Court of Appeals of Texas, Fifth District, Dallas
DENNIS TOPLETZ, INDIVIDUALLY AND AS HEIR OF HAROLD TOPLETZ D/B/A TOPLETZ INVESTMENTS, ET AL., Appellants
CITY OF DALLAS, JAMES CHOICE AND RENEKA TOWERS, INDIVIDUALLY ANDAS REPRESENTATIVES OF THOSE SIMILARLY SITUATED, Appellees
Appeal from the 193rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-13993
Justices Lang-Miers, Myers, and O'Neill 
MICHAEL J. O'NEILL JUSTICE, ASSIGNED
an interlocutory appeal of the trial court's order
granting a temporary injunction requested by appellees, James
Choice, Reneka Towers, and the City of Dallas. In six issues,
appellants contend the trial court erred in granting the
temporary injunction. Appellants contend the injunction
should be vacated because appellees did not meet the
requirements for an injunction. Appellants also challenge the
injunction order as written, asserting it improperly enjoins
lawful activities, exceeds the scope of the pleadings,
imposes a de facto receivership on appellants'
properties, and imposes an unconstitutional prior restraint
on appellants' speech. The first four pages of the
temporary injunction order contain the trial court's
findings in eight numbered paragraphs ("findings
paragraphs"); the remainder of the temporary injunction
order contains the trial court's injunctive orders in
five numbered paragraphs ("injunction paragraphs").
We modify the temporary injunction order to delete injunction
paragraph three, and affirm the trial court's order as
Topletz and Jack Topletz formed a general partnership,
Topletz Investments, to own and manage a number of
residential rental properties in Dallas. At some point,
Dennis Topletz became a partner in Topletz Investments. Upon
the death of Harold Topletz and Jack Topletz, ownership of
the properties allegedly passed to their heirs, including
Dennis Topletz, Casey Topletz, Vickie Topletz, and Steven
Topletz. Dennis Topletz testified that he owns and/or manages
approximately 225 rent houses. But he gave conflicting
testimony regarding the status of Topletz Investments and
whether it continues as a partnership or is now Dennis
Topletz d/b/a Topletz Investments. Marvin Levin, individually
and as the executor of Jack Topletz's estate, owns
several houses that Topletz Investments manages.
City of Dallas filed suit against the Topletz heirs, Topletz
Investments, Marvin Levin, Monarch Development Corporation,
and several real properties allegedly owned by them, for a
variety of code violations and for maintaining nuisance
properties. The City sought temporary and permanent
injunctive relief, civil penalties, and the appointment of a
receiver. After the City filed its lawsuit, Topletz
Investments sent a letter to its tenants with the caption
"WE ARE UNDER ATTACK!!!!" The letter directed
tenants to refuse to allow any City inspectors to enter their
houses and to tell City inspectors there were no issues with
their houses that needed to be addressed.
Choice and Reneka Towers (Tenants) intervened in the
City's lawsuit, individually and as representatives of
all others similarly situated, namely all persons who, from
April 10, 2012 to date, resided in a property leased by
Topletz Investments. Tenants alleged violations of the Texas
Property Code and the Deceptive Trade Practices Act (DTPA).
Shortly after Towers intervened in the City's suit,
Topletz Investments sent someone to her home on two different
occasions, asking her to sign a letter stating that her rent
house complied with City codes and that she was satisfied
with the condition of the house. Thereafter, Tenants amended
their petition in intervention and class action petition to
include an application for a temporary restraining order,
temporary injunction, and permanent injunction. In their
request, Tenants claimed intimidation and retaliation and
sought to prohibit the defendants from (1) intimidating,
retaliating, discouraging, harassing, punishing,
communicating, stalking, emailing, texting, defaming, or
directing any other conduct against their tenants for
participating in this litigation or exercising their legal
rights, including charging them for repairs or stating rents
will be raised if they cooperate with the City; (2)
communicating with any tenants represented by counsel in the
litigation; (3) raising any tenant's rent without
approval of the court; or (4) entering any tenant's
premises except for purposes of required repairs, health, and
safety, as directed by a governmental authority or with
consent of the tenant.
City joined in the Tenants' application for a temporary
restraining order and a temporary injunction. The trial court
granted the relief requested by the Tenants-first granting a
temporary restraining order and approximately one month
later, granting Tenants' request for a temporary
injunction. This interlocutory appeal followed.
STANDARD OF REVIEW AND APPLICABLE LAW
temporary injunction is an extraordinary remedy, the purpose
of which is to preserve the status quo of the
litigation's subject matter pending trial on the merits.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002); Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.
1993); El Tacaso, Inc. v. Jireh Star, Inc., 356
S.W.3d 740, 743 (Tex. App.-Dallas 2011, no pet.). The status
quo is defined as, "the last, actual, peaceable,
non-contested status which preceded the pending
controversy." In re Newton, 146 S.W.3d 648, 651
(Tex. 2004) (orig. proceeding). To obtain a temporary
injunction, the 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; see Tex. Civ.
Prac. & Rem. Code Ann. § 65.011 (West 2008). An
injury is irreparable if the injured party cannot be
adequately compensated in damages or if the damages cannot be
measured by any certain pecuniary standard. Butnaru,
84 S.W.3d at 204; El Tacaso, 356 S.W.3d at 743.
review a trial court's order granting a request for a
temporary injunction under an abuse of discretion standard.
Butnaru, 84 S.W.3d at 204; Marketshare Telecom,
L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 916 (Tex.
App.-Dallas 2006, no pet.). The reviewing court must not
substitute its judgment for the trial court's unless the
trial court's action was so arbitrary that it exceeded
the bounds of reasonable discretion. Butnaru, 84
S.W.3d at 204; Davis v. Huey, 571 S.W.2d 859, 861-62
(Tex. 1978). We view the evidence in the light most favorable
to the trial court's order and indulge every reasonable
inference in its favor. Graham Mortg. Corp. v. Hall,
307 S.W.3d 472, 478 (Tex. App.-Dallas 2010, no pet.). The
trial court does not abuse its discretion if some evidence
reasonably supports the trial court's decision.
Davis, 571 S.W.2d at 862. Nor does the trial court
abuse its discretion by making a decision based on
conflicting evidence. Tom James of Dallas, Inc. v.
Cobb, 109 S.W.3d 877, 883 (Tex. App.-Dallas 2003, no
pet.). However, the trial court abuses its discretion when it
misapplies the law to established facts or when the evidence
does not reasonably support the trial court's
determination of the existence of probable injury or probable
right of recovery. Id. We review de novo any
determinations on questions of law that the trial court made
in support of the order. Marketshare Telecom, 198
S.W.3d at 916.
issues, appellants contend the temporary injunction should be
vacated or modified because: (1) appellees have no probable
right of recovery; (2) there is no evidence appellees will
suffer probable, imminent, and irreparable harm in the
absence of a temporary injunction; (3) the injunction
improperly enjoins appellants from engaging in lawful
activities and exceeds the scope of the pleadings; (4) the
injunction unlawfully imposes a de facto receivership on
appellants' properties; (5) the injunction imposes an