Phil Bellamy v. the City of Brownsville and City Manager, Noel Bernal ( 2023 )

NUMBER 13-22-00087-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
PHIL BELLAMY, Appellant,
v.
CITY OF BROWNSVILLE AND
CITY MANAGER, NOEL BERNAL, Appellees.
On appeal from the 107th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Tijerina, and Peña
Memorandum Opinion by Justice Benavides
This is an interlocutory appeal from the denial of a temporary injunction. Appellees
City of Brownsville and City Manager Noel Bernal (collectively, the “City”) notified
appellant Phil Bellamy that he would not be reappointed as a municipal judge, and
Bellamy filed suit against the City seeking a declaration that he was reappointed to
another term of office as a matter of law because the City’s notice was untimely. See TEX.
GOV’T CODE ANN. § 29.005 (“A municipal court judge who is not reappointed by the 91st
day following the expiration of a term of office shall, absent action by the appointing
authority, continue to serve for another term of office beginning on the date the previous
term of office expired.”). The parties dispute when Bellamy’s previous term expired, thus
triggering the City’s ninety-day window to act. See id.
The trial court granted Bellamy an ex parte temporary restraining order prohibiting
his removal from office, but after conducting a hearing and receiving evidence, the court
denied Bellamy’s request to extend the injunction through trial. In what we construe as a
single issue, Bellamy argues that the trial court abused its discretion because he
demonstrated his entitlement to a temporary injunction. The City responds that Bellamy
failed to show a probable right to relief and that he would suffer irreparable harm without
an injunction. We affirm.
I. BACKGROUND
The historical facts in this case are undisputed. On October 31, 2005, the City
appointed Bellamy to serve his first term as a municipal judge. His term of office was for
two years and became effective November 2, 2005. From 2007 until 2017, the City
reappointed Bellamy to six successive two-year terms, always with an effective date of
November 2.
After his 2017–2019 term expired on November 2, 2019, the City notified Bellamy
in writing, on December 2, 2019, that he was being reappointed to another “two[-]year
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term, effective December 2, 2019.” Bellamy accepted the appointment and took his oath
of office on December 9, 2019.
On November 2, 2021, Bellamy sent the City the following written correspondence:
“My term of office as an associate municipal judge expires on or about December 2, 2021.
I request that you renew my appointment. Please contact me if you would like to discuss
anything. Thank you.” On February 17, 2022, the City informed Bellamy that he would not
be reappointed for another term.
Bellamy filed suit the next day, seeking a temporary restraining order, temporary
injunction, and ultimately a declaration that he was reappointed to another term of office
as a matter of law. During the temporary injunction hearing, Bellamy testified that both
parties were mistaken about when his previous term commenced. According to Bellamy,
as a matter of law, his last term of office began on the date his previous term expired.
Thus, his term of office was from November 2, 2019, until November 2, 2021, and the
City’s notice was untimely.
The City countered that, irrespective of his previous terms of office, Bellamy’s last
term commenced on the date the City reappointed him. Consequently, his term of office
was from December 2, 2019, until December 2, 2021, and the City’s notice was timely.
The trial court denied Bellamy’s request for a temporary injunction, and this
interlocutory appeal ensued. See TEX. CIV. PRAC. & REM. CODE ANN. § 54.014(a)(4).
II. TEMPORARY INJUNCTIONS
The purpose of a temporary injunction “is to preserve the status quo of the
litigation’s subject matter” during the pendency of the case. Butnaru v. Ford Motor Co.,
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84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.
1993)). “A temporary injunction is an extraordinary remedy and does not issue as a matter
of right.” Id. (citing Walling, 863 S.W.2d at 57). To establish entitlement to a temporary
injunction, the plaintiff must “plead and prove three specific elements: (1) a cause of action
against the defendant; (2) a probable right to the relief sought; and (3) a probable,
imminent, and irreparable injury in the interim.” Id. (first citing Walling, 863 S.W.2d at 57;
and then citing Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968)); see State v.
Hollins, 620 S.W.3d 400, 405 (Tex. 2020).
To establish a probable right to relief, the plaintiff is not required to prove that he
will prevail at trial; instead, he is only required to allege a cause of action and present
evidence tending to sustain the claim. Savering v. City of Mansfield, 505 S.W.3d 33, 39
(Tex. App.—Fort Worth 2016, pet. denied) (first citing Oil Field Haulers Ass’n v. R.R.
Comm’n, 381 S.W.2d 183, 196 (Tex. 1964), and then citing Frequent Flyer Depot, Inc. v.
Am. Airlines, Inc., 281 S.W.3d 215, 220 (Tex. App.—Fort Worth 2009, pet. denied)). “An
injury is irreparable if the injured party cannot be adequately compensated in damages
or if the damages cannot be measured by any certain pecuniary standard.” Butnaru, 84
S.W.3d at 204 (citing Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398,
401 (Tex. App.—Dallas 1989, no writ)); see Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d
763, 792 (Tex. 2020). “[T]he requirement of demonstrating an [irreparable] injury is not to
be taken lightly.” Walling, 863 S.W.2d at 57.
We review a trial court’s denial of a temporary injunction for an abuse of discretion.
Butnaru, 84 S.W.3d at 204 (citing Walling, 863 S.W.2d at 58). A trial court abuses its
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discretion if it acts “unreasonably or in an arbitrary manner, without reference to guiding
rules or principles.” Id. at 211 (citing Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex.
1991)). In conducting our review, we generally defer to the trial court’s judgment and view
the evidence in the light most favorable to the trial court’s decision. Allied Cap. Corp. v.
Cravens, 67 S.W.3d 486, 489 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.) (first
citing Davis v. Huey, 571 S.W.2d 859, 861–62 (Tex. 1978); and then citing Rugen v.
Interactive Bus. Sys., Inc., 864 S.W.2d 548, 551 (Tex. App.—Dallas 1993, no writ)). “The
trial court does not abuse its discretion if some evidence reasonably supports the trial
court’s decision.” Butnaru, 84 S.W.3d at 211 (citing Davis, 571 S.W.2d at 862). However,
questions of law are not discretionary, and a trial court that misinterprets the law or
misapplies the law to established facts abuses its discretion. Hollins, 620 S.W.3d at 405
(first citing In re Francis, 186 S.W.3d 534, 538 (Tex. 2006) (orig. proceeding); and then
citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)).
III. ANALYSIS
The parties agree that Bellamy’s declaratory judgment claim hinges on whether
his last term of office commenced on November 2, 2019, or December 2, 2019. The
parties also agree that Bellamy’s claim presents a pure question of law about the City’s
legal authority to determine Bellamy’s appointment date. Bellamy argues that the City
acted without legal authority when it “attempted to unilaterally change [his] term of office”
by extending his start date until December 2, 2019, instead of November 2, 2019.
According to Bellamy, under § 29.005 of the Texas Government Code, his last term of
office was necessarily fixed by his original appointment date of November 2, 2005. See
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TEX. GOV’T CODE ANN. § 29.005 (explaining that “[a] municipal court judge who is not
reappointed by the 91st day following the expiration of a term of office shall, absent action
by the appointing authority, continue to serve for another term of office beginning on the
date the previous term of office expired”). The City responds that there is no statute or
ordinance that establishes a specific start date for its municipal judges; therefore, under
controlling caselaw, Bellamy’s last term of office began on the date he was appointed,
which was December 2, 2019.1
By presenting Bellamy’s probable right to relief as a question of law, the parties
have effectively asked this Court to decide the merits of the underlying claim. With an
interlocutory order, however, “the merits of the underlying case are not presented for
appellate review.” Davis, 571 S.W.2d at 861 (agreeing that the court of appeals “far
exceeded the proper scope of appellate review of a temporary injunction and improperly
granted premature review of the entire case on its merits”). Instead, “[a]ppellate review of
an order granting or denying a temporary injunction is strictly limited to determination of
whether there has been a clear abuse of discretion by the trial court in granting or denying
the interlocutory order.” Id. at 861–62 (collecting cases). Because we can affirm the trial
court’s order on the irreparable harm element, we will assume, without deciding, that
Bellamy has demonstrated a probable right to relief. See Amend v. Watson, 333 S.W.3d
625, 630 (Tex. App.—Dallas 2009, no pet.) (declining to address legal questions
1 The trial court also believes that this case can be decided as a matter of law. In announcing its
decision denying the temporary injunction, the trial court commented that, instead of conducting a trial, this
is “more of a summary judgment case.”
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concerning the merits of the underlying claim because the order denying the temporary
injunction could be affirmed on other grounds).
A. Bellamy failed to plead an irreparable injury
The right to a temporary injunction begins with the sufficiency of the applicant’s
pleadings. Butnaru, 84 S.W.3d at 204 (requiring the applicant to both “plead and prove”
the elements of a temporary injunction). In his pleadings, Bellamy alleges that removing
him from his position as a municipal judge constitutes an irreparable injury because “the
citizens of Brownsville will be denied [his] services.” Similarly, he alleges there is no
adequate remedy at law because he “will not be able to complete his obligations to the
[C]ity and its citizens.” Bellamy makes no other allegations about irreparable injury in his
pleadings or supporting affidavit.
Generally, a plaintiff does not have standing to seek redress for injuries to a third
party or the public at large. Heckman v. Williamson County, 369 S.W.3d 137, 155 (Tex.
2012) (“Under Texas law, as under federal law, the standing inquiry begins with the
plaintiff’s alleged injury. The plaintiff must be personally injured—he must plead facts
demonstrating that he, himself (rather than a third party or the public at large), suffered
the injury.” (citing S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007) (per
curiam))). Thus, Bellamy’s allegations about harm to the City and its citizens could not
support a finding that he would suffer an irreparable injury without a temporary injunction.
See id.; Butnaru, 84 S.W.3d at 204. Simply put, Bellamy failed to “plead” an irreparable
injury. See Butnaru, 84 S.W.3d at 204.
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B. Bellamy also failed to show an irreparable injury
Even if we look beyond his pleadings, Bellamy failed to present evidence of
irreparable harm at the temporary injunction hearing. Bellamy was the only witness to
testify, and most of his testimony concerned his cause of action and probable right to
relief. As to his injuries, Bellamy provided the following testimony:
[Attorney]: [O]nce you’ve been relieved of your position of associate
judge, can you get your tenure back as a 17-year associate
judge for the City of Brownsville?
[Bellamy]: No.
[Attorney]: Are you vested in the retirement system with the City of
Brownsville?
[Bellamy]: Yes. Well, it’s with Texas Municipal Retirement System. It also
allows me—by my service as a [C]ity judge, it also allows me
to contribute to what I think is called a 457B, which is sort of
a—sort of a [City] version of a 401k.[2]
During closing, the City argued, as it does on appeal, that Bellamy failed to present
legally sufficient evidence of irreparable harm:
What irreparable injury is there? [Bellamy] has sued the City even for
exemplary damages so therefore he wants . . . his damage[s] to be
quantified, Judge. If he was wrongfully not given the position, that’s a
quantifiable loss. I’m talking about what his salary would have been, what
his benefits would have been, you know, his seniority could be established,
Judge, but that is something for a jury or a judge in the future to determine,
not now. And the evidence [introduced] is totally insufficient . . . for him to
get this equitable relief . . . .
We agree with the City. Bellamy’s claim is akin to a wrongful discharge claim, and
2 Bellamy further testified that he is one of five municipal judges, and without him, the City would
lose “20 percent of [its] ability to magistrate cases and to conduct traffic court and to try cases.” As
previously discussed, however, injuries suffered by the City are not actionable by Bellamy. See Heckman
v. Williamson County, 369 S.W.3d 137, 155 (Tex. 2012).
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lost wages and benefits can be readily measured and adequately compensated with
monetary damages. See Greater Fort Worth & Tarrant Cnty. Cmty. Action Agency v.
Mims, 627 S.W.2d 149, 151 (Tex. 1982) (explaining “the correct measure of damages for
wrongful discharge”); Hertz Equip. Rental Corp. v. Barousse, 365 S.W.3d 46, 57–58 (Tex.
App.—Houston [1st Dist.] 2011, pet. denied) (finding evidence legally and factually
sufficient to support damage award for lost wages and benefits). Therefore, if Bellamy
succeeds on his claim, “a judgment after trial awarding damages and possibly ordering
reinstatement would be an adequate remedy at law.” See Ford v. Landmark Graphics
Corp., 875 S.W.2d 33, 35 (Tex. App.—Texarkana 1994, no writ) (citing Sampson v.
Murray, 415 U.S. 61, 90–91 (1974)) (holding that terminated employee failed to show
irreparable harm); Fuentes Y. v. Fuentes, No. 08-20-00093-CV, 2022 WL 17082352, at
*8 (Tex. App.—El Paso Nov. 18, 2022, no pet.) (concluding that lost wages are not an
irreparable injury).
Bellamy also states in his brief that, without a temporary injunction, he will lose his
“status” as a municipal judge. Bellamy has not explained why an interim loss of “status”
constitutes an irreparable injury, and he has not cited authority supporting his proposition.
See TEX. R. APP. P. 38.1(i) (“The [appellant’s] brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the
record.”). In any event, our review of the caselaw suggests that any such injury would be
subsumed under an award of damages for mental anguish. See Tex. Animal Health
Comm’n v. Garza, 365 S.W.3d 54, 63 (Tex. App.—San Antonio 2000, pet. denied) (finding
evidence sufficient to support damage award for mental anguish on retaliatory discharge
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claim); Burlington Coat Factory Warehouse of El Paso, Inc. v. Flores, 951 S.W.2d 542,
548 (Tex. App.—El Paso 1997, no writ) (same).
We conclude that Bellamy failed to carry his burden to show an irreparable injury.
Accordingly, the trial court did not abuse its discretion in denying Bellamy’s application
for a temporary injunction, and Bellamy’s issue is overruled. See Butnaru, 84 S.W.3d at
204.
IV. CONCLUSION
The trial court’s order is affirmed.
GINA M. BENAVIDES
Justice
Delivered and filed on the
26th day of January, 2023.
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