And v. Gage

• Decision Date: 02 July 2015
• Docket Number: NO. 02-15-00026-CV,02-15-00026-CV
• Parties: MARCIA MORRISON AND APPELLANTS CHARLES J. MORRISON v. MARSHA GAGE APPELLEE
• Court: Texas Court of Appeals

MARCIA MORRISON AND APPELLANTSCHARLES J. MORRISON v. MARSHA GAGEAPPELLEE

NO. 02-15-00026-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

July 2, 2015

FROM THE271ST DISTRICT COURT OF WISE COUNTY

TRIAL COURTNO. CV14-10-797

MEMORANDUM OPINION¹

I.Introduction

In seven issues in this accelerated, interlocutory appeal, appellants Marcia and Charles Morrison appeal the trial court's order granting a temporary injunction to appelleeMarsha Gage.SeeTex. Civ. Prac. & Rem. Code Ann.§ 51.014(a)(4)(West 2015).We dissolve the order and remand the case to the trial court.

II.Factual and Procedural Background

According to Gage's original petition, Marcia began working for her in 2012.In October 2014, Gage sued Marcia and Charles, Marcia's husband, alleging that they had wrongfully diverted between $265,900-$1 million of Gage's money.Gage sued the Morrisons for conversion, theft under the Theft Liability Act, breach of fiduciary duty, fraud, unjust enrichment, money had and received, and conspiracy.Gage also sought a temporary restraining order (TRO), a temporary injunction, and a permanent injunction.The trial court granted the TRO, set Gage's bond at $1,000, and set the application for temporary injunction for hearing on November 24, 2014.On November 24, 2014, the Morrisons filed a motion to dissolve the TRO and sought damages for wrongful issuance of process.

At the November 24, 2014 hearing, Gage's counsel informed the trial court that he had three witnesses and the hearing would require approximately two hours of the court's time.The trial court informed him that it did not have two hours available that day.After a brief, off-the-record discussion, Gage's counsel presented the testimony of Donna Ramsey, a Wells Fargo branch manager, who provided Gage's bank account records for 2012, 2013, and 2014, which were admitted into evidence.Gage's counsel then argued to the trial court that the money was transferred "to the Morrison account being account number ending in4641."No one testified that the C. Morrison on the account ending in "4641" was Charles Morrison, nor did anyone testify that the transfers were unauthorized.

The Morrisons' counsel explained the case as, "[T]hey allege that we stole a whole bunch of money.We deny we stole any money.It's an accounting fight . . . this is supposedly [an] injunction telling our clients that they can't spend their own money."²The Morrisons' counsel also argued that as a matter of law, the trial court could not grant a temporary injunction because Gage's pleadings did not support it.The trial court stated that it would review the law and that if it could make a ruling, it would do so, and if not, they would have another hearing.³

On December 8, the trial court held another brief hearing.The trial court began the hearing by stating

I have consulted with the attorneys in the case regarding several matters in the case.It is, I will state, a somewhat complicated situation with regard to the actual gathering and exchange of evidence in the case, so here's the order.

The Court at this time orders that the temporary restraining order previously agreed to by the parties⁴ is hereby made a temporary injunction.The parties are ordered to continue to cooperate with each other with the exchange of information. . . .

The Court leaves to the parties the right obviously that they can come back to the Court in the event the temporary injunction—there are matters that need to be tweaked in that.But I think that it is broad enough to protect . . . the evidence in the case as well as allow the parties to conduct their life [sic] as much as normal as they can under the temporary injunction; in order words, the prior—the very first TRO submitted to the Court was too restrictive.⁵I think the agreement that y'all reached after the last hearing is not, and that's what the Court expects you to operate under.

After mentioning that the parties should ask the court coordinator for a time in four to six weeks to come back to court if necessary regarding deadlines, the trial court asked if there were any questions.The Morrisons' counsel replied, "No, your Honor, that's acceptable to the Morrisons," and Gage's counsel concurred.No evidence was offered at this hearing, and it is unclear from the brief, on-the-record colloquium between the trial court and the attorneys whether the Morrisons' counsel found acceptable the issue of an agreed temporary injunction or the trial court's deadline-related instructions.Cf.Tex. R. Civ. P. 11.The trial court signed the temporary injunction order on January 7, 2015.

The order provides, in pertinent part,

On the 8th day of December, 2014, Plaintiff's Petition for Temporary Injunction against DefendantsMarcia Morrison and Charles J. Morrison came on for hearing, due notice having been given.The parties appeared by and through their attorneys.On considering the evidence received, the argument of counsel, and subsequent agreement of counsel, the Court finds and concludesthat Plaintiff will probably prevail on the trial of this cause; that Defendants may dispose of assets as soon as possible and before the Court can render judgment in this cause; that that Plaintiff might not be able to recover her loss; that such disposition might thereby alter the status quo and tend to make ineffectual a judgment in favor of Plaintiff; and that unless Defendants are deterred from carrying out that intention, Plaintiff will be without any adequate remedy at law in that there will be no assets remaining to satisfy the Judgment.

The final page of the January 7, 2015 order states "Agreed as to form only" above the signatures of the parties' attorneys.

The Morrisons timely filed their notice of appeal, and in April, the trial court amended the temporary injunction order to include a date and time for the final trial on the merits in compliance with rule of civil procedure 683.SeeTex. R. Civ. P. 683.The amended order includes that the trial court"notes and overrules Defendants' objection to this Order," and states, "Agreed as to form" above the signatures of the parties' attorneys.

III.Temporary Injunction

In their sixth issue, the Morrisons argue that the trial court abused its discretion by failing to hear evidence during the temporary injunction proceeding, complaining that a temporary injunction cannot be granted without evidence and only if the evidence establishes a probable right to the relief sought on final trial.Gage responds that the trial court admitted into evidence "approximately 300 pages of [her] bank records showing the disputed transfers" without objection at the November 24, 2014 hearing before it reset the proceedings for a later date due to time constraints.

To obtain a temporary injunction, the applicant must plead and prove three specific elements: (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)(op. on reh'g);seeMillwrights Local UnionNo. 2484v. Rust Eng'g Co., 433 S.W.2d 683, 686(Tex.1968)("To authorize issuance of the writ, Rust had the burden of not only pleading facts which, if proved, would entitle it to a permanent injunction, but, as well, of offering evidence tending to prove its probable []right thereto on final hearing and of probable injury in the interim.").

To show a probable right of recovery, the applicant need not establish that it will finally prevail in the litigation, but it must, at the very least, present some evidence that, under the applicable rules of law, tends to support its cause of action.Sands v. Estate of Buys, 160 S.W.3d 684, 687(Tex. App.—Fort Worth 2005, no pet.);see alsoIn re Tex. Natural Res. Conservation Comm'n, 85 S.W.3d 201, 204(Tex.2002)(orig. proceeding)(observing that a temporary injunction has more stringent proof requirements than a TRO).The only question before the trial court at this stage is whether the applicant is entitled to preservation of the status quo pending trial.Shor v. Pelican Oil & Gas Mgmt., LLC, 405 S.W.3d 737, 749(Tex. App.—Houston[1st Dist.]2013, no pet.).

Whether to grant a temporary injunction is within the trial court's discretion, and we will not substitute our judgment for the trial court's judgment unless the trial court's action was so arbitrary that it exceeded the bounds of reasonablediscretion.Butnaru, 84 S.W.3d at 204.The trial court does not abuse its discretion when some evidence reasonably supports its decision.Id. at 211.But, absent a clear agreement by the parties, a trial court has no discretion to grant injunctive relief without supporting evidence.SeeOperation Rescue-Nat'l v. Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 560(Tex.1998).This is because a temporary injunction should be extraordinary, not routine.Allied Capital Partners, LP v. Proceed Tech. Res., Inc., 313 S.W.3d 460, 466(Tex. App.—Dallas 2010, no pet.).As explained by the supreme court,

The purpose of a temporary injunction is to preserve the status quo of the subject matter of a suit pending a final trial of the case on its merits.A trial judge therefore has broad discretion to grant or to deny a writ when the pleadings and the evidence show a probable right or recovery in the applicant and a probable injury to him if the writ is not granted.A necessary corollary of that rule is that a trial judge abuses his discretion if he grants a writ when the evidence fails to furnish any reasonable basis for concluding that the applicant has a probable right of recovery.To furnish a reasonable basis for the conclusion the evidence need not establish that the applicant will finally prevail in the litigation, but it must, at the very least, tend to support a right or recovery.

Camp v. Shannon, 348 S.W.2d 517, 519(Tex.1961)(citations omitted).

The only evidence admitted at either injunction...