Aloe Vera of America, Inc. v. CIC Cosmetics Int. Corp.

• Decision Date: 19 December 1974
• Docket Number: No. 18471,18471
• Citation: 517 S.W.2d 433
• Parties: ALOE VERA OF AMERICA, INC., et al., Appellants, v. CIC COSMETICS INTERNATIONAL CORP., Appellee.
• Court: Texas Court of Appeals

Page 433

517 S.W.2d 433

ALOE VERA OF AMERICA, INC., et al., Appellants, v. CIC COSMETICS INTERNATIONAL CORP., Appellee.

No. 18471.

Court of Civil Appeals of Texas,

Dallas.

Dec. 19, 1974.

Mark T. Davenport, Atwell, Cain, Davenport & Jones, Dallas, for appellants.

John A. Spinuzzi, Creel, Atwood & Spinuzzi, Dallas, for appellee.

GUITTARD, Justice.

CIC Cosmetics International Corporation sued Aloe Vera of America, Inc., AVA Cosmetics, Inc., Billy C. Coats, and Clinton H. Howard for damages and injunctive relief. Defendants answered and counterclaimed for damages. After a hearing, the trial court granted a 'permanent injunction' against defendants, but did not adjudicate the claims of either plaintiff or defendants for damages. Defendants have appealed the order granting the injunction. We hold that this order is not appealable because it is not a final judgment, and neither is it an order granting a 'temporary injunction,' of which we would have jurisdiction under Tex.Rev.Civ.Stat.Ann. art. 4662 (Vernon 1952). Accordingly, we dismiss the appeal.

In its petition, plaintiff seeks injunctive relief in two respects: (1) restraining defendants from using plaintiff's confidential formulas and methods for manufacturing cosmetics, and (2) restraining defendants from interfering with plaintiff's employees and customers. The trial court granted a temporary restraining order and set a date for a hearing on plaintiff's application for temporary injunction. After this hearing, the court signed an order styled 'Permanent Injunction.' This order recites that the matter came on for consideration on plaintiff's application for a temporary injunction concerning confidential formulas and methods and for a permanent injunction with respect to the allegations of interference with employees and customers, and that the attorneys for both plaintiff and defendants appeared and 'agreed to proceed in part on the Temporary Injunction and in part on the Permanent Injunction, as stated.' It recites further that counsel for plaintiff agreed to withdraw plaintiff's claim for relief concerning formulas and methods, and, accordingly, the court grants no relief in this respect. The dispositive portion of the order is a direction to the clerk to issue 'a Writ of Injunction permanently enjoining until January 1, 1975,' various acts of interference with plaintiff's employees and customers. The order makes no reference to defendants' counterclaim or to plaintiff's claim for damages and it contains no general language that could be construed as disposing of these claims.

Although defendants seem to take the position in this court that they did not agree to proceed with a hearing on the application for permanent injunction, they have not directed our attention to anything in the record which would case doubt on the court's recitation that they so agreed. The statement of facts includes the argument of defendants' counsel to the court at the close of the evidence, in which counsel refers to both the 'temporary aspect of this hearing' with respect to confidential formulas and methods and the 'permanent relief sought' with respect to interference with employees and customers. No objection appears to the action of the court in proceeding to trial of the issues concerning permanent injunctive relief.

Although neither of the parties has raised any question concerning appealability of the order, we raised this question on oral argument because we must determine whether we have jurisdiction. Mueller v. Banks, 317 S.W.2d 256 (Tex.Civ.App.--San Antonio 1958, no writ). In response, defendants have filed a post-submission brief, in which they concede that the order appealed from is interlocutory rather than final, but they contend that appealability of an injunction under Tex.Rev.Civ.Stat.Ann. art. 4662 (Vernon 1952) depends on whether it is interlocutory rather than on whether it is temporary.

We do not so construe article 4662. Its material provisions are as follows:

Any party to a civil suit wherein a temporary injunction may be granted or refused or when motion to dissolve has been granted or over-ruled, under any provision of this title, in term time or in vacation, may appeal from such order or judgment to the Court of Civil Appeals . . ..

The term 'temporary injunction,' as used in this statute has a well-understood meaning. It means an injunction which is effective pending further order of the court. Conway v. Irick, 429 S.W.2d 648, 649 (Tex.Civ.App.--Fort Worth 1968, writ ref'd). All temporary injunctions are interlocutory, since they do not finally dispose of the issues, but not all interlocutory injunctions are 'temporary' within the terms of this statute. If the injunction is permanent in the sense that the duration of the injunctive relief granted does not depend on any further order of the court, then it is a permanent rather than a temporary injunction. Owens v. Coker, 368 S.W.2d 777, 780, on rehearing, 368 S.W.2d 959 (Tex.Civ.App.--Beaumont 1963, no writ).

Nevertheless, an order granting a permanent injunction may be interlocutory rather than final if it does not dispose of all issues made by the pleadings. Booth v. Amicable Life Ins. Co., 143 S.W.2d 836, 839 (Tex.Civ.App.--Waco 1940, writ dism'd jdgmt cor.). Like any other order disposing of some of the issues in the case, but not all, it is appealable only when the remaining issues are disposed of, since only one final judgment may be rendered under Texs Rules of Civil Procedure, rule 301. Cf. Pan American Pet. Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200, 201 (1959); Lindsey v. Hart, 276 S.W. 199, 200 (Tex.Comm'n App.1925, jdgmt adopted). When the remaining issues have been disposed of, the court may then properly enter a final judgment which embodies the previous interlocutory order without hearing further evidence or relitigating any of the issues disposed of by the interlocutory order.

The order appealed from here is clearly an interlocutory permanent injunction rather than an appealable temporary injunction. Like any other...