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Texas Wrecker Service v. Resendez

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

February 23, 2017

TEXAS WRECKER SERVICE, RALPH RIVERA, AND NORMA RIVERA, Appellants,
v.
D. R. RESENDEZ AND R. SCHALMAN D/B/A APOLLO TOWING/EASY RIDER WRECKER SERVICE, Appellees. IN RE NORMA RIVERA, RALPH RIVERA, AND TEXAS WRECKER SERVICE

         On appeal from the County Court at Law No. 4 of Nueces County, Texas.

         On Petition for Writ of Mandamus.

          Before Chief Justice Valdez and Justices Contreras and Longoria

          MEMORANDUM OPINION

          ROGELIO VALDEZ Chief Justice

         In cause number 13-16-00515-CV, Norma Rivera, Ralph Rivera, and Texas Wrecker Service have appealed a temporary injunction rendered against them in favor of plaintiffs below, D. R. Resendez and R. Schalman d/b/a Apollo Towing/Easy Rider Wrecker Service. In cause number 13-16-00698-CV, these defendants have filed a petition for writ of mandamus contending that the trial court erred in refusing to dismiss the underlying case for want of prosecution. Because the matters in the appeal and original proceeding are related, we issue this single opinion in both causes in the interest of judicial efficiency. As stated herein, we reverse and remand in the appeal and we conditionally grant the petition for writ of mandamus.[1]

         I. Background

         On August 31, 2007, D. R. Resendez and R. Schalman d/b/a Apollo Towing/Easy Rider Wrecker Service brought suit against Norma Rivera, Ralph Rivera, and Texas Wrecker Service. Both plaintiffs and defendants own towing businesses; the plaintiffs alleged that the defendants filed false claims against them with the City of Corpus Christi, disparaged their businesses, and harassed their employees. On October 16, 2007, the trial court held a hearing and entered a "Preliminary Injunction Order" which states as follows:

On this the 16th day of October, 2007 Petitioner made application before the court for its issuance of a preliminary injunction order.
The Court, having examined the pleadings of Petitioner and affidavit, finds that Petitioners and Respondent have agreed that certain actions should be prohibited until final ruling in this case.
It is therefore ordered that the . . . Petitioner and Respondents and their agents and employees are hereby immediately restrained as follows:
1) Petitioner and Respondent shall not make disparaging comments about each other or respective business practices to any customer. Neither party shall file complaints about the other, its agents or employees with any customer or other entity during the period of this order.
2) Upon request of Rod Robertson Enterprises (RRE), Respondent agrees to complete the towing services requested or required by Rod Robertson Enterprises, including delivering property currently held by Respondent to Petitioner when and where directed by RRE. Both parties agree not to hinder or harass the other in the performance of their duties to RRE.
3) Petitioner and Respondent, their employees or agents shall not follow or hinder or harass their employees or agents during the performance of their duties, except to have contact as required under any contract involving both companies.
4) Petitioner and Respondent, their agents and employees shall not conduct surveillance on, photograph or harass or follow each other and their agents and employees to their homes or place of business.
5) Petitioner and Respondent agree to keep the existence of this cause of action confidential and shall not, from the date of this order, inform any customers or potential customers about this litigation, except as required by law.
6) As damages are difficult to estimate for violations of this order, any party proving a violation before this court shall be entitled to $1000.00 per violation and reasonable and necessary attorneys' fees as shown by affidavit. The parties agree to first voluntarily mediate any dispute which may arise in the interpretation or enforcement of this order. The parties further agree to share equally in the costs of any and all mediations.

         It is further ordered that:

This injunction order is effective immediately and shall continue in force and effect until further order of this Court or until it expires by operation of law or trial on the merits. This order shall be binding on Petitioner and on Respondents and on their agents, servants, and employees; and on those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise.

         A Bond is [hereby] set in the amount of $100.00.

         This order was signed by the judge of the trial court, but ...


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