Double Diamond-Delaware, Inc. v. Walkinshaw, John and Cathy

Order entered April 19, 2013
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01140-CV
DOUBLE DIAMOND-DELAWARE, INC. ET AL., Appellants
V.
JOHN AND CATHY WALKINSHAW, ET AL., Appellees
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-11-10333-J
ORDER
By letter dated April 15, 2013, appellees informed the Court that by order dated April 8,
2013, the trial court granted appellees’ motion for partial summary judgment and permanent
injunctive relief relating to the maintenance fees levied by appellants for golf course
maintenance and the “food and beverage program.” By letter dated April 15, 2013, the Court
directed the parties to advise the Court why the temporary injunction before the Court was not
moot. In response, appellants requested that the case be removed from submission so that the
parties could file a permissive appeal and consolidate that appeal with this appeal. Appellees
responded that the pending appeal is moot.
On the Court’s own motion, this appeal is REMOVED from submission on April 23,
2013.
We ORDER the Dallas County District Clerk to file a supplemental clerk’s record,
within TEN DAYS of the date of this order, containing: (1) appellees’ December 20, 2012
motion for partial and no-evidence summary judgment motion, any responses to that motion, and
the trial court’s April 8, 2013 order granting appellees’ motion; (2) appellants’ December 7, 2012
motion for partial summary judgment, and any responses or orders pertaining to that motion; and
(3) any correspondence by any party to the trial court or any correspondence from the trial court
to any party from December 7, 2012 through the date of this order.
Once the supplemental clerk’s record is filed, appellants are directed to file, within TEN
DAYS, a jurisdictional brief, containing applicable authority and record citations, regarding the
question of whether the trial court’s April 8, 2013 order mooted the temporary injunction
pending before the Court. Appellees are directed to file any response, likewise containing
applicable authority and record citations, within TWENTY DAYS of the date the supplemental
clerk’s record is filed. No extensions will be granted.
After the Court has received briefs regarding the jurisdictional issue, the Court will
either: (1) dismiss the appeal for want of jurisdiction; or (2) reset the case for submission.
We remind the parties that the sole issue before the trial court in a temporary injunction
hearing is whether the applicant may preserve the status quo pending the trial on the merits.
Dallas/Fort Worth Intern. Airport Bd. v. Ass’n of Taxicab Operators, USA, 335 S.W.3d 361,
364 (Tex. App—Dallas, 2010, no pet.); Hiss v. Great N. Am. Cos., 871 S.W.2d 218, 219 (Tex.
App—Dallas, 1993, no writ). This Court, in turn, limits its appellate review to whether the trial
court abused its discretion in entering the interlocutory order. Hiss, 871 S.W.2d at 219. An
appeal of a temporary injunction should not be cause for trial delay. Id. Seeking an abatement,
stay, or continuance in the trial court while the court of appeals considers an interlocutory appeal
increases delay and expense. Id. The fastest way to cure the hardship of an unfavorable
preliminary order is to try the case on the merits. Id. Further, a party may not use an appeal of a
temporary injunction ruling to get an advance ruling on the merits because this Court does not
have jurisdiction to issue advisory opinions. Dallas/Fort Worth, 335 S.W.3d at 364.
We DIRECT the Clerk of the Court to send a copy of this order to all parties and to Gary
FitzSimmons,, Dallas County District Clerk.
/s/ DOUGLAS S. LANG
JUSTICE