Dennie Bruns v. Top Design Incorporated

• Court: Court of Appeals of Texas
• Decided: October 2, 2008
• Docket: 01-08-00070-CV
• Status: Published

Opinion

Opinion issued October 2, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00070-CV

DENNIE BRUNS, Appellant

V.

TOP DESIGN INCORPORATED, Appellees

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 07CV1439

MEMORANDUM OPINION

Top Design, Inc. ("TDI") sued Bruns for breach of an employment, noncompetition agreement. The trial court initially granted an ex parte temporary restraining order, which set a time and date for a hearing on the motion for temporary injunction and set a bond at $5,000. After a hearing, the trial court issued a temporary injunction which restrained Bruns from certain professional activities "in violation of his non-compete agreement." Although the temporary injunction order set the case for trial, it did not set any bond.

In one issue, appellant contends that the trial court erred by granting the temporary injunction, because: (1) the temporary injunction did not maintain or preserve the status quo, but actually altered the status quo; (2) the trial court did not require or fix a bond; (3) Top Design did not show irreparable injury, including noneconomic damages; and (4) the temporary injunction did not include a detailed definition of the acts to be restrained.

Discussion

Whether to grant or deny a temporary injunction is a decision committed to the sound discretion of the trial court and will be reversed only for a clear abuse of that discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The Rules of Civil Procedure require that an order granting a temporary injunction set the cause for trial on the merits and fix the amount of security to be given by the applicant. See Tex. R. Civ. P. 683, 684. "These procedural requirements are mandatory, and an order granting a temporary injunction that does not meet them is subject to being declared void and dissolved." Qwest Commc'ns Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000); see InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986) (stating that requirements of Rule 683 are mandatory and must be strictly followed); see also Lancaster v. Lancaster, 291 S.W.2d 303, 308 (Tex. 1956) (holding temporary injunction void when no bond required of applicant).

TDI argues that it filed a motion to modify the temporary injunction order, which was scheduled for hearing on May 2, 2008. No subsequent or modified temporary injunction order has been filed with this Court. ⁽¹⁾ We hold that the January 25, 2008 temporary injunction is void because no bond was required of the applicant.

Order Transferring Venue

In addition, TDI notified the Court by letter that on May 2, 2008, the trial court granted appellant's motion to transfer venue to El Paso County, Texas, a county outside the jurisdiction of this Court. Texas Const. art. V, § 6; Tex. Gov't Code Ann. §§ 22.201(b), 22.202, 22.216(a) (Vernon 2004 & Supp. 2008). While an appeal from an interlocutory order is pending, the trial court may not make an order that "interferes with or impairs the jurisdiction of the appellate court." Tex. R. App. P. 29.5(b). Accordingly, we vacate the order transferring venue because it interferes

with our jurisdiction. Tex. R. App. P. 29.5(b), 29.6(a)(2); see McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 238 (Tex. 2001).

Conclusion

We reverse the January 25, 2008 order and dissolve the void temporary injunction against appellant, Dennie Bruns. We vacate the order transferring venue to El Paso County. The Clerk of this Court is directed to issue the mandate immediately. See Tex. R. App. P. 18.6.

Sam Nuchia

Justice

Panel consists of Chief Justice Radack and Justices Taft and Nuchia.

1. Under Rule of Appellate Procedure 29.6(a)(1), we would have been authorized to review such a modified temporary injunction had it been signed during the pendency of this appeal. Tex. R. App. P. 29.6(a)(1); Tanguy v. Laux, No. 01-07-00765-CV, 2008 WL 920607, *2-3 (Tex. App.--Houston [1st Dist.] Apr. 3, 2008, no pet.).