Tober v. Turner of Texas, Inc., 13881
| Decision Date | 14 March 1984 |
| Docket Number | No. 13881,13881 |
| Citation | 668 S.W.2d 831 |
| Parties | Rick TOBER, Appellant, v. TURNER OF TEXAS, INC., Appellee. |
| Court | Texas Court of Appeals |
John L. Bates, Bates & Cates, Waco, for appellant.
Jeffrey M. Friedman, Friedman, Weddington, Hansen & Fisher, Austin, for appellee.
Before PHILLIPS, C.J., and POWERS and BRADY, JJ.
Rick Tober appeals from the trial court's order overruling a motion to dissolve a temporary injunction.
We affirm that order.
Rick Tober was formerly employed by Turner of Texas, Inc. as a salesman of advertising specialty products. In September of 1982 Turner instituted this action against Tober. Turner contended that Tober had violated an agreement not to compete with Turner; Turner sought damages for prior breaches of the agreement as well as an injunction precluding future breaches. Tober lodged a counterclaim against Turner, seeking damages for Turner's alleged wrongful withholding of commissions earned by Tober.
On October 11, 1982, following an evidentiary hearing at which both Tober and Turner participated, the trial court signed an order which temporarily enjoined Tober from, inter alia, selling specialty advertising items within all of Travis County and the city limits of San Antonio, Dallas, Fort Worth, and Houston. On November 9, 1982 Turner filed a motion requesting that the trial court order Tober to appear and show cause as to why Tober should not be held in contempt. On November 16, 1982 Tober filed a motion captioned "Defendant's Response To Plaintiff's Motion To Show Cause; Defendant's Amended Motion To Set Aside the Temporary Restraining Order And/Or Alternatively Motion to Provide Adequate Bond."
On December 1, 1982 the trial court, following a hearing at which Tober and Turner were represented, signed an order overruling Tober's motion (apparently treating it as a motion to dissolve the temporary injunction). The trial court also found Tober in contempt of the temporary injunction; the contempt order is not here challenged. Tober made a cash deposit in lieu of an appeal bond on December 13, 1982.
We initially note that although Tober purports to appeal from the order granting temporary injunction as well as the order overruling his subsequently filed motion, he has not perfected an appeal from the initial order. While an order granting a temporary injunction is an appealable interlocutory order, see Tex.Rev.Civ.Stat.Ann. art. 4662 (Supp.1982), the appeal of such an order must conform to the requirements for accelerated appeals, Tex.R.Civ.P.Ann. 385 (Supp.1983). In all accelerated appeals, the deposit in lieu of appeal bond must be made within thirty days after the order is signed. Id. 385(d). Such a requirement is a prerequisite to invoking this Court's jurisdiction; since Tober made an untimely cash deposit, we are without jurisdiction to consider an appeal of the order granting a temporary injunction. Marshall v. Good Times, Inc., 537 S.W.2d 536 (Tex.Civ.App.1976, writ dism'd).
However, Tober's cash deposit was made within thirty days of the signing of the order overruling Tober's subsequent motion. Although that subsequent motion was rather awkwardly titled, to the extent possible we will treat it as a motion to dissolve the temporary injunction. An order overruling a motion to dissolve a temporary injunction is an appealable interlocutory order. Tex.Rev.Civ.Stat.Ann. art. 4662 (Supp.1982). Therefore, although we lack jurisdiction to entertain an appeal of the order granting the temporary injunction, we have jurisdiction to review the trial court's order overruling the motion to dissolve the injunction. Marshall v. Good Times, Inc., supra.
The determination of the question of whether to dissolve a temporary injunction is a matter lying within the discretion of the trial court; the scope of this Court's review of a trial court order overruling a motion to dissolve a temporary injunction is limited to the narrow question of whether the action of the trial judge, in overruling the motion to dissolve, constituted an abuse of discretion. Marshall v. Good Times, Inc., supra. Tober, as movant, has the burden to show that the trial court abused its discretion. Id.
As stated above, Tober was represented at the hearing on the application for temporary injunction. At that hearing Tober presented evidence in opposition to the granting of the temporary injunction. Later, at the hearing on the motion to dissolve the temporary injunction, Tober presented no evidence in support of dissolution; his case was based exclusively upon his attorney's legal argument.
Appellant's first four points of error relate to errors allegedly committed by the trial court in originally granting the temporary injunction; each of these matters were brought to the trial court's attention prior to the signing of the temporary injunction order, and were obviously rejected by the trial court. These points of error provide that the trial court erred in granting the temporary injunction because: (1) neither the contract of employment nor the restrictive covenant designate the market area of Turner, (2) the restrictive covenant is not reasonable either as to limitation of time or limitation of geographical area, (3) under the evidence presented Turner had breached the contract of employment prior to any breach upon the part of Tober, and (4) an inadequate injunction bond was set by the court.
We hold that the above four points of error are not a proper basis upon which Tober may contend that the trial court abused its discretion in overruling the motion to dissolve. They are a proper basis upon which Tober could have contended, upon direct appeal of the order granting the temporary injunction, that the trial court abused its discretion in granting such. By failing to perfect an appeal from the grant of the temporary injunction, Tober has now, upon appeal of the motion to dissolve, waived the right to complain of the specified alleged errors; this is particularly true where, as here, none of the alleged errors are fundamental (i.e. jurisdictional) in nature, and where, as here, the trial court was made aware of such alleged errors prior to signing the temporary injunction.
Additionally, to the extent that appellant complains that the restrictive covenant was unreasonable as to geographic scope, we note that the trial court has limited the scope of the temporary injunction in this regard, and has thereby reformed the covenant. Since this is not an appeal of the grant of the temporary injunction, we will presume that the record as a whole supports the trial court's action in granting the temporary injunction. See State v. Friedmann, 572 S.W.2d 373 (Tex.Civ.App.1978, writ ref'd n.r.e.) We will not look to the statement of facts from the hearing on the motion to grant the temporary injunction to ascertain if the evidence supports such grant. Id.
Finally, we hold that the trial court has no duty, upon the filing of a motion to dissolve, to reconsider the propriety of the granting of a temporary injunction, at least where the motion does not allege fundamental error, and also where the motion is not based upon evidence of changed conditions but is rather based upon evidence which was before the court at the prior hearing on the motion to grant the temporary injunction. We will specify both practical and legal reasons for this holding below; however, assuming it to be sound, the trial court cannot be held to have abused its discretion where, as here, it refused to alter its prior decision in the absence of new evidence.
From a practical standpoint, if a litigant could, by motion to dissolve, force reconsideration of the original grant, without a showing of changed conditions, then there is an incentive for him to do so at least once, or more often, in hope that he will be able to wear down the resistance of the original trial judge, or in hope that he will be able to secure a hearing before a different trial judge who may be more sympathetic. Such actions needlessly add to the judicial caseload, both at the trial and appellate level. Recognition of the principle that the trial court has no duty to reconsider the validity of the original grant of temporary injunction upon motion to dissolve enables the trial court to dispose of motions to dissolve solely upon the pleadings when the motion to dissolve, on its face, shows that the litigant offers no new evidence.
There is a legal basis for holding that the trial court has no duty, upon motion to...
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