Tanguy v. Laux

Decision Date03 April 2008
Docket NumberNo. 01-07-00765-CV.,01-07-00765-CV.
PartiesPhilippe TANGUY, Appellant, v. David LAUX, Appellee.
CourtTexas Court of Appeals

Joe A. Izen, Jr., Bellaire, for appellant.

Alice Oliver-Parrott, Justin David Burrow, Burrow & Parrott, L.L.P., Houston, for appellee.

Panel consists of Justices TAFT, KEYES, and ALCALA.

OPINION

ELSA ALCALA, Justice.

In this interlocutory appeal, appellant, Philippe Tanguy, appeals from the trial court's order granting a temporary injunction on behalf of appellee, David Laux. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(4) (Vernon Supp.2007). Laux filed suit against Tanguy asserting that a judgment debtor of Laux's, Richard Davis, had violated the Texas Uniform Fraudulent Transfer Act1 by transferring a 1986 Twin Otter aircraft to Tanguy. The trial court issued a temporary injunction prohibiting Tanguy from "selling, encumbering, transferring and/or relocating from the county" the aircraft. In four issues, Tanguy asserts that (1) the temporary injunction order is void on its face; (2) Laux had no present right of recovery because he did not have a lien on his judgment debtor's personal property; (3) Laux was not entitled to injunctive relief because he did not record his alleged judgment lien in the records of the Federal Aviation Administration ("FAA") registry for aircraft; and (4) Laux had no greater right in the aircraft than his alleged judgment debtor. We conclude that the temporary injunction is not void and that the trial court did not abuse its discretion in issuing a temporary injunction. We therefore affirm.

Background

In 2004, Laux filed suit against Richard Davis in district court in Harris County, seeking damages for breach of contract in connection with a partnership dispute. After a jury trial, the trial court, on or about August 11, 2006, rendered a final judgment in favor of Laux and against Davis for $384,126.94. Since that time, Laux has been attempting to collect on his judgment.

The instant suit was filed against Tanguy, alleging that the transfer of the Twin Otter aircraft from Davis to Tanguy violated the Texas Uniform Fraudulent Transfer Act. After a temporary restraining order was initially issued in favor of Laux, the trial court held a hearing and issued the temporary injunction against Tanguy on August 16, 2007 ("the August Order"). The August Order did not set the underlying case for trial.

Tanguy timely filed a notice of appeal on September 4, 2007. Tanguy filed his initial brief in this Court on November 20, 2007, asserting four issues, including a challenge that asserted that the August Order was void since it did not set the underlying case for trial.

While the appeal of the August Order was pending in this Court, Laux filed with the trial court, on December 4, 2007, a Motion for Temporary Injunction Nunc Pro Tunc to add a trial setting to the temporary injunction. In his Motion for Temporary Injunction Nunc Pro Tunc, Laux specifically prayed that the trial court "vacate the judgment previously signed, and enter judgment in accordance with the proposed form [the December Order] which is attached to this motion." The trial court granted Laux's motion and ordered that "the clerk will enter judgment in accordance with the judgment as rendered and signed at this time." The trial court then signed a temporary injunction on December 6, 2007 ("the December Order"). The December Order contains the same language as the August Order, except that it has an additional sentence not in the August Order that states, "It is further ORDERED, ADJUDGED, and DECREED this matter is scheduled to begin trial on May 26, 2008."

After the trial court signed the December Order, Laux filed his appellee's brief with our Court on December 10, 2007. In the brief, in response to the assertion that the August Order was void because it failed to set the underlying case for trial, Laux relies on the trial court's grant of the nunc pro tunc order to contend that the failure to set the case for trial was a clerical error that was remedied by the December Order.

Failure to Set Case for Trial on the Merits

In his first issue, Tanguy contends that the temporary injunction is void because it fails to comply with the Texas Rules of Civil Procedure that require that the case be set for a trial on the merits.2 In his brief, Laux asserts that (1) the failure of the August Order to include the statement that the underlying case was set for trial was a clerical error that could be remedied by a nunc pro tunc order and (2) the December Order that was rendered pursuant to the nunc pro tunc order set the case for trial and therefore complied with the requirements for temporary injunctions. In his reply brief, Tanguy asserts that the trial court's failure to include a trial setting is a judicial error, not a clerical one, and that a nunc pro tunc order may not be used to correct a judicial error.3

Although the parties refer to the December Order as a nunc pro tunc order, it is a temporary injunction that is identical to the August Order, except that it adds a trial setting for the case. In his Motion for Temporary Injunction Nunc Pro Tunc, Laux specifically prayed that the trial court "vacate the judgment previously signed, and enter judgment in accordance with the proposed form [the December Order] which is attached to this motion." The trial court granted Laux's motion and ordered that "the clerk will enter judgment in accordance with the judgment as rendered and signed at this time."

"While an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and may make further orders, including one dissolving the order appealed from...." TEX.R.APP. P. 29.5. "But the [trial] court must not make an order that ... interferes with or impairs the jurisdiction of the appellate court or effectiveness of any relief sought or that may be granted on appeal." TEX.R.APP. P. 29.5(b). "While an appeal from an interlocutory order is pending, ... the appellate court may review ... a further appealable interlocutory order concerning the same subject matter." TEX.R.APP. P. 29.6(a)(1); see Ahmed v. Shimi Ventures, L.P., 99 S.W.3d 682, 688-89 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

We have jurisdiction to address the December Order because it is a further appealable interlocutory order that concerns the same subject matter. See TEX.R.APP. P. 29.5; Ahmed, 99 S.W.3d at 689. Further, the trial court had jurisdiction to dissolve the August Order and to replace it with the December Order that concerned exactly the same subject matter but with the addition of the trial date, if those actions did not interfere with or impair our jurisdiction or the effectiveness of the relief sought in the appeal. See TEX.R.APP. P. 29.5; see Ahmed, 99 S.W.3d at 688-89. We conclude that the trial court's actions in dissolving the August Order and replacing it with the December Order do not interfere with or impair our jurisdiction or the effectiveness of the relief sought in the appeal because Tanguy's appellate challenges concerning the substance of the injunction remain alive, despite the trial court's orders, because the two injunctions are substantively the same. See TEX. R.APP. P. 29.5. For example, if we agreed with Tanguy's challenges to the merits of the injunction, we could reverse the injunction and give him the relief he seeks in the appeal. See id. Therefore, the trial court's actions in dissolving the August Order and issuing the December Order on the same subject do not diminish the effectiveness of the substantive challenges asserted by Tanguy in the appeal, which we address in issues two through four. See id.

Although the substantive challenges by Tanguy are not affected by the trial court's orders, Tanguy also made a procedural challenge to the injunction. Tanguy's procedural challenge asserts that the August Order was void on its face because it failed to set the case for trial. Tanguy wanted the August Order dissolved due to its lack of the trial setting, and the trial court agreed with him by dissolving the order and issuing a new injunction in the December Order that included a trial date. We conclude that the dissolution of the August Order does not interfere with or impair the effectiveness of the relief sought because the trial court gave Tanguy all the relief he sought from us. See TEX.R.APP. P. 29.5(b). When we addressed an almost identical situation, we said,

A trial court should not be allowed to frustrate a party's right to appellate review. However, that has not happened in this case. The amended order merely sets a trial date for a hearing on the permanent injunction, as required.... The appellant should not be able to complain both that the order is void because no trial date is set and also that a trial date has been set. The reason for requiring that a temporary injunction set a date for trial on the merits is to prevent the temporary injunction from becoming effectively permanent, without a trial having occurred. That purpose was accomplished here by the setting of the trial date. The trial court's amended order accomplishes the purpose of rule 683 by preventing the temporary injunction from becoming "permanent" while the appellant waits indefinitely for a trial on the merits. Moreover, it does not interfere with our power to grant relief on appeal. It is unnecessary to vacate this injunction in order to protect either appellant's right to a speedy trial or to effective appellate review of the temporary injunction.

Eastern Energy, Inc. v. SBY P'ship, 750 S.W.2d 5, 6 (Tex.App.-Houston [1st Dist.] 1988, no writ).4

We conclude the trial court had jurisdiction to dissolve the August Order and to issue the December Order that set the case for trial. See TEX.R.APP. P. 29.5; Ahmed, 99 S.W.3d at 689. We hold that the December Order granting the injunction was not void. We overrule Tanguy's...

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