Andy Sanchez v. John H. Miller, Jr. Co. Inc. ( 2015 )

ACCEPTED
04-15-00360-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
8/25/2015 3:39:53 PM
KEITH HOTTLE
CLERK
APPEAL NO. 04-15-00360-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THESAN ANTONIO, TEXAS
8/25/2015 3:39:53 PM
FOURTH SUPREME JUDICIAL DISTRICT OF TEXAS
KEITH E. HOTTLE
SAN ANTONIO, TEXAS Clerk
ANDY SANCHEZ
Appellant,
vs.
JOHN H. MILLER, JR. CO., INC.
Defendant-Appellee.
Appealed from the District Court of
Kerr County, Texas
198th Judicial District
Trial Court Cause No. 14467B
The Honorable Rex Emerson
____________________________
REPLY BRIEF OF APPELLANT
RICHARD L. ELLISON
Broadway Bank Building
500 Main St. Suite J
Kerrville, Texas 78028
830.792.5601
Texas Bar No.: 06580700
rellison@richellison.com
Attorney for Andy Sanchez
Defendant-Appellant
TABLE OF CONTENTS
TABLE OF CONTENTS …………………………………………………………………… i
INDEX OF AUTHORITIES ………………………………………………………………… i
ARGUMENT ……………………………………………………………………………... 1
PRAYER AND CONCLUSION …………………………………………………………...... 2
CERTIFICATE OF SERVICE ………………………………………………………………. 3
__________________________________________________
INDEX OF AUTHORITIES
TEXAS RULE OF CIV. P. 684 ……………………………………………………………. 1
Bishop v. Clawson, 2012 WL 19668 (Tex.App.-2012 n.w.h.) ………………………… 2
Del Valle I.S.D. v. Lopez, 845 S.W.2d 808 (Tex.1992) ……………………..………… 2
Ex Parte Jordan, 142 S.W.3d 586, 590 (Tex.1990) …………………………………… 1
Ex Parte Lesher, 651 S.W.3d 586, 590 (Tex.1983) ……………………………………. 1
Letson v. Barnes, 979 S.W.2d 414 (Tex.App.-Amarillo 1998, pet.
denied)……………..……………………………………………………………………. 2
Ludewig v. Houston Pipeline Co., 737 S.W.2d 15 (Tex.App.-Corpus Christi
1987 n.w.h.) ……………………………………………………………………………. 1
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TO THE HONORABLE FOURTH COURT OF APPEALS:
Appellant Andy Sanchez respectfully files this brief in reply to Appellee’s Brief.
ARGUMENT
A. The original Temporary Injunction-Amended expired Aug. 7, 2014.
The trial court signed the Temporary Injunction – Amended on July 7, 2014.
Paragraph 4 stated “Plaintiff’s application for a permanent injunction is set for trial on
August 7, 2014 at 9:00 a.m…. This Order expires at that time or until further order of the
Court.” The case did not go to trial and the trial court did not sign any order that extended
it. The temporary injunction expired by its own terms on Aug. 7, 2014. The trial court
may have intended that the original injunction would remain in effect after that date, but
that is not what it ordered.
B. The May 20, 2015 Order failed to require a bond.
There was no injunction in place from Aug. 7, 2014 until May 20, 2015 when the trial
court signed the Order stating in Paragraph 4 “The Court confirms that the July 7, 2014
Temporary Injunction remains in full force and effect and orders that it is in full force and
effect until final trial of this matter or further order of the Court.” The Order did not
require Miller to post a bond, as required by Tex. R. Civ. P. 684. The Order was void
when signed. Ex parte Jordan, 142 S.W.3d 586, 590 (Tex.1990); Ex parte Lesher, 651
S.W.2d 734, 736 (Tex.1983).
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C. The Order could not “relate back” to an expired injunction.
Appellee cites no authority that support its argument that the Order could “relate
back” to an expired injunction. As stated, the trial court may have intended that the
original injunction would remain in effect after that date, but that is not what it ordered.
In Ludewig v. Houston Pipeline Co., 737 S.W.2d 15 (Tex.App. – Corpus Christi 1987
n.w.h.) there is no indication that the original injunction had expired before the trial court
amended it.
In Bishop v. Clawson, 2012 WL 19668 (Tex.App. – 2012 n.w.h.), a memorandum
opinion, the trial court issued an injunction, then vacated it, then reinstated it. Again,
there is no indication that the original injunction had expired on its own terms. Further,
there is no indication that the reinstated injunction failed to require a bond, as in the
instant case. In Del Valle I.S.D. v Lopez, 845 S.W.2d 808 (Tex.1992) the only issue was
whether there was an appealable order.
D. There is no evidence to support the May 20, 2015 Order.
Appellee offered no evidence at the May 6, 2015 hearing. Whether the original
Injunction was supported by evidence, it expired on Aug. 7, 2014, and Appellee waited
nine months to do anything, then presented no evidence at the hearing. An injunction
cannot be upheld without evidence. Letson v. Barnes, 979 S.W.2d 414, 417 (Tex.App. –
Amarillo 1998, pet. denied).
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CONCLUSION AND PRAYER
The original injunction expired on its own terms on Aug. 7, 2014. Appellee failed
to do anything to extend or reinstate it for seven months. Then, it presented no evidence,
and obtained a new injunction that failed to require a bond. The new injunction was an
appealable order, and Appellant timely appealed. For these reasons, Appellant prays that
this Court order the injunction dissolved.
Respectfully submitted,
RICHARD L. ELLISON, P.C.
Broadway Bank Building
500 Main St., Suite J
Kerrville, Texas 78028
Tel. (830) 792-5601
Fax. (830) 792-5602
rellison@richellison.com
By: /s/ Richard L. Ellison
SBOT: 06580700
ATTORNEY FOR APPELANT
ANDY SANCHEZ
Certificate of Service
I certify that on the 25th day of August, 2015 I filed this brief with the Clerk of
court via the Prodoc efiling system, who will served a true and correct copy via fax to
Appellee counsel Stephen B. Schulte.
/s/ Richard L. Ellison
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