Marshall v. Good Times, Inc.

• Citation: 537 S.W.2d 536
• Decision Date: 28 May 1976
• Docket Number: No. 17727,17727
• Parties: Robert A. MARSHALL, Appellant, v. GOOD TIMES, INC., Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 536

537 S.W.2d 536

Robert A. MARSHALL, Appellant, v. GOOD TIMES, INC., Appellee.

No. 17727.

Court of Civil Appeals of Texas,

Fort Worth.

May 28, 1976.

Rehearing Denied June 18, 1976.

Thomas A. Melody, Dallas, and J. Dan Connelly, Arlington, for appellant.

William K. Rosenberry, Arlington, for appellee.

OPINION

BREWSTER, Justice.

This is an appeal from an interlocutory order overruling the appellant's motion to dissolve a temporary injunction.

To be considered first is a motion filed herein by appellee, Good Times, Inc., to dismiss the appeal for lack of jurisdiction.

We overrule the motion to dismiss the appeal.

The controlling facts are hereafter set out. The trial court granted a temporary injunction in favor of the appellee, Good Times, Inc., on September 19, 1975. On September 29, 1975, the appellant, Robert A. Marshall, filed in the trial court a motion that he called a 'Motion for Rehearing and Motion to Dissolve Temporary Injunction.' The relief therein prayed for was that he be granted a rehearing and that the temporary injunction granted against him on September 19, 1975, be set aside. The trial court overruled the motion to dissolve on October 9, 1975, and that order stated that the appellant gave notice of appeal from That ruling of the trial court. Cash in lieu of appeal bond was then filed on October 14, 1975, and appellant filed the transcript in this Court on October 29, 1975.

Rule 385, T.R.C.P., provides in substance that where an interlocutory decree is being appealed from, the appeal bond and the transcript must be filed within twenty days after rendition of the order appealed from. Timely filing of the appeal bond and transcript are jurisdictional requisites of an appeal from an interlocutory decree. Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956 (1943).

It is apparent that the appeal bond and transcript were both filed more than twenty days after the trial court granted the temporary injunction on September 19, 1975, but both of them were filed within twenty days after the trial court on October 9, 1975, overruled appellant's motion to dissolve the temporary injunction.

Appellee's motion to dismiss the appeal was based on the contention that the motion to dissolve the injunction that appellant had filed in the trial court was really no more than a motion for new trial and that appellant cannot legally extend the time in which to perfect an appeal from the order granting the temporary injunction by filing a motion for new trial. Appellee's theory was that appellant had twenty days from September 19, 1975, in which to perfect its appeal from the order granting the injunction. Since this was not done appellee urges that this Court of Civil Appeals did not acquire jurisdiction of this appeal.

Appellant's position is that Rule 385(d), T.R.C.P., also authorizes an appeal from an order overruling a motion to dissolve a temporary injunction. Appellant contends that the order he is appealing in this case is the October 9, 1975, order that overruled his motion to dissolve the temporary injunction.

We hold that appellant did file his transcript and cash in lieu of an appeal bond in this case in time to perfect an appeal from the October 9, 1975, order overruling his motion to dissolve the temporary injunction, which appeal is authorized by Rule 385(d), T.R.C.P. It is an appeal from that order that has been perfected and that is now before the Court by virtue of this appeal. Bobbitt v. Gordon, 108 S.W.2d 234 (Tex.Civ.App., Beaumont, 1937, no writ hist.).

We also hold that appellant did not perfect an appeal to this Court from the trial court's September 19, 1975, order granting the temporary injunction for the reason that he did not file a transcript and appeal bond within twenty days from the date of that order as is required by Rule 385, T.R.C.P.

The remaining part of the opinion is devoted to the merits of the case.

This action was filed by Good Times, Inc., plaintiff, against Robert A. Marshall, the defendant, to obtain an injunction against Marshall enjoining him from allegedly breaching an employment contract by competing with the plaintiff and its subsidiaries. A temporary injunction was also sought by plaintiff against defendant to enjoin defendant from competing with the plaintiff and its subsidiaries during the pendency of the suit. A hearing held on September 15, 1975, resulted in the trial court granting a temporary injunction on September 19, 1975, temporarily enjoining Marshall during pendency of the suit from competing with plaintiff and its subsidiaries by doing the acts therein specified. This is not an appeal from the order granting the temporary injunction, but is an appeal from a later trial court order overruling a motion to dissolve the temporary injunction.

The law applicable to cases involving temporary injunctions and to appellate review of such cases is stated in Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962) as follows: 'In suits for temporary injunctions, the trial judge is endowed with broad discretion to grant or deny the injunction. Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235. Accordingly, the scope of appellate review in such cases is limited to the narrow question of whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion.'

To the same effect are Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460 (1952) and Ben Wheeler Ind. Sch. Dist. v. County School Trustees, 414 S.W.2d 477 (Tex.Civ.App., Tyler, 1967, ref., n.r.e.).

This appeal from the order overruling appellant's motion to dissolve the temporary injunction is also governed by the principles that are announced in the cases just cited. The determination of the question as to whether or not to dissolve the temporary injunction was a matter lying within the discretion of the trial court, and the scope of this appeal from the...