Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 1 Dallas County,
Texas Trial Court Cause No. CC-17-05892-A
Justices Francis, Fillmore, and Whitehill
M. FILLMORE JUSTICE
an accelerated interlocutory appeal from a temporary
injunction. Because the parties have delayed the trial on the
merits of the underlying case in an effort to obtain an
advisory opinion from this Court, we dismiss the appeal.
Torres filed a forcible detainer action in justice court
against Walter P. Brookins. The justice of the peace found
that Torres was entitled to possession of the property and
ordered Brookins to pay $1, 800 per month rent into the
registry of the court during the pendency of any appeal.
After Brookins failed to timely deposit the first rent
payment, the justice court issued a writ of possession which
authorized the sheriff to evict Brookins from the property.
filed this case in county court against Torres and the
justice of the peace, seeking to enjoin the enforcement of
the writ of possession on the ground he had been denied his
right to appeal the judgment of the justice court. On
December 20, 2017, the trial court signed a temporary
injunction enjoining Torres and the justice of the peace from
seeking to enforce any execution on any existing writ of
possession and enjoined Torres from "seeking any new or
future eviction proceeding. . . until such time as a hearing
is had in the County Court at Law regarding [Brookins's]
appeal of the denial of his Statement of Inability to Afford
Payment of Court Costs or an Appeal Bond related to JP Cause
No. 17-02221-E." The temporary injunction order set the
case for trial on the merits on January 25, 2018.
filed this interlocutory appeal on January 9, 2018. In his
appellate brief, Torres contends, in one issue, that the
trial court abused its discretion by issuing the temporary
injunction. Torres specifically argues Brookins offered no
evidence to support a conclusion that he had a substantial
likelihood of success on the merits and, if Brookins contends
the justice of the peace erred, he had an adequate remedy by
way of appeal to the county court. Torres did not request
oral argument, and Brookins did not file an appellate brief.
submission, this Court requested a supplemental record from
the county clerk to determine the status of the underlying
case. According to the supplemental record, on January 23,
2018, Torres filed a Motion to Stay Trial Pending Appeal. In
the motion, Torres stated that a "stay of the
trial-court proceedings is necessary because the resolution
of the appeal from the Court's grant of the temporary
injunction may materially advance the ultimate termination of
the litigation[.]" Torres provided a proposed order
staying the case during this appeal. On January 26, 2018,
Torres sent a letter to the trial court's clerk stating
that, during a hearing on January 23rd, "the Court and
parties agreed that since this matter is currently on appeal,
all proceedings are stayed." Torres attached another
copy of the proposed order staying proceedings in the trial
court pending appeal and requested that it be presented to
the trial court for signature. Although the record does not
reflect the trial court signed the proposed order, it has not
re-set the case for trial.
obtain a temporary injunction, the applicant must plead and
prove: (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
v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The
only issue before the trial court in a temporary injunction
hearing is whether the applicant may preserve the status quo
pending trial on the merits. Iranian Muslim Org. v. City
of San Antonio, 615 S.W.2d 202, 208 (Tex. 1981);
Arch Resorts, L.L.C. v. City of McKinney, No.
05-15-01108-CV, 2016 WL 3196767, at *1 (Tex. App.-Dallas May
26, 2016, no pet.) (mem. op.). Therefore, the merits of the
underlying case are not presented for appellate review in an
interlocutory appeal from an order granting or denying a
temporary injunction. Brooks v. Expo Chem. Co., 576
S.W.2d 369, 370 (Tex. 1979); DK8, LLC v. HBT JV,
LLC, No. 05-16-00320-CV, 2016 WL 6094308, at *1 (Tex.
App.-Dallas Oct. 19, 2016, no pet.) (mem. op.). Rather, the
only question in the appeal is whether the trial court's
ruling was an abuse of discretion. Iranian Muslim
Org., 615 S.W.2d at 208; DK8, LLC, 2016 WL
6094308, at *1.
party may not use an appeal of a temporary injunction ruling
to get an advance ruling on the merits." DK8,
LLC, 2016 WL 6094308, at *2; see also Iranian Muslim
Org., 615 S.W.2d at 208. This Court has considered and
disapproved of this tactic many times. See DK8, LLC,
2016 WL 6094308, at *2 (citing Reeder v. Intercontinental
Plastics Mfg. Co., Inc., 581 S.W.2d 497, 499 (Tex.
App.-Dallas 1979, no writ); Hiss v. Great N. Am. Cos.,
Inc., 871 S.W.2d 218, 220 (Tex. App.-Dallas 1993, no
writ); Brar v. Sedey, 307 S.W.3d 916, 920 (Tex.
App.-Dallas 2010, no pet.); Senter Invs., L.L.C. v.
Veerjee, 358 S.W.3d 841, 846 (Tex. App.-Dallas 2012, no
pet.)). This practice not only delays the ultimate resolution
of the merits of the parties' dispute, but wastes
judicial resources. DK8, LLC, 2016 WL 6094308, at
*2; see also Arch Resorts, L.L.C., 2016 WL 3196767,
at *1 (noting appeal of temporary injunction ruling should
not be cause for delay of trial); Barnett v. Manuel
Griego, Jr., D.O., P.A., 337 S.W.3d 384, 387 (Tex.
App.-Dallas 2011, no pet.); see also Tex. R. Civ. P.
683 ("The appeal of a temporary injunction shall
constitute no cause for delay of the trial.").
Regardless of the outcome of this appeal, the trial court
will be required to resolve the case on the merits and render
a final judgment which may be the subject of a second appeal.
DK8, LLC, 2016 WL 6094308, at *2; Dallas/Fort
Worth Int'l Airport Bd. v. Ass'n of Taxicab
Operators, USA, 335 S.W.3d 361, 365 (Tex. App.-Dallas
2010, no pet.).
fastest way to cure the hardship of an unfavorable
preliminary order is to try the case on the merits."
Hiss, 871 S.W.2d at 219; see also DK8, LLC,
2016 WL 6094308, at *2; Arch Resorts, L.L.C., 2016
WL 3196767, at *1. Therefore, the trial court should
"proceed expeditiously from the grant or denial of
temporary injunctive relief to full consideration of the
merits to reduce the need for interlocutory appeals."
Arch Resorts, L.L.C., 2016 WL 3196767, at *1. In
this case, Torres specifically requested a stay of the
proceedings in the trial court in an effort to obtain an
advisory opinion from this Court, and both Brookins and the
trial court agreed to delay the trial. Judicial economy
dictates that we not ...