Lamar County Electric Cooperative Association and Cap Rock Electric Cooperative, Inc. v. Rayburn Country Electric Cooperative, Inc.--Appeal from 238th District Court of Midland County

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

 
LAMAR COUNTY ELECTRIC COOPERATIVE ASSOCIATION AND CAP ROCK ELECTRIC COOPERATIVE, INC.,

Appellants,

 

v.

 

RAYBURN COUNTRY ELECTRIC COOPERATIVE, INC.,

 

Appellee.

 

 

 

 

 

 

No. 08-01-00238-CV

 

Appeal from the

 

238th District Court

 

of Midland County, Texas

 

(TC#CV-42,814)

M E M O R A N D U M OPINION

This is an interlocutory appeal from the denial of Appellants', Lamar County Electric Cooperative Association ("Lamar") and Cap Rock Electric Cooperative, Inc. ("Cap Rock"), Motion to Dissolve Order Granting Temporary Injunction. For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

Appellee, Rayburn Country Electric Cooperative, Inc. ("Rayburn"), is a non-profit corporation organized under the Texas Electric Cooperative Corporation Act. Rayburn procures power through long-term power contracts with generators, and re-sells that power at wholesale to its Member-cooperatives, who then provide that electricity to individual consumers and businesses. Lamar is a Member-cooperative of Rayburn. Cap-Rock is a non-profit corporation organized under the Texas Electric Cooperative Corporation Act.

In October, 1999, Lamar and Cap Rock signed an agreement to combine. Rayburn opposed the combination and argued there were contractual prohibitions on the proposed combination stemming from several contracts, including a "First Refusal Agreement." In November, 1999, Lamar filed a declaratory judgment action against Rayburn in Lamar County, seeking to have the First Refusal Agreement declared unenforceable, or in the alternative, requesting that the court construe the parties' rights and remedies under the First Refusal Agreement. Rayburn then filed an original petition for temporary and permanent injunctive relief against Lamar and Cap Rock in Midland County on December 7, 1999.

The Midland court granted Rayburn's request for a temporary restraining order ("TRO") and set the bond at $15,000. Rayburn posted the bond on December 8, 1999. On December 9, 1999, the 6th Judicial District Court in Lamar County entered an order in which it confirmed that Lamar County Electric Cooperative Association v. Rayburn Country Electric Cooperative, Inc., et al., No. 67, 121, was properly filed in and would remain on the docket of the District Court, despite the fact the District Clerk's office inadvertently placed the County Court at Law designation on the suit. Also on December 9, 1999, Cap Rock filed its "Motion to Transfer Venue and Subject Thereto Plea in Abatement, Motion to Dissolve the Temporary Restraining Order, Motion to Deny Temporary Injunctive Relief, Plea in Abatement, and Alternatively Motion to Increase Bond." On December 10, 1999, Lamar filed its "Motion to Transfer Venue and Subject Thereto Plea in Abatement, Motion to Sever, Motion to Dissolve the Temporary Restraining Order, Motion to Deny Temporary Injunctive Relief, Plea in Abatement, and Alternatively Motion to Increase Bond."

On December 13, 1999, the Midland court denied Appellants' Pleas in Abatement and Motions to Sever and refused to dissolve the TRO. On December 22, 1999, the Midland court entered an Agreed Order Extending the Temporary Restraining Order in which he ordered the TRO remain in effect until the conclusion of the hearing on Rayburn's Application for Temporary Injunction and Appellants' Motion to Transfer Venue. The hearing was set for January 27, 2000. The order noted that the bond previously posted by Rayburn would remain in effect until further order of the court. Finally, the order stated that by agreeing to the extension of the TRO, no party waived and all parties preserved any rights, arguments, and relief that would otherwise be available to them if the injunction hearing had gone forward as originally scheduled for December 21, 1999.

After the January 27, 2000 hearing, the Midland court entered its Agreed Order for Temporary Injunction for the purpose of preserving the status quo pending final adjudication of the issues. A trial date of June 19, 2000 was set and the order stated that it would not be effective unless and until Rayburn executed and filed with the clerk a bond in the amount of $15,000. In November, 2000, Lamar and Cap Rock moved to dissolve the Order Granting Temporary Injunction because Rayburn never filed the required bond. Upon learning of the motions to dissolve, Rayburn filed the required bond on November 27, 2000. The Midland court denied Appellants' motion to dissolve. This interlocutory appeal follows.

II. DISCUSSION

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). Unless a statute specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction only over final judgments. Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985)(orig. proceeding). Section 51.014 of the Civil Practice and Remedies Code specifically allows appeal of various interlocutory orders, including an order that "grants . . . a temporary injunction . . . [.]" Tex. Civ. Prac. & Rem. Code Ann. 51.014(4) (Vernon Supp. 2002). Therefore, we have jurisdiction to consider this interlocutory appeal. (1)

Appellants bring three issues on appeal. In Issue No. One, Appellants argue that the court erred in refusing to abate because the court lacked jurisdiction due to a previously filed case. Appellee argues, and we agree, that this issue may not be raised in an interlocutory appeal.

In Faddoul, Glasheen & Valles, P.C. v. Oaxaca, this Court was faced with the same issue. 52 S.W.3d 209 (Tex. App.--El Paso 2001, no pet.). Appellants took an interlocutory appeal of a temporary injunction and attempted to assert an issue regarding the trial court's order overruling their motion to dismiss or abate on the grounds that another court had exclusive jurisdiction. Id. at 211. We held that review of such an order was not subject to interlocutory appeal under the Civil Practice and Remedies Code and that such an order was generally reviewed only on appeal from the final judgment. Id. (citing Tex. Civ. Prac. & Rem. Code Ann. 51.014 (Vernon Supp. 2002); Browne v. Bear, Stearns & Co., 766 S.W.2d 823, 824 (Tex. App.--Dallas 1989, writ denied); Coastal Oil & Gas Corp. v. Flores, 908 S.W.2d 517, 518 (Tex. App.--San Antonio 1995, no writ)). Accordingly, Issue No. One is overruled.

In Issue No. Two, Appellants assert that the trial court erred in refusing to grant defendants' Motion to Dissolve Temporary Injunction due to Appellee's failure to file a bond. Rule 684 of the Texas Rules of Civil Procedure provides: "In the order granting any . . . temporary injunction, the court shall fix the amount of security to be given by the applicant." Tex. R. Civ. P. 684. This rule has been strictly construed. Before a trial court issues a temporary injunction, the applicant must execute a bond to the adverse party and file the bond with the court clerk. Chambers v. Rosenberg, 916 S.W.2d 633, 634 (Tex. App.--Austin 1996, writ denied). The filing of a bond is a condition precedent to the issuance of a temporary injunction, and the failure of the applicant to file a bond renders the injunction void ab initio. Bayoud v. Bayoud, 797 S.W.2d 304, 311 (Tex. App.--Dallas 1990, writ denied).

However, so long as the applicant files the required bond before the writ of injunction issues, the bond is timely and the injunction is not void for failure to post a bond. Ohlhausen v. Thompson, 704 S.W.2d 434, 438 (Tex. App.--Houston [14th Dist.] 1986, no writ). Such is the situation in the case at bar. Here, the District Clerk did not issue the writs of injunction until after Rayburn posted the bond on November 27, 2000. Issue No. Two is overruled.

In Issue No. Three, Appellants assert that the court erred in refusing to dissolve its order granting an injunction on the grounds of waiver. Appellants maintain that Rayburn's failure to file a bond and thus the failure for the writ of injunction to issue for over nine months was a waiver on Rayburn's part. Lamar and Cap Rock argue that they could have gone forward with the combination and such action would not have been in violation of the injunction, as no writ issued for over nine months due to Rayburn's failure to file a bond. Instead, Appellants chose to use motion practice to address the bond and writ failure issues. Appellants now insist they should not be punished for opting to file a motion to dissolve instead of going forward with the combination. We note that Appellants cite no authority for this waiver argument. Tex. R. App. P. 38.1(h). Accordingly, we overrule Issue No. Three.

Having overruled each of Appellants' issues, we affirm the judgment of the trial court

February 10, 2004

_______________________________________ RICHARD BARAJAS, Chief Justice

 

Before Panel No. 2

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

1. We are not unmindful of our decision in Cap Rock Electric Cooperative, Inc. v. Rayburn Country Electric Cooperative, Inc., No. 08-01-00347-CV, a companion to this case, in which we held that the Midland court did not have jurisdiction due to a previously filed case. These cases were consolidated for the purposes of appeal because of their related issues. While the outcomes may seem inconsistent, an interlocutory appeal was the only vehicle available to Appellants to challenge certain issues presented herein.