Mother & Unborn Baby Care of North Texas, Inc. v. Doe

• Decision Date: 09 May 1985
• Docket Number: No. 2-85-094-CV,2-85-094-CV
• Parties: MOTHER AND UNBORN BABY CARE OF NORTH TEXAS, INC., Appellant, v. Jane DOE, et al., Appellees.
• Court: Texas Court of Appeals

Page 336

689 S.W.2d 336

MOTHER AND UNBORN BABY CARE OF NORTH TEXAS, INC., Appellant, v. Jane DOE, et al., Appellees.

No. 2-85-094-CV.

Court of Appeals of Texas,

Fort Worth.

May 9, 1985.

Gandy, Michener, Swindle, et al., Shelby Sharpe, Cantey, Hanger, Gooch, Munn & Collins, and Richard L. Griffith, Fort Worth, for appellant.

B.C. Cornish, Art Brender, James D. Neel, Fort Worth, for appellees.

Before JORDAN, ASHWORTH and HOPKINS, JJ.

OPINION

JORDAN, Justice.

On April 11, 1985, the trial court granted a temporary injunction prohibiting appellant from advertising in the Yellow Pages of Southwestern Bell Telephone Book under the headings of "Clinics-Medical" or "Abortion Information & Services," and from representing to any inquirer by commission, omission, or inference, that it funds abortions or that it performs abortions.

On motion of appellant the appeal was accelerated by this court because of exigencies relating to the time of publication of the questioned advertisements.

The appeal is on four points of error.

We reverse and remand.

Appellees are three women, still of child-bearing age, who brought this suit against appellant for both monetary damages and for injunctive relief, based primarily on fraud, deceptive practices, and invasion of privacy. All three appellees, who used pseudonyms in filing the suit, were pregnant and unmarried women, who consulted the Yellow Pages of the telephone book, seeking the services of someone who would perform an abortion for them. Each of them testified that appellant is listed as "Problem Pregnancy Center" in the phone book under the headings of "Clinics-Medical" and "Abortion Information & Services," and that they each called the number listed in the phone book for information concerning abortions. Each of them then went to appellant's place of business at 1412 Ballinger in Fort Worth for the purpose of having an abortion. On the side of the building is a sign reading "Free Pregnancy Test and Problem Pregnancy Center."

Each of the three women testified that they believed appellant to be a medical clinic that offered pregnancy testing and abortion services. All of them, at different times, in November of 1984, went to appellant's facility, expecting to obtain an abortion. However, according to their testimony, all of them were given a urine test and subjected to questions of a personal and intimate nature about their marital status, use of contraceptives, previous pregnancies and previous abortions, if any. Each of the appellees were then shown an anti-abortion film and were lectured on the dangers and evils of abortion.

They testified that they "feared" or they "thought" it was possible that they could have future contact with appellant's facility if the same ads were run in the future in the Yellow Pages. They did admit that they would not go back to the same location on Ballinger Street.

All of the appellees also admitted that they did not know the nature of the advertisement or advertisements appellant was planning on running in the next edition of the Yellow Pages in the phone book, or what the headings on those ads would be. There was no evidence whatever on these matters. The only evidence concerning future ads in the Yellow Pages was that of Charles J. Pelletier, II, appellant's president who said he intended to advertise in the next edition of the Yellow Pages.

Appellant's first point of error is that the trial court erred in granting the temporary injunction since there was no evidence that appellees were threatened with any injury, and thus the granting of the temporary injunction was an abuse of discretion. We agree and sustain this point of error.

A trial court has broad discretion in determining whether to issue a temporary injunction to preserve the rights of the parties pending final trial on the merits. When this discretion is exercised and a temporary injunction granted, the trial court's order should not be disturbed on appeal unless the record discloses a clear abuse of discretion. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968); Texas Foundries, Inc. v. International Moulders & Foundry Workers' Union, 151 Tex. 239, 248 S.W.2d 460, 462 (1952).

On the other hand, it is equally well settled that a temporary injunction will be dissolved if it is based upon an erroneous application of the law to the facts. Dallas General Drivers v. Wamix, Inc., 156 Tex. 408, 295 S.W.2d 873, 879 (1956); Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722, 723 (1935). The law is also well established that a trial court abuses its discretion in granting a temporary injunction unless it is clearly established by the facts that one seeking such relief is threatened with an actual irreparable injury if the injunction is not granted. Dallas General Drivers, 295 S.W.2d at 879. Moreover, "an...