Templeton Southwest, Insurance Agency, Inc. v. Bouche Trucking, Inc.--Appeal from 34th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TEMPLETON SOUTHWEST INSURANCE )

AGENCY, INC., ) No. 08-03-00262-CV

)

Appellant, ) Appeal from the

)

v. ) 34th District Court

)

BOUCHE TRUCKING, INC., ) of El Paso County, Texas

)

Appellee. ) (TC# 2000-1628)

)

MEMORANDUM OPINION

This is an accelerated interlocutory appeal from the trial court=s order which purportedly grants a temporary injunction in favor of Appellee Bouche Trucking, Inc. (ABouche Trucking@). On appeal, Appellant Templeton Southwest Insurance Agency, Inc. (ATempleton@) raises three issues for review, in which it argues the trial court abused its discretion in granting the temporary injunction because the court lacked jurisdiction to enjoin it, the injunction order is unenforceable because it is not in compliance with Rules 683 and 684 of the Texas Rules of Civil Procedure, and the trial court abused its discretion in granting the injunction order because Bouche Trucking did not meet its burden to prove its entitlement to an injunction. We dismiss this appeal for want of jurisdiction.

PROCEDURAL BACKGROUND

Templeton filed a lawsuit in Bexar County, Texas for amounts due under an agreement to provide insurance policies. Bouche Trucking failed to answer and Templeton obtained a default judgment against Bouche Trucking.[1] On May 15, 2000, Bouche Trucking filed suit against Templeton in El Paso County for declaratory relief regarding the agreement and an accounting of the amounts due. On June 29, 2000,Templeton answered the suit, subject to its plea to the jurisdiction and plea in abatement, arguing that the trial court did not have jurisdiction to hear Bouche Trucking=s suit because Templeton had previously obtained a default judgment against Bouche Trucking in an earlier suit in Bexar County. Templeton then sought an order compelling post-judgment discovery in the Bexar County suit. On August 15, 2000, Bouche Trucking filed a plea in abatement, arguing that the Bexar County default judgment was void and unenforceable for improper service and asked that the El Paso court enjoin Templeton from taking any further action to invoke the jurisdiction of the Bexar County court.

On July 27, 2001, the El Paso trial court entered an order denying Templeton=s plea in abatement and plea to the jurisdiction. The court found that the Bexar County judgment was void and unenforceable for improper service of process. On October 9, 2001, Templeton filed a motion to reconsider the denial of its plea in abatement/motion to dismiss, arguing that Bouche Trucking=s collateral attack on the Bexar County judgment should fail because nothing on the face of the judgment shows that service was not proper.

On November 29, 2001, Bouche Trucking filed an application for temporary restraining order and injunction against Templeton to prohibit Templeton from proceeding with the Bexar County suit. On December 10, 2001, Templeton filed a second plea to the jurisdiction, alleging that the trial court had no jurisdiction to hear the injunction because Tex.Civ.Prac.&Rem.Code Ann. ' 65.023 requires that an anti-suit injunction be brought in the court where the prior lawsuit is pending and an attempt to avoid execution on a judgment must be brought in the rendering court. Templeton also filed a motion to transfer venue to Bexar County.

On May 12, 2003, the El Paso trial court signed an order in which it found the Bexar County default judgment void and unenforceable and ordered that Templeton=s plea in abatement/motion to dismiss, the motion to transfer venue, and it=s plea to the jurisdiction be denied. The trial court=s order also states that it Ais of the opinion that a Temporary Injunction should be entered . . . .@ Templeton now brings this appeal of the trial court=s order.

DISCUSSION

Jurisdiction

Under Texas procedure, appeals are allowed only from final orders or judgments. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). In the absence of a statute authorizing jurisdiction, appellate courts do not have jurisdiction to consider appeals from interlocutory orders. Qwest Communications Corp. v. A.T.& T Corp., 24 S.W.3d 334, 336 (Tex. 2000);

Jani-King of Memphis, Inc. v. Yates, 965 S.W.2d 665, 666 (Tex.App.--Houston [14th Dist.] 1998, no pet.). In Templeton=s appellate brief, it asserts this Court has jurisdiction of this interlocutory appeal pursuant to Texas Civil Practice and Remedies Code Section 51.014(a)(4), which allows an appeal from a interlocutory order granting or refusing a temporary injunction. See Tex.Civ.Prac.&Rem.Code Ann. ' 51.014(a)(4)(Vernon Supp. 2004). In its response brief, Bouche Trucking contends the trial court did not enter a temporary injunction. Without a appealable interlocutory order, Templeton=s interlocutory appeal cannot be maintained. Therefore, our initial inquiry is whether the trial court granted a temporary injunction in its order.

The preamble in the trial court=s order states the following:

Came on for consideration both the verified Plea in Abatement and verified Application of BOUCHE TRUCKING COMPANY, Plaintiff (ABOUCHE@) for a Temporary Restraining Order and Injunction as well as TEMPLETON SOUTHWEST INSURANCE AGENCY, INC.=s (ATEMPLETON@) Motion to Reconsider the Court=s Order Denying Plea in Abatement/Motion to Dismiss the above-styled matter, Motion to Transfer Venue, and Plea to Jurisdiction and the Court having found that all requisites of law have been met and satisfied by Plaintiff, is of the opinion that a Temporary Injunction should be entered and TEMPLETON SOUTHWEST INSURANCE AGENCY, INC.=s Plea in Abatement, Motion to Transfer Venue, and Plea to Jurisdiction should be in all things be DENIED.

The order of the trial court, however, states:

It is therefore, ORDERED that the Judgment rendered in the Bexar County Suit is void and unenforceable. It is further

ORDERED that Defendant=s Plea in Abatement/Motion to Dismiss, Motion to Transfer Venue, and Plea to Jurisdiction are, in all things DENIED. It is further

ORDERED that this cause shall proceed to trial in El Paso County, Texas.

The trial court=s order in this cause does not order a temporary injunction against Templeton, though according to the preamble, it was of the opinion that such an order should be entered. For appeal purposes, classification of an order as a temporary injunction is controlled by the character and function of that order, not by its form. Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809-10 (Tex. 1992). The purpose of a temporary injunction is to preserve the status quo of matters that are the subject of pending litigation until a decision on the merits is reached. Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). A function of injunctive relief is to restrain motion and to enforce inaction. Qwest Communications Corp., 24 S.W.3d at 336.

Here, the May 12 Order does not seek to preserve the status quo nor does it purport to grant injunctive relief pending a trial on the merits. In addition, the May 12 Order does not follow procedural requirements set out in Rules 683 and 684 of the Texas Rules of Civil Procedure. See Tex.R.Civ.P. 683 (requiring a specific description of acts to be restrained), Tex.R.Civ.P. 684 (setting of bond). It is clear that the trial court=s May 12 Order cannot be considered as an order granting a temporary injunction, in either character or function. Therefore, we find it is not an appealable interlocutory order.

Accordingly, this appeal is dismissed for want of jurisdiction.

November 20, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

[1] The Bexar County judgment signed September 2, 1999, states:

The defendant, although duly and legally cited to appear and answer, failed to appear and answer and wholly made default.

Citation was served according to law and returned to the clerk where it remained on file for the time required by law. A copy of the return and citation is attached as Exhibit >A= and incorporated by reference for all purposes.

In the default judgment, the Bexar County court awarded Templeton $19,718.16 plus prejudgment interest and reasonable attorney=s fees and expenses.