Sue Morris & Floyd Lee Morris, Jr. v. Gerald Morris and Michael Morris ( 2007 )

MARY'S OPINION HEADING

                                                NO. 12-07-00088-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

SUE MORRIS AND  §                      APPEAL FROM THE THIRD

FLOYD LEE MORRIS, JR.

APPELLANTS

V.        §                      JUDICIAL DISTRICT COURT OF

GERALD MORRIS AND

MICHAEL MORRIS,

APPELLEES §                      ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

            This is an accelerated appeal from an order granting a temporary injunction.  We reverse the order of the trial court, dissolve the injunction, and remand the cause to the trial court.

Background

            The underlying dispute in this case is over the ownership of 42.194 acres in Anderson County, Texas. We will relate only that part of its tortured twenty-five year procedural history that is pertinent to our decision.  On March 21, 2003, Gerald Morris filed an “Application for Temporary Restraining Order” against Floyd Lee Morris, his nephew, and Sue Morris, the widow of his deceased brother, seeking to enjoin them from entering the 42.194 acres.  The temporary restraining order was granted and extended. On April 7, 2003, the trial court held a temporary injunction hearing.  The court heard lengthy arguments from counsel but no evidence.  At the conclusion of the hearing, the trial court made the following docket entry:

Both parties appeared with counsel, counsel ordered to produce abstract w/i 30 days, mutual injunction issued against both parties not to do anything to disturb status quo of property. [P]arties will produce injunction order agreed by parties. If not, court will accept both and issue own order.

No order was submitted, but on September 30, 2003, the trial court made the following docket entry:

Court considered file along with (’s title opinion etc. & cross-(’s response & exhibits.  Injunctive relief sought by ( granted, cross-(’s  request for injunctive relief denied, (’s atty (Cargill) to prepare order, submit to cross-(’s atty for objection to form.

No injunction order was ever submitted or entered.

            On August 6, 2004, Sue Morris filed an action to quiet title and for declaratory relief against Gerald Morris and Michael Morris.  Gerald and Michael Morris answered.  The matter lingered for more than two years until January 23, 2007, when Gerald Morris filed a counterclaim for title and possession of the disputed tract and for temporary injunction pending trial.  An agreed order consolidating the cause styled Gerald Morris v. Floyd Lee Morris and Sue Morris (trial court number 349-5128) into this cause was filed February 15, 2007.

            On February 15, 2007, the trial court, after hearing, granted the application of Gerald and Michael Morris for a temporary injunction and set August 13, 2007 as the trial date.

Standard of Review

            Whether to grant or deny a temporary injunction is within the trial court’s sound discretion.  Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).  A reviewing court should reverse an order granting injunctive relief only if the trial court abused that discretion.  Id.  An abuse of discretion occurs when the trial court misapplies the law to the established facts of the case or when the trial court concludes that the movant has demonstrated a probable injury or a probable right to recovery and that conclusion is not reasonably supported by the evidence.  See State v. Sw. Bell Tel. Co., 526 S.W.2d 562, 528 (Tex. 1975); Tri-Star Petroleum Co. v. Tipperary Corp., 101 S.W.3d 583, 587 (Tex. App.–El Paso 2003, pet. denied).

Applicable Law

            To obtain a temporary injunction, the applicant must plead and prove (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, 84 S.W.3d at 204.  A probable right to relief or recovery is shown by alleging a cause of action and presenting evidence that tends to sustain it.  Letson v. Barnes, 979 S.W.2d 414, 417 (Tex. App.–Amarillo 1998, pet. denied).  Probable irreparable injury is demonstrated by evidence showing the harm anticipated could not be adequately compensated in damages or could not be measured by a certain pecuniary standard.  Butnaru, 84 S.W.3d at 204.

            The issuance of a temporary injunction requires an evidentiary hearing.  No temporary injunction may issue unless the applicant offers competent evidence in support of the application at the hearing.  Bay Fin. Sav. Bank v. Brown, 142 S.W.3d 586, 589-90 (Tex. App.–Texarkana 2004, no pet.).  A sworn application does not constitute evidence supporting a temporary injunction, Alert Synteks, Inc. v. Jerry Spencer, L.P., 151 S.W.3d 246, 253 (Tex. App.–Tyler 2004, no pet.), and instruments attached to pleadings are not evidence unless introduced as such.  See Millwrights Local Union No. 2484 v. Rust Eng’g Co., 433 S.W.2d 683, 687 (Tex. 1968); Atkinson v. Arnold, 893 S.W.2d 294, 295 (Tex. App.–Texarkana 1995, no writ).  Documents not part of the trial court record when the court made the decision in question may not be considered on appeal.  Roventini v. Ocular Scis., Inc.,111 S.W.3d 719, 726 (Tex. App.–Houston [1st Dist.] 2003, no pet.).  To be properly included in the record on appeal, or later supplemented into the record, a document must be filed with the trial court.  See Tex. R. App. P. 34.5(c)(1); Texas Dep’t of Health v. Rocha, 102 S.W.3d 348, 354 (Tex. App.–Corpus Christi 2003, no pet.).  Once an appeal is perfected, the trial court cannot change the record that existed at the time the judgment was granted.  Gerdes v. Marion State Bank, 774 S.W.2d 63, 65 (Tex. App.–San Antonio 1989, writ denied).  Rule 34.5 allows supplementation of the record, but it does not allow for the creation of a new trial court record.  Richards v. Comm’n for Lawyer Discipline, 35 S.W.3d 243, 251 (Tex. App.–Houston [14th Dist.] 2000, no pet.).

Analysis

            The trial court heard lengthy explanations and arguments from counsel during both the hearing conducted in 2003 and the hearing held on February 15, 2007.  Remarks by counsel, however, are not competent evidence unless the attorney is actually testifying.  Bay Fin. Sav. Bank,  142 S.W.3d at 590.  No evidence showing a probable right to relief or irreparable injury was presented by the applicant at either of the hearings conducted for that purpose. Absent any evidence to support the application, we conclude the trial court abused its discretion in issuing the temporary injunction.

Disposition

            The order granting the temporary injunction is reversed, the injunction is dissolved, and the cause is remanded to the trial court.

                                                                                                    BILL BASS   

                                                                                                            Justice

Opinion delivered July 18, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(PUBLISH)