Fuel v. Head Mgmt.

Decision Date10 November 2010
Docket NumberNO. 12-09-00062-CV,12-09-00062-CV
PartiesENERGY TRANSFER FUEL, L.P., APPELLANT v. HEAD MANAGEMENT, LTD., APPELLEE
CourtTexas Court of Appeals

APPEAL FROM THE 173RD

JUDICIAL DISTRICT COURT OF HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

In one issue, Appellant, Energy Transfer Fuel, LP ("ETF"), contends that the trial court abused its discretion by failing to release the bond ETF posted after obtaining a temporary restraining order against Appellee, Head Management, Ltd. ETF's complaint pertains to two orders: the trial court's order denying ETF's motion to release the bond and its order denying ETF's motion to reconsider that ruling. We reverse the trial court's orders and remand with instructions.

Background

ETF is a public gas utility and has the right of eminent domain. As a condemning authority, ETF has the right to enter upon property to make preliminary surveys of proposed routes along which its gas pipelines may be constructed. ETF requested permission to enter Head's property to conduct surveying activities in connection with a proposed pipeline route, but was refused entry. Thereafter, on July 23, 2008, ETF petitioned the court for a temporary restraining order ("TRO") as well as a temporary injunction and a permanent injunction against Head. On the same day, the trial court signed an order granting a TRO prohibiting Head from interfering or attempting to interfere with ETF's right to enter and survey the route of its pipeline across Head's property. As a condition of issuing the TRO, the trial court ordered ETF to post a $25,000 bond. The order also set a hearing for July 31, 2008, "to determine whether thistemporary restraining order should be made a temporary injunction pending a full trial on the merits." ETF deposited $25,000 cash in lieu of a bond, which was approved by the Henderson County District Clerk.

After obtaining the TRO, ETF immediately began its surveying activities on Head's property and completed its work on July 29, 2008. The following events then occurred in the trial court:

July 29, 2008

ETF filed a notice of nonsuit, and sent Head notice of the filing.

July 31, 2008

ETF filed a motion requesting the return of its $25,000 cash bond.

August 11, 2008

The trial court denied ETF's motion requesting the return of its cash bond.

August 28, 2008

ETF filed a motion requesting the trial court to reconsider its refusal to release the bond.

September 4, 2008

Counsel for ETF and counsel for Head appeared for a hearing on ETF's motion to reconsider. After Head's counsel requested additional time to prepare on behalf of other clients, the hearing was reset for September 10, 2008.

September 10, 2008

The trial court conducted a hearing on ETF's motion to reconsider. Counsel for ETF and counsel for Head were present, along with another property owner who was also represented by Head's counsel. Counsel for ETF presented oral argument, and the trial court ruled from the bench that ETF's motion to reconsider was denied.

November 17, 2008

The trial court signed an order denying ETF's motion to reconsider.

December 29, 2008

ETF filed a petition for writ of mandamus in this court requesting an order directing the trial court to release ETF's bond and issue an order of nonsuit.

February 3, 2009

The trial court signed an order dismissing "[the] cause," but did not release the bond.

March 3, 2009

ETF filed a notice of appeal complaining of the trial court's failure to release the bond.

The trial court's dismissal order rendered ETF's petition for writ of mandamus moot except as to ETF's complaint about the trial court's failure to release the bond. We denied mandamus relief after concluding that appeal was an adequate remedy for ETF to challenge the trial court's rulings on the bond. See In re Energy Transfer Fuel, L.P., 298 S.W.3d 352, 357 (Tex. App.-Tyler 2009, orig. proceeding). Specifically, we concluded that the order denying ETF's motion to release the bond and the order denying ETF's motion to reconsider that ruling merged into the final order dismissing the case and were appealable. See Webb v. Jorns, 488 S.W.2d 407, 408-09 (Tex. 1973) (interlocutory order merges into final judgment and becomes final for purposes of appeal); Douglas v. Am. Title Co., 196 S.W.3d 876, 877, 879 n.6 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (vexatious litigant order merged into final judgment and was appealable even though final judgment not appealed). ETF now appeals from those orders.1

Failure to Release the Bond

ETF contends that, in light of its nonsuit and the subsequent order dismissing the underlying proceeding, the trial court was required to release the $25,000 cash bond. Head has not filed a brief.

Standard of Review

ETF states in its brief that the trial court's orders are reviewable for abuse of discretion. We have not located any authority prescribing the standard of review for the precise issue presented here. But typically, the abuse of discretion standard is applied to procedural or other trial management determinations. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000). Consequently, we will review the appealed orders for an abuse of discretion. See id.

A trial court commits an abuse of discretion when it acts "without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The "mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion occurred." Id. at 242. A trial court has no discretion in determining what the law is, which law governs, or how to apply the law. Univ. of Tex. Health ScL Ctr. v. Gutierrez, 237 S.W.3d 869, 871 n.l (Tex. App.-Houston [1st Dist] 2007, pet. denied). To the extent that an issue turns on a question of law, the standard of review is the same "regardless of whether it is described as abuse of discretion or de novo.'" Id.

Applicable Law

In the order granting any TRO, the court must fix the amount of security to be given by the applicant. Tex. R. Civ. P. 684.2 Before the issuance of the TRO, the applicant must execute and file with the clerk a bond to the adverse party, with two or more good and sufficient sureties, to be approved by the clerk, in the sum fixed by the judge. Id. The bond must be conditioned that the applicant will abide the decision made in the cause, and will pay all sums adjudged against it if the TRO is dissolved, either in whole or in part. Id. The applicant may instead deposit cash in lieu of filing the bond. See Tex. R. Civ. P. 14c.

A plaintiff may take a nonsuit at any time before it has introduced all of its evidence other than rebuttal evidence. Tex. R. Civ. P. 162. In a bench trial, a plaintiff can take a nonsuit at any time before the decision in the case is announced. See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex. 1995) (stating that "[o]nce a judge announces a decision that adjudicates a claim, that claim is no longer subject to the plaintiff's right to nonsuit"). A plaintiff's right to take a nonsuit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief. BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840-41 (Tex. 1990). A nonsuit may be taken after a temporary restraining order has been obtained but before the hearing on the temporary injunction. See Payne v. Nichols, 176 S.W.2d 961, 963-64 (Tex. Civ. App.-Galveston 1943, writ refd w.o.m.) (holding that nonsuit may be taken after temporary injunction obtained but before hearing on permanent injunction, even where suit had been pending for two years and nonsuit was taken when case came up for trial) (interpreting and applying predecessors to rules 162 and 684). But the nonsuit does not defeat the right of a restrained party who is damaged by the temporary restraining order to sue for wrongful injunction. See id. at 963.

It has long been established that a party who wrongfully obtains injunctive restraint against another is liable for damages caused by the issuance of the injunction. See Parks v. O'Connor, 70 Tex. 377, 388, 8 S.W.104, 107 (1888). An injunction is wrongful if its issuancewas wrongful at its inception or if it was continued in effect due to some wrong on the part of the proponent. I.P. Farms v. Exxon Pipeline Co., 646 S.W.2d 544, 545 (Tex. App.-Houston [1st Dist.] 1982, no writ); Craddock v. Overstreet, 435 S.W.2d 607, 609 (Tex. Civ. App.-Tyler 1968, writ refd n.r.e.). Texas recognizes two separate causes of action for wrongful injunction, one upon the bond ordinarily filed to obtain the TRO or injunction, and the other for malicious prosecution. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 685 (Tex. 990). The two actions differ in the kind of wrong that must be shown to establish liability and in the amount of recovery. Id. A claim for wrongful injunction can be predicated upon the wrongful issuance of a TRO. Id. at 685-86.

A cause of action upon an injunction bond is predicated upon a breach of the condition of the bond. Id. at 685. As pertinent to the case at hand, the claimant must prove that the TRO was issued when it should not have been, and that it was later dissolved. Id. at 685-86. The claimant need not prove that the TRO was obtained maliciously or without probable cause. Id. at 686. The purpose of the bond is to protect the defendant from the harm he may sustain as a result of temporary relief granted upon the reduced showing required of the injunction plaintiff, pending full consideration of all issues. Id. The damages under this claim are limited by the amount of the bond. Id.

A cause of action for malicious prosecution requires the claimant prove the injunction suit was prosecuted maliciously and without probable cause, and was terminated in his favor. Id. In this instance, the injunction defendant recovers the full amount of his damages. Id.

...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT