Tex. Wrecker Serv. v. Resendez

• Decision Date: 23 February 2017
• Docket Number: NUMBER 13-16-00515-CV,NUMBER 13-16-00698-CV
• Parties: TEXAS WRECKER SERVICE, RALPH RIVERA, AND NORMA RIVERA, Appellants, v. D. R. RESENDEZ AND R. SCHALMAN D/B/A APOLLO TOWING/EASY RIDER WRECKER SERVICE, Appellees. IN RE NORMA RIVERA, RALPH RIVERA, AND TEXAS WRECKER SERVICE
• Court: Texas Court of Appeals

TEXAS WRECKER SERVICE, RALPH RIVERA,AND NORMA RIVERA, Appellants, v. D. R. RESENDEZ AND R. SCHALMAN D/B/AAPOLLO TOWING/EASY RIDER WRECKER SERVICE, Appellees.IN RE NORMA RIVERA, RALPH RIVERA,AND TEXAS WRECKER SERVICE

NUMBER 13-16-00515-CV

NUMBER 13-16-00698-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI—EDINBURG

February 23, 2017

On appeal from the County Court at Law No. 4 of Nueces County, Texas.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Contreras and Longoria

Memorandum Opinion by Chief Justice Valdez

In cause number 13-16-00515-CV, Norma Rivera, Ralph Rivera, and Texas Wrecker Service have appealed a temporary injunction rendered against them in favor of plaintiffs below, D. R. Resendez and R. Schalman d/b/a Apollo Towing/Easy Rider Wrecker Service. In cause number 13-16-00698-CV, these defendants have filed a petition for writ of mandamus contending that the trial court erred in refusing to dismiss the underlying case for want of prosecution. Because the matters in the appeal and original proceeding are related, we issue this single opinion in both causes in the interest of judicial efficiency. As stated herein, we reverse and remand in the appeal and we conditionally grant the petition for writ of mandamus.¹

I. BACKGROUND

On August 31, 2007, D. R. Resendez and R. Schalman d/b/a Apollo Towing/Easy Rider Wrecker Service brought suit against Norma Rivera, Ralph Rivera, and Texas Wrecker Service. Both plaintiffs and defendants own towing businesses; the plaintiffs alleged that the defendants filed false claims against them with the City of Corpus Christi, disparaged their businesses, and harassed their employees. On October 16, 2007, the trial court held a hearing and entered a "Preliminary Injunction Order" which states as follows:

On this the 16th day of October, 2007 Petitioner made application before the court for its issuance of a preliminary injunction order.

The Court, having examined the pleadings of Petitioner and affidavit, finds that Petitioners and Respondent have agreed that certain actions should be prohibited until final ruling in this case.

It is therefore ordered that the . . . Petitioner and Respondents and their agents and employees are hereby immediately restrained as follows:

1) Petitioner and Respondent shall not make disparaging comments about each other or respective business practices to any customer. Neither party shall file complaints about the other, its agents or employees with any customer or other entity during the period of this order.

2) Upon request of Rod Robertson Enterprises (RRE), Respondent agrees to complete the towing services requested or required by Rod Robertson Enterprises, including delivering property currently held by Respondent to Petitioner when and where directed by RRE. Both parties agree not to hinder or harass the other in the performance of their duties to RRE.

3) Petitioner and Respondent, their employees or agents shall not follow or hinder or harass their employees or agents during the performance of their duties, except to have contact as required under any contract involving both companies.

4) Petitioner and Respondent, their agents and employees shall not conduct surveillance on, photograph or harass or follow each other and their agents and employees to their homes or place of business.

5) Petitioner and Respondent agree to keep the existence of this cause of action confidential and shall not, from the date of this order, inform any customers or potential customers about this litigation, except as required by law.

6) As damages are difficult to estimate for violations of this order, any party proving a violation before this court shall be entitled to $1000.00 per violation and reasonable and necessary attorneys' fees as shown by affidavit. The parties agree to first voluntarily mediate any dispute which may arise in the interpretation or enforcement of this order. The parties further agree to share equally in the costs of any and all mediations.

It is further ordered that:

This injunction order is effective immediately and shall continue in force and effect until further order of this Court or until it expires by operation of law or trial on the merits. This order shall be binding on Petitioner and on Respondents and on their agents, servants, and employees; and on those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise.

A Bond is [hereby] set in the amount of $100.00.

This order was signed by the judge of the trial court, but not by the parties.²

During the remainder of 2007 and 2008, there were minimal activities in the case. The defendants propounded interrogatories and requests for production to the plaintiffs, the parties entered into a Rule 11 agreement regarding discovery, and the plaintiffs filed responses to the defendants' discovery requests. See TEX. R. CIV. P. 11. In 2008, the defendants filed a motion to set aside the preliminary injunction. The parties held a docket control conference and the case was set for trial, but that trial did not occur. During this period of time, counsel for the defendants changed three separate times through motions for substitution of counsel which were granted by the trial court. At the end of 2008, the defendants informed the plaintiffs that they were seeking new counsel and asked that no hearings be scheduled until they obtained new counsel. Approximately one month later, new counsel for the defendants made an appearance in the case. The parties subsequently scheduled a "status hearing" which was passed by agreement.

In 2009, one of the defendants filed a motion to set aside the preliminary injunction and a hearing on that motion was set; however, there is no record of any hearing thatmight have been held or any action taken on the motion. The case was set for trial, but trial did not occur.

In 2010, the trial court held a docket control hearing and the case was set for trial, but no trial occurred. Based on the record, it appears that a hearing on an unspecified matter was set; however, there is no record of any hearing that might have been held or any action taken as a result.

In 2011 and 2012, the case lay dormant.

In 2013, the matter was set on the dismissal docket. There is no record from any proceeding in this case on that date, and the trial court did not dismiss the case.

In 2014 and 2015, the case lay dormant.

In 2016, the defendants filed a "Motion to Dissolve and Dismiss" contending that the 2007 injunction order was void and that the case should be dismissed for want of prosecution. The plaintiffs filed a response to this motion which asserted that the defendants had waived their right to attack the injunction because they had agreed to it and because they failed to appeal it. On September 22, 2016, the trial court held a non-evidentiary hearing on the defendants' motion to dissolve and dismiss. In addition to making arguments regarding dissolving the injunction, the parties focused on the plaintiffs' prosecution of this lawsuit.

Counsel for plaintiffs asserted that he recalled appearing at "some of these dismissal dockets" and asking that the case be retained. He stated that it was a "big problem" that the defendants had been represented by three or four different attorneys. Counsel argued that the parties went forward with discovery and "other things" for a period of time and requested docket control orders. According to plaintiffs' counsel:

For some reason a trial date was never set, and with the status of the order the way it was I was sort of fine with that at some point, but I knew that we would end up needing to get a trial date, but there was no attorney at some point either to deal with - in regards to that as well. So unfortunately it did sit for a long period of time and the status quo was maintained.

In contrast, counsel for the defendants stated that the record indicated that there were a "couple" of trial settings and a "couple" of docket control orders, but the case never made it to trial. He argued that there was no explanation regarding why the trial court did not dismiss the case for want of prosecution in 2013. He asserted that in 2013, plaintiffs' counsel filed a separate suit in a different court which "involves claims . . . related to this 2007 injunction order and additional claims" such as defamation.³

The trial court denied the defendants' motions to dissolve and dismiss. The defendants appealed the trial court's denial of their motion to dissolve the temporary injunction in our cause number 13-16-00515-CV and filed a petition for writ of mandamus seeking to set aside the trial court's denial of their motion to dismiss in our cause number 13-16-00698-CV.

II. APPEAL OF THE PRELIMINARY INJUNCTION

We turn first to the appeal. By one issue, appellants contend that the trial court abused its discretion by refusing to declare the temporary injunction order void and dissolve the injunction when the order is fatally defective for failing to include a trial date or the reasons for its issuance as required by Texas Rule of Civil Procedure 683. See TEX. R. CIV. P. 683. In response, appellees contend that the temporary injunction orderwas reached by agreement between the parties, and any error in the form or substance of the injunction has thus been waived.

A. Standard of Review

We review a trial court's decision to grant or deny a motion to dissolve a temporary injunction under an abuse discretion standard. Conlin v. Haun, 419 S.W.3d 682, 686 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see also Lance v. Robinson, No. 04-12-00754-CV, 2013 WL 820590, at *2 (Tex. App.—San Antonio 2013, no pet.) (mem. op). A trial court has broad discretion in denying or granting such a motion. Stewart Beach Condo. Homeowners Ass'n, Inc. v. Gili N Prop Investments, L.L.C., 481 S.W.3d 336, 342-43 (Tex. App.—Houston [1st Dist.] 2015, no pet.). We only review the...