Alan Gibson v. Connie Walker, Co-Executrix of the Estate of Doris King ( 2001 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Alan Gibson

Appellant

Vs.                   No. 11-01-00185-CV B Appeal from Dawson County

Connie Walker, Co-Executrix of the Estate of Doris King, Deceased

Appellee

The issue in this case is whether an injunction, designated as a ATemporary Injunction,@ in an order signed by the trial court is void because the order does not require a bond as required by TEX.R.CIV.P. 684.

Connie Walker, as Co-Executrix of the Estate of Doris King, Deceased, sued Alan Gibson, alleging that Gibson, a tenant of farmland owned by the Doris King Estate, had no authority to use or occupy the land for the year 2001.  Walker alleged that Gibson unlawfully entered upon the land on March 29, 2001, and began plowing the land.  Walker requested the court to permanently enjoin Gibson from entering the property and to award Walker damages.

Walker filed her petition for injunction and damages on March 30, 2001.  In her petition, Walker requested the court to issue a temporary restraining order. On March 30, 2001, the court issued a temporary restraining order commanding Gibson to refrain from entering the property from the date of the order until the 14th day after entry of the order or until further order of the court.  In the restraining order signed by the court, the court ordered Walker to execute and file with the clerk of the trial court a proper bond in the amount of $500.  The court also ordered Gibson to appear for a Atemporary injunction@ hearing on April 13, 2001.  The $500 bond was filed on March 30, 2001.  The bond was incomplete in that the clerk of the court did not sign or approve the bond.  The clerk filed an affidavit with this court on July 6, 2001, wherein the clerk stated that she Aforgot@ to sign the bond and that it was an Aunintentional@ oversight on her part.  We also note that the $500 bond contained only one surety. Rule 684 requires that the bond have two or more good and sufficient sureties.  For the purposes of this appeal, we will assume that the $500 bond filed pursuant to the restraining order was valid.

A proper extension order was entered by the court on April 10, 2001, extending the temporary restraining order and ordering Gibson to appear on April 24, 2001, to show cause why a Atemporary injunction@ should not be issued as requested by Walker.  On April 24, 2001, the parties appeared; and, following a hearing, the trial court signed on May 7, 2001, the ATemporary Injunction@ in issue. The court found that Gibson did not have a lease on or have a right to use or occupy the land in question for the year 2001.  The court also found that Gibson was not entitled to use or occupy the land and that Gibson should not in any way impede Walker from enjoying full and exclusive use of the land to the exclusion of Gibson.  The court did not require in the order a separate bond to be filed in connection with the temporary injunction.

The Texas Supreme Court has consistently held that the requirement in Rule 684 (that in the order granting any temporary restraining order or temporary injunction, the court shall fix the amount of security to be given by the applicant) is mandatory and that an order of injunction without a bond is void on its face.  Ex parte Lesher, 651 S.W.2d 734 (Tex.1983); Lancaster v. Lancaster, 291 S.W.2d 303, 308 (Tex.1956); see Qwest Communications Corporation v. AT & T Corporation, 24 S.W.3d 334 (Tex.2000); Ex parte Jordan, 787 S.W.2d 367 (Tex.1990). The $500 bond filed pursuant to the court=s temporary restraining order will not satisfy the requirement that a separate bond be properly ordered by the court and filed by the applicant if the court issues a temporary injunction. Ex parte Jordan, supra.  We disagree with Walker=s argument that the injunction signed on May 7, 2001, was a permanent injunction.  The orders and notices from the court clearly reflect that Gibson was required to appear on April 24 for a hearing on a Atemporary injunction.@  When confronted with a somewhat similar argument, the court in Qwest Communications Corporation v. AT & T Corporation, supra, recently stated:

Because the trial court=s order places restrictions on Qwest and is made effective immediately so that it operates during the pendency of the suit, it functions as a temporary injunction.

We hold that the temporary injunction signed by the trial court on May 7, 2001, is void; therefore, it is dissolved. InterFirst Bank San Felipe v. Paz Construction Company, 715 S.W.2d 640, 641 (Tex.1986).  We deny Walker=s motion for sanctions.

AUSTIN McCLOUD

SENIOR JUSTICE

October 18, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCloud, S.J.^[1]

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^[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.