Daniel v. Goesl

• Decision Date: 07 June 1960
• Docket Number: No. 7207,7207
• Parties: Noble Brasfield DANIEL et al., Appellants, v. Andrew George GOESL, Appellee.
• Court: Texas Court of Appeals

Page 890

336 S.W.2d 890

Noble Brasfield DANIEL et al., Appellants, v. Andrew George GOESL, Appellee.

No. 7207.

Court of Civil Appeals of Texas, Texarkana.

June 7, 1960.

Rehearing Denied June 16, 1960.

Raffaelli & Keeney, Texarkana, for appellants.

Atchley, Russell & Hutchinson, Texarkana, for appellee.

FANNING, Justice.

The parties to this action, all of whom are medical doctors, were formerly partners with offices in Texarkana, Bowie County, Texas. Appellee withdrew and retired from the partnership on August 11, 1958. On August 17, 1959, appellee opened an office in Texarkana, Miller County, Arkansas, and resumed the practice of medicine in Miller County, Arkansas. Appellants brought an action to enjoin appellee from the practice of medicine in Bowie County, Texas, and Miller County, Arkansas, alleging that appellee had violated a restrictive covenant of the written partnership agreement providing that any retiring partner should not for a period of three years, after retiring from the partnership, practice medicine in either Bowie County, Texas, or Miller County, Arkansas.

Appellants by verified pleadings pleaded the contract in question, and among other things also pleaded that appellee by accepting retirement benefits provided in the contract and paid to appellee by appellants, which payment was to the financial disadvantage of appellants, that thereby appellee was estopped to attack the restrictive covenant in question. Appellants further pleaded that Dr. Goesl's return to medical practice damaged them financially and would do so in the future. By paragraph 18 appellants further pleaded as follows: 'Plaintiffs allege that the defendant is now doing and will continue to do, unless he is restrained from doing so, irreparable injury to the plaintiffs, and that the plaintiffs as a result of defendant's actions will suffer financial damages for which there is no adequate remedy at law.' Appellants prayed for a temporary injunction against Dr. Goesl pending a trial on the merits.

Appellee by verified pleadings, among other things pleaded that appellants by their specifically enumerated actions and conduct toward appellee created irreconciliable differences and personal ill-will between the partners, that there were violent disputes and dissensions between the partners, occurring before August 10, 1958, and were of such a nature as to make unprofitable the operation of the clinic and constituted a detriment and injury to the clinic and the patients of the clinic. Appellee also alleged estoppel and counter-estoppel against appellants to assert estoppel against appellee Goesl under Section 21 of the contract because appellants had first violated and breached paragraphs 13, 5, 14, and 9 of the contract in question, setting out in detail in their pleadings how appellants had allegedly first breached the contract. Appellee also pleaded other and additional grounds in detail as to why appellants were estopped to insist upon appellee being forced to comply with section 21, the restrictive covenant. In effect appellee pleaded various grounds of estoppel and counter-estoppel against appellants, as well as other grounds why equitable relief should not be granted to appellants. Appellee also filed a crossaction against appellants, seeking $18,000 as monetary damages for slander and for loss of earnings. Appellee in his crossaction also sought a temporary injunction to restrain appellants from the practice of medicine in Bowie and Miller Counties.

The trial court held an interlocutory hearing on the temporary injunction feature of the case. After considering the verified pleadings of the parties and after hearing the extensive evidence adduced the trial court refused to grant any temporary injunction sought by any of the parties. Appellants have appealed from the interlocutory order of the trial court refusing to grant the temporary injunction sought by them against appellee Dr. Goesl.

Appellants have filed an excellent brief and present twelve points of error. It is our view however that portions of appellants' brief are directed to matters which would be more directly concerned if this were an appeal from the case on the merits and not an appeal from an interlocutory order refusing a temporary injunction. In this connection see Bates v. Texas Electric Ry. Co., Tex.Civ.App., 220 S.W.2d 707, 710, wherein it was stated: 'Counsel for the parties have ably briefed the points raised by the pleading and testimony, but their respective contentions require no detailed consideration on this, an interlocutory hearing. We are not presently concerned with the merits of plaintiff's appeal, our duty extending no further than whether an abuse of the court's discretion is involved in his denial of injunction.'

The scope of appellate review of an interlocutory order of a trial court in refusing a temporary injunction is restricted to the propriety of the order and the review on appeal does not extend to the merits of the main case. 24A, Tex.Jur., pages 376-7, Sec. 262, Injunctions.

The applicable rules with respect to the proper scope of appellate review of interlocutory orders with respect to temporary injunctions are well stated in 24A, Tex.Jur., pages 382 to 389, inc., as follows:

'Discretion and Its Abuse--In cases of appeals from interlocutory orders granting or refusing a writ or dissolving or refusing to dissolve one, the sole question is whether the trial court abused its discretion in entering the order appealed from. The rule is inapplicable, however, where by application of the law to undisputed and uncontradicted facts the right, or lack of right, to temporary relief is readily apparent. The trial court abuses its discretion when it fails or refuses to apply the law to conceded or undisputed facts. Many cases enunciate the rule that the grant or refusal of an injunction or a dissolution or refusal to dissolve will be reversed only when a clear abuse of discretion is shown; and if the order was based on conflicting evidence or diverse inferences it will not be disturbed. The evidence is not reviewed for sufficiency as it would be upon appeal from a final judgment, but only to see if it supports the court's exercise of discretion. Generally speaking, if the petition states no cause of action or fails to show any valid reason why the doing of the act complained of should be enjoined, or, if it does state a cause of action but no evidence is presented at the hearing to sustain it, then it is an abuse of discretion to grant a temporary injunction; but, on the other hand, if the petition states a cause of action and the evidence at the hearing sustains it, then there is no abuse of discretion in granting the writ. While the discretion of the trial judge may be reviewed, discretion may not be exercised by the appellate court.' (Emphasis added.)

Also an appellate court in reviewing an interlocutory order of a trial judge in refusing a temporary injunction must give effect to such evidence as was undisputed and not subject to any qualification or variance as the possible result of the trial judge's exercise of his power to determine its weight and to determine the credibility of the witnesses and of all disputed evidence only that most favorable to the appellee is required to be considered and all reasonable inferences which may be drawn from such evidence an appellate court is required to adopt only those, if any, favorable to the appellee. City of Baytown v. General Telephone Company of the Southwest, Tex.Civ.App., 256 S.W.2d 187, wr. ref., n. r. e.

The rules with respect to the proper scope of appellate review of temporary injunction matters are also well laid down in an able opinion of Chief Justice Hickman of the Texas Supreme Court in the case of Texas Foundries, Inc., v. International Moulders & Foundry Workers Union et al., 151 Tex. 239, 248 S.W.2d 460, 462. In said opinion it was stated 'In considering whether the Court of Civil Appeals was correct in its decision that the temporary injunction issued by the trial court against all picketing pending a trial of the case on its merits should be modified, we are guided by well-established rules. The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion. * * * (citing numerous authorities.)

'The Court of Civil Appeals held that the acts of respondents and those acting with them, above outlined, were unlawful, but concluded that 'we do not believe that it reasonably follows that even though all such unlawful acts of conduct be enjoined, that a peaceful picketing of the entrances of the appellee's plant, in such a manner as is guaranteed by law to strikers in a bona fide labor dispute, would result in future violence.' The court does not hold that there was a clear abuse of discretion by the trial judge. What it holds is that in its judgment there will be no future violence if picketing is carried on under the modified injunction. It fell into the error of substituting its judgment for that of the trial judge. Such a substitution does not accord with the approved method of review of a temporary injunction. The appellate court cannot substitute its discretion for that of the trial court. It has no independent discretion in reviewing such an order; its sole function is to determine whether there has been a clear abuse of discretion by the trial judge. While the trial judge in his case may have erred in his judgment as to what would be the result of future picketing, it cannot be said that this record discloses an abuse of discretion by him. We...