Andy Sanchez v. John H. Miller, Jr. Co. Inc.

Opinion

ACCEPTED

04-15-00360-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

8/25/2015 3:39:53 PM

KEITH HOTTLE

CLERK

APPEAL NO. 04-15-00360-CV FILED IN

4th COURT OF APPEALS

IN THE COURT OF APPEALS FOR THESAN ANTONIO, TEXAS 8/25/2015 3:39:53 PM

FOURTH SUPREME JUDICIAL DISTRICT OF TEXAS KEITH E. HOTTLE

SAN ANTONIO, TEXAS Clerk

ANDY SANCHEZ

Appellant,

vs.

JOHN H. MILLER, JR. CO., INC.

Defendant-Appellee.

Appealed from the District Court of Kerr County, Texas 198th Judicial District

Trial Court Cause No. 14467B The Honorable Rex Emerson

____________________________

REPLY BRIEF OF APPELLANT

RICHARD L. ELLISON Broadway Bank Building 500 Main St. Suite J Kerrville, Texas 78028 830.792.5601 Texas Bar No.: 06580700 rellison@richellison.com Attorney for Andy Sanchez Defendant-Appellant

TABLE OF CONTENTS

TABLE OF CONTENTS …………………………………………………………………… i INDEX OF AUTHORITIES ………………………………………………………………… i ARGUMENT ……………………………………………………………………………... 1 PRAYER AND CONCLUSION …………………………………………………………...... 2 CERTIFICATE OF SERVICE ………………………………………………………………. 3

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INDEX OF AUTHORITIES

TEXAS RULE OF CIV. P. 684 ……………………………………………………………. 1 Bishop v. Clawson, 2012 WL 19668 (Tex.App.-2012 n.w.h.) ………………………… 2 Del Valle I.S.D. v. Lopez, 845 S.W.2d 808 (Tex.1992) ……………………..………… 2 Ex Parte Jordan, 142 S.W.3d 586, 590 (Tex.1990) …………………………………… 1 Ex Parte Lesher, 651 S.W.3d 586, 590 (Tex.1983) ……………………………………. 1 Letson v. Barnes, 979 S.W.2d 414 (Tex.App.-Amarillo 1998, pet. denied)……………..……………………………………………………………………. 2 Ludewig v. Houston Pipeline Co., 737 S.W.2d 15 (Tex.App.-Corpus Christi 1987 n.w.h.) ……………………………………………………………………………. 1

i

TO THE HONORABLE FOURTH COURT OF APPEALS:

Appellant Andy Sanchez respectfully files this brief in reply to Appellee’s Brief.

ARGUMENT

A. The original Temporary Injunction-Amended expired Aug. 7, 2014.

The trial court signed the Temporary Injunction – Amended on July 7, 2014.

Paragraph 4 stated “Plaintiff’s application for a permanent injunction is set for trial on

August 7, 2014 at 9:00 a.m…. This Order expires at that time or until further order of the

Court.” The case did not go to trial and the trial court did not sign any order that extended

it. The temporary injunction expired by its own terms on Aug. 7, 2014. The trial court

may have intended that the original injunction would remain in effect after that date, but

that is not what it ordered.

B. The May 20, 2015 Order failed to require a bond.

There was no injunction in place from Aug. 7, 2014 until May 20, 2015 when the trial

court signed the Order stating in Paragraph 4 “The Court confirms that the July 7, 2014

Temporary Injunction remains in full force and effect and orders that it is in full force and

effect until final trial of this matter or further order of the Court.” The Order did not

require Miller to post a bond, as required by Tex. R. Civ. P. 684. The Order was void

when signed. Ex parte Jordan, 142 S.W.3d 586, 590 (Tex.1990); Ex parte Lesher, 651

S.W.2d 734, 736 (Tex.1983).

2

C. The Order could not “relate back” to an expired injunction.

Appellee cites no authority that support its argument that the Order could “relate

back” to an expired injunction. As stated, the trial court may have intended that the

original injunction would remain in effect after that date, but that is not what it ordered.

In Ludewig v. Houston Pipeline Co., 737 S.W.2d 15 (Tex.App. – Corpus Christi 1987

n.w.h.) there is no indication that the original injunction had expired before the trial court

amended it.

In Bishop v. Clawson, 2012 WL 19668 (Tex.App. – 2012 n.w.h.), a memorandum

opinion, the trial court issued an injunction, then vacated it, then reinstated it. Again,

there is no indication that the original injunction had expired on its own terms. Further,

there is no indication that the reinstated injunction failed to require a bond, as in the

instant case. In Del Valle I.S.D. v Lopez, 845 S.W.2d 808 (Tex.1992) the only issue was

whether there was an appealable order.

D. There is no evidence to support the May 20, 2015 Order.

Appellee offered no evidence at the May 6, 2015 hearing. Whether the original

Injunction was supported by evidence, it expired on Aug. 7, 2014, and Appellee waited

nine months to do anything, then presented no evidence at the hearing. An injunction

cannot be upheld without evidence. Letson v. Barnes, 979 S.W.2d 414, 417 (Tex.App. –

Amarillo 1998, pet. denied).

3

CONCLUSION AND PRAYER

The original injunction expired on its own terms on Aug. 7, 2014. Appellee failed

to do anything to extend or reinstate it for seven months. Then, it presented no evidence,

and obtained a new injunction that failed to require a bond. The new injunction was an

appealable order, and Appellant timely appealed. For these reasons, Appellant prays that

this Court order the injunction dissolved.

Respectfully submitted,

RICHARD L. ELLISON, P.C. Broadway Bank Building 500 Main St., Suite J Kerrville, Texas 78028 Tel. (830) 792-5601 Fax. (830) 792-5602 rellison@richellison.com

By: /s/ Richard L. Ellison SBOT: 06580700

ATTORNEY FOR APPELANT ANDY SANCHEZ

Certificate of Service

I certify that on the 25th day of August, 2015 I filed this brief with the Clerk of court via the Prodoc efiling system, who will served a true and correct copy via fax to Appellee counsel Stephen B. Schulte.

/s/ Richard L. Ellison