Jay Maresh, Beneficiary and J. R. Schaub, Trustee v. Gilbert A. Gamez, Sr. and Denise L. Gamez ( 2009 )

i i i i i i
MEMORANDUM OPINION
No. 04-09-00517-CV
Jay MARESH, Beneficiary, and J.R. Schaub, Trustee,
Appellants
v.
Gilbert A. GAMEZ, Sr., and Denise L. Gamez,
Appellees
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-CI-00106
Honorable Larry Noll, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: December 30, 2009
REVERSED; TEMPORARY INJUNCTION DISSOLVED
Appellants Jay Maresh and J.R. Schaub, Trustee, bring this interlocutory appeal from the trial
court’s order granting a temporary injunction enjoining them from proceeding with the eviction of
appellees, Gilbert A. Gamez, Sr. and Denise L. Gamez, from their homestead real property. See
TEX . CIV . PRAC. & REM . CODE ANN . § 51.014(a)(4) (Vernon 2008). Without addressing the merits
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of the injunctive relief, we hold the order granting the temporary injunction does not meet the
specificity requirements of Texas Rule of Civil Procedure 683. TEX . R. CIV . P. 683. Accordingly,
we reverse the trial court’s order, dissolve the temporary injunction, and remand the case to the trial
court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On June 20, 2008, Jay Maresh sold a house and lot located at 3427 Westmark, San Antonio,
Texas to Gilbert and Denise Gamez (collectively “Gamez”) in exchange for a $25,000 down
payment and execution of a real estate lien note in the original principal amount of $180,000 and a
deed of trust as security. Gamez made the house payments for July and August, but stopped making
the payments in September, claiming multiple defects in the house. On November 4, 2008, Maresh
sent Gamez a written notice of default and intent to accelerate the maturity of the note. On
December 8, 2008, Schaub as trustee under the deed of trust, sent Gamez written notice of
acceleration of the note and of a non-judicial foreclosure sale scheduled for January 6, 2009. The
day before the scheduled foreclosure sale, Gamez filed suit in district court and obtained a temporary
restraining order enjoining Schaub and Maresh from proceeding with the foreclosure. The temporary
restraining order signed by the court on January 5, 2009, states that Maresh and Schaub are restrained
from “proceeding with or causing the non-judicial foreclosure of” the real property at issue. A
hearing on whether the temporary restraining order should be extended and a temporary injunction
should be issued was set for January 16, 2009.
On January 12, 2009, before expiration of the temporary restraining order, Schaub re-posted
the real property for a foreclosure sale on February 3, 2009. Schaub sold the property at foreclosure
to Maresh on February 3, 2009. The next day, February 4, Maresh delivered a written demand to
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vacate and surrender possession of the property. When Gamez failed to vacate the property, Maresh
filed a forcible entry and detainer suit in the justice court. On March 26, 2009, the justice court
entered judgment awarding possession of the property to Maresh. Gamez appealed to the county
court at law, and the appeal remains pending.
On June 11, 2009, Gamez filed a second amended petition in district court seeking a
temporary injunction to prohibit eviction and to set aside the foreclosure sale, and alleging claims
for wrongful foreclosure, DTPA violations, fraud and unjust enrichment. A hearing on the
application for a temporary injunction was held on June 18, 2009, and the court orally granted the
injunction enjoining the eviction of Gamez. On August 6, 2009, the court signed a written order
granting the temporary injunction and enjoining Maresh and Schaub from proceeding with the
eviction of Gamez from the real property.1 Maresh and Schaub have appealed the issuance of the
temporary injunction.
ANALYSIS
Maresh and Schaub argue that the district court abused its discretion in granting the
temporary injunction because: (1) Gamez did not prove all the elements necessary for issuance of
the temporary injunction; (2) the written order issuing the injunction does not comply with the
mandatory requirements of Texas Rule of Civil Procedure 683; and (3) the court erred in refusing
to consider the validity of the January 5, 2009 temporary restraining order during the injunction
hearing. Gamez did not file an appellees’ brief.
The purpose of a temporary injunction is to preserve the status quo of the litigation’s subject
matter pending a trial on the merits. Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). An
1
… The order granting the temporary injunction set the matter for trial on December 7, 2009.
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applicant seeking a temporary injunction 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.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204
(Tex. 2002); City of San Antonio v. Vakey, 123 S.W.3d 497, 499 (Tex. App.—San Antonio 2003,
no pet.). We review an order granting a temporary injunction for an abuse of discretion without
addressing the merits of the underlying case. Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at
58.
Rule 683 of the Texas Rules of Civil Procedure requires that every order granting an
injunction “shall set forth the reasons for its issuance; shall be specific in terms; [and] shall describe
in reasonable detail and not by reference to the complaint or other document, the act or acts sought
to be restrained . . . .” TEX . R. CIV . P. 683. The requirements of Rule 683 are mandatory and must
be strictly followed. Qwest Communications Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000)
(per curiam); InterFirst Bank San Felipe, N.A. v. Paz Const. Co., 715 S.W.2d 640, 641 (Tex. 1986)
(per curiam) (when injunction order does not adhere to Rule 683 requirements, it is subject to being
declared void and dissolved). To comply with Rule 683, an order granting a temporary injunction
must specify the reasons why the injunction is warranted, including “the reasons why injury will be
suffered” if the injunction is not granted. State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex.
1971); Indep. Capital Mgmt., L.L.C. v. Collins, 261 S.W.3d 792, 795 (Tex. App.—Dallas 2008, no
pet.); AutoNation, Inc. v . Hatfield, 186 S.W.3d 576, 581 (Tex. App.—Houston [14th Dist.] 2005,
no pet.). The reasons stated in the order for granting the injunction must be specific and legally
sufficient, and must not be mere conclusory statements. Collins, 261 S.W.3d at 795 (citing Charter
Med. Corp. v. Miller, 547 S.W.2d 77, 78 (Tex. Civ. App.—Dallas 1977, no writ)); Univ.
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Interscholastic League v. Torres, 616 S.W.2d 355, 358 (Tex. Civ. App.—San Antonio 1981, no
writ). If the court’s order granting a temporary injunction does not comply on its face with the
specificity requirements of Rule 683, it constitutes an abuse of discretion and is void. Qwest, 24
S.W.3d at 337; Collins, 261 S.W.3d at 795; Torres, 616 S.W.2d at 358.
Here, the injunction order fails to specify the probable injury that would be suffered if
injunctive relief was not granted. The order merely recites the conclusory statement that if the
injunction is not granted “Plaintiffs will suffer immediate and irreparable injury, loss or damage will
result to Plaintiff before notice can be served and hearing had thereon.” The order does not specify
the facts the trial court relied on, and fails to identify the specific injury that will occur if the
injunction is not granted. See Collins, 261 S.W.3d at 795. Merely stating that “irreparable injury
will result” if injunctive relief is not granted does not comply with the specificity requirements of
Rule 683. See id. at 795-796 (injunction order simply setting out elements necessary for relief, and
failing to identify the injury from denial of the injunction, was conclusory and void); Hatfield, 186
S.W.3d at 581 (mere recital of “irreparable harm” does not meet Rule 683’s specificity
requirements); Torres, 616 S.W.2d at 358 (same). The temporary injunction order does not conform
to the requirements of Rule 683, and therefore the trial court abused its discretion in entering the
order and the order is void. Qwest, 24 S.W.3d at 337; Torres, 616 S.W.2d at 358; see Rio Grand
Exploration, L.L.C. v. Anju Production, L.L.C., No. 04-08-00495-CV, 2009 WL 618616, at *2 (Tex.
App.—San Antonio Mar. 11, 2009, no pet.) (mem. op.).
Because we conclude the order granting the temporary injunction fails to meet the specificity
requirements of Rule 683, and is thus void , we need not address the other appellate issues raised by
Maresh and Schaub. Accordingly, the trial court’s order granting the temporary injunction is
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reversed, the injunction is dissolved, and the cause is remanded to the trial court for further
proceedings.
Phylis J. Speedlin, Justice
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