Sheinfeld & Maley v. Belllush, 04-01-00216-CV

• Decision Date: 02 April 2001
• Docket Number: No. 04-01-00216-CV,04-01-00216-CV
• Citation: 61 S.W.3d 437
• Parties: (Tex.App.-San Antonio 2001) SHEINFELD, MALEY & KAY, P.C., Appellant v. James J. BELLUSH, et al., Appellees
• Court: Texas Court of Appeals

Page 437

61 S.W.3d 437 (Tex.App.-San Antonio 2001)

SHEINFELD, MALEY & KAY, P.C., Appellant v. James J. BELLUSH, et al., Appellees

No. 04-01-00216-CV

Court of Appeals of Texas, San Antonio

April 2, 2001

From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 98-CI-16053 Honorable Pat Boone, Judge Presiding

David L. Botsford, Sheinfeld, Maley & Kay, P.C., Austin, for appellant.

J. Ken Nunley, Kelly Putney Rogers, Nunley, Davis, Jolley & Hill, L.L.P., Boerne, for appellees.

Sitting: Phil Hardberger, Chief Justice, Tom Rickhoff, Justice, Alma L. Lopez, Justice

PER CURIAM

On the court's own motion, we withdraw our opinion and order of March 30, 2001, and we substitute this opinion and order to narrow the proceedings to be stayed in the trial court to the commencement of trial in accordance with the specific language in section 51.014(b) of the Texas Civil Practice and Remedies Code. Appellees' emergency motion for reconsideration of order granting stay of all proceedings in the trial court is denied as moot.

In this accelerated, interlocutory appeal, Sheinfeld, Maley & Kay, P.C. ("SMK") appeals the trial court's order granting a temporary injunction, enjoining Maureen Blackthorne ("Blackthorne") from disposing of the International Rehabilitative Sciences stock (the "Stock") that was transferred to her by her husband, Allen Blackthorne. SMK has a lien against the Stock.

On March 29, 2001, the trial court entered an order denying SMK's motion to stay the underlying proceedings. In the order denying the motion to stay, the trial court severed the temporary injunction into a separate cause number. The same day the order was entered, SMK filed the pending emergency motion for stay of trial.

Section 51.014(a) of the Texas Civil Practice and Remedies Code gives a party the authority to appeal from an interlocutory order granting a temporary injunction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon Supp. 2001). Section 51.014(b) provides, "An interlocutory appeal under Subsection (a) shall have the effect of staying the commencement of trial in the trial court pending the resolution of the appeal." See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(b) (Vernon Supp. 2001).

The only published case that addresses subsection (b) of section 51.104 involved an interlocutory appeal from an order denying a water district's plea to the jurisdiction based on its assertion of sovereign immunity. See Tarrant Regional Water Dist. v. Gragg, 962 S.W.2d 717, 718 (Tex. App. Waco 1999, no pet.). The Waco court stated that it was compelled to stay any part of the trial proceeding that may be affected by its decision in the interlocutory appeal. See id. at 719. The Waco court explained, "Because the stay is statutory and allows no room for discretion, the court erred when it 'vacated the stay' and set the entire case for trial while the interlocutory appeal is pending." Id. The Waco court ordered a stay of any claim involving a cause of action against which the water district had asserted the defense of sovereign immunity. Id.

The appellees respond to SMK's motion, asserting that none of the pending claims are affected by the interlocutory appeal because those claims have been severed into a different cause. This response ignores the realities of the order. If the interlocutory appeal affected the pending claims at the time the trial court denied the motion to stay, the trial court erred in denying the motion regardless of its subsequent severance of those claims. The severance cannot isolate the claims that...