In re Garza

• Decision Date: 12 November 2003
• Docket Number: No. 04-03-00478-CV.,04-03-00478-CV.
• Citation: 126 S.W.3d 268
• Parties: In re Andrea GARZA, Individually and as Independent Executrix of the Estate of Alfred S. Garza, deceased.
• Court: Texas Court of Appeals

126 S.W.3d 268

In re Andrea GARZA, Individually and as IndependentExecutrix of the Estate of Alfred S. Garza, deceased.

No. 04-03-00478-CV.

Court of Appeals of Texas, San Antonio.

November 12, 2003.

Original Mandamus Proceeding.¹

W. Wendall Hall, Rosemarie Kanusky, Fulbright & Jaworski L.L.P., Terrence J. Martin, Martin, Friedland & Strolle, P.C., San Antonio, for Relator.

Ellen B. Mitchell, Cox & Smith Incorporated, Douglas W. Sanders, Jeffrey T. Cullinane, Paul D. Barkhurst, Oppenheimer, Blend, Harrison & Tate, Inc., San Antonio, for Real Party in Interest.

Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.

OPINION

Opinion byKAREN ANGELINI, Justice.

Relator Andrea Garza seeks a writ of mandamus ordering respondent, the Honorable Donna S. Rayes, to vacate the May 28, 2003 contempt judgment.Because we conclude that Garza is entitled to the relief sought, we conditionally grant the writ.

BACKGROUND

This mandamus proceeding arises out of a dispute over a family business.In October 1995, Real Party in Interest Jaime Trevino and his cousin, Alfred G. Garza, entered into a partnership agreement to operate a business called Lobo Security.According to Trevino, however, his uncle, Alfred S. Garza, was his true partner.For personal financial reasons, Alfred S. Garza had requested that the partnership agreement name his son, Alfred G. Garza, as Trevino's partner.During their partnership, Trevino claims that Alfred S. Garza diverted partnership funds for his own benefit and the benefit of his immediate family members.On March 1, 2001, Alfred S. Garza died.

On July 27, 2001, Trevino sued Alfred S. Garza's estate for fraud, breach of fiduciary duty, and breach of contract.Trevino also sued his aunt, Relator Andrea Garza, Alfred G. Garza, his partner under the partnership agreement, and two of his other cousins for fraud, conversion, civil conspiracy, and aiding and abetting Alfred S. Garza's breach of fiduciary duty.Additionally, Trevino sought a declaratory judgment regarding the characterization of the partnership's property.In response, Alfred G. Garza filed a counterclaim for breach of contract, breach of fiduciary duty, breach of the duty of good faith and fair dealing, and conversion.Alfred G. Garza also sought declaratory relief.

On August 8, 2001, the trial court entered a temporary injunction, preventing the defendants("the Garzas") from depleting their assets during litigation.The Garzas were enjoined from "[d]estroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties."And, they were enjoined from "[s]elling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of [Trevino] or [the Garzas], whether personalty or realty, and whether separate or community, except as specifically authorized" by the trial court.The temporary injunction did permit the Garzas to incur indebtedness to pay legal expenses.It did not, however, contain a trial setting date or provide for a bond.

A year later, the Garzas moved to dissolve the temporary injunction.Trevino then filed his first motion for contempt, which was denied by the trial court.On April 17, 2003, Trevino filed his second motion for contempt, arguing that Andrea Garza had violated the temporary injunction by borrowing $112,000 against her homestead to pay for her legal fees and costs.According to Trevino, the temporary injunction's prohibition against encumbrances trumped the provision allowing Garza to fund her defense.After holding an evidentiary hearing, the trial court signed a "Judgment of Contempt" on May 28, 2003, ordering Garza, on or before July 1, 2003, to effectuate a release of lien and pay Trevino's attorney $3,500 and costs of the proceeding.On June 26, 2003, Garza filed this mandamus proceeding, seeking relief from the trial court's contempt judgment.²

MANDAMUS

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law.Walker v. Packer,827 S.W.2d 833, 839(Tex.1992)(orig.proceeding);In re Dilley Indep. Sch. Dist.,23 S.W.3d 189, 191(Tex.App.-San Antonio 2000, orig. proceeding).Contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus, and the only possible relief is a writ of mandamus.In re Long,984 S.W.2d 623, 625(Tex.1999)(orig.proceeding);Rosser v. Squier,902 S.W.2d 962, 962(Tex.1995)(orig.proceeding).

WAIVER?

According to Garza, because the temporary injunction failed to (1) set a trial setting pursuant to Texas Rule of Civil Procedure 683 and (2) set bond pursuant to Texas Rule of Civil Procedure 684, the temporary injunction is void.Thus, she argues that the trial court abused its discretion in holding her in contempt for violating a void order.SeeEx parte Shaffer,649 S.W.2d 300, 301-02(Tex.1983)(holding that trial court abuses its discretion by holding party in contempt for violating void order).In response, Trevino argues that Garza has waived her complaint by agreeing to the terms of the temporary injunction.

The temporary injunction states that "[t]he parties have agreed to the terms of this order as evidenced by the signatures below."Although counsel for the Garzas signed the temporary injunction, his signature was prefaced by the phrase, "Approved as to Form Only."However, in "Defendants' Motion to Dissolve or Modify Temporary Restraining Order,"counsel for the Garzas admits that at the time the temporary injunction was entered, the Garzas had agreed to its terms.The record, therefore, shows that the Garzas did, in fact, agree to the terms of the temporary injunction.

According to Trevino, because the Garzas agreed to the terms of the temporary injunction, they are barred from complaining of any error now.Trevino emphasizes that generally, a party may not appeal from or attack a judgment to which he has agreed, absent allegation and proof of fraud, collusion, or misrepresentation.Henke v. Peoples State Bank,6 S.W.3d 717, 720(Tex.App.-Corpus Christi1999, pet. dism'd w.o.j.)."The rationale for this rule is that a party should not be allowed, but rather be estopped, to complain on appeal of an action or ruling which he invited, agreed to, or induced."Ayala v. Minniti,714 S.W.2d 452, 456(Tex.App.-Houston 1986, no writ).By consenting to the action of the court, a party waives all errors committed or contained in the judgment, except want of jurisdiction.Id.

Specifically, Trevino relies on Henke v. Peoples State Bank,6 S.W.3d 717(Tex. App.-Corpus Christi1999, pet. dism'd w.o.j.), a case with similar facts to those presented here.In Henke,the appellant filed an interlocutory appeal of the trial court's denial of his motion to dissolve a temporary injunction, arguing that the temporary injunction was void because it did not set a trial date.Id. at 719.As here, the appellant had agreed to the temporary injunction at the time it was entered.Relying on the general rule that a party may not appeal or attack an agreed judgment, the Thirteenth Court of Appeals held that by agreeing to the temporary injunction, the appellant had waived any error and had waived his right to appeal.Id. at 720.

The Thirteenth Court of Appeals, however, failed to discuss if a party could agree to a void order.Garza argues that she has not waived her rights, because the temporary injunction is void.We agree that if the temporary injunction is void, Garza has not waived her rights to attack the void injunction.A void order has no force or effect and confers no rights; it is a mere nullity.Slaughter v. Qualls,139 Tex. 340, 345, 162 S.W.2d 671, 674(1942).Thus, a party who agrees to a void order has agreed to nothing.And, a trial court that holds a party in contempt for violating a void order necessarily abuses its discretion.Ex parte Shaffer,649 S.W.2d at 301-02.In response, Trevino contends that the temporary injunction is voidable, not void.We must, therefore, determine whether the temporary injunction is void or voidable.

VOID OR VOIDABLE?

Texas Rule of Civil Procedure 683 provides that "[e]very order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought."TEX.R. CIV. P. 683.The Texas Supreme Court has stated that the requirements of rule 683 are mandatory, and "an order granting a temporary injunction that does not meet them is subject to being declared void and dissolved."Qwest Comm. Corp. v. AT & T Corp.,24 S.W.3d 334, 337(Tex.2000)(per curiam);see alsoInterFirst Bank San Felipe, N.A. v. Paz Constr. Co.,715 S.W.2d 640, 641(Tex.1986)(per curiam).Thus, we have held that failure to meet the requirements of rule 683 renders the injunction order "fatally defective and void, whether specifically raised by point of error or not."³EOG Res., Inc. v. Gutierrez,75 S.W.3d 50, 53(Tex.App.-San Antonio 2002, no pet.)(quotingHopper v. Safeguard Bus. Sys., Inc.,787 S.W.2d 624, 626(Tex.App.-San Antonio 1990, no writ));accordKaufmann v. Morales,93 S.W.3d 650, 656-57(Tex. App.-Houston[14th Dist.]2002, no pet.);Permian Chem. Co. v. State,746 S.W.2d 873, 874(Tex.App.-El Paso1988, writ dism'd);TY Equity Group, Inc. v. Cmty. Crossing, Ltd.,No. 05-02-00591-CV, 2002 WL 31357002, at *1(Tex.App.-Dallas Oct.21, 2002, no pet.)(not designated for publication).

Despite all the above-cited case law, Trevino argues that the temporary injunction is voidable because a judgment that is contrary to statute, constitutional provision, or procedural rule is merely voidable.Unlike a void judgment that is subject to collateral attack, a voidable judgment has effect until challenged.Thus, a voidable judgment may become valid by failure to timely challenge it by direct appeal.Because Garza did not challenge...