Ted Dahl v. City of Houston--Appeal from 334th District Court of Harris County

Vacated and Remanded and Memorandum Opinion filed February 27, 2003

Vacated and Remanded and Memorandum Opinion filed February 27, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00122-CV

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TED DAHL, Appellant

V.

CITY OF HOUSTON, Appellee

On Appeal from the 334th District Court

Harris  County, Texas

Trial Court Cause No. 02-31750

M E M O R A N D U M O P I N I O N

This is an accelerated appeal from an order granting a temporary injunction. Appellant raises three issues. Because we find the order is fatally defective, we declare the temporary injunction void and order it dissolved.[1]

The City filed suit to enforce a City ordinance by requesting that the trial court permanently enjoin appellant from violating applicable deed restrictions. The City alleged that appellant resided in a subdivision with deed restrictions allowing only single family residences and that appellant was in violation of these deed restrictions by operating a commercial business on the property. The City sought a temporary injunction and a permanent injunction, plus payment of a civil penalty.

The trial court held a hearing on January 24, 2002, and both sides presented evidence. On the same date, the trial court signed an order granting a temporary injunction. The injunction precludes appellant from operating a construction business or any commercial enterprise on the property and from storing equipment used in the operation of the business. Finally, the injunction requires removal of all equipment by February 17, 2003.

Appellant filed this accelerated appeal, and on January 27, 2003, appellant filed a motion seeking a stay of the order under Rule 29.3. We granted this motion and stayed the January 24, 2003, order.[2]

The purpose of a temporary injunction is to preserve the status quo of the subject matter of the case pending a trial on the merits. Butnaruv. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). To obtain a temporary injunction, the applicant must plead and prove three elements: A(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. Whether to grant or deny a temporary injunction is within the trial court=s sound discretion. Id. The reviewing court should reverse only if the trial court abused its discretion. Id. We may not substitute our judgment for the trial court=s judgment unless the trial court=s action was so arbitrary that it exceeded the bounds of reasonable discretion. Id.

In his first issue, appellant claims the order is fatally defective under Rule 683. We agree. Rule 683 of the Texas Rules of Civil Procedure provides that every order granting a temporary injunction Ashall include an order setting the cause for trial on the merits with respect to the ultimate relief sought.@ 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). Failure to include a trial setting is a ground for voiding the injunction. Id. The temporary injunction in this case does not set the cause for trial on the merits. Accordingly, the order is fatally defective and void.

Additionally, the order is fatally defective because it fails to include the reasons for its issuance. Rule 683 requires an order granting an injunction to include a Athe reasons for [the injunction=s] issuance@ and to be specific in terms. Tex. R. Civ. P. 683. The trial court did not state with specificity in its order the reasons for the issuance of the injunction. There is no mention that the City established a probable right to recovery or a probable interim injury. The order only includes a list of enjoined actions and a command to remove items by a stated date. Thus, the trial court failed to comply with the mandatory requirement of providing reasons for issuance of the temporary injunction. See Monsanto Co. v. Davis, 25 S.W.3d 773, 789 (Tex. App.BWaco 2000, pet. dism=d w.o.j.). Therefore, the order is void and the temporary injunction must be set aside.

Having found the temporary injunction fatally defective and void, we need not address appellant=s other issues. We declare the temporary injunction signed January 24, 2003, void and order it dissolved.

PER CURIAM

Judgment rendered and Memorandum Opinion filed February 27, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

[1] This opinion is issuing before the deadline for filing appellee=s brief occurs; however, because the injunction is defective on its face, there is no need to delay issuance of this opinion. Indeed, we could have held the injunction void even if appellant had not raised this issue in his brief. GreathouseIns. Agency, Inc. v. Tropical Invs., Inc., 718 S.W.2d 821, 822 (Tex. App.BHouston [14th Dist.] 1986, no writ).

[2] On February 7, 2003, appellee filed a motion to reconsider our order granting the stay. Because we find the temporary injunction void and we order it dissolved, there is no longer any need to stay the order. Thus, our February 3, 2003, order staying the injunction is withdrawn and we no longer need to address the contentions in appellee=s motion to reconsider the stay order.