Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 14th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-07620
Justices Fillmore, Whitehill, and Boatright
M. FILLMORE JUSTICE
an interlocutory appeal of the trial court's order
granting a temporary injunction that prohibits Member 1300
Oak, LLC from foreclosing on certain real property owned by
Famous Koko, Inc. In its first two issues, Member 1300 Oak
contends the trial erred by granting the temporary injunction
because there was no evidence Famous Koko had a probable
right to relief or of probable injury. In its third issue,
which is dispositive of this appeal, Member 1300 Oak argues
the temporary injunction is void because it fails to set the
cause for trial on the merits. We reverse the order of the
trial court and dissolve the temporary injunction.
ultimate issue before this Court is whether the trial court
abused its discretion in granting the requested temporary
injunction. Medi-Lynx Monitoring, Inc. v. Ami Monitoring,
Inc., No. 05-16-00318-CV, 2016 WL 1221907, at *1 (Tex.
App.-Dallas Mar. 29, 2016, no pet.) (mem. op.) (citing
Institutional Secs. Corp. v. Hood, 390 S.W.3d 680,
683 (Tex. App.-Dallas 2012, no pet.)). A temporary injunction
must comply with the requirements of rule of civil procedure
683. InterFirst Bank San Felipe, N.A. v. Paz Constr.
Co., 715 S.W.2d 640, 641 (Tex. 1986) (per curiam)
("The requirements of Rule 683 are mandatory and must be
strictly followed."); Medi-Lynx Monitoring,
Inc., 2016 WL 1221907, at *1; see also Tex. R.
Civ. P. 683. As relevant to this case, rule 683 requires that
an order granting a temporary injunction set the cause for
trial on the merits with respect to the ultimate relief
sought. Tex.R.Civ.P. 683. This procedural requirement is
mandatory, and an order granting a temporary injunction that
is noncompliant is subject to being declared void and
dissolved. InterFirst Bank San Felipe, N.A., 715
S.W.2d at 641; Medi-Lynx Monitoring, Inc., 2016 WL
1221907, at *1; see also Quest Comms. Corp. v. AT&T
Corp., 24 S.W.3d 334, 337 (Tex. 2000) (per curiam)
(requirement of rule 683 that temporary injunction order set
cause for trial on merits is mandatory and order granting
temporary injunction that does not meet requirement is
"subject to being declared void and dissolved").
temporary injunction order signed by the trial court did not
set the cause for trial on the merits and, therefore, failed
to comply with rule 683. Famous Koko, however, contends
Member 1300 Oak waived the requirement that the temporary
injunction set the cause for trial on the merits by failing
to object to the deficiency in the trial court. This Court
has previously concluded the failure of a temporary
injunction order to meet the requirements of rule 683
"renders the order fatally defective and void, whether
specifically raised by point or error or not."
Leighton v. Rebeles, 343 S.W.3d 270, 273 (Tex.
App.-Dallas 2011, no pet.) (addressing temporary injunction
order that failed to set cause for trial on merits); see
also State Bd. for Educator Certification v. Montalvo,
No. 03-12-00723-CV, 2013 WL 1405883, at *1 (Tex. App.-Austin
Apr. 3, 2013, no pet.) (mem. op.) (based on record of case,
complaint that temporary injunction was void because it
failed to set cause for trial on merits not subject to
waiver); In re Garza, 126 S.W.3d 268, 271-73 (Tex.
App.-San Antonio 2003, orig. proceeding [mand. denied])
(party who agreed to temporary injunction order not estopped
from asserting order was void because it failed to set cause
for trial on merits). Accordingly, Member 1300 Oak may assert
on appeal that the temporary injunction order fails to meet
the requirements of rule 683.
Koko also argues that Member 1300 Oak's contention the
temporary injunction order is void is moot because the cause
is set for trial. The record reflects the trial court sent
notice to the parties on August 5, 2016, that the cause was
set for trial on the merits on June 20, 2017. The trial court
signed the temporary injunction order on October 10, 2016.
DeVoll v. Demonbreun, No. 04-13-00900-CV, 2014 WL
1494609 (Tex. App.-San Antonio Apr. 16, 2014, no pet.) (mem.
op.), the trial court signed on the same day a temporary
injunction order that did not set the cause for trial and an
order setting the cause for trial. Id. at *1. The
appellant filed a motion to dissolve the temporary injunction
on the ground the order did not set the cause for trial.
Id. The trial court denied the motion to dissolve,
and the appellant challenged the ruling on interlocutory
appeal. Id. Notwithstanding the case law requiring
strict compliance with rule 683, the appellees argued the
trial court properly denied the motion to dissolve because it
set the cause for trial in the separate order. Id.
The San Antonio Court of Appeals rejected this argument:
Courts have articulated two reasons for Rule 683's
requirement that a temporary injunction order include a trial
date: (1) to prevent the temporary injunction from
effectively becoming permanent without a trial; and (2) to
ensure that the order is specific and complete on its face.
It is important for trial judges or parties to read the
original order and have before them all information relevant
to the injunction.
Id. (internal citations omitted). The court of
appeals dissolved the temporary injunction order as void for
failing to set the cause for trial. Id. at *2;
see also Kaufmann v. Morales, 93 S.W.3d 650, 656-57
(Tex. App.-Houston [14th Dist.] 2002, no pet.) (concluding
temporary injunction was void because it failed to set cause
for trial even though notation on docket sheet indicated
cause had been set for trial); Wyatt v. Cowley, 74
S.W.3d 576, 577-78 (Tex. App.-Corpus Christi 2002, pet.
dism'd w.o.j.) (concluding temporary injunction order
that failed to set cause for trial was void even though
docketing control order signed before temporary injunction
order contained trial date). We agree with our sister courts
that the fact the cause is set for trial on the merits does
not excuse the temporary injunction order from meeting rule
conclude the temporary injunction order in this case fails to
comply with the requirements of rule 683 and is void. See
InterFirst Bank San Felipe, N.A., 715 S.W.2d at 641.
Accordingly, we resolve Member 1300 Oak's third issue in
its favor, reverse the trial court's order, dissolve the
temporary injunction order, and remand this case to the trial
court for further proceedings. See Medi-Lynx, 2016
WL 1221907, at *1 (dissolving temporary injunction order that
failed to set cause for trial).
accordance with this Court's opinion of this date, the
October 10, 2016 temporary injunction order of the trial
court is REVERSED, the temporary injunction is DISSOLVED, and
this cause is REMANDED to the trial court for further
ORDERED that appellant Member 1300 Oak, LLC recover its costs
of this ...