in the Estate of John Vernon Cobb

• Court: Court of Appeals of Texas
• Decided: December 19, 2013
• Docket: 09-13-00348-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________

NO. 09-13-00348-CV ____________________

IN THE ESTATE OF JOHN VERNON COBB _________________________________ ______________________

On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 25177 ____________________________________________ ____________

MEMORANDUM OPINION

Joyce Cobb (“Joyce”), the widow of John Vernon Cobb (“Cobb”), sued (1)

the Estate of John Vernon Cobb; (2) the John Vernon Cobb Family Trust; (3) the J.

Cobb Family Limited Partnership (“the Partnership”); and (4) John Walter Cobb

(“John”) and Elizabeth K. Cobb (“Elizabeth”), individually and as independent co-

executors of the estate, trustees of the trust, and partners of the Partnership

(“appellants”), alleging numerous causes of action. In June 2012, Joyce filed a

motion for temporary injunction. When Joyce died, Ronald Alsbrooks, the

temporary administrator of Joyce’s estate, substituted as the plaintiff. The trial

court granted the temporary injunction and denied appellants’ motion to vacate the

1 injunction. In this interlocutory appeal, appellants present three issues challenging

the temporary injunction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4)

(West Supp. 2013). We affirm the trial court’s judgment.

Jurisdiction

In issue one, appellants contend that this Court has jurisdiction to consider

both the issuance of the temporary injunction and the denial of their motion to

vacate the injunction. The trial court signed the injunction on June 14, 2013,

appellants filed their motion to vacate on June 17, and the trial court denied the

motion on July 19. Appellants filed their notice of appeal on August 2. Appellants

concede that they filed their notice of appeal after the time for appealing the

issuance of the injunction had passed, but they maintain that the trial did not give

them an opportunity to fully litigate the merits of the injunction, the trial court told

appellants they could present evidence at a later date, and the injunction was not

effective until a bond was filed on July 19. Thus, appellants argue that this Court

should consider whether the evidence justified issuance of the injunction.

In an accelerated appeal, a party’s notice of appeal must be filed within

twenty days after the judgment or order is signed. Tex. R. App. P. 26.1(b). The

Texas Supreme Court has held that, absent a motion for extension of time, the

deadline for filing a notice of appeal in an accelerated case is strictly set at twenty

2 days after the judgment is signed, with no exceptions. In the Interest of K.A.F., 160

S.W.3d 923, 927 (Tex. 2005). The record does not indicate that appellants filed a

motion for extension of time or that appellants’ notice of appeal can be treated as

an implied motion for an extension. See Tex. R. App. P. 26.3; see also Verburgt v.

Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997). Because appellants did not file a

notice of appeal within twenty days of the date the trial court signed the temporary

injunction order, our jurisdiction is limited to determining whether the trial court

abused its discretion by denying the motion to dissolve the temporary injunction.

See K.A.F., 160 S.W.3d at 927; see also Aurora Loan Servs. v. Aurora Loan Servs.,

LLC, No. 05-11-01362-CV, 2013 Tex. App. LEXIS 982, at **4-5 (Tex. App.—

Dallas Jan. 31, 2013, no pet.) (mem. op.). We overrule issue one because we lack

jurisdiction to consider it.

Motion to Vacate

In issue two, appellants challenge the trial court’s denial of their motion to

vacate the temporary injunction. In an interlocutory appeal from an order denying a

motion to dissolve, we presume the injunction was not improvidently granted and

that the record supports the trial court’s ruling. Lance v. Robinson, No. 04-12-

00754-CV, 2013 Tex. App. LEXIS 2163, at *6 (Tex. App.—San Antonio Mar. 6,

2013, no pet.) (mem. op.). Our review is limited to whether the trial court’s denial

3 of the motion constituted a clear abuse of discretion. Id. at *7. A motion to dissolve

is not intended to give an unsuccessful party an opportunity to relitigate the

propriety of the original grant, but is intended to show changed circumstances,

changes in the law, or fundamental error that requires modification or dissolution

of the injunction. Id. Changed circumstances are conditions that altered the status

quo after the temporary injunction was granted or made the injunction unnecessary

or improper, such as “an agreement of the parties, newly revealed facts, or a

change in the law[.]” Murphy v. McDaniel, 20 S.W.3d 873, 878 (Tex. App.—

Dallas 2000, no pet.); see also Henke v. Peoples State Bank of Halletsville, 6

S.W.3d 717, 721 (Tex. App.—Corpus Christi 1999, pet. dism’d w.o.j.).

Fundamental error exists when the record affirmatively and conclusively shows

that the trial court lacked jurisdiction of the subject matter. Lance, 2013 Tex. App.

LEXIS 2163, at *7. Absent fundamental error or a change in conditions, a trial

court generally has no duty to dissolve an injunction. Id.

In this case, appellants sought dissolution of the temporary injunction on

grounds that the trial court never heard evidence regarding the motion for

temporary injunction and appellants were not afforded an opportunity to present

evidence or complete cross-examination of witnesses. At the hearing on appellants’

motion, the trial court heard testimony regarding the injunction’s effects, such as

4 that the injunction prevented appellants and the Partnership from accessing certain

accounts; meeting financial obligations or needs; signing an oil and gas lease on

property owned by the Partnership; harvesting, prepping, and re-planting the

Partnership’s property; and repairing the Cobb residence. Neither in their motion

nor at the hearing did appellants assert that the evidence demonstrated a change in

circumstances, a change in the law, or fundamental error that affected the status

quo. Absent such allegations, the trial court had no duty to dissolve the injunction.

See Lance, 2013 Tex. App. LEXIS 2163, at *7; see also Henke, 6 S.W.3d at 721.

Accordingly, we cannot say that the trial court abused its discretion by denying

appellants’ motion to vacate. See Lance, 2013 Tex. App. LEXIS 2163, at *7; see

also Kassim v. Carlisle Interests, Inc., 308 S.W.3d 537, 540 (Tex. App.—Dallas

2010, no pet.); Murphy, 20 S.W.3d at 878. We overrule issue two.

Injunction Provisions

In issue three, appellants contend that the trial court abused its discretion by

prohibiting them from accessing certain funds, which they argue eliminates their

ability to pay their attorneys and accountants and significantly impairs their ability

to defend against the lawsuit. However, because appellants did not timely appeal

from the granting of the injunction, we lack jurisdiction to address whether the trial

court abused its discretion by including such provisions in the injunction. See

5 K.A.F., 160 S.W.3d at 927; see also Bishop v. Clawson, No. 14-11-00219-CV,

2012 Tex. App. LEXIS 64, at **7-8 n.2 (Tex. App.—Houston [14th Dist.] Jan. 5,

2012, no pet.) (mem. op.); Murphy, 20 S.W.3d at 877. We overrule issue three and

affirm the trial court’s judgment.

AFFIRMED.

________________________________ STEVE McKEITHEN Chief Justice

Submitted on December 4, 2013 Opinion Delivered December 19, 2013

Before McKeithen, C.J., Kreger and Horton, JJ.