within the meaning of rule 166a. Schindler, 717 S.W.2d at 607; Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex.1983). An affidavit which avers that the documents are true and correct copies is considered a properly prepared affidavit. Schindler, 717 S.W.2d at 607. Schindler does not, however, limit a properly prepared affidavit to one containing these magic words. We hold that Nabors’s statement that the documents accurately reflect the results of tests performed by the laboratory he supervises properly verified the documents.

Priest’s last complaint directed to Nabors’s affidavit and attached documents is that the affidavit fails to establish the admissibility of the attachments “with respect to who made the document, when they were prepared or whether or not they were business records.” Priest does not aid us with citation to authority; nevertheless, we discern that his complaint is that the documents were hearsay in that they were not shown to be admissible business records. Priest raises this complaint for the first time on appeal. Because he failed to raise this hearsay objection in his response to the motion for summary judgment, he has waived any complaint as to consideration of inadmissible evidence as part of the summary judgment record. Dolenz v. A.B., 742 S.W.2d 82, 83-84 n. 2 (Tex.App.—Dallas 1987, writ denied).

Priest attacks Ptacek’s affidavit because the witness references “the foregoing test records,” an apparent reference to the documents attached to Nabors’s affidavit, which preceded Ptacek’s affidavit when presented to the court. Priest again complains that the documents were not properly sworn. We reiterate that Nabors’s affidavit properly verified the exhibit. Priest further complains that the referenced document was not attached to Ptacek’s affidavit. Rule 166a(e) provides that sworn copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. Priest does not contend that the documents attached to Na-bors’s affidavit were not served together with Ptaeek’s affidavit when the Commission’s motion for summary judgment was served.

Having determined what parts of the summary judgment proof may be considered, we turn now to the sufficiency of that proof. Nabors stated that two animals from the Malouf herd tested positive for brucellosis, and were therefore considered reactors. The test results show that the test was conducted at Priest’s facility. Further, Ptacek stated that he personally observed, at the Van Zandt Commission Company, suspect cattle that were moved without first being branded “S”.

We conclude that the summary judgment proof showed that Priest had moved suspect cattle without first branding the cattle with the letter “S” as required by the Texas Bovine Brucellosis Regulations promulgated by the Commission. Thus, the Commission established its entitlement to summary judgment on this ground as a matter of law.

SUMMARY

We hold that the trial court properly granted the summary judgment concluding that Priest had refused to allow Commission representatives to examine records and that Priest had allowed suspect cattle to be moved without first branding them as required by state regulations. We also conclude that the trial court did not abuse its discretion in entering the permanent injunction on these grounds. We further hold that the evidence failed to show that, as a matter of law, Priest failed to keep records as required by law. Thus, we conclude that the trial court abused its discretion in entering the injunction on this ground. We reverse the summary judgment on this ground and remand for further proceedings. In addition, the permanent injunction enjoining Priest from failing to maintain proper records is dissolved.

HOWELL, J., dissents.