in Re Grupo Consejero Mundial, S.A. De C v.

• Court: Court of Appeals of Texas
• Decided: March 29, 2012
• Docket: 13-11-00493-CV
• Status: Published

Opinion

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NUMBER 13-11-00471-CV

GRUPO CONSEJERO MUNDIAL, S.A. DE C.V., Appellant,

v.

ALEJANDRO GARZA SALINAS, Appellee.

On appeal from the County Court at Law No. 1 of Nueces County, Texas.

NUMBER 13-11-00493-CV

IN RE GRUPO CONSEJERO MUNDIAL, S.A. DE C.V.

On Petition for Writ of Mandamus

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Chief Justice Valdez Appellant, Grupo Consejero Munidal, S.A. de C.V., has filed an interlocutory

appeal challenging the trial court’s entry of three orders purporting to award temporary

injunctive relief to appellee, Alejandro Garza Salinas. The same orders have also been

challenged by appellant in an original proceeding for writ of mandamus, which the Court

previously consolidated with the interlocutory appeal. See In re Valero Energy Corp.,

968 S.W.2d 916, 916–17 (Tex. 1998) (“We note for future cases that the better course

of action for a court of appeals confronted with an interlocutory appeal and a mandamus

proceeding seeking to . . . [challenge the same interlocutory order] would be to

consolidate the two proceedings and render a decision disposing of both

simultaneously, thereby conserving judicial resources and the resources of the

parties.”). For the reasons set forth below, we sustain the sole issue raised by appellant

in cause number 13-11-00471-CV, reverse and remand the case to the trial court for

further proceedings consistent with this opinion. We conditionally grant the petition for

writ of mandamus in cause number 13-11-00493-CV.

I. BACKGROUND

These consolidated proceedings originate from a suit brought by Salinas against

the following persons and entities: (1) Grupo Consejero Mundial, LLC (“Grupo LLC”);

(2) Grupo Consejero Mundial, S.A. de C.V. (“Grupo S.A.”); and (3) Paula Wyatt, Paula

Wyatt, P.C., and Wyatt Law Firm, Ltd. (collectively, “the Wyatts”). In his original petition,

Salinas only brought suit against Grupo LLC and the Wyatts. Salinas alleged that on

May 27, 2009, Grupo LLC, a Texas limited liability company, executed and delivered a

note to Salinas wherein Salinas agreed to lend Grupo LLC $600,000 for which

installment repayments were to be made on or before a specified date (“the Promissory

2 Note”). Salinas alleged that at the time of the transaction, Grupo LLC represented to

him that it had referred cases to various law firms, including the Wyatt Law Firm, LTD,

and that those firms had a contingency fee interest in any damages award received

from the referred cases. According to Salinas, Grupo LLC provided him with a list of

cases that were currently being litigated and in which Grupo LLC had an interest in any

legal fees collected (“the listed cases”). Salinas claimed that in exchange for the

$600,000 loan, Grupo LLC gave him a priority interest in the legal fees owed to it from

the listed cases. After Grupo LLC allegedly defaulted on paying back the $600,000

loan, Salinas filed suit against Grupo LLC to recover his losses.

Salinas further alleged that the Wyatts were included as defendants because

they were entitled to collect legal fees in at least four of the listed cases. Salinas sought

a temporary injunction to enjoin the Wyatts from disbursing any legal fees collected from

those cases to Grupo LLC. Salinas also requested declaratory relief. Specifically,

Salinas asked the court to declare that he had an enforceable security interest in any

legal fees that the Wyatts intended to pay Grupo LLC.

On November 24, 2010, Salinas filed his Second Amended Petition, wherein

Grupo S.A., a Mexican corporation, was named as a defendant. Salinas sued Grupo

S.A. after learning from the Wyatts that some of the listed cases in which fees were to

be collected were to be contractually shared with Grupo S.A., not Grupo LLC. Salinas

thus asserted that Grupo LLC either (1) fraudulently transferred its rights to fees in

some of the listed cases to Grupo S.A. to avoid liability under the Promissory Note, or

(2) misrepresented to Salinas that it had ownership interests in certain cases for the

3 purpose of inducing Salinas to make the loan. Salinas alleged that Grupo S.A. was part

of a conspiracy to defraud him of $600,000.

Appellant has provided the following time-line of subsequent events:

On January 3, 2011, Grupo LLC was severed out of the suit after declaring

bankruptcy. On January 12, 2011, Salinas took a default judgment against Grupo S.A.

In the judgment, Grupo S.A. was severed out of trial court cause number, 2010-CCV-

61649-1, from which this appeal originates, and assigned a new cause number: 2011-

CCV-60082-1. On February 16, 2011, in response to Salinas’s timely filed motion to

modify judgment, the court entered a modified judgment against Grupo S.A. in the new

cause. On March 16, 2011, Grupo S.A. filed a motion for new trial that sought to vacate

the default judgment against it.

On April 13, 2011, Salinas amended his live pleading through a “First

Supplemental Petition.” In the supplemental petition, Salinas brought suit against

eleven new parties, which can be organized into three groups: (1) the Laminack

Defendants; (2) the Matthews Defendants; and (3) the Baker Defendants (collectively,

“Collateral Defendants”). Collateral Defendants consist of attorneys and law firms.

Salinas asserted that Collateral Defendants had received, or would be receiving, legal

fees from some of the listed cases. Salinas sought a declaratory judgment that he was

entitled to any legal fees that Collateral Defendants owed to Grupo S.A. Salinas also

sought a temporary injunction to enjoin Collateral Defendants from disbursing any

money owed to Grupo S.A.

On April 13, 2011, the court issued a temporary restraining order that, in part,

prohibited Collateral Defendants from distributing to Grupo S.A. any money owed to

4 them that related to the listed cases. Collateral Defendants were also ordered to

deposit said money into the court’s registry.

On April 21, 2011, the court entered an order setting aside the default judgment

against Grupo S.A. and granting a new trial. Because the order severing Grupo S.A.

from cause number 2010-CCV-61649-1 was part of the default judgment that was

vacated in its entirety, Grupo S.A. was effectively returned as a party to that cause,

which is the cause from which this appeal arises.

On May 11, 2011, a hearing was held on Salinas’s Application for Temporary

Injunction. At the conclusion of the hearing, the court stated its intent to grant the

application after revisions were made to Salinas’s proposed orders granting injunctive

relief.

On June 1 and 3, 2011, the court entered three orders that, together, granted all

of Salinas’s requested injunctive relief. The orders were as follows: (1) Agreed

Temporary Injunction with Respect to Richard N. Laminack, Thomas Wayne Pirtle,

Buffy Kay Martines, and Laminack, Pirtle & Martines, LLP (“the Laminack Order”); (2)

Agreed Temporary Injunction with Respect to John Hickman Baker, Individually and in

his/her Assumed or Common Name, and Baker, Brown & Dixon, P.C. (“the Baker

Order”); and (3) Agreed Temporary Injunction with Respect to David Matthews, David P.

Matthews, P.C., and David Paul Matthews, L.P. (“the Matthews Order”). Collectively,

these three orders (“the Orders”) prohibit Collateral Defendants from “[d]isbursing any

funds in their possession or which come into their possession and are owing and/or to

be paid to” Grupo S.A. Moreover, the Orders require Collateral Defendants to deposit

5 into the court’s registry “any money now in their possession or control, or which may

come into their possession or control, and which is owed to” Grupo S.A.

II. ISSUE PRESENTED

In the interlocutory appeal, Grupo S.A. argues that the trial court erred in entering

the Orders because they do not satisfy the requirements of Texas Rule of Civil

Procedure 683. See TEX. R. CIV. P. 683. Specifically, appellant contends that the

Orders: (1) fail to set the cause for trial on the merits; and (2) fail to set forth a detailed

explanation of the reason for their issuance. See id.

In the original proceeding for writ of mandamus, Grupo S.A. argues that the trial

court erred in entering the Orders requiring the Collateral Defendants to deposit in the

court’s registry any money that they owe to Grupo S.A. See N. Cypress Med. Ctr.

Operating Co. v. St. Laurent, 296 S.W.3d 171, 179–80 (Tex. App.—Houston [14th Dist.]

2009, orig. proceeding) (“North Cypress asked us to issue a writ of mandamus vacating

the trial court’s order because the record does not indicate that disputed funds are likely

to be ‘lost or depleted,’ a requisite for the court’s order. We agree, and conditionally

grant mandamus relief.”).

III. INTERLOCUTORY APPEAL

A. Standard of Review

Whether to grant or deny a temporary injunction is within the trial court’s sound

discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); State v.

Walker, 679 S.W.2d 484, 485 (Tex. 1984). A reviewing court should reverse an order

granting injunctive relief only if the trial court abused that discretion. Walker, 679

S.W.2d at 485. The reviewing court must not substitute its judgment for the trial court’s

6 judgment unless the trial court’s action was so arbitrary that it exceeded the bounds of

reasonable discretion. Johnson v. Fourth Ct. of Appeals, 700 S.W.2d 916, 918 (Tex.

1985); Davis v. Huey, 571 S.W.2d 859, 861–62 (Tex. 1978).

B. Applicable Law

A temporary injunction’s purpose is to preserve the status quo of the litigation’s

subject matter pending a trial on the merits. Walling v. Metcalfe, 863 S.W.2d 56, 57

(Tex. 1993); Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex. Civ.

App.—Dallas 1974, no writ). A temporary injunction is an extraordinary remedy and

does not issue as a matter of right. Walling, 863 S.W.2d at 57. To obtain a temporary

injunction, the 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. Id.; Sun Oil Co. v. Whitaker,

424 S.W.2d 216, 218 (Tex. 1968). 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. Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d

398, 401 (Tex. App.—Dallas 1989, no writ).

Texas Rule of Civil Procedure 683 states a number of requirements that all

temporary injunctions must satisfy:

Every order granting an injunction and every restraining order 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; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

7 Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought. The appeal of a temporary injunction shall constitute no cause for delay of the trial.

TEX. R. CIV. P. 683.

The requirements of rule 683 are mandatory and must be strictly followed.

Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986).

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. Id. (citing Northcutt v.

Waren, 326 S.W.2d 10, 10 (Tex. Civ. App.—Texarkana 1959, writ ref’d n.r.e.);

University Interscholastic League v. Torres, 616 S.W.2d 355, 357–58 (Tex. Civ. App.—

San Antonio 1981, no writ); Smith v. Hamby, 609 S.W.2d 866, 868 (Tex. Civ. App.—

Fort Worth 1980, no writ)); see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) West

Supp. 2011) (authorizing interlocutory appeal of order granting a temporary injunction).

C. Analysis

As a preliminary matter, we note that as a party adversely affected by the Orders

of the trial court, Grupo S.A. has standing to invoke the court’s subject matter

jurisdiction. See Bell v. Craig, 555 S.W.2d 210, 212 (Tex. Civ. App.—Dallas 1977, no

writ) (“Although Bell was not personally enjoined, the injunction effectively prevents him

from proceeding with his complaint. Consequently, he was adversely affected by the

injunction.”).

We have previously addressed circumstances such as those presented by this

case, where the trial court’s order granting injunctive relief failed to comply with rule 683

of the Texas Rules of Civil Procedure. See City of Corpus Christi v. Friends of the

Coliseum, 311 S.W.3d 706, 710 (Tex. App.—Corpus Christi 2010, no pet.); Wyatt v.

8 Cowley, 74 S.W.3d 576, 577–78 (Tex. App.—Corpus Christi 2002, pet. dism’d w.o.j.).

In those decisions, we noted that the provisions of rule 683 are mandatory requirements

and that the trial court abuses its discretion by failing to comply with rule 683. See

Wyatt, 74 S.W.3d at 577-78 (“The record clearly shows that the trial court's temporary

injunction order of October 3, 2001, does not contain an order setting the cause for trial

on the merits. Because the order does not conform to the mandatory requirements of

rule 683, we hold the trial court abused its discretion by rendering and signing the

order.”) (internal citations omitted).

Accordingly, because the Orders in this case do not set the cause for trial on the

merits, we conclude that the trial court abused its discretion by issuing the injunctive

relief without complying with rule 683. See Interfirst Bank San Felipe, N.A., 715 S.W.2d

at 641. Therefore, to the extent the Orders at issue in this appeal purport to award

injunctive relief, they are void and of no effect. See City of Corpus Christi, 311 S.W.3d

at 710 (“We conclude that the trial court’s order granting the temporary injunction

requested by Friends fails to comply with the specificity requirements of Rule 683. See

TEX. R. CIV. P. 683. Accordingly, it is void and of no effect.”). Appellant’s issue in its

interlocutory appeal is sustained.

IV. PETITION FOR WRIT OF MANDAMUS

To the extent the Orders require the Collateral Defendants to deposit in the

court’s registry any money that they owe to Grupo S.A., the relief awarded by the trial

court is not in the nature of injunctive relief and is therefore not subject to interlocutory

appeal. See Structured Capital Res. Corp. v. Arctic Cold Storage, LLC, 237 S.W.3d

890, 894 (Tex. App.—Tyler 2007, no pet.) (“An order requiring the deposit of funds into

9 the registry of a court cannot be characterized as an appealable temporary injunction,

even if entered in response to a motion for injunctive relief.”). Accordingly, our decision

in Grupo S.A.’s interlocutory appeal does not address that aspect of the Orders and

does not resolve the challenge to the Orders made by Grupo S.A. in its petition for writ

of mandamus. See Faddoul, Glasheen & Valles, P.C. v. Oaxaca, 52 S.W.3d 209, 212

(Tex. App.—El Paso 2001, no pet.) (finding in part that “the second part of the order,

requiring the deposit of funds into the registry of the court, is not injunctive relief and not

subject to an interlocutory appeal”). Therefore, we proceed to the merits of the

mandamus petition.

Mandamus relief may be available if the relator establishes a clear abuse of

discretion for which there is no adequate appellate remedy. See In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Although we will

not disturb the trial court’s resolution of disputed fact issues, a trial court has no

discretion in determining what the law is or in applying the law to the facts. See Walker

v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).

To be entitled to an attachment, an applicant must comply with the provisions of

the Texas Civil Practice and Remedies Code applicable to attachments. See TEX. CIV.

PRAC. & REM. CODE ANN. § 61.001, et seq. (West 2008). Prejudgment attachment is a

particularly harsh and oppressive remedy. See In re Argyll Equities, LLC, 227 S.W.3d

268, 271 (Tex. App.—San Antonio 2007, orig. proceeding) (“Pre-judgment attachment is

a particularly harsh, oppressive remedy. As a result, the statutes and rules governing

10 this remedy must be strictly followed.”) (citations omitted); Carpenter v. Carpenter, 476

S.W.2d 469, 470 (Tex. Civ. App.—Dallas 1972, no writ) (“Since an early date in the

history of our jurisprudence it has been said that the remedy by attachment is

oppressive and harsh and therefore is subject to rigid rules of construction.”).

By statute, a writ of attachment must be applied for in the following way:

[T]o apply for a writ of attachment, a plaintiff or the plaintiff’s agent or attorney must file with the court an affidavit that states:

(1) general grounds for issuance under Sections 61.001(1), (2), and (3);

(2) the amount of the demand; and

(3) specific grounds for issuance under Section 61.002.

TEX. CIV. PRAC. & REM. CODE ANN. § 61.022 (West Supp. 2011). A writ of attachment is

available to a plaintiff in a suit if it proves that:

(1) the defendant is justly indebted to the plaintiff;

(2) the attachment is not sought for the purpose of injuring or harassing the defendant;

(3) the plaintiff will probably lose his debt unless the writ of attachment is issued; and

(4) specific grounds for the writ exist under Section 61.002.

Id. § 61.001 (West 2008).

We agree with Grupo S.A.’s contention that by requiring Collateral Defendants to

deposit funds owed to Grupo S.A. into its registry, and by retaining those funds in its

registry for an unspecified period of time, the trial court effectively attached that

property. See Sharman v. Schuble, 846 S.W.2d 574, 576 (Tex. App.—Houston [14th

11 Dist.] 1993, orig. proceeding) (“By retaining the proceeds in the registry, the trial court

has effectively attached the relator’s property.”).

Grupo S.A. contends that the trial court abused its discretion in ordering the

attachment because: (1) there was no evidence that Grupo S.A. is justly indebted to

Salinas, as required by section 61.001 of the Texas Civil Practice and Remedies Code,

see TEX. CIV. PRAC. & REM. CODE ANN. § 61.001; (2) there was no affidavit submitted to

the court, as required by section 61.022 of the Texas Civil Practice and Remedies

Code, see id. § 61.022; and (3) there was no bond executed by Salinas, as required by

section 61.023 of the Texas Civil Practices and Remedies Code, see id. § 61.023 (West

2008).

In response, Salinas contends that he was not required to comply with the

statutory requirements for attachment because he was not seeking to attach Grupo

S.A.’s property. Salinas argues that he was merely seeking to prevent the depletion of

property to which he demonstrated a present claim. Furthermore, according to Salinas,

Grupo S.A. failed to present any evidence that it has any present ownership interest in

the property.

We disagree with Salinas. The Orders clearly contemplate attachment of

property “owing and/or to be paid to” Grupo S.A. In relevant part, the Orders state the

following:

It is therefore, ordered that the [Collateral Defendants], their agents, servants, employees and anyone having knowledge of this order are hereby commanded forthwith to desist and refrain from . . . [d]isbursing any funds in their possession or which come into their possession and are owing and/or to be paid to Grupo Consejero Mundial, S.A. de C.V., Grupo Consejero Mundial, L.L.C., Wilfrido Rogelio Garcia, Cesar Marcos Villarreal, and Oscar Garza Fernandez (collectively referred to herein as “Related Group”). . . . That the [Collateral Defendants are ordered to]

12 deposit into the Registry of this Court any money now in their possession or control, or which may come into their possession or control, and which is owed to any of the Related Group . . . .

We conclude that the Orders effectively attached the property of Grupo S.A. In

addition, we conclude that the trial court failed to comply with the requirements of

Chapter 61 of the Texas Civil Practice and Remedies Code in attaching the property of

Grupo S.A. Accordingly, Grupo S.A. has demonstrated a clear abuse of discretion.

Finally, we conclude that, in this case, the benefits to mandamus review

outweigh the detriments. See Prudential Ins. Co., 148 S.W.3d at 136. Here, Grupo

S.A. has been deprived of the use of its money without a showing either of liability or

intent to hide assets from a possible judgment. Therefore, we hold that Grupo S.A.

does not have an adequate remedy by appeal. See N. Cypress Med. Ctr. Operating

Co., 296 S.W.3d at 179–80. Accordingly, we conditionally grant mandamus relief.

V. CONCLUSION

For the reasons set forth above, in cause number 13-11-00471-CV, we reverse

the orders of the trial court and remand the cause for further proceedings consistent

with this opinion. In cause number 13-11-00493-CV, the petition for writ of mandamus

is conditionally granted. The writ will issue only if the trial court fails to vacate the

attachment orders.

_________________ Rogelio Valdez Chief Justice

Delivered and filed the 29th day of March, 2012.