State v. Friedmann

• Decision Date: 05 October 1978
• Docket Number: No. 1392,1392
• Parties: STATE of Texas et al., Appellants, v. Ralph J. FRIEDMANN et ux., Appellees.
• Court: Texas Court of Appeals

Page 373

572 S.W.2d 373

STATE of Texas et al., Appellants, v. Ralph J. FRIEDMANN et ux., Appellees.

No. 1392.

Court of Civil Appeals of Texas, Corpus Christi.

Oct. 5, 1978.

Rehearing Denied Nov. 2, 1978.

Stephen Greenberg, Asst. Atty. Gen., Austin, for appellants.

Reynaldo Garza, Jr., Garza & Garza, Brownsville, for appellees.

OPINION

BISSETT, Justice.

This is an appeal from an order denying the defendants' motion to dissolve a temporary injunction. We affirm.

On August 8, 1955, the State of Texas acquired, through condemnation, a roadway easement over certain lands owned in fee by Ralph J. Friedmann and wife, Sarah Friedmann, plaintiffs-appellees in this appeal. On September 28, 1976, the State and the City of Brownsville entered into a "multiple use agreement", pursuant to which the City commenced the construction of a building denominated a "tourist center" upon a certain portion of the land included in the roadway easement. The Friedmanns filed a suit against both the State and the City on November 4, 1977, wherein, among other relief sought, they prayed for a declaratory judgment which would settle the dispute as to whether the affected land could be used by the defendant City as a tourist center; they further asked for a temporary injunction which would enjoin the City, pending final hearing, from doing any more work on the project.

Following a hearing on the application for the temporary injunction, the trial court, by order signed on December 23, 1977, granted the application and a writ of temporary injunction which enjoined further construction of the center during the pendency of the suit was duly issued. Neither the State nor the City appealed from the order which granted the Friedmanns' application for temporary injunction.

On June 23, 1978, the State and the City filed a motion to dissolve the temporary injunction. The motion was denied on June 27, 1978. The State of Texas and the City of Brownsville have duly perfected an appeal from such order. See Rule 385(d), T.R.C.P.

No evidence was presented by the appellants at the hearing on their motion to dissolve the temporary injunction. Appellants, in their verified motion, pled, in effect, that under the pleadings then on file and in view of the undisputed facts adduced at the hearing on appellees' application for the issuance of the temporary injunction, their motion should be granted because the injunction had been wrongfully issued. On appeal, appellants contend that the failure to dissolve the temporary injunction constituted an abuse of discretion by the trial court. We do not agree.

It is well settled law in this State that a temporary injunction may be granted which will prevent the performance of an alleged wrongful act during the pendency of a lawsuit that seeks permanent relief, and is a remedy which is available to the interested litigant before trial of the case on the merits for the purpose of preserving the subject matter of the controversy as it existed at the time suit was instituted. Dallas General Drivers, Etc. v. Wamix, Inc. of Dallas, 156 Tex. 408, 295 S.W.2d 873 (1956); Saenz v. Lackey, 522 S.W.2d 237 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n. r. e.). Where a party asks for such an injunction, the trial court is clothed with broad discretion in determining whether to grant the application or not, and the court's ruling thereon will be reversed only upon the showing of a clear abuse of discretion. State v. Cook United, Inc., 469 S.W.2d 709 (Tex.Sup.1971); Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962).

This appeal from the order denying appellants' motion to dissolve the temporary injunction previously granted is also governed by the rules announced in the cases above cited. The determination of the question of whether to dissolve the temporary injunction lies within the broad discretion of the trial court, and the issue presented by this appeal is limited to the narrow question of whether the trial court, in denying the motion to dissolve the existing temporary injunction, abused its discretion in the matter. We hold that it did not.

The burden of proving that the trial court, in denying a motion to dissolve a temporary injunction issued prior to a trial on the merits, abused its discretion is on the litigant who attacks the court's action. Marshall v. Good Times, Inc., 537 S.W.2d 536 (Tex.Civ.App. Fort Worth 1976, writ dism'd). See also Schroeder v. Brandon, 141 Tex. 319, 172 S.W.2d 488 (1943).

In this case, the only evidentiary hearing held in this cause was the hearing on appellees' application for the issuance of a temporary injunction. An identical situation existed in Marshall v. Good Times, Inc., supra, where it was stated categorically that in the absence of a statement of facts reflecting the proceedings that occurred at the hearing on the motion to dissolve, the Court of Civil Appeals was required to presume on appeal that the trial court's action in overruling the motion was not an abuse of discretion. We are in full agreement with that announcement.

The record before us does contain a statement of facts which contains the evidence introduced at the November 15 and 16, 1977, hearing on the appellees' application for a temporary injunction, which was granted on December 23, 1977. That order, however, is not the order from which the instant appeal was perfected.

In the case at bar, an examination of the pleadings shows that a bona fide dispute existed at all times pertinent to this appeal concerning the right of appellees to the ultimate relief sought by them in their action. Under the posture of the record as it now exists, we can only conclude that the appellees, at the hearing on their application for the issuance of a temporary injunction, produced evidence which showed a probable right to the injunction and a probable injury in the event that their application was denied, which is all that was required of them at that time;...