BOB CORNELISON, INDIVIDUALLY AND OFFICIALLY AS PORT DIRECTOR OF THE PORT ISABEL-SAN BENITO NAVIGATION DISTRICT, WILLIAM ZIMMERMAN, ET. AL. v. OFFSHORE ENTERTAINMENT CORPORATION--Appeal from 404th District Court of Cameron County

NUMBER 13-02-00452-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

BOB CORNELISON, INDIVIDUALLY

AND OFFICIALLY AS PORT DIRECTOR

OF THE PORT ISABEL-SAN BENITO

NAVIGATION DISTRICT, WILLIAM

ZIMMERMAN, ET. AL., Appellants,

v.

OFFSHORE ENTERTAINMENT CORPORATION, Appellee.

On appeal from the 404th District Court

of Cameron County, Texas.

O P I N I O N

Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Castillo

Appellants[1] bring an interlocutory appeal[2] from the grant of a temporary injunction enjoining them from: (1) destroying or deleting certain materials; (2) entering into certain contracts; (3) removing or destroying certain property; (4) contacting certain persons or entities; (5) contacting certain parties; (6) paying certain sums to third parties; (7) destroying certain improvements; and (8) failing to account for certain monies.

In three issues, appellants contend the trial court abused its discretion in granting the temporary injunction because: (1) appellees presented no evidence of a probable right of recovery, imminent harm, or irreparable injury; (2) there is an adequate remedy at law for the causes of action alleged; and (3) the order is void for failing to satisfy the requirements of the Texas Rules of Civil Procedure. Appellee, Offshore Entertainment Corporation, did not file a brief in this appeal.

A temporary injunction is an extraordinary remedy, the purpose of which is to preserve the status quo of a litigation=s subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). A temporary injunction does not issue as a matter of right; an applicant must plead and prove three specific elements: (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. On appeal, we review a trial court=s decision to grant injunctive relief under an abuse of discretion standard. Id. A trial court abuses its discretion when it misapplies the law to the established facts or when the evidence does not reasonably support the trial court=s conclusions. Matagorda County Hosp. Dist. v. City of Palacios, 47 S.W.3d 96, 99 (Tex. App.BCorpus Christi 2001, no pet.).

Considering first appellants= third issue, we note initially that the order granting the temporary injunction does not set a bond. The supreme court has held that a temporary injunction order is void where there is no bond set as required by rule 684 of the rules of civil procedure. See Tex. R. Civ. P. 684 (AIn the order granting any . . . temporary injunction, the court shall fix the security to be given by the applicant.@); see also Qwest Communications v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000)(per curiam)(citing Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956)); Ex parte Lesher, 651 S.W.2d 734, 736 (Tex. 1983)(noting that Aan order of injunction issued without a bond is void on its face.@); Matagorda County Hosp. Dist., 47 S.W.3d at 104 (observing that an order issuing a temporary injunction lacking the requisite bond is void). The requirements of rule 684 have been strictly construed. Ebony Lake Healthcare Ctr. v. Tex. Dep=t of Human Servs., 62 S.W.3d 867, 870 (Tex. App.BAustin 2001, no pet.). Where, on its face, an order granting a temporary injunction does not require a bond, the order is void ab initio. Smith v. Ticor Title Ins. Co., 692 S.W.2d 531, 532 (Tex. App.BEl Paso 1985, no writ).

Furthermore, the order granting the temporary injunction in the present case does not state the reasons why the trial court deemed it proper to issue the injunction as is required by rule of civil procedure 683. See Tex. R. Civ. P. 683. In pertinent part the order reads:

The Court, having examined the pleadings and affidavit of Plaintiff and hearing the arguments of Counsel, is of the opinion that the request for a Temporary Injunction should be and is hereby granted. The Court finds that immediate and irreparable injury, loss or damage as alleged will result to plaintiff unless Defendant is forthwith restrained as requested. Plaintiff has no adequate remedy at law.

The above recitation does not comply with the requirements of rule 683 as it wholly fails to identify the probable interim injury that appellees would suffer without issuance of the temporary injunction or why the probable injury is an irreparable one for which there is no adequate legal remedy. Fasken v. Darby, 901 S.W.2d 591, 593 (Tex. App.BEl Paso 1995, no writ). A trial court is not required to give its reasons for believing that the applicant has a probable right to final relief, but the order must Agive the reasons why injury will be suffered if the interlocutory relief is not ordered.@ State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex. 1971)(citing rule 683); Moreno v. Baker Tools, Inc., 808 S.W.2d 208, 210 (Tex. App.BHouston [1st Dist.] 1991, no writ)(noting rule of Cook United and confirming that if a trial court=s order does not state reasons why injury will be suffered in the absence of interlocutory relief, Awe will declare it void and dissolve it.@). Since the Arequirements of Rule 683 are mandatory and must be strictly followed,@ a temporary injunction order that does not adhere to those requirements is subject to being declared void and dissolved. Interfirst Bank San Felipe, N.A., v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986)(per curiam). An order that fails to conform to the requirements of rule 683 is fatally flawed, and a trial court abuses its discretion in rendering and signing the order. Wyatt v. Cowley, 74 S.W.3d 576, 577-78 (Tex. App.BCorpus Christi 2002, pet. dism=d w.o.j.). Accordingly, we sustain appellants= third issue.

We also sustain appellants= first issue. No temporary injunction may issue unless the applicant offers competent evidence in support of his application to the trial court at the hearing on the temporary injunction, according to the standard rules of evidence. Millwrights Local Union No. 2484 v. Rust Eng=g Co., 433 S.W.2d 683, 686-87 (Tex. 1968)(citing rule 680); see also Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961)(AThe applicant has, and in equity and good conscience ought to have, the burden of offering some evidence which, under applicable rules of law, establishes a probable right of recovery. If not, no purpose is served by the provisions of Rule 680 . . . requiring a hearing before a temporary injunction can issue. . . . Writs of injunction should not issue on mere surmise.@). Remarks of counsel during the course of a hearing are not competent evidence unless the attorney is actually testifying. Collier Servs. Corp. v. Salinas, 812 S.W.2d 372, 377 (Tex. App.BCorpus Christi 1991, orig. proceeding). Nor does a sworn petition requesting the issuance of the injunction constitute evidence that can support a trial court=s issuance of a temporary injunction. Millwrights Local Union No. 2484, 433 S.W.2d at 686; see also In re Tex. Natural Res. Conservation Comm=n, 85 S.W.3d 201, 204 (Tex. 2002)(noting that temporary injunctions require more stringent proof requirements than temporary restraining orders that can issue on sworn pleadings).

Review of the record of the temporary injunction hearing in the instant case reveals that appellee offered no evidence to the trial court and called no witnesses. The order itself recites that the matter was decided on the Apleadings and affidavit of Plaintiff, and . . . the arguments of counsel.@[3] As no evidence was offered to the trial court in support of the temporary injunction, we cannot say that the trial court=s ruling is supported by evidence. Millwrights Local Union No. 2484, 433 S.W.3d at 687. Accordingly, we hold that the trial court abused its discretion in issuing the temporary injunction in the absence of evidence.

In light of our disposition, it is not necessary to consider appellants= second issue. Tex. R. App. P. 47.1. Having sustained appellants= first and third issues, we declare the trial court=s temporary injunction to be void and order that it be dissolved.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 5th day of December, 2002.

[1]Appellants are Bob Cornelison, Individually and Officially as Director of the Port Isabel-San Benito Navigation District, William Zimmerman, Victor Barrera, and William Wickley, Individually and Officially as Commissioners of the Port Isabel-San Benito Navigation District, and the Port Isabel-San Benito Navigation District.

[2]We have jurisdiction over this interlocutory appeal pursuant to section 51.014(a)(4) of the civil practice and remedies code, which provides that an appeal may be taken from an interlocutory order that grants or refuses a temporary injunction. Tex. Civ. Prac. & Rem. Code Ann. '51.014(a)(4) (Vernon Supp. 2003).

[3]Aside from the recitations in the order and the record of the hearing itself, which affirmatively demonstrate the appellee=s failure to put on witnesses or offer other evidence, in a brief exchange at the conclusion of the hearing the trial judge made it clear that he was not relying on any evidence to support his ruling:

TRIAL JUDGE: Well, I=ll entertain the other matters that you brought up . . . but for the meanwhile I am going to go ahead and issue an injunction.

DEFENSE COUNSEL: Without an evidentiary record, Your Honor?

TRIAL JUDGE: Yes, sir.