Larry Strube v. Cleo Patricia Shelby , 2014 Tex. App. LEXIS 2788 ( 2014 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00090-CV
LARRY STRUBE, Appellant
V.
CLEO PATRICIA SHELBY, Appellee
On Appeal from the 102nd District Court
Bowie County, Texas
Trial Court No. 13C0872-102
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Cleo Patricia Shelby has obtained a temporary injunction enjoining Larry Strube from
entering onto and removing property from a DeKalb farm, in which she claims a partial interest.
The injunction is void for its failure to specify a date for a trial on the merits. See TEX. R. CIV. P.
683. Therefore, we reverse the judgment of the trial court and dissolve the injunction.
Before his death in May 2012, Carroll Hall Shelby1 established the California-
administered Carroll Hall Shelby Living Trust (Living Trust). The Living Trust created the Cleo
P. Shelby Marital Trust, also a California-administered trust (Trust). When Shelby died, the
assets of the Living Trust were transferred to the Trust. Cleo, Shelby’s widow, is the sole
income beneficiary of the Trust until her death, at which time the Trust corpus and income will
be transferred to the Carroll Hall Shelby Foundation, a California charitable trust.
While the Trust is administered in California and is governed by California law, it has
assets in Texas, California, and Nevada. Among those assets are personal and real property
located in Bowie County (the DeKalb property), 2 which property is jointly owned by Cleo and
the Trust as tenants in common. Cleo and Shelby purchased the DeKalb property with joint
funds during their marriage and operated it as a farm/ranch. Shelby’s portion of the DeKalb
1
Shelby was a famed race car driver and manufacturer and designer of the Shelby Ford Mustang and the Shelby
Cobra.
2
The Trust originally owned property in Red River County (the English Property) as well. Pursuant to a
survivorship agreement between Carroll and Cleo, ownership of the English Property was assigned to Cleo at the
time of Shelby’s death. When the Trust was made aware of the survivorship agreement in early 2013, it ceased to
manage this parcel of real property.
2
property was held in the Living Trust, the predecessor to the Trust. The injunctive order relates
solely to the DeKalb property.
Strube was formerly employed by Shelby. After Shelby’s death, Strube was consulted by
Joe Conway, 3 a co-trustee of the Trust, on matters involving management of the DeKalb
property. Cleo alleges Strube converted her property—which she owned jointly with the Trust—
by transporting certain vehicles and equipment to a third party for the use by the third party and
by allowing livestock owned by third parties to consume Cleo’s feed without paying just
compensation. 4 Additionally, Cleo alleged trespass and intentional infliction of emotional
distress claims against Strube.
In connection with her lawsuit, Cleo sought the issuance of a temporary restraining order,
which was granted on an ex parte basis by the trial court May 31, 2013. After a hearing, the trial
court entered a temporary injunction against Strube July 16, 2013. The injunctive order prohibits
Strube from (1) entering onto the DeKalb property, (2) destroying or concealing any records or
documents relating to the management of the DeKalb property, (3) removing any vehicles,
equipment, livestock, or any other personal property from the DeKalb property, and (4) harassing
threatening, or otherwise engaging in any retaliatory behavior towards Cleo or her employees.
3
Conway was sued in a companion case styled Cleo Patricia Shelby v. Joe Conway, et al., cause number 13-C-0842-
102, also filed in the 102nd Judicial District Court of Bowie County, Texas. The Conway case was appealed to this
Court and is the subject of a separate opinion in this Court’s cause number 06-13-00091-CV, styled Joe Conway v.
Cleo Patricia Shelby, issued of even date herewith.
4
Cleo alleged additional conversion claims against Strube, which allegedly occurred before Shelby’s death. These
claims were therefore not considered by the trial court.
3
Strube has taken an interlocutory appeal from this order, 5 claiming that (1) the temporary
injunction order should be dissolved because it fails to meet the specificity requirements of
Rule 683 of the Texas Rules of Civil Procedure and (2) because Cleo failed to meet the standard
for entitlement to such extraordinary relief, the trial court abused its discretion in entering the
temporary injunction order. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (West Supp.
2013).
Cleo contends the order is deficient because it fails, in various respects, to meet the
specificity requirements of Rule 683 of the Texas Rules of Civil Procedure. 6 Rule 683 provides
that “[e]very order granting a temporary injunction shall include an order setting the cause for
trial on the merits with respect to the ultimate relief sought.” TEX. R. CIV. P. 683; see Qwest
Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000) (per curiam). The
requirement that an injunctive order include a trial date prevents the temporary injunction from
effectively becoming permanent. Gray Wireline Serv., Inc. v. Cavanna, 374 S.W.3d 464, 472
(Tex. App.—Waco 2011, no pet.).
The procedural requirements of Rule 683 are mandatory and must be strictly followed.
Qwest, 24 S.W.3d at 337; InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640,
5
The decision to grant or deny a temporary injunction is within the sound discretion of the trial court. Butnaru v.
Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Moon v. Estate of Moon, 221 S.W.3d 327, 329 (Tex. App.—
Texarkana 2007, no pet.). The test for abuse of discretion is not whether the facts present an appropriate case for the
trial court’s action. Instead, it is a question of whether the court acted without reference to any guiding rules or
principles. Low v. Henry, 221 S.W.3d 609, 619–20 (Tex. 2007); Moon, 221 S.W.3d at 331. A trial court abuses its
discretion only if it reaches a decision so arbitrary and unreasonable that it amounts to a clear and prejudicial error
of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co., LLC, 328 S.W.3d
883, 888 (Tex. 2010).
6
Neither party to this appeal maintains that the injunction order is void for lack of a trial setting.
4
641 (Tex. 1986) (per curiam) (temporary injunction void when not setting cause for trial on
merits). An order granting a temporary injunction that does not comply with the Rule is subject
to being declared void and dissolved, regardless of whether the defect was raised or briefed on
appeal. State Bd. for Educator Certification v. Montalvo, No. 03-12-00723-CV, 2013
WL 1405883, at *1 (Tex. App.—Austin Apr. 3, 2013, no pet.) (mem. op.) (complaint temporary
injunction lacks trial date not subject to waiver); Cavanna, 374 S.W.3d at 472 (temporary
injunction order lacking trial date declared void and dissolved, though defect not raised or
briefed on appeal); Leighton v. Rebeles, 343 S.W.3d 270, 273 (Tex. App.—Dallas 2011, no pet.)
(“Failure of the order to meet the requirements of rule 683 renders the order fatally defective and
void, whether specifically raised by point of error or not.”); Bay Fin. Sav. Bank, FSB v. Brown,
142 S.W.3d 586, 590–91 (Tex. App.—Texarkana 2004, no pet.) (though error not raised on
appeal, temporary injunction without trial date declared void); EOG Res., Inc. v. Gutierrez, 75
S.W.3d 50, 53 (Tex. App.—San Antonio 2002, no pet.); see Musgrave v. Brookhaven Lake Prop.
Owners Ass’n, 990 S.W.2d 386, 400 (Tex. App.—Texarkana 1999, pet. denied); see also First
State Bank of Odem v. Flores, No. 13-13-00502-CV, 2014 WL 812578, at *1 (Tex. App.—
Corpus Christi Feb. 27, 2014, no pet. h.) (mem. op.). 7
7
Cf. Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717, 721 (Tex. App.—Corpus Christi 1999, pet. dism’d
w.o.j.) (trial court did not abuse discretion in refusing to dissolve temporary injunction based on lack of trial date
where Henke agreed to order).
5
Here, the injunctive order did not set the case for trial on the merits as required by Rule
683. Because the temporary injunction order does not conform to Rule 683, it is void.8
Accordingly, we reverse the trial court’s temporary injunction order, dissolve the temporary
injunction, and remand this case to the trial court for further proceedings.
Josh R. Morriss, III
Chief Justice
Date Submitted: March 5, 2014
Date Decided: March 13, 2014
8
Although Cleo raises other Rule 683 specificity complaints as well as substantive complaints regarding the failure
of the order to meet the appropriate standards for issuance of a temporary injunction, we need not address them.
The lack of a trial date alone renders the injunction order void.
6