In re Pierce
| Decision Date | 10 August 2012 |
| Docket Number | NUMBER 13-12-00125-CV |
| Parties | IN RE STEWART PIERCE, VIVIAN FINCH, GENE VOORHIES, DONALD EUDALY, MARGARET FABIAN, AND COTTONWOOD CREEK PROPERTY OWNERS, INC. |
| Court | Texas Court of Appeals |
On Petition for Writ of Mandamus.
MEMORANDUM OPINIONBefore Chief Justice Valdez and Justices Garza and Vela
1
Relators, Stewart Pierce, Vivian Finch, Gene Voorhies, Donald Eudaly, Margaret Fabian, and Cottonwood Creek Property Owners, Inc., filed a petition for writ of mandamus on February 16, 2012, and an amended petition for writ of mandamus on February 28, 2012. Relators contend that the trial court erred in entering an interlocutory order that grants relief on the merits to the opposing party without an appropriate evidentiary hearing and that directs the conduct of the parties. The Courtrequested and received a response to the petition for writ of mandamus from one of the real parties in interest, CRB Partners, L.L.C. ("CRB"), and further received a reply brief from relators. We conditionally grant the petition for writ of mandamus as stated herein.
The dispute in this case centers on various disagreements pertaining to the control and management of common areas and a golf course in an active adult retirement community called Cottonwood Creek XXI. The community is comprised of two subdivisions, Cottonwood Creek Number 1 ("Number 1") and the Fairways at Cottonwood Creek (the "Fairways"). The Number 1 subdivision was established in January 1984, by a developer known as California Investments, Inc., and the Fairways subdivision was established in April 1998. CRB purchased both sections in 2006, and began to manage the common areas in the community. The Number 1 subdivision is governed by documents entitled "Amended Declaration of Covenants, Conditions and Restrictions of Cottonwood Creek No. 1 Subdivision" (the "Number 1 declarations"), and the Fairways subdivision is governed by documents entitled "Declaration of Covenants, Conditions and Restrictions for the Fairways at Cottonwood Creek Subdivision" (the "Fairways declarations").
Shortly after CRB purchased the property, numerous disputes with relators arose regarding the management and operation of the common areas and the Cottonwood Creek Country Club, and CRB's role as it pertained to the property owners association. CRB brought suit against Pierce, Finch, Voorhies, Eudaly and Fabian for tortious interference with the declarations and covenants governing the property and requested a temporary restraining order and temporary and permanent injunctions. According to the petition, a group of residents, including relators, had formed a property ownersassociation and were collecting fees owed to CRB. The residents' property owners association, Cottonwood Creek Property Owners, Inc., intervened in the lawsuit seeking declaratory relief. Issues raised in the lawsuit included which set of declarations governed the common areas and which property owners association had the right to manage the property and collect fees.
The trial court granted the temporary restraining order and a temporary injunction. Upon review, this Court dissolved the temporary injunction and remanded the matter for further proceedings. Pierce v. CRB Partners, LLC, No. 13-09-00411-CV, 2010 Tex. App. LEXIS 2352, at *1 (Tex. App.—Corpus Christi Apr. 1, 2010, pet. dism'd w.o.j.) (mem. op.). Upon remand, the trial court appointed a special master to "hear, report and recommend to this court on all pre-trial issues, including but not limited to receiving and reporting evidence and fixing the time and place for beginning and closing hearings in this case."
The instant dispute arises from an order issued by the trial court on April 27, 2011, which was later suspended due to bankruptcy, and then was reinstated by order issued on December 14, 2011. The April 27, 2011 order incorporates recommendations from the special master and orders, inter alia, that a board election take place pursuant to the Fairways declarations as soon as possible, that the special master be in charge of supervising the election process, that both "Cottonwood Creek Property Owners, Inc." and "Cottonwood Creek Property Owners Association, Inc." are legitimate entities, that CRB shall have three votes in the election for each undeveloped lot that it owns, and that following the election, the board will recognize only one of the existing property owners association.
This original proceeding ensued. Relators contend that the trial court abused its discretion in granting the orders because they "grant relief of a form not authorized procedurally under Texas law or under the Texas Rules of Civil Procedure" and because "the relief granted by the orders is contrary to the terms of the governing declarations and of the Texas Property Code."
To be entitled to the extraordinary relief of a writ of mandamus, relator must show that the trial court abused its discretion and that there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. See In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding). The relator has the burden of establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding).
As an initial matter, we examine the order entered to determine whether or not it is subject to review by mandamus. The order subject to review in this original proceeding was neither entered as the result of a dispositive motion nor after a trial, but was instead entered subsequent to pretrial hearings and the resultant recommendations from the special master. The order is interlocutory in nature.
An appellate court lacks jurisdiction to review an interlocutory order unless a statute specifically authorizes such an appeal. Qwest Commc'ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000). Section 51.014(a)(4) of the civil practice and remedies code provides that a party may appeal from an interlocutory order of the trial court that "grants or refuses a temporary injunction." TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (West Supp. 2011). A temporary injunction operates until it is dissolved by an interlocutory order or until the final hearing. In re Tex. Natural Res. Conservation Comm'n, 85 S.W.3d 201, 205 (Tex. 2002) (orig. proceeding). The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The procedural requirements for temporary injunctions, including the requirement that the order set the cause for trial on the merits and set an amount of security to be posted by the applicant, are mandatory, and orders that do not meet these requirements are subject to being declared void and dissolved. See Qwest Commc'ns Corp., 24 S.W.3d at 336.
In contrast, temporary restraining orders are not subject to appeal and may generally be reviewed by mandamus. In re Office of the Attorney Gen., 257 S.W.3d 695, 698 (Tex. 2008) (orig. proceeding); In re Newton, 146 S.W.3d 648, 652-53 (Tex. 2004) (orig. proceeding); In re Tex. Natural Res. Conservation Comm'n, 85 S.W.3d at 205; Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992). The purpose of a temporary restraining order is to preserve the status quo, which the supreme court has defined as "the last, actual, peaceable, non-contested status which preceded the pending controversy." In re Newton, 146 S.W.3d at 651. A temporary restraining order restrains a party from acting only during the pendency of a motion fortemporary injunction, i.e., until a full evidentiary hearing on the motion occurs. Del Valle Indep. Sch. Dist., 845 S.W.2d at 809; In re Spiritas Ranch Enters., L.L.P., 218 S.W.3d 887, 895 (Tex. App.—Fort Worth 2007, orig. proceeding); see TEX. R. CIV. P. 680. A temporary restraining order may not be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. TEX. R. CIV. P. 680. Further, unless extended for good cause or by consent, a temporary restraining order expires by its own terms not more than fourteen days after it is signed. See TEX. R. CIV. P. 680. A temporary restraining order must also state the day and time set for a hearing, which shall be not more than fourteen days from the date of the court's order granting the temporary restraining order. See TEX. R. CIV. P. 687(e).
Whether an order is a non-appealable temporary restraining order or an appealable temporary injunction depends on the order's characteristics and function, not its title. In re Tex. Natural Res. Conservation Comm'n, 85 S.W.3d at 205; Qwest Commc'ns Corp., 24 S.W.3d at 336; Del Valle Indep. Sch. Dist., 845 S.W.2d at 809. A temporary restraining order is one entered as part of a motion for a temporary injunction, by which a party is restrained pending the hearing of the motion; whereas a temporary injunction is one which operates until dissolved by an interlocutory order or until the final hearing. Del Valle Indep. Sch. Dist., 845 S.W.2d at 809; Brines v. McIlhaney, 596 S.W.2d 519, 523 (Tex. 1980). An order that directs the conduct of a party,...
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