Day Investment Group, LLC, Jason Martinez, and Angela Yaun v. Colby Dauch, Brianna Dauch and Wayne M. Taylor, as Substitute Trustee

DISMISS and Opinion Filed April 19, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00625-CV
DAY INVESTMENT GROUP, LLC, JASON MARTINEZ, AND ANGELA
YAUN, Appellants
V.
COLBY DAUCH, BRIANNA DAUCH, AND WAYNE M. TAYLOR, AS
SUBSTITUTE TRUSTEE, Appellees
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-02300-2020
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Carlyle
Opinion by Justice Reichek
This appeal follows the trial court’s order dismissing, on appellees’ Rule 91a
motion, appellants’ claims against appellees. See TEX. R. CIV. P. 91a (providing for
dismissal of baseless causes of action). Because appellees requested attorney’s fees
in their motion and the trial court’s dismissal order did not address that issue, we
questioned our jurisdiction over the appeal. See Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001) (subject to mostly statutory exceptions, appeal may
only be taken from final judgment that disposes of all parties and claims).
In a jurisdictional letter brief filed at our request, appellants note one of their
claims was for temporary injunctive relief, and the hearing which resulted in the
interlocutory dismissal order was set as a temporary injunction hearing. They argue
that, as a result, the dismissal order can be construed as an order denying their request
for a temporary injunction. Because section 51.014(a) of the Texas Civil Practice
and Remedies Code authorizes an appeal from an order denying a temporary
injunction, see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4), they maintain
we have jurisdiction over the appeal. We disagree.
Although the clerk’s record reflects the hearing was set as a temporary
injunction hearing and the reporter’s record reflects the trial judge orally denied
appellants’ request for a temporary injunction, the trial judge also orally granted the
motion to dismiss, which sought dismissal of appellants’ entire cause of action, and
the appealed order mentions only the motion to dismiss. Further, the reporter’s
record reflects that the purpose of the hearing was to see if an agreement had been
reached between the parties not whether injunctive relief should be granted. As
reflected in the record, at an earlier hearing, of which no record was made, the trial
judge informed the parties she did not believe appellants’ pleadings had merit in law
or in fact, but she would allow the parties an opportunity to try to resolve the dispute
on their own. At the hearing that led to the dismissal, counsel for the parties
discussed the bases for their positions and what transpired between the two hearings,
but no evidence was presented in support of or against the injunction. See Operation
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Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., 975 S.W.2d 546, 560
& n.56 (Tex. 1998) (“[A] trial court has no discretion to grant injunctive relief . . .
without supporting evidence.”).
We conclude, on the record before us, that the appealed order is not an order
denying a request for a temporary injunction but is an unappealable interlocutory
order granting a motion to dismiss under rule 91a. See Art Inst. of Chicago v.
Integral Hedging, L.P., 129 S.W.3d 564, 570 (Tex. App.—Dallas 2003, no pet.)
(rejecting argument that, because application for temporary injunction seeking to
enjoin use of partnership assets for payment of attorney’s fees had been filed,
interlocutory order directing court-appointed receiver to pay attorney’s fees out of
receivership assets was appealable as order denying request for temporary injunction
where “the form of the order [was] a direction or authorization to the receiver” not
order denying temporary injunction and trial court did not complete temporary
injunction hearing). Accordingly, we dismiss the appeal. See TEX. R. APP. P.
42.3(a).
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
200625F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAY INVESTMENT GROUP, LLC, On Appeal from the 416th Judicial
JASON MARTINEZ, AND District Court, Collin County, Texas
ANGELA YAUN, Appellants Trial Court Cause No. 416-02300-
2020.
No. 05-20-00625-CV V. Opinion delivered by Justice
Reichek, Justices Schenck and
COLBY DAUCH, BRIANNA Carlyle participating.
DAUCH, AND WAYNE M.
TAYLOR, AS SUBSTITUTE
TRUSTEE, Appellees
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
We ORDER that appellees Colby Dauch, Brianna Dauch, and Wayne M.
Taylor, as substitute trustee, recover their costs, if any, of this appeal from appellants
Day Investment Group, LLC, Jason Martinez, and Angela Yaun.
Judgment entered April 19, 2021.
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