Triantaphyllis, Tasso v. Gamble, Brent--Appeal from 234th District Court of Harris County

Dismissed and Majority and Dissenting Opinions filed May 23, 2002

Dismissed and Majority and Dissenting Opinions filed May 23, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00190-CV

____________

TASSO TRIANTAPHYLLIS, Appellant

V.

BRENT GAMBLE, Appellee

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 02-08865

O P I N I O N

In this accelerated appeal from a temporary injunction, appellant, Tasso Triantaphyllis, the Democratic Party candidate for Judge of the 270th District Court of Harris County, seeks a reversal of the trial court s order directing Harris County Republican Party officials to place the name of appellee, Brent Gamble, on the ballot for the March 12, 2002, Republican Party primary election as a candidate for Judge of the 270th District Court. We dismiss the appeal as moot.

 

Background

The relevant background facts in this case may be found in this court s opinion conditionally granting mandamus relief to Triantaphyllis. In re Triantaphyllis, No. 14-02-00065-CV, 2002 WL 172232 (Tex. App. Houston [14th Dist.] Jan. 31, 2002, orig. proceeding). In that original proceeding, this court ordered that Gamble s name be removed from the Republican Party primary ballot as a candidate for the office of Judge of the 270th District Court because his application was defective. Id. at *6. The party officials complied with our directive and removed Gamble s name.

Gamble then filed a petition for writ of mandamus in the Texas Supreme Court. Although the majority opinion disagreed with this court s construction of the Election Code, the Texas Supreme Court denied mandamus relief. In re Gamble, 45 Tex. Sup. Ct. J. 397, 399-400, 2002 WL 242539 (Feb. 19, 2002). The court found that equitable remedies may be available under limited circumstances to permit a candidate to amend a defective application after a statutory deadline has expired when an election official has violated a statutory duty. Id. The determination of a party s entitlement to equitable relief must be decided after a hearing on the merits where interested parties have an opportunity to be heard. Id. at 400.

Accordingly, on February 20, 2002, Gamble filed a new lawsuit and requested an immediate temporary injunction hearing and an expedited hearing on his request for a permanent injunction. See Tex. Elec. Code Ann. 273.081 (Vernon 1986) ( A person who is being harmed or is in danger of being harmed by a violation or threatened violation of this code is entitled to appropriate injunctive relief to prevent the violation from continuing or occurring. ) An evidentiary hearing was held on February 26, 2002. At the hearing, the trial court inquired whether the parties would agree to consider both the temporary and permanent injunctions at the same hearing.[1] Triantaphyllis did not agree to waive his right to forty-five days notice of trial, and he declined to proceed with a hearing on the permanent injunction. At the conclusion of the hearing, the trial court granted a temporary injunction and set the case for trial on April 15, 2002. The trial court s mandatory temporary injunction required that Gamble s name be placed on the Republican party primary ballot as a candidate for Judge of the 270th District Court.[2] Triantaphyllis filed his notice of appeal on March 1, 2002. The primary election was held on March 12, 2002. Each unopposed primary candidate for Judge of the 270th District Court is now his respective party s nominee for the November general election.

 Was Emergency Relief  Necessary?

In conjunction with his notice of appeal, Triantaphyllis filed a request for emergency temporary relief, in which he sought a stay of the trial court s order. We denied emergency relief on March 8, 2002. While this court has the power to make temporary orders necessary to preserve the parties rights until disposition of an interlocutory appeal, see Tex. R. App. P. 29.3, temporary orders were unnecessary here. The mandatory injunction in this case required Gamble s name to be placed on the ballot in the Republican primary election; it did not affect Triantaphyllis s right or ability to be named as a candidate on the Democratic primary ballot. If Gamble s name had been removed from the ballot in the March 12 primary election, he would have lost any chance to be placed on the ballot as the Republican Party nominee in the November general election. To grant a stay would have effectively reversed the temporary injunction, keeping Gamble s name off of the ballot, and rendering the issues on appeal and in the underlying trial moot.

The issuance of a temporary mandatory injunction is proper when a mandatory order is necessary to prevent irreparable injury or extreme hardship. RP&R, Inc., 32 S.W.3d at 400 n.3 (recognizing that a mandatory temporary injunction may be issued to compel an act when inaction will inflict irreparable harm). When issuing a temporary injunction, a trial court should determine how best to create or preserve a state of affairs such that it will be able upon conclusion of the full trial to render a meaningful decision for either party. Southwestern Bell Tel. Co. v. Public Util. Comm n, No. 03-01-00114-CV, 2001 WL 838883, at *4 (Tex. App. Austin July 26, 2001, pet. dism d w.o.j.). The trial court s injunction here preserved an unopposed candidate s name on the primary ballot so that a meaningful decision as to his entitlement to be a candidate in the general election could be made after a full trial. Accordingly, we denied emergency relief.

Has this appeal been rendered moot?

Trial of the permanent injunction was not stayed pending our disposition of this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(b) (Vernon Supp. 2002) (appeal of order granting or refusing temporary injunction does not stay commencement of trial pending resolution of appeal); see also Charter Med. Corp. v. Miller, 554 S.W.2d 220, 223 (Tex. Civ. App. Dallas 1977, writ ref d n.r.e.) ( [T]he most expeditious way of obviating the hardship of an unfavorable preliminary order is to try the case on the merits and thus secure a hearing in which both facts and law may be fully developed; in this way, both trial and appellate courts may render judgment finally disposing of the controversy. ) A trial was conducted on April 15, 2002, to determine whether Gamble can remain as a candidate in the general election. At the conclusion of the trial, on April 15, 2002, the trial court signed an order granting a permanent injunction in favor of Gamble. On April 24, 2002, Triantaphyllis filed his notice of appeal of the permanent injunction.

Triantaphyllis, who did not have the burden of proof below, chose to have two separate hearings rather than consolidate them. Under these circumstances, we conclude that the general rule concerning appeals of temporary injunctions applies. That rule states that when the trial court renders a final judgment while an appeal of the granting or denying of a temporary injunction is pending, the case on appeal becomes moot and must be dismissed. Isuani v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 232, 236 (Tex. 1991) (holding appeals court erred in reaching merits of interlocutory appeal of temporary injunction after trial court entered permanent injunction). In the limited time between the filing of the parties briefs and the issuance of the permanent injunction, this court has been unable to resolve the appellate issues from the temporary injunction.

Accordingly, we dismiss this appeal as moot. All pending motions related to this appeal are also dismissed as moot. Triantaphyllis s appeal of the permanent injunction remains pending before this court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Majority and Dissenting Opinions filed May 23, 2002.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish Tex. R. App. P. 47.3(b).

Dismissed and Majority and Dissenting Opinions filed May 23, 2002.

In The

Fourteenth Court of Appeals

_______________

NO. 14-02-00190-CV

_______________

TASSO TRIANTAPHYLLIS, Appellant

V.

BRENT GAMBLE, Appellee

________________

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 02-08865

_________________

D I S S E N T I N G O P I N I O N

It is undisputed that, if Gamble s name had not been on the March 12 primary ballot, regardless of the reason for its absence therefrom, it could not be placed on the general election ballot as the Republican nominee. Conversely, if his name had been placed on the primary ballot by an erroneous temporary injunction, it is undisputed that a reversal of the temporary (or permanent) injunction, even after the primary was held, would effectively remove his name from the primary ballot. In that event, it would be as if his name had not been on the primary ballot, and the permanent injunction proceeding held after the primary election could no more overcome that omission of his name from the primary ballot than if his name had never been on the primary ballot in the first place. Therefore, not only is the temporary injunction appeal not moot because of the permanent injunction, but if the temporary injunction appeal is meritorious, it would render the permanent injunction proceeding and appeal moot. Accordingly, despite the likely judicial diseconomy from addressing the appeals of both injunction proceedings on the merits, the temporary injunction can not properly be dismissed as moot.

/s/ Richard H. Edelman

Justice

Judgment rendered and Majority and Dissenting Opinions filed May 23, 2002.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] Although both parties are ordinarily entitled to a separate trial on the merits on the application for a permanent injunction, the parties may agree to waive the separate trial, combine the two proceedings, and try the temporary and permanent injunction in the same trial. See Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex. 1981).

[2] There are two types of temporary injunctions prohibitive and mandatory. A prohibitive injunction forbids conduct, whereas a mandatory injunction requires it. RP&R, Inc. v. Territo, 32 S.W.2d 396, 400 (Tex. App. Houston [14th Dist.] 2000, no pet.).