Ohlhausen v. Thompson, C14-85-482-CV
| Decision Date | 02 January 1986 |
| Docket Number | No. C14-85-482-CV,C14-85-482-CV |
| Citation | 704 S.W.2d 434 |
| Parties | William H. OHLHAUSEN, Appellant, v. John P. THOMPSON, et al., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
James M. York, Houston, for appellant.
Joseph Patterson, Kee & Patterson, Leland B. Kee, Angleton, Stanley C. Simon, Ronald L. McKinney, Tobolowsky, Prager & Schlinger, Dallas, for appellees.
Before JUNELL, ROBERTSON and CANNON, JJ.
William Ohlhausen appeals the granting of a temporary restraining order and temporary injunction preventing him from disposing of funds wrongfully paid to him from an employees profit sharing plan account. Appellant alleges in his first three points of error that the temporary restraining order was improperly granted because (1) the pleadings were defective and insufficient as a matter of law; (2) the order failed to expressly grant injunctive relief and authorized the writ to issue without the filing of a bond; and (3) the order was void ab initio for appellee's failure to post a good and sufficient bond. In point of error (4) appellant contends the trial court erred in overruling his motion for continuance. Appellant's last four grounds allege the court erred in granting the temporary injunction (5) because the pleadings were improperly verified; (6) because the evidence was insufficient to show appellee had no adequate remedy at law; (7) because the injunction order fails to expressly grant an injunction and authorizes the clerk to issue the writ without the filing of a bond; and (8) because appellee had no probable right of recovery.
We affirm.
Appellant's wife, Mary Chappell Ohlhausen, had become entitled to an account in Southland Corporation Employees' Savings and Profit Sharing Plan as the beneficiary of her first husband's account. The first husband, H.O. Chappell, had built up the account while he was an employee of Southland Corporation. Mrs. Ohlhausen designated David Chappell and Marsha Chappell Crainer, the children from her first marriage, as her beneficiaries on the account. Mrs. Ohlhausen died in 1984. Due to a clerical mistake, Southland paid over the balance of the account, some $120,185, to appellant in March 1985.
In April 1985, David Chappell and Marsha Chappell Crainer filed suit against appellant seeking to recover the account proceeds and to obtain an injunction prohibiting him from disposing of the funds pending trial, and against Southland Corporation seeking judgment for the balance of their parents' account. Chappell and Crainer's request for a temporary restraining order to prevent appellant from disposing of the funds was granted. Pending a hearing on Chappell's and Crainer's temporary injunction request, trustees of the trust intervened, pleading mistake in payment. The trust also filed a request for temporary injunction. At a hearing on May 16, the court heard evidence on Chappell and Crainer's request for injunctive relief, denied their request, and granted the trustees' request for a temporary restraining order. Prior to the hearing on its request for temporary injunction, the trustees filed an amended plea in intervention. The amended plea was verified in part by a Southland trustee and in part by the trust's attorney. The court granted intervenor's request for temporary injunction on May 23, 1985.
Appellant's first three points of error allege the court erred in granting intervenors' request for a temporary restraining order. A temporary restraining order is not an appealable order. Arvol D. Hays Construction Company v. R & M Agency Corporation, 471 S.W.2d 628, 629 (Tex.Civ.App.--Fort Worth 1971, writ ref'd n.r.e.). Under Rule 680, Tex.R.Civ.Proc., a temporary restraining order expires of its own terms within ten days unless extended by the court. In the present case, no extension was granted by the court. The order expired on May 26, 1985; the points are moot. Appellant's first three points of error are overruled.
Appellant's multifarious fourth point of error contends the court erred in overruling his motion for continuance and his objection to the filing of the trustees' amended plea in intervention. The original plea in intervention and application for temporary restraining order was filed on May 16, 1985. The application for temporary restraining order contained a request for a temporary injunction. Immediately before the hearing on May 21, an amended plea in intervention was filed.
Appellant claims to have made a motion for continuance and a motion to strike the amended pleadings. The record contains no motion for continuance. Rule 251, Tex.R.Civ.Proc., requires a motion for continuance to be in writing and verified. Abilene Savings Association v. Roderick, 418 S.W.2d 695, 697 (Tex.Civ.App.--Eastland 1967, no writ). Where the terms and provisions of Rule 251 have not been complied with, it will be presumed that the trial court had not abused its discretion in denying continuance. Drake v. State, 488 S.W.2d 534, 536 (Tex.Civ.App.--Dallas 1972, writ ref'd n.r.e.).
Further, as the amended pleadings merely responded to appellant's exceptions by adding specificity and by modifying the verification, there was no material change which would have justified granting a motion to strike. Appellant's fourth point of error is overruled.
Appellant's fifth through eighth points of error complain of the court's granting the temporary injunction. In point of error five, appellant complains that the injunction application was improperly verified. The court granted the temporary injunction after a full evidentiary hearing in which appellant, the Chappell children and the intervenors participated. A verified petition is not essential to the granting of a temporary injunction granted after a full hearing on the evidence independent of the petition. O'Connor v. National Motor Club of Texas, Inc., 385 S.W.2d 558, 560 (Tex.Civ.App.--Houston 1964, no writ); Magnolia Petroleum Company v. State, 218 S.W.2d 855, 857 (Tex.Civ.App.--Austin 1949, writ ref'd n.r.e.). Even assuming the verification was defective, and we do not do so, appellant's claim is without merit. Appellant's fifth point of error is overruled.
Appellant's sixth point of error contends the evidence was insufficient to show the intervenors had no adequate remedy at law due to appellant's insolvency.
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