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Topletz v. City of Dallas

Court of Appeals of Texas, Fifth District, Dallas

April 6, 2017


         On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-13993

          Before Justices Lang-Miers, Myers, and O'Neill [1]



         This is 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 modified.

         I. BACKGROUND

         Harold 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.

         The 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.

         James 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.

         The 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.


         A 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.

         We 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.

         III. ANALYSIS

         In six 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 ...

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