Double Diamond-Delaware, Inc. v. Walkinshaw, John and Cathy

Court of Appeals of Texas

Double Diamond-Delaware, Inc. v. Walkinshaw, John and Cathy

Court of Appeals of Texas·Decided June 27, 2013·No. 05-12-01140-CV·Published

Opinion

Dismiss and Opinion Filed June 27, 2013.

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-12-01140-CV

DOUBLE DIAMOND-DELAWARE, INC., DOUBLE DIAMOND, INC., WHITE BLUFF CLUB CORP., NATIONAL RESORT MANAGEMENT CO., R. MICHAEL WARD, FRED CURRAN, GEORGE COLLINS, LARRY GROPPEL, RANDY GRACY, CLARK WILLINGHAM, DONALD FRITZ, MILT BERGMAN, AND WHITE BLUFF PROPERTY OWNERS’ ASSOCIATION, INC., Appellants V. JOHN WALKINSHAW, ET AL., Appellees

On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. 11-10333-J

MEMORANDUM OPINION Before Chief Justice Wright, Justice Lang, and Justice Myers Opinion by Justice Lang In this interlocutory appeal, Double Diamond-Delaware, Inc., Double Diamond, Inc.,

White Bluff Club Corp., National Resort Management Co., R. Michael Ward, Fred Curran,

George Collins, Larry Groppel, Randy Gracy, Clark Willingham, Donald Fritz, Milt Bergman,

and White Bluff Property Owners’ Association, Inc., appeal the trial court’s order granting John

Walkinshaw, et al.’s,1 application for a temporary injunction.

This case was set for submission on April 23, 2013. However, on April 15, 2013,

counsel for Walkinshaw, et al., advised this Court that on April 8, 2013, the trial court granted

1 There are approximately one thousand appellees in this case. See the judgment in this appeal for a complete listing of the names of the appellees. Walkinshaw, et al.’s, motion for partial summary judgment, which addressed their claims for

declaratory judgment and application for a permanent injunction. In response, this Court

directed the parties to advise the Court whether the issues in the interlocutory appeal had become

moot as a result of the trial court’s April 8, 2013 order. On April 17, 2013, counsel for Double

Diamond sent this Court a letter stating, in part, the trial court’s April 8, 2013 order was

ineffective as an injunction and “d[id] not technically moot the pending appeal.” Also, they

stated that they were “in the process of asking the trial court to permit an interlocutory appeal

from the April 8 ruling.” Counsel for Double Diamond also requested that this Court remove the

appeal from submission on April 23, 2012. On April 18, 2013, counsel for Walkinshaw, et al.,

sent this Court a letter stating, in part, “[t]he trial court’s April 8, 2013 order is a determination

on the merits regarding the issues involved in the temporary injunction.” On April 19, 2013, by

this Court’s own motion, we removed this appeal from submission and directed the parties to file

additional briefs on the issue of jurisdiction.2

On May 14, 2013, a supplemental clerk’s record was filed in this case. That record

shows that Walkinshaw, et al., filed a motion for determination of attorneys’ fees, motion for

severance and entry of final judgment, and motion for entry of scheduling order. The

supplemental clerk’s record showed that these motions were set for a hearing before the trial

court on May 24, 2013. On May 30, 2013, this Court sent the parties a letter requesting that they

advise the Court of the outcome of that hearing. In response, counsel for both parties sent letters

advising that the trial court had not ruled on the motions. Instead, the trial court requested

additional oral argument and the next hearing was scheduled for May 31, 2013. After that

hearing, counsel for Double Diamond sent this Court a letter stating that, during the hearing, the

trial court “heard renewed arguments on [Walkinshaw, et al.’s,] Motion for Partial and No-

2 Both parties filed jurisdictional briefs as directed by this Court.

–2– Evidence Summary Judgment and on [Double Diamond’s] Motion for Permission to Appeal

Interlocutory Summary Judgment Rulings, and took both motions under advisement.” In

addition, the trial court advised the parties that “a ruling would be forthcoming by Wednesday,

June 5, 2013.” On June 7, 2013, counsel for Double Diamond sent this Court another letter

stating that

[T]he trial court was to render a decision on the pending motions filed by [Walkinshaw, et al., and Double Diamond] by close of business Wednesday, June 5, 2013. As of the writing of this update, no ruling has been made and none appears on the trial court’s website. We will . . . advise the Court of Appeals upon the entry of any order by the trial court in this matter.

Then, on June 21, 2012, counsel for Double Diamond sent this Court a letter, which advised that

the trial court had ruled on the motions. A copy of the trial court’s letter ruling was attached. 3 It

states, in part,

I appreciate [Walkinshaw, et al.’s,] agreement to proceed as an interlocutory appeal[,] instead of the [trial] [c]ourt granting final judgment. . . . I believe that an interlocutory appeal on the merits is the preferred course of conduct[,] instead of the complications of severing parts. . . .

The [trial] [c]ourt declines to amend the temporary injunction. . . . [T]he underlying merits are being submitted to the Court of Appeals for interlocutory, accelerated appeal. If the Court of Appeals affirms the judgment, [Walkinshaw, et al.,] can have their money returned to them. If the Court of Appeals reverses the judgment, however, and the merits are ultimately judged in [Double Diamond’s] favor, the homeowners’ association should have some protection to collect the disputed amounts.

The sole issue before the trial court in a temporary injunction hearing is whether the

applicant may preserve the status quo pending the trial on the merits. Dallas/Fort Worth Int’l

Airport Bd. v. Ass’n of Taxicab Operators, USA, 335 S.W.3d 361, 364 (Tex. App.—Dallas 2010,

no pet.); Hiss v. Great N. Am. Co., Inc., 871 S.W.2d 218, 219 (Tex. App.—Dallas 1993, no writ).

3 In addition, counsel for Double Diamond attached a copy of the trial court’s amended order granting Walkinshaw et al.’s, motion for partial summary judgment and denying Double Diamond’s motion for partial summary judgment. The amended order also granted the parties permission to appeal pursuant to Texas Civil Practice and Remedies Code section 51.014(d) and Texas Rule of Appellate Procedure 28.2. The trial court’s amended order is not before this Court in this interlocutory appeal.

–3– An appellate court limits its review of the grant or denial of a temporary injunction to whether

the trial court abused its discretion in entering the interlocutory order. Hiss, 871 S.W.2d at 219.

The appeal of a temporary injunction should not be cause for trial delay. Dallas/Fort Worth

Int’l, 335 S.W.3d at 366; Hiss, 871 S.W.2d at 219. Trial courts should proceed expeditiously

from the grant or denial of temporary injunctive relief to full consideration of the merits to

reduce the need for interlocutory appeals. Dallas/Fort Worth Int’l, 335 S.W.3d at 367; Hiss, 871

S.W.2d at 219. The fastest way to cure the hardship of an unfavorable preliminary order is to try

the case on the merits. Hiss, 871 S.W.2d at 219.

Based on the record and the information provided by the parties, it appears that hearings

on the merits have already occurred. Walkinshaw, et al.’s, motion for partial summary

judgment, which prayed for a permanent injunction and a declaratory judgment on the merits,

was granted by the trial court’s amended order dated June 19, 2013. Double Diamond’s motion

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