Comack Investment, L.P. v. M.A.R. Designs & Construction, Inc. ( 2023 )

NUMBER 13-22-00347-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
COMACK INVESTMENT, L.P., Appellant,
v.
M.A.R. DESIGNS & CONSTRUCTION, INC., Appellee.
On appeal from the 93rd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Benavides
In this interlocutory appeal from the denial of a motion to dissolve a temporary
injunction, appellant Comack Investment, L.P. argues that the order granting a temporary
injunction in favor of appellee M.A.R. Designs & Construction, Inc. is void because it failed
to include a trial setting or fix a bond amount. We reverse and remand.
I. BACKGROUND
This case involves a real estate lending dispute. Comack agreed to lend money to
M.A.R. for the purpose of purchasing and developing residential real estate.
Consequently, M.A.R. executed several promissory notes in favor of Comack, and each
note was secured by a deed of trust. M.A.R. allegedly defaulted on the loans, and Comack
initiated nonjudicial foreclosure sales under the deeds.
M.A.R. filed seven separate suits, each seeking emergency, temporary, and
permanent injunctive relief from foreclosure under a particular deed of trust. The suits
were subsequently consolidated into Case No. C-1263-21-B before the 93rd District
Court. Before the suits were consolidated, though, each district court granted M.A.R. an
ex parte temporary restraining order prohibiting Comack from foreclosing on the relevant
properties and required M.A.R. to post a bond that ranged from $100 to $500, collectively
totaling $2,700.
M.A.R.’s consolidated request for a temporary injunction was heard by the 93rd
District Court. In an April 12, 2021 letter ruling, the trial court informed the parties that it
“hereby grants the temporary injunction, bonds are to remain as they are[,] and a trial is
set for June 21, 2021 at 10:00 a.m.” The trial court also instructed counsel for M.A.R. to
“prepare the appropriate Order.” On April 23, 2021, the trial court signed an “Order
Granting Temporary Injunction,” which was prepared by M.A.R.’s counsel. Unlike the
letter ruling, the order does not provide a trial setting or fix a bond amount.
On February 8, 2022, Comack filed a motion to dissolve the temporary injunction,
arguing, among other things, that the order granting the temporary injunction is void for
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failing to set a trial date or fix a bond amount. See TEX. R. CIV. P. 683, 684. During the
hearing, M.A.R. did not dispute that the order was defective but instead argued that
Comack had waived any error by failing to seek a timely interlocutory appeal from the
temporary injunction. The trial court denied the motion, and this interlocutory appeal
ensued. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4).
II. STANDARD OF REVIEW
We review a trial court’s decision to grant or deny a motion to dissolve a temporary
injunction for an abuse of discretion. Stewart Beach Condo. Homeowners Ass’n, Inc. v.
Gili N Prop Invs., LLC, 481 S.W.3d 336, 342–43 (Tex. App.—Houston [1st Dist.] 2015, no
pet.). Although a trial court has broad discretion in denying or granting such a motion, a
clear failure to correctly analyze or apply the law constitutes an abuse of discretion. Id.III. ANALYSIS
By one issue, Comack contends that the trial court abused its discretion by refusing
to declare the temporary injunction order void and dissolve the injunction because the
order is fatally defective for failing to include a trial date or fix a bond amount.1 We agree.
“Every 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.
Additionally, “the court shall fix the amount of security to be given by the applicant.” Id. R.
684. These procedural requirements are mandatory, and an order granting a temporary
injunction that does not meet these requirements is “subject to being declared void and
dissolved.” Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000) (per
1 M.A.R. has not filed a brief to assist in the disposition of this appeal.
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curiam); Sargeant v. Al Saleh, 512 S.W.3d 399, 408 (Tex. App.—Corpus Christi–Edinburg
2016, no pet.); see In re Off. of Att’y Gen., 257 S.W.3d 695, 697 (Tex. 2008) (orig.
proceeding) (discussing the requirements of Rules 683 and 684 in the context of
temporary restraining orders and stating that “[o]rders that fail to fulfill these requirements
are void”). Here, the order granting M.A.R. a temporary injunction failed to satisfy either
requirement and is thus void. See Qwest, 24 S.W.3d at 337; Al Saleh, 512 S.W.3d at 408.
M.A.R.’s contention below—that Comack waived this error because it failed to
perfect an appeal from the temporary injunction order—was without merit. Some of our
sister courts have rejected this very argument, and we agree with them for at least two
reasons: (1) because the temporary injunction order was void, not merely voidable, it was
not subject to waiver; and (2) the statute governing interlocutory appeals expressly
authorizes an appeal from an order denying a motion to dissolve, and these motions have
been historically used to challenge temporary injunction orders for voidness.
As our sister court explains, in Qwest, the Supreme Court of Texas “clearly states
that unless a temporary injunction complies with both rules 683 and 684, it is void.” In re
Garza, 126 S.W.3d 268, 273 (Tex. App.—San Antonio 2003, orig. proceeding [mand.
denied]) (examining Qwest, 24 S.W.3d at 337). Unlike a voidable order, “[a] void order is
not subject to ratification, confirmation, or waiver.” In re Mask, 198 S.W.3d 231, 235 (Tex.
App.—San Antonio 2006, orig. proceeding) (citing In re Guardianship of B.A.G., 794
S.W.2d 510, 511–12 (Tex. App.—Corpus Christi–Edinburg 1990, no writ)); see, e.g., Ad
Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 137 (Tex. 2017) (per curiam) (“Pak was
under no obligation to object to the trial court’s void actions.”).
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Because a void order is not subject to waiver, Comack had two options to attack
the temporary injunction order. It could have appealed the temporary injunction and raised
voidness for the first time on direct appeal. See Pak, 519 S.W.3d at 137 (“Void orders are
not waivable on direct appeal.”). Or, as it did here, it could present this argument first to
the trial court in a motion to dissolve and then ask us to review the trial court’s decision.
See Stewart Beach, 481 S.W.3d at 344 (rejecting argument that appellant waived
voidness challenge by failing to directly appeal from a temporary injunction order and
finding that the trial court abused its discretion in denying motion to dissolve); In re Garza,
126 S.W.3d at 272–73 (same); see also Tex. Wrecker Serv. v. Resendez, Nos. 13-16-
00515-CV, 12-16-00698-CV, 2017 WL 711642, at *1–2, 4–5 (Tex. App.—Corpus Christi–
Edinburg Feb. 23, 2017, no pet.) (mem. op.) (holding a temporary injunction order was
void even though the motion to dissolve was filed nine years later).
This conclusion is also supported by the structure of § 51.014(a)(4), which
expressly contemplates an appeal from either an order that “grants or refuses a temporary
injunction” or one that “grants or overrules a motion to dissolve a temporary injunction.”
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4). And although a motion to dissolve may
be premised on a change in circumstances, it is also commonly used to challenge a
temporary injunction order for voidness. See, e.g., Conlin v. Haun, 419 S.W.3d 682, 687
(Tex. App.—Houston [1st Dist.] 2013, no pet.) (concluding that the trial court abused its
discretion by denying a motion to dissolve because the temporary injunction order failed
to comply with Rule 683); see also Reiss v. Hanson, No. 05-18-00923-CV, 2019 WL
1760360, at *2 (Tex. App.—Dallas Apr. 22, 2019, no pet.) (mem. op.) (same); IPSecure,
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Inc. v. Carrales, No. 04-16-00005-CV, 2016 WL 3342108, at *2 (Tex. App.—San Antonio
June 15, 2016, no pet.) (mem. op.) (same); Resendez, 2017 WL 711642, at *4–5 (same).
Underlying each of these opinions, including our own, is a threshold conclusion—that the
question being presented has been preserved for review. We have seen nothing in our
review of the case law that would upend those conclusions.
Therefore, we hold that the trial court abused its discretion by denying Comack’s
motion to dissolve. Comack’s issue is sustained.
IV. CONCLUSION
We reverse the trial court’s order denying Comack’s motion to dissolve and
remand with instructions to the trial court to dissolve the temporary injunction.
GINA M. BENAVIDES
Justice
Delivered and filed on the
6th day of April, 2023.
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