Ballenger v. Ballenger

• Decision Date: 21 March 1985
• Docket Number: No. 13-84-340-CV,13-84-340-CV
• Citation: 694 S.W.2d 72
• Parties: Joe Davis BALLENGER, W.T. Ballenger and Katherine Ethel Ballenger Fairchild, Appellants, v. Robert B. BALLENGER, Jr., Appellee.
• Court: Texas Court of Appeals

Page 72

694 S.W.2d 72

Joe Davis BALLENGER, W.T. Ballenger and Katherine Ethel Ballenger Fairchild, Appellants, v. Robert B. BALLENGER, Jr., Appellee.

No. 13-84-340-CV.

Court of Appeals of Texas Corpus Christi.

March 21, 1985.

Jeffrey Jackson, Harlingen, for appellants.

Randolph K. Whittington, Harlingen, Hilton H. Howell, Michael Vaughn, Waco, for appellee.

Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from an order granting a temporary injunction in favor of appellee, Robert B. Ballenger, Jr., and against appellants, Joe Davis Ballenger, W.T. Ballenger and Katherine Ethel Ballenger Fairchild, enjoining appellants from distributing to themselves any portion of the corpus of three trusts created by the will of Ethel Ballenger, deceased. We reverse and render judgment dissolving the temporary injunction.

Ethel Ballenger died in May, 1963. In her will, she created four equal trusts for the benefit of her four surviving children (the three appellants and appellee's father, Robert B. Ballenger, Sr.) and contingently to her grandchildren by birth. These trusts are referred to as the Joe Davis Ballenger Trust; the W.T. Ballenger Trust; the Robert Burton Ballenger Trust; and the Katherine Ethel Ballenger Fairchild Trust. Upon Ethel's death in 1963, her husband, Joe G. Ballenger, became trustee of the four trusts and acted as such until his death in 1971. Following the death of the father, each of the four children resigned (ostenibly for tax reasons) as co-trustee of his/her own trust such that each trust now has three co-trustees, with appellants representing a majority of the three co-trustees of all four trusts.

The will of Ethel Ballenger provides that each of the four trusts shall be held, managed and controlled by the co-trustees for the use and benefit of the child for which the respective trust is named, and, upon that child's death, all property "remaining" in each of said trusts shall pass to and vest in fee simple title to the grandchildren "(by birth but not by adoption) in equal portions per capita and not per stirpes." (Emphasis added.)

On April 6, 1984, appellants delivered a letter to Robert B. Ballenger, Sr., who is one of the three co-trustees for each of their trusts, stating their intentions to exercise their "sole discretion," pursuant to Section (6) of the will, to distribute to themselves approximately $200,000.00 from the principal and corpus of each of their trusts (i.e., a total of $604,550.00). ¹ Section (6) of Ethel Ballenger's will provides, in pertinent part:

"... The trustee or trustees shall also have sole discretion as to the distribution of the corpus of my estate, if the income is insufficient for the care, comfort and support of any of the beneficiaries of the respective trusts." (Emphasis added.) ²

Robert B. Ballenger, Sr., dissented from the proposed action on the basis that he thought that they all had "an absolute obligation, as trustees, to the other beneficiaries of the four trusts to preserve the corpus of the trusts to vest in them in accordance with the terms of our mother's will." He also advised appellants that their stated purposes for utilization of the corpus were not included in their mother's contemplation; that each had adequate means from trust income and other sources; and that the trust income had not been "insufficient" so as to authorize invasion of the corpus. There was no dispute among the parties that the four children of Ethel Ballenger were each entitled to receive all the income generated by his/her trust during their respective lifetimes.

Appellee, Robert B. Ballenger, Jr. (grandson), is the natural son of Robert B. Ballenger, Sr., and a possible remainderman under the will. He intervened in the lawsuit already pending between appellants as plaintiffs and his father as defendant. He subsequently filed an Intervenor's Application for Injunctive Relief in which he asserted that, "unless plaintiffs are immediately restrained, without notice, from making the intended distributions of corpus, they will substantially deplete and dissipate the assets of the trusts and the interests therein of Intervenor and the other natural grandchildren of Joe G. and Ethel Ballenger."

On April 12, 1984, the trial court granted an ex parte temporary restraining order preventing appellants from distributing corpus from any of the four trusts for "care and support" ³ or taking any action as trustees pending a hearing on injunctive relief. This temporary restraining order was twice extended by agreement of the parties. Subsequent to a hearing held on August 24, 1984, a second trial court granted the temporary injunction on the following terms:

"IT IS THEREFORE, ORDERED that Joe Davis Ballenger, W.T. Ballenger, and Katherine Ethel Ballenger Fairchild, Plaintiffs, should be and are hereby commanded forthwith to desist and refrain from distributing or causing to be distributed to themselves or any other person any portion of the principal or corpus of the Joe Davis Ballenger Trust, the W.T. Ballenger Trust, or the Katherine Ethel Ballenger Fairchild Trust except upon a prior order of the Court determining that such distribution is necessary for the care, comfort and support of the proposed distributee, and that the income of the appropriate trust and proposed distributee are insufficient to meet such necessary care, comfort and support." (Emphasis added.)

The trial court's order of August 31, 1984 confirmed the previously set date for trial on the merits on October 1, 1984. For various reasons, trial was not held on this date, and this family dispute remains unsettled. Appellants appeal from the above order granting the temporary injunction. See TEX.REV.CIV.STAT.ANN. art. 4662 (Vernon Supp.1985).

A trial court is clothed with broad discretion in determining whether to grant or to deny a temporary injunction. Transport Company of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); Ogden v. Coleman, 660 S.W.2d 578 (Tex.App.--Corpus Christi 1983, no writ). At a hearing on a temporary injunction, the only issue before the trial court is whether the applicant is entitled to preservation of the status quo of the subject matter of the suit pending trial on the merits. Davis v. Huey, 571 S.W.2d 859 (Tex.1978); Diesel Injection Sales & Service, Inc. v. Gonzalez, 631 S.W.2d 193 (Tex.App.--Corpus Christi 1982, no writ).

Our review of the granting or denying of a temporary injunction is limited to a determination of whether there has been a clear abuse of discretion by the trial court in granting or denying the interlocutory order. State v. Southwestern Bell Telephone Co., 526 S.W.2d 526 (Tex.1975); Swanson v. Grassedonio, 647 S.W.2d 716 (Tex.App.--Corpus Christi 1982, no writ). The appellate court may not substitute its judgment for that of the trial court. Texas Foundries, Inc. v. International Molders and Foundry Workers' Union, 151 Tex. 239, 248 S.W.2d 460 (1952). Also, where, as here, no findings of fact or conclusions of law were filed, the trial court's judgment must be upheld on any legal theories supported by the record. Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968); Bank of Southwest v. Harlingen National Bank 662 S.W.2d 113 (Tex.App.--Corpus Christi 1983, no writ).

In order for a party to secure a temporary injunction, he must plead and prove a probable right to recovery and a probable injury if temporary equitable relief is denied. Transport Company of Texas v. Robertson Transports, 261 S.W.2d at 551. The applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Sun Oil Company v. Whitaker, 424 S.W.2d 216 (Tex.1968); Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684 (Tex.Civ.App.--Dallas 1976, writ ref'd n.r.e.).

In their first and second points of error, appellants assert that the trial court erred, as a matter of law, in granting the temporary injunction because appellee has an adequate remedy at law (i.e., damages) and also because appellee failed to show any irreparable injury.

It is well settled that injunctive relief will not be granted unless the applicant has shown that irreparable injury will result if such relief is not afforded and that the applicant has no adequate remedy at law for damages which may result pending an outcome of the litigation. Bank of the Southwest v. Harlingen National Bank, 662 S.W.2d at 116; International Harvester Credit Corp. v. Rhoades, 363 S.W.2d 397 (Tex.Civ.App.--Austin 1962, no writ). The test for determining whether an existing remedy is adequate is whether such remedy is as complete and as practical and efficient to the ends of justice and its prompt administration as is equitable relief. Brazos River Conservation & Reclamation District v. Allen, 141 Tex. 217, 171 S.W.2d 847 (1943); Long v. Castaneda, 475 S.W.2d 578 (Tex.Civ.App.--Corpus Christi 1971, writ ref'd n.r.e.). For the purposes of injunctive relief, no adequate remedy at law exists if damages are incapable of calculation or if defendant is incapable of responding in damages. Bank of the Southwest v. Harlingen National Bank, 662 S.W.2d at 116.

Appellants initially point out that the proposed $600,000.00 distribution of trust corpus is in the form of certificates of deposit and that there is no sale of trust assets involved. Appellants argue that, in the event that it was ultimately determined at a trial on the merits that they were not entitled to distribute funds representing trust corpus as proposed, appellee's damages would be "liquidated and capable of exact calculation in terms of dollars and cents." Further, appellants contend and rely on Bank of the Southwest v. Harlingen National Bank as their authority that temporary injunctive relief cannot be granted where the pleadings and evidence clearly show that appellants are capable of responding in damages for any unwarranted distributions of...