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

• Court: Court of Appeals of Texas
• Decided: April 19, 2013
• Docket: 05-12-01140-CV
• Status: Published

Opinion

Order entered April 19, 2013

In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01140-CV

DOUBLE DIAMOND-DELAWARE, INC. ET AL., Appellants

V.

JOHN AND CATHY WALKINSHAW, ET AL., Appellees

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

ORDER By letter dated April 15, 2013, appellees informed the Court that by order dated April 8,

2013, the trial court granted appellees’ motion for partial summary judgment and permanent

injunctive relief relating to the maintenance fees levied by appellants for golf course

maintenance and the “food and beverage program.” By letter dated April 15, 2013, the Court

directed the parties to advise the Court why the temporary injunction before the Court was not

moot. In response, appellants requested that the case be removed from submission so that the

parties could file a permissive appeal and consolidate that appeal with this appeal. Appellees

responded that the pending appeal is moot.

On the Court’s own motion, this appeal is REMOVED from submission on April 23,

2013. We ORDER the Dallas County District Clerk to file a supplemental clerk’s record,

within TEN DAYS of the date of this order, containing: (1) appellees’ December 20, 2012

motion for partial and no-evidence summary judgment motion, any responses to that motion, and

the trial court’s April 8, 2013 order granting appellees’ motion; (2) appellants’ December 7, 2012

motion for partial summary judgment, and any responses or orders pertaining to that motion; and

(3) any correspondence by any party to the trial court or any correspondence from the trial court

to any party from December 7, 2012 through the date of this order.

Once the supplemental clerk’s record is filed, appellants are directed to file, within TEN

DAYS, a jurisdictional brief, containing applicable authority and record citations, regarding the

question of whether the trial court’s April 8, 2013 order mooted the temporary injunction

pending before the Court. Appellees are directed to file any response, likewise containing

applicable authority and record citations, within TWENTY DAYS of the date the supplemental

clerk’s record is filed. No extensions will be granted.

After the Court has received briefs regarding the jurisdictional issue, the Court will

either: (1) dismiss the appeal for want of jurisdiction; or (2) reset the case for submission.

We remind the parties that 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 Intern. 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. Cos., 871 S.W.2d 218, 219 (Tex.

App—Dallas, 1993, no writ). This Court, in turn, limits its appellate review to whether the trial

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

appeal of a temporary injunction should not be cause for trial delay. Id. Seeking an abatement,

stay, or continuance in the trial court while the court of appeals considers an interlocutory appeal increases delay and expense. Id. The fastest way to cure the hardship of an unfavorable

preliminary order is to try the case on the merits. Id. Further, a party may not use an appeal of a

temporary injunction ruling to get an advance ruling on the merits because this Court does not

have jurisdiction to issue advisory opinions. Dallas/Fort Worth, 335 S.W.3d at 364.

We DIRECT the Clerk of the Court to send a copy of this order to all parties and to Gary

FitzSimmons,, Dallas County District Clerk.

/s/ DOUGLAS S. LANG JUSTICE