No. 01-19-00060-CV

In the Court of Appeals

For the First District of Texas
Houston, Texas

ACCEPTED
01-19-00060-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/7/2019 9:28 PM
CHRISTOPHER PRINE
CLERK

FILED IN
1st COURT OF APPEALS HOUSTON, TEXAS

3/7/2019 9:28:02 PM

CHRISTOPHER A. PRINE Clerk

Paul Wright and Theresa Wright,

Appellants

vs.

Brandon Liming and Jenna Liming,

Appellees.

Appeal from the 334th Judicial District Court of Harris County, Texas, Hon. Judge Steven Kirkland Trial Court Cause No. 2018-19746

BRIEF OF APPELLANTS,

PAUL WRIGHT AND THERESA WRIGHT

Mr. Preston C. Goodwin Mr. Scott Rothenberg

State Bar No. 08185300 State Bar No. 17316750
Goodwin & Harrison, L.L.P. Law Offices of Scott Rothenberg
P.O. Box 8278 6575 West Loop South, Suite 500
The Woodlands, Texas 77387-8278 Bellaire, Texas 77401-3609
preston@goodwin-harrison.com scott@rothenberglaw.com
telephone: (281) 363-3136 telephone: (713) 667-5300
telecopier: (281) 363-3215 telecopier: (713) 667-0052
Trial Counsel for Appellants, Lead Appellate Counsel for
Paul & Theresa Wright Appellants, Paul & Theresa Wright

ORAL ARGUMENT REQUESTED

Identity of Parties and Counsel

Pursuant to TEX. R. APP. P. 38.1(a), the following is a list of all parties to the trial court’s order appealed from and the names and addresses of all trial and appellate counsel:

Plaintiffs Brandon Liming and Jenna Liming
Trial and appellate Ms. Rosemarie Joyal
counsel: 322 North Main Street
Conroe, Texas 77301

Defendants: Paul Wright and Theresa Wright

Trial and appellate Mr. Preston C. Goodwin

counsel: P.O. Box 8278
The Woodlands, Texas 77387-8278

Mr. Scott Rothenberg

6575 West Loop South, Suite 500
Bellaire, Texas 77401-3509

-i-

Table of Contents

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

-ii-

Arguments and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

First Issue Presented

The trial court clearly abused its discretion by signing a void Temporary Injunction on December 20, 2018. The Temporary Injunction is void because it fails to describe in reasonable detail, and not by reference to the complaint or other documents, the act or acts sought to be restrained, in violation of Texas Rule of Civil Procedure 683. CR 22-23 . . . . . 10

Second Issue Presented

The trial court clearly abused its discretion by signing a void Temporary Injunction on December 20, 2018. The Temporary Injunction is void because it fails to set forth, with mandatory specificity, why no adequate remedy at law exists in favor of the Limings, and how the Limings will suffer a probable, imminent and irreparable injury during the pendency of the lawsuit, all as required by Texas Rule of Civil Procedure 683 and well-established black-letter authority from

the Supreme Court of Texas and this Court. CR 22-23 . . . . . . . 17

Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ante

Appendix Tab A – Temporary Injunction. CR 22-23.

Appendix Tab B – Texas Rule of Civil Procedure 683.

-iii-

Index of Authorities

Cases Page

Arkoma Basin Exploration Co. v.

FMF Assocs. 1990-A, Ltd.,

249 S.W.3d 380 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Associated Gen. Contractors of Tex., Inc. v. City of El Paso,

932 S.W.2d 124 (Tex. App.—El Paso 1996, no pet.) . . . . . . . . . . . 10

AutoNation, Inc. v. Hatfield,

186 S.W.3d 576 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). . . . . . . . . . . . . . . . . . 12, 13, 22

Bd. of Equalization of the City of Plano v. Wells, 473 S.W.2d 88 (Tex. Civ. App.—
Dallas 1971, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Butnaru v. Ford Motor Co.,

84 S.W.3d 198 (Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 17

Byrd Ranch, Inc. v. Interwest Sav. Ass’n, 717 S.W.2d 452 (Tex. App.—
Fort Worth 1986, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Camp v. Shannon,

162 Tex. 515, 348 S.W.2d 517 (1961) . . . . . . . . . . . . . . . . . . . . . . 10

Charter Med. Corp. v. Miller,

547 S.W.2d 77 (Tex. Civ. App.—Dallas 1977, no writ) . . . . . . . . 12

City of Corpus Christi v. Friends of the Coliseum,

311 S.W.3d 706 (Tex. App.—Corpus Christi 2010, no pet.) . . . . . 18

-iv-

Courtlandt Place Historical Found. v. Doerner, 768 S.W.2d 924 (Tex. App.—
Houston [1st Dist.] 1989, no writ) . . . . . . . . . . . . . . . . . . . . . . . . 20

El Tacaso, Inc. v. Jireh Star, Inc.,

356 S.W.3d 740
(Tex. App.—Dallas 2011, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . 22

Fasken v. Darby,

901 S.W.2d 591 (Tex. App.—
El Paso 1995, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22

Indep. Capital Mgmt., L.L.C. v. Collins,

261 S.W.3d 792 (Tex. App.—Dallas 2008, no pet.). . . . . . 13, 19, 20

InterFirst Bank San Felipe, N.A. v. Paz Constr. Co.,

715 S.W.2d 640 (Tex. 1986) (per curiam) . . . . . . . . . . 13, 20, 21, 24

Kotz v. Imperial Capital Bank,

319 S.W.3d 54
(Tex. App.—San Antonio 2010, no pet.) . . . . . . . . . . . . . . . . . . . . 21

Lifeguard Benefit Servs., Inc. v.

Direct Med. Network Solutions, Inc.,

308 S.W.3d 102 (Tex. App.—Fort Worth 2010, no pet.). . . . . . . . 11

Quest Commc’ns Corp. v. AT & T Corp.,

24 S.W.3d 334 (Tex. 2000) (per curiam) . . . . . . . . . . . 19, 20, 21, 24

Raine v. Searles,

302 S.W.2d 486
(Tex. Civ. App.—El Paso 1957, no writ) . . . . . . . . . . . . . . . . . . . . 10

San Antonio Bar Ass’n v. Guardian Abstract & Title Co.,

156 Tex. 7, 291 S.W.2d 697 (1956) . . . . . . . . . . . . . . . . . . . . . 11-12

-v-

Schulz v. Schulz,

478 S.W.2d 239
(Tex. Civ. App.—Dallas 1972, no writ) . . . . . . . . . . . . . . . . . . . . . 11

State v. Cook United, Inc.,

464 S.W.2d 105 (Tex. 1971). . . . . . . . . . . . . . . . . . 11, 13, 18, 20, 21

Tex. Indus. Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529 (Tex. App.—
Houston [1st Dist.] 1992, no writ) . . . . . . . . . . . . . . . . . . . . . 17-18

Univ. of Tex. Med. School v. Than,

834 S.W.2d 425 (Tex. App.—
Houston [1st Dist.] 1992, no writ) . . . . . . . . . . . . . . . . . . . . . . . . 17

Vaughn v. Drennon,

202 S.W.3d 308 (Tex. App.—Tyler 2006, no pet.). . . . . . . . . . . . . 12

Villalobos v. Holguin,

146 Tex. 474, 208 S.W.2d 871 (1948) . . . . . . . . . . . . . . . . . . . . . . 12

Wilson N. Jones Mem’l Hosp. v. Huff, 188 S.W.3d 215
(Tex. App.– Dallas 2003, pet. denied) . . . . . . . . . . . . . . . . 10, 11, 17

Statutes Page

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4). . . . . . . . . . . . . . . . . . 2

TEX. CIV. PRAC. & REM. CODE ANN. § 65.011 (West 2008) . . . . . . . . . . . 17

-vi-

Rules Page

TEX. R. APP. P. 9.4(i)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

TEX. R. APP. P. 38.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TEX. R. CIV. P. 683 . . . . . . . . . . . . . . . . . . . . . . iii, 1, 3, 7, 8, 9, 11, 12, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24

Secondary Authorities Page

Black’s Law Dictionary 308 (8th ed. 2004) . . . . . . . . . . . . . . . . . . . . . . 12

-vii-

No. 01-19-00060-CV

In the Court of Appeals

For the First District of Texas

Houston, Texas

Paul Wright and Theresa Wright, Appellants
vs.

Brandon Liming and Jenna Liming,

Appellees.

Appeal from the 334th Judicial District Court of Harris County, Texas, Hon. Judge Steven Kirkland Trial Court Cause No. 2018-19746

BRIEF OF APPELLANTS,

PAUL WRIGHT AND THERESA WRIGHT

TO THE HONORABLE FIRST COURT OF APPEALS:

COME NOW, Appellants, Paul Wright and Theresa Wright, to file

this, their Brief of Appellants. In support thereof, the Wrights would

respectfully show this Honorable Court as follows:

Statement of the Case

The Limings filed suit against the Wrights, seeking a declaratory

judgment, injunctive relief, monetary damages, attorney’s fees and costs

of court, arising out of a dispute as to right of physical access to a strip of

real property located in Harris County, Texas. CR 4-11. The Wrights

answered the suit asserting a general denial and the existence of an

easement in their favor as to the disputed property. CR 12-13, 16-17.

On December 20, 2018, the trial court signed an order granting

temporary injunctive relief against the Wrights. CR 22-23. The trial

court did so even though the order fails to describe in reasonable detail,

and not by reference to the complaint or other documents, the act or acts

sought to be restrained, as required by Texas Rule of Civil Procedure 684.

CR 22-23. The trial court did so even though the order does not set forth,

with mandatory specificity, why no adequate remedy at law exists in favor

of the Limings, and how the Limings will suffer a probable, imminent and

irreparable injury during the pendency of the lawsuit, all as required by

Texas Rule of Civil Procedure 683 and well-established black-letter

authority from the Texas Supreme Court and this Court. CR 22-23.

This mandatory accelerated interlocutory appeal resulted. CR 28-31.

-1-

Statement Regarding Oral Argument

The trial court’s Temporary Injunction is void because it violates

well-established black letter law pertaining to orders granting injunctive

relief in two different respects. As a result, it is likely this Court can

properly dispose of this appeal without oral argument. However, if the

Court determines it would benefit from oral argument, the undersigned

is certainly willing to participate therein.

Statement of Jurisdiction

This is an interlocutory appeal of an order granting a temporary

injunction. This Court has jurisdiction over this appeal pursuant to

section 51.014(a)(4) of the Texas Civil Practice & Remedies Code.

-2-

Statement of Issues Presented

First Issue Presented

The trial court clearly abused its discretion by signing a void Temporary Injunction on December 20, 2018. The Temporary Injunction is void because it fails to describe in reasonable detail, and not by reference to the complaint or other documents, the act or acts sought to be restrained, in violation of Texas Rule of Civil Procedure 683. CR 22-23.

Second Issue Presented

The trial court clearly abused its discretion by signing a void Temporary Injunction on December 20, 2018. The Temporary Injunction is void because it fails to set forth, with mandatory specificity, why no adequate remedy at law exists in favor of the Limings, and how the Limings will suffer a probable, imminent and irreparable injury during the pendency of the lawsuit, all as required by Texas Rule of Civil Procedure 683 and well-established black-letter authority from the Supreme Court of Texas and this Court. CR 22-23.

-3-

Statement of Facts

On March 23, 2018, Brandon Liming and Jenna Liming filed their

Plaintiffs’ Original Petition (hereinafter “original petition”) complaining

of Paul Wright and Theresa Wright. CR 4-11. The Limings alleged that

they are the owners of a tract of land located in Harris County, Texas, and

that the Wrights “commenced a course of conduct invasive of” the Limings

“exclusive right to the use and enjoyment of” the Limings’ “land by

repeated trespassing” on the Limings’ property. CR 5.

The Limings pleaded for a declaratory judgment stating that the

Wrights have no right to access the disputed strip of real property. CR 11.

The Limings also pleaded for a temporary restraing order, temporary

injunction, and permanent injunction all prohibiting the Wrights’

interference with the Limings’ use of their land. CR 8-9. The Limings

further pleaded for recovery of actual damages, attorney’s fees, and costs

of suit. CR 11.

Thereafter, on April 20, 2018, and May 22, 2018, respectively, Paul

Wright and Theresa Wright filed their original answers. CR 12-13, 16-17.

Both Paul and Theresa affirmatively pleaded their right to an easement

by estoppel as well as their general denials, as authorized by law. CR 12,

-4-

16.

The trial court held an oral hearing on the Limings’ request for a

temporary injunction on July 27, 2018. RR 1-272. While the reporter’s

record of the injunction hearing provides helpful background regarding

the evidence considered by the trial court, this Court need not study the

proceedings at length. The specific legal complaints set forth in this Brief

of Appellants address the contents, and more particularly, the omissions,

in the two page Temporary Injunction order that was signed by the trial

court on December 20, 2018 – almost five full months after the close of

evidence in the temporary injunction proceedings. Compare RR at 1

(hearing held on July 27. 2018) with CR 22-23 (Temporary Injunction

order signed on December 20, 2018).

The Temporary Injunction contains odd, irrefutably insupportable

language. The language is so odd that the Wrights take this opportunity

to quote verbatim what the trial court enjoined the Wrights from doing:

IT IS, THEREFORE, ORDERED that Defendants, Paul Wright and Theresa Wright, are commanded forthwith to desist and refrain from the following until judgment in this cause is rendered by this Court:

-5-

a. Enjoining Defendants from trespassing onto Plaintiffs’ property either under any claimed easement or for any other purpose during the pendency of this lawsuit as well as in the future.

b. Restraining Defendants and Defendants’ agents, servants, family members and employees from directly or indirectly accessing or attempting to use the Plaintiffs’ property as defined in their Warranty Deed for any reason or at any time presently or in the future and/or interfering with the Plaintiffs’ use of the property until further orders by the court.

The Court will please note that the record contains zero evidence of

any kind that either Paul Wright or Theresa Wright is a judge of any kind,

in any court, in any jurisdiction, whatsoever. RR 1-272. Therefore, it was

wholly unnecessary and without practical effect for the trial court to order

the Wrights to desist and refrain from enjoining themselves and their

family members from trespassing onto the Limings’ property. CR 22.

The language contained in paragraph (a) enjoins certain activities

by certain persons with respect to “Plaintiffs’ property.” CR 22. Similarly,

the language contained in paragraph (b) enjoins certain activities by

certain persons with respect to “Plaintiffs’ property as defined in their

Warranty Deed.” CR 22. Neither “Plaintiffs’ property” nor “Plaintiffs’

property as defined in their Warranty Deed” is defined anywhere in the

-6-

Temporary Injunction. CR 22-23. While it would certainly be possible to

figure out what the trial court intended by reference to the evidence, or

the pleadings, or the arguments of counsel, doing so is strictly prohibited

by Texas Rule of Civil Procedure 683 (“Every order granting an injunction

. . . shall set forth the reasons for its issuance; shall be specific in terms;

shall describe in reasonable detail and not by reference to the complaint

or other document, the act or acts sought to be restrained. . . .”). The

Temporary Injunction’s failure to set forth the act or acts sought to be

restrained in reasonable detail renders the Temporary Injunction void

pursuant to the first sentence of Texas Rule of Civil Procedure 683.

The language contained in paragraph (b), quoted above, is equally

problematic. Texas Rule of Civil Procedure 683 expressly states that a

temporary injunction “is binding only upon the parties to the action, their

officers, agents, servants, employees, and attorneys, and upon those

persons in active concert and participation with them who receive actual

notice of the order by personal service or otherwise.” Rule 683 nowhere

mentions “family members.” But that did not stop the trial court from

enjoining the Wrights’ family members, without any consideration of

whether they were acting in active concert or participation with the

-7-

Wrights, and without any consideration of whether the family members

receive actual notice of the temporary injunction by personal service or

otherwise. The inclusion of the Wrights’ family members in the temporary

injunction violates the second half of the first sentence of Texas Rule of

Civil Procedure 683, rendering the temporary injunction void as a matter

of law.

Finally, while the trial court did find “that Defendants, Paul Wright

and Theresa Wright do intend and will continue to trespass [sic] Plaintiffs’

property and to interfere with the construction of Plaintiffs’ home before

the Court can render judgment in this cause” – CR 22 – the trial court did

not set forth in the Temporary Injunction, with mandatory specificity, why

the Limings have no adequate remedy at law, or how the Limings will

suffer a probable, imminent and irreparable injury during the pendency

of the lawsuit, all as required by Texas Rule of Civil Procedure 683 and

well-established black-letter authority from the Supreme Court of Texas

and this Court. The failure to include these matters in the Temporary

Injunction renders it void as a matter of law.

As a result of all of the foregoing, this interlocutory, mandatory

accelerated appeal resulted. CR 28-31.

-8-

Summary of the Argument

The trial court clearly abused its discretion by signing a void

Temporary Injunction on December 20, 2018. The Temporary Injunction

Order is void for two reasons.

First, the Temporary Injunction is void because it fails to describe

in reasonable detail, and not by reference to the complaint or other

documents, the act or acts sought to be restrained, as required by Texas

Rule of Civil Procedure 683. CR 22-23.

Second, the Temporary Injunction is void because it fails to set forth,

with mandatory specificity, why no adequate remedy at law exists in favor

of the Limings, or how the Limings will suffer a probable, imminent and

irreparable injury during the pendency of the lawsuit, all as required by

Texas Rule of Civil Procedure 683 and well-established black-letter

authority from the Texas Supreme Court and this Court. CR 22-23.

The proper appellate remedy for a void temporary injunction is to

vacate the order in its entirety. The Wrights respectfully request that

relief in this appeal.

-9-

Arguments and Authorities

First Issue Presented (Restated)

The trial court clearly abused its discretion by signing a void Temporary Injunction on December 20, 2018. The Temporary Injunction is void because it fails to describe in reasonable detail, and not by reference to the complaint or other documents, the act or acts sought to be restrained, in violation of Texas Rule of Civil Procedure 683. CR 22-23.

The purpose of a temporary injunction is to preserve the status quo

of the subject matter of a suit pending a trial on the merits. Butnaru v.

Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). A party asking for a

temporary injunction seeks extraordinary equitable relief. Wilson N.

Jones Mem’l Hosp. v. Huff, 188 S.W.3d 215, 218 (Tex. App.– Dallas 2003,

pet. denied). The extraordinary equitable remedy of an injunction must

be carefully regulated and confined to proper cases. See Associated Gen.

Contractors of Tex., Inc. v. City of El Paso, 932 S.W.2d 124, 126 (Tex.

App.—El Paso 1996, no pet.); Raine v. Searles, 302 S.W.2d 486, 487 (Tex.

Civ. App.—El Paso 1957, no writ); see also Camp v. Shannon, 162 Tex.

515, 348 S.W.2d 517, 519 (1961).

The decision to grant or deny a temporary injunction lies in the

sound discretion of the trial court, but the court’s grant or denial is subject

-10-

to reversal for a clear abuse of that discretion. Butnaru, 84 S.W.3d at 204;

Huff, 188 S.W.3d at 218.

In relevant part, Texas Rule of Civil Procedure 683 requires every

order granting a temporary injunction to state the reasons for its issuance,

be specific in terms, and describe in reasonable detail and not by reference

to the complaint or other document, the act or acts sought to be

restrained. TEX. R. CIV. P. 683; Lifeguard Benefit Servs., Inc. v. Direct

Med. Network Solutions, Inc., 308 S.W.3d 102, 116 (Tex. App.—Fort

Worth 2010, no pet.).

“[T]he obvious purpose of [rule 683] is to adequately inform a party

of what he is enjoined from doing and the reason why he is so enjoined.”

Schulz v. Schulz, 478 S.W.2d 239, 244-45 (Tex. Civ. App.—Dallas 1972, no

writ); see also Bd. of Equalization of the City of Plano v. Wells, 473 S.W.2d

88, 91 (Tex. Civ. App.—Dallas 1971, no writ).

A trial court’s order stating its reasons for granting a temporary

injunction must be specific and legally sufficient on its face and not merely

conclusory. See TEX. R. CIV. P. 683 (order “shall be specific in terms”); see

also State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex. 1971); San

-11-

Antonio Bar Ass’n v. Guardian Abstract & Title Co., 156 Tex. 7, 291

S.W.2d 697, 702 (1956) (quoting Villalobos v. Holguin, 146 Tex. 474, 208

S.W.2d 871, 875 (1948)) (law in Texas regarding the specificity of

temporary injunctions is that they must be “as definite, clear and precise

as possible”); Charter Med. Corp. v. Miller, 547 S.W.2d 77, 78 (Tex. Civ.

App.—Dallas 1977, no writ); Vaughn v. Drennon, 202 S.W.3d 308, 316

(Tex. App.—Tyler 2006, no pet.) (injunction must be definite, clear, and

concise, leaving the person enjoined in no doubt about his duties, and

should not be such as would call on person enjoined for interpretations,

inferences, or conclusions); Arkoma Basin Exploration Co. v. FMF Assocs.

1990-A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex. 2008) (“conclusory” is

defined as “[e]xpressing a factual inference without stating the underlying

facts on which the inference is based”) (citing Black’s Law Dictionary 308

(8th ed. 2004)).

Merely stating that a party “will suffer irreparable harm” or “has

no adequate remedy at law” does not meet the Rule 683 requirement for

specificity. AutoNation, Inc. v. Hatfield, 186 S.W.3d 576, 581 (Tex.

App.—Houston [14th Dist.] 2005, no pet.).

-12-

“The requirements of Rule 683 are mandatory and must be strictly

followed. When a temporary injunction order does not adhere to the

requirements of Rule 683, the injunction order is subject to being declared

void and dissolved.” InterFirst Bank San Felipe, N.A. v. Paz Constr. Co.,

715 S.W.2d 640, 641 (Tex. 1986) (per curiam); see AutoNation, 186 S.W.3d

at 581; Indep. Capital Mgmt., L.L.C. v. Collins, 261 S.W.3d 792, 795 (Tex.

App.—Dallas 2008, no pet.). Even if a sound reason for granting relief

appears elsewhere in the record, the Texas Supreme Court states in the

strongest terms that Rule 683 is mandatory. See State v. United Cook,

Inc., 464 S.W.2d 105 (Tex. 1971) (stating trial court cannot be excused

from setting forth specific reasons in support of injunction). Thus, a trial

court abuses its discretion if it issues a temporary injunction order that

does not comply with the Rule 683 requirements. Indep. Capital Mgmt.,

261 S.W.3d at 795.

The trial court’s Temporary Injunction contains odd, irrefutably

insupportable language. The language is so odd that the Wrights take

this opportunity to quote verbatim what the trial court enjoined the

Wrights from doing:

-13-

IT IS, THEREFORE, ORDERED that Defendants, Paul Wright and Theresa Wright, are commanded forthwith to desist and refrain from the following until judgment in this cause is rendered by this Court:

a. Enjoining Defendants from trespassing onto Plaintiffs’ property either under any claimed easement or for any other purpose during the pendency of this lawsuit as well as in the future.

b. Restraining Defendants and Defendants’ agents, servants, family members and employees from directly or indirectly accessing or attempting to use the Plaintiffs’ property as defined in their Warranty Deed for any reason or at any time presently or in the future and/or interfering with the Plaintiffs’ use of the property until further orders by the court.

The Court will please note that the record contains zero evidence of

any kind that either Paul Wright or Theresa Wright is a judge of any kind,

in any court, in any jurisdiction, whatsoever. RR 1-272. Therefore, it was

wholly unnecessary and without practical effect for the trial court to order

the Wrights to desist and refrain from enjoining themselves from

trespassing onto the Limings’ property. CR 22.

The language contained in paragraph (a) enjoins certain activities

by certain persons with respect to “Plaintiffs’ property.” CR 22. Similarly,

the language contained in paragraph (b) enjoins certain activities by

-14-

certain persons with respect to “Plaintiffs’ property as defined in their

Warranty Deed.” CR 22. Neither “Plaintiffs’ property” nor “Plaintiffs’

property as defined in their Warranty Deed” is defined anywhere in the

Temporary Injunction. CR 22-23. While it might certainly be possible to

form an educated guess as to what the trial court intended. by referencing

the evidence, or the pleadings, or the arguments of counsel, doing so is

strictly prohibited by Texas Rule of Civil Procedure 683 (“Every order

granting an injunction . . . shall set forth the reasons for its issuance; shall

be specific in terms; shall describe in reasonable detail and not by

reference to the complaint or other document, the act or acts sought to be

restrained. . . .”).

The Temporary Injunction’s failure to set forth the act or acts sought

to be restrained in reasonable detail, and without reference to pleadings

or other documents, renders the Temporary Injunction void pursuant to

the first sentence of Texas Rule of Civil Procedure 683.

The language contained in paragraph (b), quoted above, is equally

problematic. Texas Rule of Civil Procedure 683 expressly states that a

temporary injunction “is binding only upon the parties to the action, their

officers, agents, servants, employees, and attorneys, and upon those

-15-

persons in active concert and participation with them who receive actual

notice of the order by personal service or otherwise.” Rule 683 nowhere

mentions or includes “family members” within the parties as to whom a

temporary injunction may be binding. But that did not stop the trial court

from enjoining the Wrights’ family members, without any consideration

of whether they were acting in active concert or participation with the

Wrights, and without any consideration of whether the family members

receive actual notice of the temporary injunction by personal service or

otherwise. The inclusion of the Wrights’ family members in the temporary

injunction violates the second half of the first sentence of Texas Rule of

Civil Procedure 683, rendering the temporary injunction void as a matter

of law.

For all of the foregoing reasons, the Wrights pray that this Court

declare that the trial court’s Temporary Injunction is void, and vacate the

trial court’s December 20, 2018 Temporary Injunction in its entirety.

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Second Issue Presented (Restated)

The trial court clearly abused its discretion by signing a void Temporary Injunction on December 20, 2018. The Temporary Injunction is void because it fails to set forth, with mandatory specificity, why no adequate remedy at law exists in favor of the Limings, and how the Limings will suffer a probable, imminent and irreparable injury during the pendency of the lawsuit, all as required by Texas Rule of Civil Procedure 683 and well-established black-letter authority from the Supreme Court of Texas and this Court. CR 22-23.

To be entitled to a temporary injunction, an applicant must plead

and prove three specific elements: (1) a cause of action against the

defendant; (2) a probable right to the relief sought; and (3) a probable,

imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at

204; see Tex. Civ. Prac. & Rem. Code Ann. § 65.011 (West 2008).

“Probable injury” includes the elements of imminent harm,

irreparable injury, and no adequate remedy at law. Univ. of Tex. Med.

School v. Than, 834 S.W.2d 425, 428 (Tex. App.—Houston [1st Dist.] 1992,

no writ). For purposes of a temporary injunction, an injury is irreparable

if the injured party cannot be adequately compensated in damages or if

the damages cannot be measured by any certain pecuniary standard.

Butnaru, 84 S.W.3d at 204; Huff, 188 S.W.3d at 218; see also Tex. Indus.

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Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529, 533 (Tex.

App.—Houston [1st Dist.] 1992, no writ) (applicant for injunctive relief

must establish damages are incapable of calculation or party sought to be

enjoined is incapable of responding in damages).

To comply with rule 683, a trial court must set out in the temporary

injunction order the reasons the court deems it proper to issue the

injunction, including the reasons why the applicant will suffer injury if the

injunctive relief is not ordered. Cook United, Inc., 464 S.W.2d at 106; see

also City of Corpus Christi v. Friends of the Coliseum, 311 S.W.3d 706, 708

(Tex. App.—Corpus Christi 2010, no pet.) (“When a temporary injunction

is based in part on a showing that the applicant would suffer irreparable

harm if the injunction is not issued, Rule 683 requires the order to state

precisely why the applicant would suffer irreparable harm.”) (emphasis in

original)); Byrd Ranch, Inc. v. Interwest Sav. Ass’n, 717 S.W.2d 452, 454

(Tex. App.—Fort Worth 1986, no writ) (necessary for the trial court to give

the reasons why injury will be suffered if the temporary relief is not

ordered).

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It is certainly true that the trial court found “that Defendants, Paul

Wright and Theresa Wright do intend and will continue to trespass [sic]

Plaintiffs’ property and to interfere with the construction of Plaintiffs’

home before the Court can render judgment in this cause”. CR 22. It is

equally true that the trial court did not set forth in the Temporary

Injunction, with mandatory specificity as discussed above, why the

Limings have no adequate remedy at law, or how the Limings will suffer

a probable, imminent and irreparable injury during the pendency of the

lawsuit, all as required by Texas Rule of Civil Procedure 683 and well-

established black-letter authority from the Supreme Court of Texas and

this Court. The failure to include these matters in the Temporary

Injunction renders it void as a matter of law.

The requirements of rule of civil procedure 683 are mandatory and

must be strictly followed. Qwest Communs. Corp. v. AT&T Corp., 24

S.W.3d 334, 337 (Tex. 2000) (per curiam); Indep. Capital Mgmt., L.L.C. v.

Collins, 261 S.W.3d 792, 795 (Tex. App.—Dallas 2008, no pet.). Even if a

sound reason for granting relief appears elsewhere in the record, the

Texas Supreme Court has stated in the strongest terms that Texas Rule

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of Civil Procedure 683 is mandatory. See Cook United, Inc., 464 S.W.2d

at 107 (Calvert, J., concurring) (“The requirement in Rule 683 that the

reasons for issuing an injunction be stated in the order could hardly be

couched in stronger language. It is mandatory.”).

If a temporary injunction order fails to comply with the mandatory

requirements of rule of civil procedure 683, it is void. Qwest Communs.

Corp., 24 S.W.3d at 337; Collins, 261 S.W.3d at 795 (trial court abuses its

discretion by issuing temporary injunction order that does not comply

with requirements of rule 683); see also Courtlandt Place Historical

Found. v. Doerner, 768 S.W.2d 924, 926 (Tex. App.—Houston [1st Dist.]

1989, no writ) (injunction order that fails to comply with requirements of

rule of civil procedure 683 is subject to being declared void and dissolved)

(citing InterFirst Bank San Felipe, 715 S.W.2d at 641).

The Limings will undoubtedly contend that the trial court’s finding

in the Temporary Injunction that the Wrights will “interfere with the

construction of Plaintiffs’ home before the Court can render judgment in

this cause” – CR 22 – is some sort of implied finding that the Wrights will

interfere with the Limings’ quiet enjoyment of their real property. Even

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if that were so, as a matter of law, it would not be legally sufficient to

discharge the trial court’s obligation to issue a sufficiently specific

temporary injunction order pursuant to Rule 683:

Jireh Star argues that the trial court’s order restraining El Tacaso’s interference with Jireh Star’s “quiet enjoyment” of the leasehold is sufficiently detailed to meet the requirements of rule of civil procedure 683. We disagree. See Cook United, Inc., 464 S.W.2d at 108 (McGee, J., dissenting) (“If this Court desires to grant an exception to [rule 683], to the effect that the reason for issuance of the temporary injunction need not be stated, it should be accomplished by a rule change, not by reading something into an order that does not appear in the order itself.”). While the trial court’s temporary injunction order sets out examples of actions to be restrained, the order provides no nexus between the actions restrained and an irreparable injury to Jireh Star that cannot be adequately compensated. See Kotz v. Imperial Capital Bank, 319 S.W.3d 54, 56 (Tex. App.—San Antonio 2010, no pet.) (language in temporary injunction order that tenants will suffer irreparable injury “in their possession and use of the Subject Property in the event that the requested injunctive relief is not granted” was not sufficiently detailed to meet the requirements of rule of civil procedure 683, where the trial court failed to set forth underlying facts to support the finding that “irreparable injury in [the tenants’] possession and use of the Subject Property” will occur, making the court’s finding conclusory.” (emphasis in original)).

Specifically, the trial court’s order does not state or explain the probable, imminent, and irreparable harm Jireh Star will suffer absent an injunction. See id.; see also Qwest Communs. Corp., 24 S.W.3d at 337; InterFirst Bank San Felipe, 715 S.W.2d at 641; Fasken v. Darby, 901 S.W.2d 591,

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593 (Tex. App.—El Paso 1995, no writ) (because probable injury subsumes the elements of irreparable injury and no adequate remedy at law, a valid injunction must articulate the reasons why the identified probable injury is an irreparable one for which appellees have no adequate legal remedy). The trial court’s temporary injunction order simply recites the conclusory statement that Jireh Star has shown that it will suffer an irreparable injury for which it has no other adequate legal remedy. That conclusory statement does not satisfy the rule 683 requirement that a temporary injunction order specify the reasons why the applicant will suffer irreparable harm for which there is no adequate remedy at law. See AutoNation, Inc. v. Hatfield, 186 S.W.3d 576, 581 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (merely stating that a party “will suffer irreparable harm” or “has no adequate remedy at law” does not meet the rule 683 requirement of specificity).

El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 746-47 (Tex.

App.—Dallas 2011, no pet.).

For all of the foregoing reasons, the Wrights pray that this Court

declare that the trial court’s Temporary Injunction is void, and vacate the

trial court’s December 20, 2018 Temporary Injunction in its entirety.

Conclusion and Prayer

The trial court clearly abused its discretion by signing a void

Temporary Injunction on December 20, 2018. The order is void because

it fails to describe in reasonable detail, and not by reference to the

complaint or other documents, the act or acts sought to be restrained, in

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violation of Texas Rule of Civil Procedure 683. CR 22-23.

The trial court clearly abused its discretion by signing a void

Temporary Injunction on December 20, 2018 for a second reason. The

order is void because it fails to set forth, with mandatory specificity, why

no adequate remedy at law exists in favor of the Limings, or how the

Limings will suffer a probable, imminent and irreparable injury during

the pendency of the lawsuit, all as required by Texas Rule of Civil

Procedure 683 and well-established black-letter authority from the Texas

Supreme Court and this Court. CR 22-23.

Simply put, nowhere in the Temporary Injunction does the trial

court ever set forth any factual reasons why the court deemed it necessary

to issue the injunction to prevent injury to the Limings. CR 22-23.

Nowhere in the Temporary Injunction does the trial court ever state

factual, non-conclusory reasons why the court believed that the Limings’

probable rights will be endangered if the temporary injunction at issue did

not issue. CR 22-23. Nowhere in the Temporary Injunction does the trial

court ever state any factual, non-conclusory reasons why the court

believed that the Limings would suffer irreparable injury for which they

had no legal remedy. CR 22-23. Nowhere in the Temporary Injunction

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does the trial court ever state any factual, non-conclusory reasons why the

requested injunctive relief is necessary to preserve the status quo pending

final trial. CR 22-23. Under the well-established authorities set forth

herein, these deficiencies rendered the Temporary Injunction signed by

the trial court on December 20, 2018 void as a matter of law.

Lacking this mandatory language and these mandatory findings, the

Temporary Injunction’s non-compliance with Rule 683 renders it void and

unenforceable as a matter of law. See Qwest Commc’ns., 24S.W.3d at 337;

Interfirst Bank, 715 S.W.2d at 641.

WHEREFORE, PREMISES CONSIDERED, Appellants, Paul Wright

and Theresa Wright respectfully pray that this Court dissolve, vacate,

reverse, and declare to be void, the Temporary Injunction signed on

December 20, 2018 in No. 2018-19746, in the 334th Judicial District Court

of and for Harris County, Texas. Appellants, Paul Wright and Theresa

Wright further pray that costs of this appeal be taxed against Appellees,

Brandon Liming and Jenna Liming. Finally, Appellants, Paul Wright and

Theresa Wright pray for such other and further relief, to which this

Honorable Court of Appeals finds them to be entitled.

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Respectfully submitted,

LAW OFFICES OF SCOTT ROTHENBERG

/s/ Scott Rothenberg

Scott Rothenberg
scott@rothenberglaw.com email
State Bar No. 17316750
6575 West Loop South, Suite 500
Bellaire, Texas 77401-3609
(713) 667-5300 telephone
(713) 667-0052 telecopier
LEAD APPELLATE COUNSEL FOR APPELLANTS, PAUL & THERESA WRIGHT

GOODWIN & HARRISON, L.L.P.

Preston C. Goodwin
email: preston@goodwin-harrison.com State Bar No. 08185300 P.O. Box 8278

The Woodlands, Texas 77387-8278
Telephone: (281) 363-3136
Telecopier: (281) 363-3215
TRIAL ATTORNEY-IN-CHARGE FOR APPELLANTS, PAUL & THERESA WRIGHT

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