Latter Day Deliverance Revival Church and Christian Fellowship Missionary Baptist Church v. the Houston Housing Authority ( 2015 )

ACCEPTED
01-15-00790-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/7/2015 12:05:33 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00790-CV
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS 10/7/2015 12:05:33 PM
CHRISTOPHER A. PRINE
AT HOUSTON Clerk
__________________________________________________________________
LATTER DAY DELIVERANCE REVIVAL CHURCH APPELLANT
V.
THE HOUSTON HOUSING AUTHORITY APPELLEE
__________________________________________________________________
MOTION TO DISMISS INTERLOCUTORY APPEAL AS MOOT
[filed by Appellee Houston Housing Authority]
__________________________________________________________________
Appellee Houston Housing Authority (“HHA”) respectfully moves this hon-
orable Court to dismiss this appeal as moot insofar as it is taken from the trial
court’s order denying a temporary injunction.
1. This appeal originated as an interlocutory (accelerated) appeal from a
September 1, 2015, trial court order (Exhibit A to this motion) denying the appel-
lant’s application for a temporary injunction.
2. On September 11, 2015, the trial court signed an order (the “Septem-
ber 11 order,” Exhibit B to this motion) granting HHA’s plea to the jurisdiction.
This order had the effect of disposing of all remaining parties and issues in the
case, and therefore constituted a final judgment.
MOTION TO DISMISS INTERLOCUTORY APPEAL AS MOOT – Page 1
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3. The appellant (along with a co-appellant) has appealed from the Sep-
tember 11 order. It appears that the clerk of this Court has treated the appeal from
the final judgment as part of this accelerated appeal.
4. Since the purpose of a temporary injunction is to preserve the status
quo pending final judgment, and since a temporary injunction expires upon final
judgment, it is routinely held that the rendition of a final judgment moots an appeal
from an order denying a temporary injunction. See Isuani v. Manske-Sheffield Ra-
diology Group, P.A., 802 S.W.2d 235, 236 (Tex. 1991) (per curiam); Lowe v.
Farm Credit Bank, 2 S.W.3d 293, 299-300 (Tex. App. – San Antonio 1999, pet.
denied); Save Our Springs Alliance, Inc. v. Austin Independent School District, 973
S.W.2d 378, 384 (Tex. App. – Austin 1998, no pet.); Bonilla v. Roberson, 918
S.W.2d 17, 20-21 (Tex. App. – Corpus Christi 1996, no pet.); Roadrunner Invest-
ments, Inc. v. Texas Utilities Fuel Co., 526 S.W.2d 615, 616-17 (Tex. Civ. App. –
Fort Worth 1975, no writ); City of Corpus Christi v. Cartwright, 281 S.W.2d 343,
343-44 (Tex. Civ. App. – San Antonio 1955, no writ); Spencer v. Steele, 132
S.W.2d 146, 146 (Tex. Civ. App. – San Antonio 1939, no writ).1
5. The denial of the temporary injunction is moot even where, as here,
the final judgment is on appeal. See Jordan v. Landry’s Seafood Restaurant, Inc.,
1
Accord, Movies & Games 4 Sale, L.P. v. Video Advantage, Inc., No. 05-97-00536-CV, 1997
Tex. App. LEXIS 3723, *1 (Tex. App. – Dallas July 17, 1997, no pet.) (not designated for publi-
cation).
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89 S.W.3d 737, 741 (Tex. App. – Houston [1st Dist.] 2002, pet. denied) (appeal
after final judgment dismissed as to denial of temporary injunction; judgment af-
firmed on merits); Lowe v. Farm Credit Bank, 2 S.W.3d at 299-300 (appeal from
denial of temporary injunction dismissed as moot; final judgment affirmed); EMW
Manufacturing Co. v. Lemons, 741 S.W.2d 212, 214 (Tex. App. – Fort Worth
1987) (appeal from denial of temporary injunction voluntarily dismissed; com-
plaint about denial in final-judgment appeal overruled as moot; final judgment re-
versed on merits), rev’d on other grounds, 747 S.W.2d 372 (Tex. 1988); cf. Harris
v. Moore, 912 S.W.2d 860, 863 (Tex. App. – Austin 1995, no pet.) (appeal from
denial of temporary injunction rejected on alternative grounds of mootness and no
abuse of discretion; final judgment reversed).
Appellee Houston Housing Authority respectfully prays: (1) that this appeal
be dismissed as moot insofar as it is taken from the trial court’s order denying a
temporary injunction; and (2) for such other and further relief to which it may be
entitled at law or in equity.
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Respectfully submitted,
/s/ P. Michael Jung
P. MICHAEL JUNG
State Bar No. 11054600
KEVIN J. MAGUIRE
State Bar No. 12827900
SAMUEL J. LOUIS KIMBERLY H. MURPHY
State Bar No. 12588040 State Bar No. 24075619
Strasburger & Price, LLP Strasburger & Price, LLP
909 Fannin Street, Suite 2300 901 Main Street, Suite 4400
Houston, TX 77010 Dallas, Texas 75202-3794
713.951.5604 214.651.4300
832.397.3503 (telecopy) 214.651.4330 (telecopy)
sam.louis@strasburger.com michael.jung@strasburger.com
kevin.maguire@strasburger.com
kim.murphy@strasburger.com
ATTORNEYS FOR APPELLEE
CERTIFICATE OF CONFERENCE
I hereby certify that I have contacted Aaron Streett, Esq., counsel for the ap-
pellant, concerning this motion. Mr. Streett has stated that this motion is opposed.
/s/ P. Michael Jung
P. MICHAEL JUNG
MOTION TO DISMISS INTERLOCUTORY APPEAL AS MOOT – Page 4
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CERTIFICATE OF SERVICE
I hereby certify that this Motion to Dismiss Interlocutory Appeal as Moot
has been served on all parties to this appeal by electronic service through eFile
Texas.gov on: Aaron Street, Esq., Attorney for Appellant Latter Day Deliverance
Revival Church; and Hiram S. Sasser III, Esq., Attorney for Appellant Latter Day
Deliverance Revival Church; both on this 7th day of October, 2015.
/s/ P. Michael Jung
P. MICHAEL JUNG
MOTION TO DISMISS INTERLOCUTORY APPEAL AS MOOT – Page 5
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