Oscar A. Knight, Jr. and Bryan P. Knight v. Reba Lavella Volkart

                                            NUMBER 13-01-00858-CV

                                     COURT OF APPEALS

                                 THIRTEENTH DISTRICT OF TEXAS

                                   CORPUS CHRISTI B EDINBURG

OSCAR A. KNIGHT, JR. AND BRYAN P. KNIGHT,                  Appellants,

                                                                             v.

REBA LAVELLA VOLKART,                                                             Appellee.

               On appeal from the 197th District Court of Cameron County, Texas.

                                           O P I N I O N

                              Before Justices Hinojosa, Yañez, and Castillo

                                                     Opinion by Justice Hinojosa

This is an interlocutory appeal from the trial court=s order granting a temporary injunction in favor of appellee, Lavella Volkart, and denying a temporary injunction requested by appellants, Oscar Knight, Jr. and Bryan P. Knight.  In a single issue with four sub-issues, appellants contend the trial court erred in granting appellee=s request for a temporary injunction and denying their request for a temporary injunction.  We declare the trial court=s temporary injunction order to be void and order that it be dissolved.  We reverse the trial court=s order denying appellants= request for a temporary injunction and remand the case to the trial court with instructions that it grant appellants= request for a temporary injunction.

                                                             A.  Background

The underlying suit involves a dispute over the ownership of the Koffee Klatch Restaurant. Two of the parties, Oscar Knight and Volkart, were previously before this Court on appeal from a divorce case out of the 107th District Court of Cameron County.  See Knight v. Volkart‑Knight, No. 13‑00‑514‑CV, 2001 Tex. App. LEXIS 5035, *10 (Tex.  App.BCorpus Christi July 19, 2001, no pet.)  (not designated for publication).  The 107th District Court signed temporary orders on May 12, 1998, granting Volkart Atemporary exclusive control of the business known as the >Koffee Klatch= located at 101 South Sunshine Strip, Harlingen, Texas, pending final hearing@ of the divorce case.  On final hearing, the court awarded the Koffee Klatch to Volkart.  We reversed the 107th District Court=s finding of an informal marriage and held that the court=s decree of divorce and award of property and allocation of debt could not stand.  Id.  On remand, on October 18, 2001, the 107th District Court signed a final judgment that Volkart take nothing by her divorce suit.  Accordingly, the court=s temporary order granting Volkart Atemporary exclusive control@ of the Koffee Klatch terminated on October 18, 2001.  Nevertheless, Volkart remained in possession of the Koffee Klatch.

On October 25, 2001, Oscar Knight filed a forcible detainer action in the Justice Court of Cameron County.  Volkart answered and asserted she was an equitable owner of the Koffee Klatch.  On November 8, 2001, the Justice Court stayed the forcible detainer action, and ordered that Volkart put up a possession bond.^[1]  Volkart filed a possession bond of five thousand dollars with the Justice Court on October 30, 2001.

In the early morning hours of November 19, 2001, Oscar Knight entered the Koffee Klatch, changed the locks, and took sole possession of the restaurant premises. Later that day, Oscar Knight nonsuited his case against Volkart in the Justice Court of Cameron County.  The Knights also filed the underlying case in the 197th District Court of Cameron County, seeking declaratory judgment relief, a temporary restraining order (ATRO@), a temporary injunction, and a permanent injunction.  On November 19, 2001, the 197th District Court granted the requested temporary restraining order and ordered Volkart to appear at a temporary injunction hearing set for November 30, 2001.

On November 21, 2001, Volkart filed a AMotion To Dissolve TRO Instanter and To Set Hearing On Lavella Volkart=s Request For TRO and Motion for Sanctions,@ asserting the Knights had violated a local rule of the Cameron County courts which provides that ex parte relief shall not be granted when an attorney knows an opposing party is represented by counsel and fails to notify counsel that ex parte relief has been requested.  Volkart=s motion was not verified by affidavit and did not otherwise comply with Texas Rule of Civil Procedure 682.  On November 26, 2001, the 197th District Court dissolved the TRO and set Volkart=s request for injunctive relief for hearing on November 30, 2001.

On November 30, 2001, the parties appeared at the temporary injunction hearing. Three witnesses testified primarily regarding title and probable right to relief.  At the conclusion of the hearing, the trial court refused to grant the Knights= request for a temporary injunction.  Instead, the court granted Volkart a temporary injunction, stating:  AI=m going to leave the status quo, . . . the last status quo was that she was in possession.@

                                                              B.  Jurisdiction

Under Texas procedure, appeals are allowed only from final orders and judgments.  Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding).  Unless a statute specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction only over final judgments.  Qwest Communications Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (per curiam).  Section 51.014(a) of the civil practice and remedies code states: A[a] person may appeal from an interlocutory order of a district court, county court at law, or county court that: . . . (4) grants or refuses a temporary injunction . . . .@  Tex. Civ.  Prac. & Rem.  Code Ann. ' 51.014(a) (Vernon Supp.  2002). Thus, we have jurisdiction to consider this interlocutory appeal.

                                                  C.  Sub-Issues Presented

In their first sub-issue, appellants contend the trial court abused its discretion in granting Volkart=s request for a temporary injunction and denying the Knights= request for a temporary injunction because the status quo that should have been maintained was the Knights= possession of the Koffee Klatch restaurant.   In their second sub-issue, appellants contend the trial court=s temporary injunction order is void because it does not set a separate bond and a separate bond was not posted.  In their third sub-issue, appellants contend the trial court=s temporary injunction order is void because it does not set the cause for trial on the merits with respect to the ultimate relief sought.  In their fourth sub-issue, appellants contend the trial court abused its discretion in granting Volkart a temporary injunction because appellants were not provided with notice and the injunction is not based on a petition.

                                                     C.  Standard of Review

            A temporary injunction is an extraordinary remedy and does not issue as a matter of right.  Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993) (per curiam)).  A decision on whether to grant or deny a temporary injunction is within the sound discretion of the trial court and should only be reversed if the trial court abused its discretion.  Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at 58. At a temporary injunction hearing, the only issue before the trial court is whether the status quo should be preserved pending trial on the merits.  Walling, 863 S.W.2d at 58; Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).  The reviewing court must not substitute its judgment for the trial court's judgment unless the trial court's order is so arbitrary, unreasonable, or based upon so gross and prejudicial an error of law as to establish abuse of discretion.  Butnaru, 84 S.W.3d at 204; Johnson v. Fourth Ct. App., 700 S.W.2d 916, 918 (Tex. 1985) (orig. proceeding).  The trial court does not abuse its discretion if it bases its decision on conflicting evidence.  Davis, 571 S.W.2d at 862.

                     D.  Order Granting Volkart a Temporary Injunction

In their third sub-issue, the Knights contend the trial court=s order granting Volkart a temporary injunction is void because it does not contain a trial setting as mandated by Texas Rule of Civil Procedure 683.

Rule 683 provides that A[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 Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.  1986) (per curiam).  In Interfirst Bank, the Texas Supreme Court stated:

The requirements of Rule 683 are mandatory and must be strictly followed.  When a temporary injunction order does not adhere to the requirements of Rule 683 the injunction order is subject to being declared void and dissolved.

Interfirst Bank, 715 S.W.2d at 641; see also Qwest, 24 S.W.3d at 337; Wyatt v. Cowley, 74 S.W.3d 576, 577 (Tex. App.BCorpus Christi 2002, pet. dism=d w.o.j.).

The trial court=s order granting Volkart a temporary injunction order does not contain an order setting the cause for trial on the merits.  Because the temporary injunction order does not conform with the requirements of rule 683, we hold the trial court abused its discretion by rendering and signing the order.  See Interfirst Bank, 715 S.W.2d at 641; Wyatt, 74 S.W.3d at 578 (citing Univ. Interscholastic League v. Torres, 616 S.W.2d 355, 357‑58 (Tex. Civ. App.BSan Antonio 1981, no writ)).

We sustain appellants= third sub-issue.

          E. Denial of the Knights= Request for a Temporary Injunction

In their first sub-issue, the Knights contend the trial court abused its discretion by denying their request for a temporary injunction.  The Knights assert that keeping them in possession of the Koffee Klatch would have maintained the status quo.  Volkart asserts the trial court exercised proper discretion in rejecting the Knights= request for a temporary injunction because they did not come into court with clean hands.

                                                                  1.  Status Quo     

The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending a trial on the merits.  Butnaru, 84 S.W.3d at 204 (citing Walling, 863 S.W.2d at 57). The status quo is "the last, actual, peaceable, non‑contested status that preceded the pending controversy."  In re Tex. Bd. of Pardons & Paroles, 989 S.W.2d 360, 362 (Tex.  1998) (orig. proceeding) (Hecht, J., concurring) (quoting State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975)).

The controversy concerning title to the Koffee Klatch started when Volkart, claiming an informal marriage, filed for divorce and obtained temporary orders from the 107th District Court giving her exclusive control of the restaurant, pending final hearing of the divorce case.  Although Volkart had lawful possession of the restaurant by virtue of the court=s temporary orders, Oscar Knight contested title and was opposed to her possession of the property.  On October 18, 2001, the 107th District Court signed a final judgment that Volkart take nothing by her divorce suit.  Therefore, the court=s temporary orders terminated on October 18, 2001.

The evidence is uncontroverted that Oscar Knight had lawful possession of the restaurant from the time he purchased it until May 11, 1998, when the 107th District Court rendered temporary orders giving Volkart exclusive control of the restaurant.  Oscar Knight testified he was at the restaurant seven days a week, except Christmas, between October 1997 and May 11, 1998.  Volkart presented no evidence that she had exclusive possession of the Koffee Klatch before May 11, 1998.

The only issue before the trial court was whether the status quo should be preserved pending trial on the merits.  Walling, 863 S.W.2d at 58; Davis, 571 S.W.2d at  862.   The 197th District Court found that Volkart was in lawful and peaceful possession of the restaurant through November 18, 2001.  However, status quo also requires uncontested possession, and Volkart was not in uncontested possession of the restaurant through November 18, 2001.  See In re Tex. Bd. of Pardons & Paroles, 989 S.W.2d at 362 (citing Southwestern Bell Tel. Co., 526 S.W.2d at 528). The record reflects Oscar Knight has contested Volkart=s possession of the restaurant since the 107th District Court issued its temporary orders.  Furthermore, the temporary orders terminated on October 18, 2001, when the 107th District Court entered its final judgment.

Volkart also had no right to possession through the possession bond issued by the Justice Court because the Justice Court lost jurisdiction once Oscar Knight nonsuited his case in that court.  A plaintiff has an absolute, unqualified right to take a nonsuit upon timely motion as long as the defendant has not made a claim for affirmative relief.  McQuillen v. Hughes, 626 S.W.2d 495, 496 (Tex. 1981) (orig. proceeding) (per curiam).  The granting of a nonsuit is merely a ministerial act.  Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990) (per curiam).  A trial court=s jurisdiction over a cause ends when a notice of nonsuit is given for the only pending claim for affirmative relief.  In effect, in such a situation, the filing of a nonsuit divests a trial court of its subject matter jurisdiction.  See Ex parte Norton, 118 Tex. 581, 17 S.W.2d 1041, 1043 (1929) (orig. proceeding); Strawder v. Thomas, 846 S.W.2d 51, 59 (Tex. App.BCorpus Christi 1992, no writ) (op. on reh=g). 

Because "[a] trial court has no 'discretion' in determining what the law is or applying the law to the facts," erroneous analysis or application of the law "will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ."  Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Because the 197th District Court erroneously analyzed the status quo,  we hold it abused its discretion.  See Butnaru, 84 S.W.3d at 204; Johnson, 700 S.W.2d at 918.     

                                              2.  Elements of Temporary Injunction

Although the purpose of a temporary injunction is the preservation of the status quo, to obtain a temporary injunction, an applicant must plead and prove three specific elements:  (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.  Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at 57; Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968).  To show an irreparable injury, the complaining party must show that the threatened injury cannot be adequately compensated by any remedies at law.  See Ludewig v. Houston Pipeline Co., 773 S.W.2d 610, 615 (Tex. App.BCorpus Christi 1989, writ denied) (citing Public Util. Comm=n. of Tex. v. Pedernales Elec. Coop., Inc., 678 S.W.2d 214, 219 (Tex. App.BAustin 1984, writ ref'd n.r.e.)).

When a trial court does not make findings of fact and conclusions of law we will uphold the judgment on any legal theory supported by the record.  See Davis, 571 S.W.2d at 862.  In this case, the trial court made no findings of fact or conclusions of law pertaining to the three elements of the Knights= application for temporary injunction.  Therefore, we will review the record to determine if the order of the 197th District Court may be upheld under any legal theory supported in the record.

                                                       a.  Probable Right to Relief

The Knights sued Volkart for a declaratory judgment that they were the true owners of the Koffee Klatch restaurant.  In support of their claim of title and probable right to relief, the Knights presented the testimony of three witnesses and offered into evidence several documents showing that the restaurant was owned by Oscar Knight.  The court admitted the following documents into evidence:

(a) Bill of Sale for the Koffee Klatch Restaurant, dated July 14, 1997, showing Steve Ray Nixon as Seller and Jack Knight^[2] as Buyer;

(b) Bill of Sale, dated July 23, 1997, signed by Oscar A. Knight, Jr., Steve Ray Nixon, and Toni Jo Nixon;

(c) Warranty Deed to the building and property known as the Koffee Klatch Restaurant, dated August 14, 1997, from Steve Ray Nixon and Toni Jo Ann Nixon, Trustees for the Nixon Family Revocable Trust, to Oscar A. Knight, Jr., reflecting a down payment of $16,700.00 and a promissory note for the balance of $80,000.00;

(d) Deed of Trust from Oscar A. Knight, Jr. to Steve Ray Nixon, Toni Jo Ann Nixon, or the Revocable Living Trust of the Nixon Family, securing the $80,000.00 promissory note referred to in the Warranty Deed;

(e) Assumed Name Certificate, filed on October 28, 1997 in the Cameron County Clerk=s Office, showing Oscar A. Knight, Jr. doing business as a proprietorship known as the AKoffee Klatch,@ at 101 South 77 Sunshine Strip, in Harlingen, Texas;

(f) Restaurant=s Journal Report, reflecting income and expenses from July 24, 1997 to December 31, 1997, and showing Jack Knight as owner;

(g) Volkart=s 1997 and 1998 Individual Income Tax Returns, showing Volkart to be an employee of the Koffee Klatch.

Oscar Knight testified that he had transferred by deed an undivided interest in the property to his son, Bryan P. Knight. The Knights also offered, and the court admitted, copies of the 107th District Court=s decree of divorce and take-nothing judgment after remand.  The court was also given a copy of this Court=s opinion, reversing and remanding the divorce case to the 107th District Court.  The 107th District Court=s decree of divorce and take-nothing judgment and this Court=s opinion were presented to the court to establish that Volkart did not have lawful possession after October 18, 2001, and to show the Knights= probable right to relief.

In support of her claim of title, Volkart testified that Oscar Knight had given her the restaurant.  According to Volkart, Apapers@ issued by the 107th District Court proved that Oscar Knight had given her the restaurant.  However, this Court=s opinion reversed the 107th District Court=s decree of divorce and remanded the case to that court for further action.  On remand, the 107th District Court issued a take-nothing judgment against Volkart.

Volkart also asserts she is an equitable owner of the restaurant because she has made the monthly payments on the $80,000.00 promissory note to the Nixons since May 11, 1998, when the 107th District Court gave her temporary exclusive control of the restaurant.  However, Volkart failed to provide the 197th District Court with any evidence showing equitable ownership.  Volkart admitted she does not have a warranty deed or any other document reflecting her ownership of the restaurant.  She also does not have a lease or rental agreement entitling her to possession.  Volkart admitted that Oscar Knight made the down payment on the restaurant and signed the $80,000.00 note.

Volkart also offered into evidence the Justice Court=s citation for possession bond and her $5,000.00 possession bond.  Although the parties disagree as to the specific ruling of the Justice Court, they agree the Justice Court stayed the forcible detainer action.  The Knights contend the action was stayed because the court lacked subject matter jurisdiction.  Volkart contends the case was stayed because of pending actions in other courts.  Nevertheless, Oscar Knight nonsuited the case in the Justice Court, and that court=s jurisdiction ended when the notice was given. Because the Justice Court refused to proceed with the forcible detainer action and subsequently was divested of jurisdiction by Oscar Knight=s nonsuit, we conclude Volkart was not entitled to a possession bond.  We hold the record evidences the Knights= probable right to relief.

                                           b.  Probable, imminent, irreparable injury

 Where a trespasser invades the possession of a person's land, or destroys the use and enjoyment of that land, an injunction is a proper remedy.  Beathard Joint Venture v. W. Houston Airport Corp., 72 S.W.3d 426, 432 (Tex. App.BTexarkana 2002, pet. denied) (citing City of Arlington v. City of Fort Worth, 873 S.W.2d 765, 769 (Tex. App.BFort Worth 1994, writ dism'd w.o.j.)).  Loss of a business or loss of real property is an irreparable injury that will support a temporary injunction to preserve the status quo.  See Walling, 863 S.W.2d at 58; Franklin Sav. Ass'n v. Reese, 756 S.W.2d 14, 15-16 (Tex. App.BAustin 1988, no writ) (op. on reh=g).

At the time of the temporary injunction hearing, the Knights feared imminent, irreparable injury to the premises by Volkart or her son.  Oscar Knight testified that Volkart=s son had threatened to burn down the restaurant. The Knights also presented evidence that Volkart had insufficient funds to cover any damages suffered by the Knights if Volkart continued to maintain possession of the restaurant.  Volkart did not refute this evidence.

No adequate remedy at law exists if damages are incapable of calculation or if a defendant is incapable of responding in damages.  Bank of the Southwest N.A., Brownsville v. Harlingen Nat'l Bank, 662 S.W.2d 113, 116 (Tex. App.BCorpus Christi 1983, no writ).   We can perceive no other legal remedy that would have maintained the status quo, pending the outcome in the underlying suit, other than the Knights= requested temporary injunction.  Greathouse v. Greathouse, 665 S.W.2d 801, 804 (Tex. App.BCorpus Christi 1983, no writ).  We hold the record evidences a probable, imminent, and irreparable injury.

A trial court abuses its discretion in denying a temporary injunction when it misapplies the law to established facts or the evidence reasonably supports the conclusion that a probable right of recovery exists.  See Southwestern Bell Tel. Co., 526 S.W.2d at 528.  We hold the evidence reasonably supports the conclusion that a probable right of recovery exists.  Therefore, we conclude the trial court abused its discretion by denying the Knights= request for a temporary injunction.

                                                      3.  Unclean Hands Doctrine

Volkart asserts the trial court exercised proper discretion in rejecting the Knights= request for a temporary injunction because the Knights did not come into court with clean hands.  Volkart contends the Knights are not entitled to equitable relief because they:  (1) took possession of the Koffee Klatch in the middle of the night on November 19, 2001, and changed the locks, and (2) violated the local rule of the Cameron County courts which provides that ex parte relief shall not be granted when an attorney knows an opposing party is represented by counsel and fails to notify counsel that ex parte relief has been requested.

The "unclean" hands doctrine requires a person who comes into a court of equity to enter with "clean hands." Grohn v. Marquardt, 657 S.W.2d 851, 855 (Tex. App.BSan Antonio 1983, writ ref=d n.r.e.); Munzenrieder & Assocs., Inc. v. Daigle, 525 S.W.2d 288, 291 (Tex. Civ. App.BBeaumont 1975, no writ).  The doctrine is applied to one whose own conduct in connection with the same matter or transaction has been unconscientious, unjust, or marked by a want of good faith, or one who has violated the principles of equity and righteous dealing.  Thomas v. McNair, 882 S.W.2d 870, 880 (Tex. App.BCorpus Christi 1994, no writ); Ligon v. E. F. Hutton & Co., 428 S.W.2d 434, 437 (Tex. Civ. App.BDallas 1968, writ ref'd n.r.e.); 34 Tex. Jur. 3d Equity ' 32 (2002).  The equitable maxim is confined to misconduct in regard to, or at all events connected with, the matter in litigation, so that it has in some measure affected the equitable relations subsisting between the two parties, and arising out of the transaction; it does not extend to any misconduct, however gross, which is unconnected with the matter in litigation, and with which the opposite party has no concern.  Lazy M Ranch v. TXI Operation, LP, 978 S.W.2d 678, 683 (Tex. App.BAustin 1998, pet.  denied).  The doctrine Adoes not operate to repel all sinners from a court of equity.@  Norris of Houston, Inc. v. Gafas, 562 S.W.2d 894, 897 (Tex. Civ. App.BHouston [1st Dist.] 1978, writ ref'd n.r.e.) (quoting Kirkland v. Handrick, 173 S.W.2d 735 (Tex. Civ. App.BSan Antonio 1943, writ ref=d w.o.m.)).  The clean-hands doctrine Ashould not be applied when the defendant has not been seriously harmed and the wrong complained of can be corrected.@  Gafas, 562 S.W.2d at 897; Rodgers v. Tracy, 242 S.W.2d 900, 905 (Tex. Civ. App.BAmarillo 1951, writ ref'd n.r.e.).

Because the trial court made no findings of fact and conclusions of law that the Knights had unclean hands, the issue before us is whether Volkart=s assertion that the injunction was denied because the Knights had unclean hands is supported by the record.  See Davis, 571 S.W.2d at 862.   Volkart contends the Knights wrongfully took possession of the property because she had a legal right to possess the property.  However, we have already concluded that the orders of the 107th District Court and the Justice Court did not provide Volkart with a legitimate right to possession.

The record contains no documentary evidence showing that Volkart had a legal right to possess the property.  The record contains only Volkart=s testimony that Oscar Knight gave her the restaurant.  Further, there is no evidence indicating a want of good faith or a violation of the principles of equity and righteous dealing by the Knights.  The Knights acted solely to secure property they believe is legally theirs.   This conduct does not preclude the Knights from obtaining equitable relief. Therefore, we conclude the Knights did not sully their hands by taking possession of the Koffee Klatch.

We also conclude the Knights did not sully their hands by violating a local rule of the Cameron County courts when they obtained the TRO.  On Volkart=s motion, the trial court dissolved the TRO because it found the Knights= attorney was aware that Volkart was represented by counsel when he obtained the ex parte order.  The trial court attributed the procedurally improper conduct to the Knights= attorney, not to the Knights.  Furthermore, while not in accordance with the local rules of the Cameron County courts, we note the conduct was in accordance with the Texas Rules of Civil Procedure.  See Tex. R.  Civ.  P.  680 (allows ex parte injunctive relief where the facts show Athat immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon@ and does not prohibit ex parte injunctive relief where an enjoined party is represented by counsel).  A violation of a local rule, without more, does not demonstrate bad faith or inequitable conduct by the Knights.

To demonstrate bad faith, Volkart contends Oscar Knight Abragged that Volkart=s attorneys were not going to know anything about all this >until it was too late.=@  However, the record contains no evidence substantiating this contention. Accordingly, we conclude the violation of the local rule by the Knights= attorney does not preclude the Knights from obtaining equitable relief.  Therefore, we conclude the Knights did not come into court with unclean hands.

We sustain appellants= first sub-issue. 

                                                              G.  Conclusion

In light of our disposition of appellants= first and third sub-issues, we conclude it is unnecessary to address their second and fourth sub-issues.  See Tex. R. App. P. 47.1.

We declare the trial court=s temporary injunction order to be void and order that it be dissolved.  We reverse the trial court=s order denying appellants= request for a temporary injunction and remand the case to the trial court with instructions that it grant appellants= request for a temporary injunction.

FEDERICO G. HINOJOSA

Justice

Do not publish.  Tex. R. App. P. 47.3.

Opinion delivered and filed this the

21^st day of November, 2002.

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^[1] Volkart asserts the Justice Court action was stayed pending resolution of the title and possession issues pending in the 107th District Court of Cameron County (the divorce action) and the 92nd District Court of Hidalgo County (suit filed by Oscar Knight to resolve the restaurant ownership dispute).

^[2] The record reflects that Oscar A. Knight, Jr., is also known as AJack.@