Bankler v. Vale

• Decision Date: 21 November 2001
• Docket Number: No. 04-01-00248-CV.,04-01-00248-CV.
• Citation: 75 S.W.3d 29
• Parties: Scott BANKLER, Phil Ewert, Ruth Lerner, Kay Hayes, Rose Glennon, and Gehard J. Rockicki, Appellants, v. Albert VALE and Kathleen Weir Vale, Appellees.
• Court: Texas Court of Appeals

75 S.W.3d 29

Scott BANKLER, Phil Ewert, Ruth Lerner, Kay Hayes, Rose Glennon, and Gehard J. Rockicki, Appellants, v. Albert VALE and Kathleen Weir Vale, Appellees.

No. 04-01-00248-CV.

Court of Appeals of Texas, San Antonio.

November 21, 2001.

Rehearing Overruled February 27, 2002.

Frank J. Ford, Tom L. Newton, Allen, Stein & Durbin, P.C., San Antonio, for Appellant.

Charles M. Jefferson, Attorney At Law, Rosemary Bamberger Jackson, Barton &

Schneider, L.L.P., San Antonio, for Appellee.

Sitting: TOM RICKHOFF, Justice, CATHERINE STONE, Justice and KAREN ANGELINI, Justice.

KAREN ANGELINI, Justice.

Scott Bankler, Phil Ewert, Ruth Lerner, Kay Hayes, Rose Glennon, and Gehard J. Rockicki, the Board of Directors for the Chateau Dijon Townhomes ("the Board"), appeal the trial court's order enjoining them from imposing special assessments to fund improvements to the Townhomes. In five issues, the Board asserts the trial court abused its discretion in granting the order. We affirm.

FACTUAL & PROCEDURAL HISTORY

Albert and Kathleen Weir Vale own a condominium unit in the Chateau Dijon Townhomes. After the Board passed a special assessment to build a reserve account and to fund "emergency" improvements to the Townhomes, the Vales brought suit against the Board, seeking a temporary restraining order and injunctive relief. In their petition, the Vales alleged the Board "breached the provisions of the Declaration of Covenants, Conditions and restrictions" of the Association. Specifically, the Vales claimed the Board acted ultra vires of its duties by imposing the special assessment, harming the property's value and their ability to sell the property in the future. Two Declarations were introduced at the hearing on the motion, the original Declaration and an amended Declaration. The trial court found that neither Declaration had been complied with and issued a temporary restraining order and a temporary injunction, suspending the special assessments pending trial on the merits. The Board appeals to this court.

STANDARD OF REVIEW

The trial court enjoys broad discretion in granting or denying temporary injunctions. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex.1978) In exercising its discretion, the only issue before the trial court is whether the status quo should be preserved pending trial on the merits. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961); Ramsey v. Lewis, 874 S.W.2d 320, 322 (Tex.App.-El Paso 1994, no writ). On appeal, this court may only review whether the trial court clearly abused its discretion in resolving that issue by granting or denying the temporary injunction. City of San Antonio v. Rankin, 905 S.W.2d 427, 430 (Tex.App.-San Antonio 1995, no writ); Ramsey, 874 S.W.2d at 323. The trial court abuses its discretion when it misapplies the law to the "established facts or when the evidence does not reasonably support the conclusion that the applicant has a probable right of recovery." State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex.1975); Rankin, 905 S.W.2d at 430. All legitimate inferences from the evidence are drawn in favor of the trial court's judgment, and the trial court does not abuse its discretion where the evidence "tends to sustain the cause of action as alleged." Munson v. Milton, 948 S.W.2d 813, 815 (Tex.App.-San Antonio 1997, writ denied).

DISCUSSION

The Board appeals the issuance of the temporary injunction in five issues. It alleges: 1) the order is void ab initio because the Vales failed to request a bond in their pleadings and have failed to post a bond; 2) the temporary injunction does not meet the requirements of Texas Rule of Civil Procedure 683; 3) the trial court abused its discretion in granting the injunction because the Board reasonably acted within its authority; 4) the trial court abused its discretion in granting the injunction because the Vales had an adequate remedy at law and proved no irreparable injury; and 5) the order is void and against public policy.

Is the Order Void Ab Initio?

In its first issue, the Board alleges the order granting the injunction is void because the Vales did not request a bond in their pleadings and because they failed to post a bond at the time of this appeal. A temporary injunction order that fails to require an applicant to post a bond is void. Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex.2000); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956); see Tex.R. Civ. P. 684. Further, the applicant must execute the bond to the adverse party and file it with the clerk before the trial court issues the temporary injunction. Lancaster, 291 S.W.2d at 308; Chambers v. Rosenberg, 916 S.W.2d 633, 634 (Tex.App.-Austin 1996, writ denied).

Although the Board argues the order is void because the Vales failed to plead a bond requirement, courts have held that to be entitled to injunctive relief, an applicant bears the burden of pleading and proving only three elements: 1) a wrongful act; 2) probable right of relief; and 3) probable injury. See Swate v. Medina Cmty. Hosp., 966 S.W.2d 693, 700 (Tex.App.-San Antonio 1998, pet. denied). No court has extended the applicant's burden to include pleading a bond. Such a holding runs afoul of the purpose behind a bond in the injunction context—to protect the defendant—and would be, simply, illogical.¹

Further, the Board's reliance on Boren v. Bank of the West, 535 S.W.2d 776, 778 (Tex.Civ.App.-Amarillo 1976, no writ) is misplaced. In Boren, the court of appeals held the trial court exceeded its authority by, sua sponte, ordering the defendant to post a bond as an alternative to satisfying the temporary injunction requested by the plaintiffs. Id. at 777. Boren, involving a bond posted to benefit the plaintiff, is inapposite to the Vales' case, which involves a bond posted to benefit the defendant.

Although the Board also argues the injunction is void because the Vales failed to pay the bond as required in the order, the record reflects the Vales posted their bond before the issuance of the writ. Lancaster, 291 S.W.2d at 308 (holding plaintiff must execute bond and file it with the clerk before the writ of injunction issues); Chambers, 916 S.W.2d at 634. The Vales executed a bond in favor of the defendants on March 22, 2001, and the clerk's record does not contain a writ of injunction. The Board's first issue is overruled.

Does the Order Meet Rule 683's Requirements?

In its second issue, the Board argues the injunction order is void for failure to satisfy Texas Rule of Civil Procedure 683. A valid order for a temporary injunction must: (1) state the reasons for the injunction's issuance by defining the injury and describing why it is irreparable; (2) define the acts sought to be enjoined "in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him;" and (3) set the cause for trial on the merits and fix the amount of the bond. See TEX.R. CIV. P. 683; InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986); Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967). The Texas Supreme Court, in describing the necessity of definiteness in an injunction order, recognized limitations to that requirement.

[A]n injunction decree must be as definite, clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing. But obviously the injunction must be in broad enough terms to prevent repetition of the evil sought to be stopped, whether the repetition be in form identical to that employed prior to the injunction or (what is far more likely) in somewhat different form calculated to circumvent the injunction as written.

San Antonio Bar Ass'n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 702 (1956) (citations omitted). The Board complains the order is vague because: (1) the order fails to describe with reasonable accuracy the acts to be restrained; (2) the order is vague as to what it prohibits with regard to preparation of a resale certificate; and (3) the order fails to identify when the injunction ends.²

A. Does the Order Describe with Reasonable Accuracy the Acts to be Enjoined?

The Board asserts "the order does not meet the strict requirements of Rule 683 in that it fails to describe with reasonable accuracy the acts to be restrained." Specifically, it challenges subparagraph (C) of the order, which is as follows:

(C) Doing anything which may persuade any purchaser or prospective purchaser which may interfere with a contract or sale of any condominium unit at Chateau Dijon, EXCEPT that Defendants may, upon receipt of a request pursuant to Texas Property Code § 82.157, prepare a resale certificate which provides truthful information concerning the imposition of special assessments and that the special assessments are in dispute and are the subject of this litigation, said information on Exhibit "A" attached hereto.

The Board attacks the language "prospective purchaser," asserting it is overly broad and may include an unlimited and unidentifiable class of persons. The Board also claims that the phrase "[d]oing anything which may persuade" is equally vague. We disagree.

A "purchaser" is defined in the Uniform Condominium Act as "a person ... who by means of a voluntary transfer acquires a legal or equitable interest in a unit other than a leasehold interest or as security for an obligation." Tex. Prop.Code Ann. § 83.003(a)(20) (Vernon 1995). By definition, a "purchaser" is actually an owner. A "prospective purchaser," in laymen's terms, would be someone "likely to be or become" a purchaser of a Chateau Dijon unit. See Webster's New Collegiate Dictionary 918 (1981). Accordingly, a "prospective purchaser" does not include an unidentifiable group of peopl...