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LLC v. Famous Koko, Inc.

Court of Appeals of Texas, Fifth District, Dallas

April 13, 2017

MEMBER 1300 OAK, LLC, Appellant
v.
FAMOUS KOKO, INC., Appellee

         On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-07620

          Before Justices Fillmore, Whitehill, and Boatright

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         This is 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.

         The 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").

         The 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.

         Famous 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.

         In 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 683's requirements.

         We 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).[1]

         JUDGMENT

         In 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 proceedings.

         It is ORDERED that appellant Member 1300 Oak, LLC recover its costs of this ...


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