Andrea Garza, Individually and as Independent Executrix of the Estate of Alfred S. Garza, Deceased; Annette Carrasco; Amanda Garcia; and Alfred G. Garza v. Jaime J. Trevino--Appeal from 81st Judicial District Court of Atascosa County

MEMORANDUM OPINION
No. 04-03-00477-CV

Andrea GARZA, Individually and as Independent Executrix of the

Estate of Alfred S. Garza, deceased,

Annette Carrasco, Amanda Garcia, and Alfred G. Garza,

Appellants
v.
Jaime J. TREVINO,
Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 01-07-0443-CVA
Honorable Donna S. Rayes, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: May 19, 2004

REVERSED AND RENDERED, TEMPORARY INJUNCTION DISSOLVED

Appellants Andrea Garza, individually and as independent executrix of the Estate of Alfred S. Garza, Annette Carrasco, Amanda Garcia, and Alfred G. Garza ("the Garzas") filed an interlocutory appeal of the trial court's temporary injunction. According to the Garzas, the temporary injunction is void. As such, they ask us to reverse the trial court's order and dissolve the temporary injunction.

Background

This appeal arises out of a dispute over a family business. In October 1995, Jaime Trevino and his cousin, Alfred G. Garza, entered into a partnership agreement to operate a business called Lobo Security. According to Trevino, however, his uncle, Alfred S. Garza, was his true partner. For personal financial reasons, Alfred S. Garza had requested that the partnership agreement name his son, Alfred G. Garza, as Trevino's partner. During their partnership, Trevino claims that Alfred S. Garza diverted partnership funds for his own benefit and the benefit of his immediate family members. On March 1, 2001, Alfred S. Garza died.

On July 27, 2001, Trevino sued Alfred S. Garza's estate for fraud, breach of fiduciary duty, and breach of contract. Trevino also sued his aunt, Andrea Garza, his partner under the partnership agreement, Alfred G. Garza, and two of his other cousins for fraud, conversion, civil conspiracy, and aiding and abetting Alfred S. Garza's breach of fiduciary duty. Additionally, Trevino sought a declaratory judgment regarding the characterization of the partnership's property. In response, Alfred G. Garza filed a counterclaim for breach of contract, breach of fiduciary duty, breach of the duty of good faith and fair dealing, and conversion. Alfred G. Garza also sought declaratory relief.

On August 8, 2001, the trial court entered a temporary injunction, preventing the Garzas from depleting their assets during litigation. The Garzas were enjoined from "[d]estroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties." And, they were enjoined from "[s]elling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of [Trevino] or [the Garzas], whether personalty or realty, and whether separate or community, except as specifically authorized" by the trial court. The temporary injunction did permit the Garzas to incur indebtedness to pay legal expenses. It did not, however, contain a trial setting date or provide for a bond.

A year later, the Garzas moved to dissolve the temporary injunction. Trevino then filed his first motion for contempt, which was denied by the trial court. On April 17, 2003, Trevino filed his second motion for contempt, arguing that Andrea Garza had violated the temporary injunction by borrowing $112,000 against her homestead to pay for her legal fees and costs. According to Trevino, the temporary injunction's prohibition against encumbrances trumped the provision allowing Andrea Garza to fund her defense. After holding an evidentiary hearing, the trial court signed a "Judgment of Contempt" on May 28, 2003, ordering Andrea Garza, on or before July 1, 2003, to effectuate a release of lien and pay Trevino's attorney $3,500 and costs of the proceeding. On June 26, 2003, Andrea Garza filed a petition for writ of mandamus, seeking relief from the trial court's contempt judgment. On that same day, the Garzas filed a notice of appeal, seeking reversal of the trial court's temporary injunction.

Discussion

On November 12, 2003, we conditionally granted Andrea Garza's petition for writ of mandamus. See In re Garza, 126 S.W.3d 268 (Tex. App.--San Antonio 2003, orig. proceeding [leave granted, mand. denied]). We held that because the temporary injunction failed to set the cause for trial or provide for a bond in violation of Texas Rules of Civil Procedure 683 and 684, the temporary injunction is void. Id. at 273. And, as such, the trial court abused its discretion in holding Andrea Garza in contempt for violating a void order. Id. We, therefore, conditionally issued the writ and ordered the trial court to vacate its contempt judgment against Andrea Garza. Id.

On November 25, 2003, Trevino filed a petition for writ of mandamus in the supreme court, complaining of our ruling. On May 7, 2004, the supreme court denied Trevino's petition. We, therefore, see no reason not to follow our holding in In re Garza that the temporary injunction is void. As such, we sustain the Garzas' sole issue.

Conclusion

Because the temporary injunction failed to set the cause for trial or provide for bond, it is void. We reverse the trial court's order and dissolve the temporary injunction.

Karen Angelini, Justice