Rocio Denise Garcia and Marco Antonio Rios v. Maria Del Carmen Montes, Individually and as Representative of the Estate of Ruben Montes, and as Next Friend of Veronica Montes, a Minor, Edna Castro Montes and Marlen Montes

• Court: Court of Appeals of Texas
• Decided: July 6, 2000
• Docket: 13-00-00071-CV
• Status: Published

Opinion

NUMBER 13-00-071-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ROCIO DENISE GARCIA AND MARCO ANTONIO RIOS, Appellants,

v.

ESTATE OF RUBEN MONTES, DECEASED,

MARIA DEL CARMEN MONTES, INDIVIDUALLY

AND AS REPRESENTATIVE OF THE ESTATE OF

RUBEN MONTES AND AS NEXT FRIEND OF

VERONICA MONTES

, Appellees.

__________________________________________________________________  
On appeal from the County Court at Law No. Four of Hidalgo County, Texas.

____________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Cantu⁽¹⁾

Opinion by Justice Antonio G. Cantu

This is an appeal from an order granting a temporary injunction issued by County Court at Law No. Four of Hidalgo County, Texas. The appellees successfully enjoined appellants from "transferring, concealing, secreting, selling, disposing and/or delivering of any assets, cash, title, causes of action, inheritance, or any other thing of monetary value . . . to any third party that could be utilized by a judgment creditor for the satisfaction of [a pending claim] in question." The appellants have perfected their appeal from the order granting the temporary injunction.⁽²⁾

The ultimate issue to be determined by the reviewing court where a temporary injunction is granted, is whether there was an abuse of discretion. State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975); City of Spring Valley v. Southwestern Bell Tel. Co., 484 S.W.2d 579, 581 (Tex. 1972); Moreno v. Baker Tools, Inc., 808 S.W.2d 208, 211 (Tex. App.--Houston [1st Dist.] 1991, no writ); Castaneda v. Gonzalez, 985 S.W.2d 500, 502 (Tex. App.--Corpus Christi 1998, no pet.). We find that the trial court abused its discretion, reverse the order of the trial court, and dissolve the temporary injunction.

The instant appeal has its genesis in a suit seeking monetary damages as a result of the alleged negligence of appellants, Rocio Denise Garcia and Marco Antonio Rios. Appellees filed a petition on December 27, 1999, alleging that on or about November 4, 1999, appellant Marco Antonio Rios was involved in a motor vehicle accident in which Ruben Montes was killed. The petition alleged negligence on the part of appellant Rios and negligent entrustment on the part of appellant Garcia.

Contemporaneous with the filing of their petition for damages, appellees applied for and obtained an ex parte temporary restraining order granting the following relief:

a) Marco Antonio Rios and Rocio D. Garcia, Individually and their agents, employees, servants, representatives, and/or assigns are prohibited from transferring, concealing, secreting, selling, disposing, and/or delivering any assets, cash, title, causes of action, inheritance, or any other thing of monetary value (hereinafter referred to as 'Assets') to any third party that could be utilized by a judgment creditor for the satisfaction of this claim in question; and Defendants are authorized to utilize their assets only directly related to Defendants' normal living expenses, and that through appropriate application with credible proof filed by Defendants with this court, the Court shall allow appropriate disbursement pursuant to orders of this Court for only expenses directly related to Defendants and only disbursements directly related to Defendants for normal living expenses. Defendants shall be prohibited from transferring, concealing, selling, disposing, and/or delivering any thing of monetary value or any assets that are not approved by order of this Court;

any further relief, both at law and in equity, to which these Plaintiffs may be justly entitled.

The trial court set a hearing for January 10, 2000, for defendants/appellants to "Show Cause." At the hearing, appellees offered the testimony of Juan Castillo, an investigator, who testified that he had investigated the accident in question and had located various properties belonging to appellant Garcia being offered for sale. Garcia confirmed that the properties were hers and that they were on the market for sale. The death of Ruben Montes was established by stipulation and little else was presented to the court in support of the application for temporary injunction.

At the conclusion of the hearing, the trial court took the matter under advisement. Later on the same day, the court entered the following order:

TEMPORARY INJUNCTION

BE IT REMEMBERED that Plaintiffs' Temporary Injunction came to be heard, having been duly and properly filed and presented, and that the Court being of the opinion that said Temporary Injunction should be granted;

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, that said Temporary Injunction be and is hereby granted and that the clerk shall be ordered to issue a Temporary Injunction ordering the following relief:

a) Marco Antonio Rios and Rocio D. Garcia, Individually and their Agents, employees, servants, representatives, and/or assigns are Prohibited from transferring, concealing, secreting, selling, disposing, and/or delivering any assets, cash, title, causes of action, inheritance, or any other thing of monetary value (hereinafter referred to as 'Assets') to any third party that could be utilized by a judgment creditor for the satisfaction of this claim in question; and Defendants are authorized to utilize their assets only directly related to Defendants' normal living expenses, and that through appropriate application with credible proof filed by Defendants with this Court, the Court shall allow appropriate disbursement pursuant to orders of this Court for only expenses directly related to Defendants and only disbursements directly related to Defendants for normal living expenses. Defendants shall be prohibited from transferring, concealing, selling, disposing, and/or delivering any thing of monetary value or any assets that are not directly related to Defendants' normal living expenses and are not approved by order of this Court;

any further relief, both at law and in equity, to which these Plaintiffs may be justly entitled.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, the amount of the security given by the applicant is a bond in the amount of two thousand DOLLARS ($2000.00).

This Temporary Injunction is hereby granted on Jan. 10 2000 at 5:30 o'clock P.M. and will dissolve at the conclusion of the final trial of the merits.

SIGNED on this 10^th day of January, 2000.

Fred Garza

PRESIDING JUDGE

Appellants present two issues for review. The first issue asserts that the trial court abused its discretion in granting the temporary injunction based upon the total lack of evidence adduced by the appellees in support of their application for temporary injunction. The second issue asserts that the order is void on its face for failure to comply with the provisions of Rule 683 of the Texas Rules of Civil Procedure.

Because appellees have not filed a brief in this court, we may accept as true the statements made in appellants' brief as to the facts. Tex. R. App. P. 38.1(f). The sole question before this Court then becomes, whether under the facts stated in appellants' brief, or as revealed on the face of the order itself, the trial court abused its discretion in entering the temporary injunction order. We address the more fundamental second issue because it is without a doubt dispositive of the appeal.

Rule 683 of the Texas Rules of Civil Procedure provides as follows:

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.

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.

The Texas Supreme Court has held that "[t]he requirements of Rule 683 are mandatory and must be strictly followed." Interfirst Bank San Felipe, N.A. v. Paz Construction Company, 715 S.W.2d 640, 641 (Tex. 1986); Liberty Mutual Ins. Co. v. Mustang Tractor & Equipment Co., 812 S.W.2d 663, 667 (Tex. App.--Houston [14^th Dist.] 1991, no writ). The failure to meet the requirements constitutes reversible error. Southwestern Bell Tel. v. Gravitt, 522 S.W.2d 531, 532 (Tex. Civ. App.--San Antonio 1975, no writ); General Homes Inc. v. Wingate Civic Ass'n, 616 S.W.2d 351, 353 (Tex. Civ. App.--Houston [14th Dist.] 1981, no writ). A failure to adhere to the requirements of the rule will subject the order to being declared void and dissolved. Interfirst Bank San Felipe, N.A., 715 S.W.2d at 641; Long v. Long, 814 S.W.2d 227, 228 (Tex. App.--San Antonio 1991, no writ); Corpus Christi Caller-Times v. Mancias, 794 S.W.2d 852, 854 (Tex. App.--Corpus Christi 1990, orig. proceeding)(injunction order was void for failing to contain required trial date); see also Greathouse Ins. Agency, Inc. v. Tropical Investments, Inc., 718 S.W.2d 821, 822 (Tex. App.--Houston [14th Dist.] 1986, no writ).

Examination of the temporary injunction order entered by the trial court clearly reveals a total failure to set forth the reason for its issuance. Additionally, the order does not attempt to set the cause for trial. Other reasons advanced by appellants in support of a finding of voidness also have merit. We, however, do not detail them. We sustain appellants' second contention.

Where a temporary injunction is issued and does not conform to rule 683, the nonconformity constitutes an abuse of discretion. Smith v. Hamby, 609 S.W.2d 866, 868 (Tex. Civ. App.--Fort Worth 1980, no writ); Diversified, Inc. v. Turner, 650 S.W.2d 175, 176 (Tex. App.--Houston [14th Dist.] 1983, no writ).

Accordingly, we reverse the judgment of the trial court and dissolve the temporary injunction order.

ANTONIO G. CANTU

Justice

Do not publish.

Tex. R. App. P. 47.3

Opinion delivered and filed

this the 6th day of July, 2000.

1. Justice Antonio G. Cantu assigned to this Court by the Chief Justice of the Supreme Court pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. ²See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(4) (Vernon Supp. 2000).