Priest v. Texas Animal Health Com'n

• Decision Date: 06 November 1989
• Docket Number: No. 05-88-01417-CV,05-88-01417-CV
• Citation: 780 S.W.2d 874
• Parties: D. PRIEST and Van Zandt Commission Company, Inc., Appellants, v. TEXAS ANIMAL HEALTH COMMISSION, Appellee.
• Court: Texas Court of Appeals

Page 874

780 S.W.2d 874

D. PRIEST and Van Zandt Commission Company, Inc., Appellants, v. TEXAS ANIMAL HEALTH COMMISSION, Appellee.

No. 05-88-01417-CV.

Court of Appeals of Texas Dallas.

Nov. 6, 1989.

Mark J. Calabria, Rebecca L. Calabria, Kaufman, for appellants.

Molly D. Shannon, Austin, for appellee.

Before HOWELL, THOMAS and OVARD, JJ.

OPINION

THOMAS, Justice.

D. Priest and Van Zandt Commission Company (hereafter collectively "Priest") appeal from a permanent injunction entered by summary judgment, enjoining Priest from: 1) failing to maintain proper cattle ownership records for cattle sold through them; 2) refusing to allow Texas Animal Health Commission (hereafter "Commission") representatives to examine such records; and 3) failing to brand cattle exposed to brucellosis. In two points of error, Priest contends that the trial court erred in granting the Commission's motion for summary judgment because: 1) the summary judgment evidence did not entitle the Commission to judgment as a matter of law and did not establish that there were no genuine issues of material fact; and 2) the affidavits and attachments to the Commission's motion for summary judgment were inadequate as a matter of law to establish that no material issue of fact existed. We agree that the proof failed to establish that Priest failed to keep records as required by law. We conclude, however, that the other grounds for injunction were properly established. Thus, the trial court's judgment is affirmed in part and reversed and remanded in part.

STANDARDS OF REVIEW

A. Permanent Injunction

A successful applicant for injunctive relief must demonstrate the following four grounds for relief: 1) the existence of a wrongful act; 2) the existence of imminent harm; 3) the existence of irreparable injury; and 4) the absence of an adequate remedy at law. Frey v. DeCordova Bend Estates Owners Ass'n, 632 S.W.2d 877, 881 (Tex.App.--Fort Worth 1982), aff'd, 647 S.W.2d 246 (Tex.1983).

The grant or refusal of a permanent or temporary injunction is ordinarily within the sound discretion of the trial court and, on appeal, review of the trial court's action is limited to the question of whether the action constituted a clear abuse of discretion. Janus Films Inc. v City of Fort Worth, 163 Tex. 616, 617, 358 S.W.2d 589, 589 (1962) (temporary injunction); Mejerle v. Brookhollow Office Products, 666 S.W.2d 192, 193 (Tex.App.--Dallas 1983, no writ) (temporary injunction); Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex.Civ.App.--Dallas 1974, no writ) (temporary injunction, but suggesting that abuse of discretion standard applies to all injunctions); Lee v. Bowles, 397 S.W.2d 923, 926 (Tex.Civ.App.--San Antonio 1965, no writ) (permanent injunction). Where the facts conclusively show a party is violating the substantive law it becomes the duty of the court to enjoin the violation and in such case there is no discretion to be exercised. City of Houston v. Memorial Bend Util. Co., 331 S.W.2d 418, 422 (Tex.Civ.App.--Houston 1960, writ ref'd n.r.e.).

Although a litigant has the right to a trial by jury in an injunction action, only ultimate issues of fact are submitted for jury determination. State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex.1979). The jury does not determine the expediency, necessity or propriety of equitable relief. Id.; Alamo Title Co. v. San Antonio Bar Ass'n, 360 S.W.2d 814, 816 (Tex.Civ.App.--Waco 1962, writ ref'd n.r.e.). As the supreme court has noted:

We do not consider the question of likelihood of [defendant's] resumption or continuation of the acts enjoined as being an ultimate issue of fact for the jury.... A jury in equity, even under a blended system, does not decide the issue of expediency, necessity or propriety of equitable relief.... It was an element deducible from the circumstances for the court to consider in determining whether wrong or injury might be anticipated and whether chancery powers should be exercised. It constituted here, in effect, a mixed question of law and fact at most. Such questions are not for the jury in injunction cases.

Texas Pet Foods, 591 S.W.2d at 803, quoting Alamo Title Co., 360 S.W.2d at 816.

B. Summary Judgment

The function of a summary judgment is not to deprive a litigant of his right to a full hearing on the merits of any real issue of fact, but to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). Under rule 166a of the Texas Rules of Civil Procedure, summary judgment may be rendered only if the pleadings, depositions, admissions, interrogatory answers, and affidavits show 1) that there is no genuine issue as to any material fact and 2) that the moving party is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c).

The applicable standards for reviewing a summary judment may be summarized as follows:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.

3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). With the standards of review for injunction and for summary judgment in mind, we turn to the summary judgment proof offered in support of Priest's violations of the Texas Agriculture Code.

FAILURE TO KEEP PROPER RECORDS

The Texas Agriculture Code requires that each livestock auction commission merchant keep a record of transportation of livestock to and from the place of sale, including the name and address of the original owner and the purchaser of the livestock. TEX.AGRIC.CODE ANN. § 147.042 (Vernon 1982). The statute provides that the commission merchant shall retain the records for at least one year after the date of sale. Id. § 147.042(d).

The Commission also points to section 147.041 of the Texas Agriculture Code and to rule 35.2(e) of the Texas Bovine Brucellosis Regulations promulgated by the Commission pursuant to sections 161.046 and 163.061 of the Texas Agriculture Code, as requiring Priest to keep records of the names and addresses of sellers and purchasers of cattle. Section 147.041 requires Priest to keep records of all livestock sold. TEX.AGRIC.CODE ANN. § 147.041(a). It does not explicitly state that Priest must keep records including the name and address of sellers and purchasers of livestock, although the statute requires him to file with the commissioners court a quarterly report containing this information. TEX.AGRIC.CODE ANN. § 147.041(c). Because the statute does not specifically require Priest to keep the information the Commission contends he failed to keep, we conclude that violation of this provision will not support the injunction. Rule 35.2(e) provides that the market will supply certain information to the veterinarian making a market test of cattle, including the full name and address, including zip code, of the owner of the cattle at the time the cattle are delivered to the market. Again, although the rule certainly implies a requirement to keep records in order to supply the information to the veterinarian, there is no explicit requirement that Priest keep such records. The Commission has not alleged that Priest failed to give the required information to the veterinarian. Thus, violation of rule 35.2(e) will not support the injunction.

As proof that Priest failed to keep records including the name and address of the original owner and the purchaser, the Commission attached to its motion for summary judgment Priest's answers to interrogatories, an affidavit of Wayne Rogers, a postmaster, and excerpts from the United States Government Manual pertaining to mail. The Commission served on Priest two sets of interrogatories. The sixty questions in the two sets each asked Priest to: "Provide full name, address including county and telephone number for seller/original owner of [certain cattle identified by back tag number] sold through Van Zandt Commission Company, Inc. on [a certain date]." The dates of sales were between January 4, 1986 and December 20, 1986. Priest's answers to the interrogatories were served on counsel on June 17, 1988. Priest's responses to a number of the interrogatories included name, address including route number and box number or street address, city and state, and zip code. Several interrogatory answers included a name and route number, city and state, but did not include a box number and zip code. Others included a name, city and state, or merely a name. In response to one interrogatory asking for the name and address of the seller/original owner of back tag # 74 493 sold through Van Zandt Commission Company on November 22, 1986, Priest responded, "Information not available." The affidavit of the postmaster and the excerpts from the Government Manual concerning the elements of a proper address were offered to show that the information provided by Priest did not, in many respects, constitute full names and addresses.

The Commission's theory for summary judgment was that Priest's inability to produce names and addresses for his responses to the interrogatories was proof that, as a matter of law, Priest did not keep the records required by the Agriculture Code. The hypothesis is compelling, except for one failing. The Agriculture Code required Priest to retain records from sales for only one year. TEX.AGRIC.CODE ANN. § 147.042(d). The fact that Priest could not produce information on June 17, 1988, concerning sales in 1986, constitutes no proof that Priest failed to keep the records of sale for one year as required by the Code. In fact, Priest stated in his affidavit that he...