Court of Appeals of Texas, Fourth District, San Antonio
the 216th Judicial District Court, Kendall County, Texas
Trial Court No. 16-300 Honorable Keith Williams, Judge
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Elena D. Chapa, Justice
Cali appeals a final judgment in which the trial court denied
his claim to recover on a $1, 000 bond, which Sisterdale
General Holdings, LLC filed after it obtained a temporary
restraining order against him. Because Cali failed to prove
the issuance of the temporary restraining order caused him
damages, we affirm the trial court's judgment.
is a landlord and Cali is a tenant in a commercial lease that
restricts Cali's use of the property to a general store.
After Cali allegedly began leasing trailers as dwellings,
offering helicopter parking, and leasing kayaks for float
trips on the Guadalupe River, Sisterdale sued Cali for breach
of contract. Sisterdale also obtained a temporary restraining
order against Cali enjoining him from conducting unauthorized
activities on the property. The trial court set the bond
amount at $1, 000, and Sisterdale deposited $1, 000 with the
trial court clerk.
separate suit filed in justice court, Sisterdale commenced
eviction proceedings against Cali and obtained an order of
eviction. Then, in this suit, Sisterdale filed a notice of
nonsuit, seeking an order of nonsuit on its breach of
contract claims against Cali. The trial court signed an order
granting Sisterdale's request for an order of nonsuit and
dismissed the case. Before the trial court's plenary
power expired, Cali filed a motion alleging Sisterdale
wrongfully obtained the temporary restraining order and
sought to recover the entire $1, 000 bond.
trial court heard Cali's claim to recover on the bond. At
the hearing, Cali's counsel contended Sisterdale's
nonsuit was an admission that Sisterdale wrongfully obtained
the temporary restraining order and the temporary restraining
order caused Cali to cease profitable lines of business.
Sisterdale argued Cali was not injured by the temporary
restraining order and denied Cali's factual assertions.
No evidence was admitted during the hearing. The trial court denied Cali's claim to
recover on the bond, and Cali appeals.
argues the record establishes his entitlement to the $1, 000
bond. "A person who obtains an injunction wrongfully is
liable for damages caused by issuance of the
injunction." DeSantis v. Wackenhut Corp., 793
S.W.2d 670, 685 (Tex. 1990). "To prevail upon this cause
of action, the claimant must prove that the temporary
restraining order or temporary injunction was issued or
perpetuated when it should not have been, and that it was
later dissolved." Id. at 685-86. The claimant
also "must prove that the issuance of the injunction
caused him damages." Goodin v. Jolliff, 257
S.W.3d 341, 353 (Tex. App.-Fort Worth 2008, no pet.) (citing
DeSantis, 793 S.W.2d at 686). "The damages
recoverable in an action on an injunction bond are, of
course, limited to the amount of the bond."
DeSantis, 793 S.W.2d at 686. "The purpose of
[an injunction] bond is to protect the defendant from the
harm he may sustain as a result of temporary relief granted
upon the reduced showing required of the injunction
plaintiff, pending full consideration of all issues."
"a civil litigant who asserts an affirmative claim for
relief has the burden to persuade the finder of fact of the
existence of each element of his cause of action."
Vance v. My Apartment Steak House of San Antonio,
Inc., 677 S.W.2d 480, 482 (Tex. 1984). Accordingly, in
wrongful injunction actions, it is the claimant who
"must prove that the issuance of the injunction caused
him damages." Goodin, 257 S.W.3d at 353;
see Duradril, L.L.C. v. Dynomax Drilling Tools,
Inc., 516 S.W.3d 147, 167 (Tex. App.-Houston [14th
Dist.] 2017, no pet.); Safeco Ins. Co. of Am. v.
Gaubert, 829 S.W.2d 274, 278 (Tex. App.-Dallas 1992,
writ denied). In Goodin, the court of appeals
"h[e]ld that the trial court erred by releasing the
security amount to [the defendant] in the absence of any . .
. proof that she was damaged by the issuance of the temporary
injunction." 257 S.W.3d at 353. And in Safeco,
the court of appeals noted "[the claimant] had the
burden to prove that the injunction resulted in damages to
recover on the bond." 829 S.W.2d at 278.
argues that under the facts of this case, damages are
presumed. He relies on a 1909 case from the Supreme Court of
Errors of Connecticut in which the court opined, "it was
for the plaintiff to show that the defendants had suffered no
damage, and not for the defendants to demonstrate that they
had suffered loss by obeying the injunction order."
Lawlor v. Merritt, 72 A. 143, 145 (Conn. 1909). The
Lawlor court cited no authority for this
proposition, and we are aware of no other court that has
relied on Lawlor for this proposition. Moreover, the
holding in Lawlor is that the trial court's
finding of damages was supported by plaintiff's
concession of facts showing economic loss resulting from the
temporary restraining order. Id. at 145. Here,
however, the trial court denied relief, and Sisterdale did
not concede Cali suffered any damages, but instead
"disagree[d] with all the facts" Cali presented.
argues on appeal that he "has suffered lost profits and
been denied due process under the United States
Constitution." At the hearing in the trial court,
counsel argued the issuance of the temporary restraining
order caused him to cease profitable lines of business.
"However, argument of counsel is not evidence."
Tex. Dep't of Pub. Safety v. Mendoza, 952 S.W.2d
560, 564 (Tex. App.-San Antonio 1997, no writ). The trial
court admitted no evidence at the hearing on Cali's claim
to recover on the bond, and thus there is no evidence showing
the issuance of the temporary restraining order caused him
damages. Because Cali failed to prove the issuance of the