Brett Oil Company, Cuarenta Star Corporation, and Twenty Oaks of Texas, Inc., Dba Twenty Oaks Corp. v. First Source Energy, L.P. ( 2009 )


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  •                                 IN THE
    TENTH COURT OF APPEALS
    No. 10-08-00234-CV
    BRETT OIL COMPANY, CUARENTA
    STAR CORPORATION, AND TWENTY
    OAKS OF TEXAS, INC., DBA
    TWENTY OAKS CORP.,
    Appellants
    v.
    FIRST SOURCE ENERGY, L.P.,
    Appellee
    From the 12th District Court
    Leon County, Texas
    Trial Court No. 0-08-236
    MEMORANDUM OPINION
    A temporary injunction was granted by the trial court in Leon County staying an
    arbitration proceeding pending in Harris County between Brett Oil Company, Cuarenta
    Star Corporation, and Twenty Oaks of Texas, Inc., dba Twenty Oaks Corp., and First
    Source Energy. An interlocutory appeal to this Court followed pursuant to Texas Civil
    Practice and Remedies Code § 51.014. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014
    (Vernon 2008). Because no evidence was presented at the temporary injunction hearing,
    we find that the trial court abused its discretion in granting the temporary injunction
    and that the temporary injunction is declared void and order that the temporary
    injunction is dissolved.
    Jurisdiction
    The granting of a temporary injunction may be appealed by an interlocutory
    appeal. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (Vernon 2008). In this case,
    the heading of the injunction is styled “Permanent Injunction;” however, the language
    of the order indicates that the injunction is intended to be a temporary injunction. The
    Texas Supreme Court has rejected the notion that the form of the order controls the
    nature of the order but that “the character and function of an order” determine its
    classification. See Del Valle Independent School District v. Lopez, 
    845 S.W.2d 808
    , 809 (Tex.
    1992). See also Qwest Communications International v. AT&T Corp., 
    24 S.W.3d 334
    (Tex.
    2000).
    It is apparent from the reporter’s record, the briefs of both Appellants and
    Appellee, and the order entered that the intent was that a temporary injunction be
    entered.    The last phrase in the order is “until further order of the court,” which
    indicates that the order was intended to be temporary. We hold that this is a temporary
    injunction and is an appealable interlocutory order under § 51.014(a)(4). TEX. CIV. PRAC.
    & REM. CODE ANN. § 51.014 (Vernon 2008).
    Standard of Review
    The decision to grant or deny a temporary injunction lies within the sound
    discretion of the trial court, and we will not disturb that decision absent a clear abuse of
    Brett Oil Company v. First Source Energy, L.P.                                         Page 2
    discretion. Butnaru v. Ford Motor Co., 
    84 S.W.3d 198
    , 204 (Tex. 2002). Because this
    appeal is from an interlocutory order, this Court may not consider the merits of the
    underlying lawsuit. Davis v. Huey, 
    571 S.W.2d 859
    , 861 (Tex. 1978). The trial court does
    not abuse its discretion if some evidence reasonably supports its decision. 
    Butnaru, 84 S.W.3d at 211
    .
    If no evidence is presented at the temporary injunction hearing, absent the
    parties' agreement, a writ of injunction is improper. Millwrights Local Union No. 2484 v.
    Rust Engineering Co., 
    433 S.W.2d 683
    , 686 (Tex. 1968); Wyly v. Preservation Dallas, 
    165 S.W.3d 460
    , 464 (Tex. App.—Dallas, 2005, no pet.).          The party applying for the
    injunction has the burden of production, and evidence must be adduced under
    standard rules of evidence; testimony by affidavit does not suffice, nor does a sworn
    petition constitute evidence. 
    Millwrights, 433 S.W.2d at 687
    ; 
    Wyly, 165 S.W.3d at 464
    .
    The Hearing
    The district court did not hear any evidence in support of First Source Energy’s
    application for injunctive relief but only arguments of counsel.       We are therefore
    compelled to conclude that there is no evidence to support the court's decision and that
    it abused its discretion in issuing the temporary injunction. 
    Butnaru, 84 S.W.3d at 211
    .
    Motion To Dismiss And Motion To Abate
    Appellants also complain that the trial court did not dismiss this action as an
    improper use of the declaratory judgment act or alternatively that the trial court erred
    when it failed to abate or dismiss the case under the doctrine of dominant jurisdiction.
    We do not address these complaints as this is an interlocutory appeal. These other
    Brett Oil Company v. First Source Energy, L.P.                                      Page 3
    complaints are not statutorily authorized to be addressed in an interlocutory appeal and
    therefore are not properly brought before this Court.
    CONCLUSION
    Having found the trial court abused its discretion in granting the temporary
    injunction,1 we declare the temporary injunction void and order that it is dissolved.
    TOM GRAY
    Chief Justice
    Before Chief Justice Gray,
    Justice Reyna, and
    Justice Davis
    Reversed and remanded
    Opinion delivered and filed June 17, 2009
    [CV06]
    1 The injunction is also void due to the omissions required by Texas Rules of Civil Procedure 683 and 684,
    which require that a temporary injunction both set a final hearing in the order and set a bond to be
    posted. TEX. R. CIV. PROC. 683, 684. These requirements are mandatory and their absence renders the
    injunction void. Interfirst Bank San Felipe, N.A. v. Paz Construction Co., et al., 
    715 S.W.2d 640
    (Tex. 1986);
    Lancaster v. Lancaster, 
    155 Tex. 528
    , 
    291 S.W.2d 303
    , 308 (Tex. 1956).
    Brett Oil Company v. First Source Energy, L.P.                                                         Page 4