JESSE D. RAMIREZ, JR. v. RAYMOND LOPEZ, THERESA LOPEZ, INTERNATIONAL COMPRESSIONS & ENERGY, L.P. ET AL.--Appeal from 319th District Court of Nueces County

NUMBER 13-04-111-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JESSE D. RAMIREZ, JR., Appellant,

v.

RAYMOND LOPEZ, ET AL., Appellees.

On appeal from the 319th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion by Justice Ya ez

This case presents an accelerated, interlocutory appeal from the trial court s order denying appellant s request for a temporary injunction. // In two issues, appellant, Jesse D. Ramirez, Jr., contends the trial court abused its discretion in: (1) failing to grant his application for a temporary injunction; and (2) denying his motion to re-open evidence. We affirm.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. //

Background

The evidence offered at the injunction hearing is disputed. In the underlying lawsuit, appellant sued appellees // for various causes of action, including breach of contract, fraud, breach of good faith and fair dealing, and negligent representation. Appellant alleges he was fraudulently induced into executing a purchase agreement, by which he transferred his twenty-five percent partnership interest in ICE, a gas compression equipment business, to appellee Raymond Lopez.

Standard of Review

A temporary injunction is an extraordinary remedy and does not issue as a matter of right. // A decision on whether to grant or deny a temporary injunction is within the sound discretion of the trial court and should only be reversed if the trial court abused its discretion. // The appellate court should view the evidence in the light most favorable to the trial court's decision, indulging every reasonable inference in its favor, and determine whether the decision was so arbitrary as to exceed the bounds of reasonable discretion. // The reviewing court must not substitute its judgment for the trial court s judgment unless the trial court s order is so arbitrary, unreasonable, or based on so gross and prejudicial an error of law as to establish abuse of discretion. // The trial court does not abuse its discretion if it bases its decision on conflicting evidence and evidence in the record reasonably supports the trial court s decision. // The appellate court cannot resolve the merits of the underlying case. //

At a temporary injunction hearing, the only issue before the trial court is whether the status quo should be preserved pending trial on the merits. // The status quo is the last,

actual, peaceable, non-contested status that preceded the pending controversy. // Elements of Temporary Injunction

Although the purpose of a temporary injunction is preservation of the status quo, to obtain a temporary injunction, 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. // The probable injury element requires a showing that the harm is imminent, the injury would be irreparable, and that the plaintiff has no other adequate legal remedy. // The showing of irreparable harm requires proof that the injury is of such a nature that the injured party cannot be adequately compensated for it in damages. // An applicant for temporary injunction may prove irreparable harm by showing that damages cannot be measured by any certain pecuniary standard. // For purposes of injunctive relief, no adequate remedy at law exists if damages are incapable of calculation or if the defendant is incapable of responding in damages. // In this case, the trial court made no findings of fact or conclusions of law pertaining to the three elements of appellant s application for temporary injunction. Therefore, we will review the record to determine if the order of the court may be upheld under any legal theory supported in the record. //

Analysis

In his first issue, appellant contends the trial court abused its discretion in failing to grant his application for a temporary injunction. Appellant contends that although he executed a purchase agreement by which he sold his partnership interest in ICE to Lopez, he only did so because Lopez assured him that the purchase agreement was meaningless. Appellant contends the purchase agreement is unenforceable because the only consideration for the agreement is Lopez s offer to continue to employ him. Appellant argues that because the purchase agreement is invalid due to lack of consideration, he retains his partnership interest in ICE. Accordingly, he requested injunctive relief to prevent appellees from interfering with his right to participate in the management of ICE s business affairs. He also sought injunctive relief to prevent appellees from wasting or transferring partnership assets belonging to ICE. Appellant argues that he has suffered and continues to suffer irreparable injury because appellees defrauded him into transferring his partnership interest to Lopez. He contends he has suffered irreparable injury because he contributed assets and expertise to building up the business, which he lost due to appellees fraudulent conduct. He also contends he has no adequate remedy at law because he cannot be adequately compensated in damages for the loss of his customers, reputation, and all that he invested in the business. Appellant argues that the status quo in the present case is the partnership relationship he had with ICE before he executed the allegedly invalid purchase agreement transferring his partnership interest to Lopez.

Appellees argue that the purchase agreement is supported by two types of consideration: (1) appellant s continued employment by Lopez; and (2) Lopez s assumption of all liabilities associated with the partnership. At the temporary injunction hearing, Lopez testified that he understood that under the purchase agreement, he assumed all liabilities of the partnership and that appellant was released from all liabilities. Jay Riggins, the attorney who prepared the purchase agreement, also testified that the agreement was supported by two types of consideration, appellant s continued at-will employment and his release from certain guarantees and other liabilities associated with the partnership. Appellant testified that although the agreement didn t mean anything, Lopez s testimony that he assumed all of the partnership s obligations and debts is what the agreement says. Appellees contend that because the purchase agreement is supported by adequate consideration, the trial court could reasonably have concluded that the status quo was that appellant had sold his partnership interest in ICE and had no legal standing because he no longer retained any ownership interest in ICE. Appellees also argue that appellant failed to establish that he has no adequate remedy at law.

We have reviewed the entire record. Considering the conflicting testimony and the deference due the trial court according to the applicable standard of review, we hold the trial court did not err in denying the temporary injunction. Because there is evidence to support the trial court s decision, we hold the order denying the temporary injunction is not so arbitrary, unreasonable, or based upon so gross and prejudicial an error of law as to establish an abuse of discretion. Appellant s first issue is overruled.

Motion to Re-open Evidence

In his second issue, appellant contends the trial court abused its discretion in denying his motion to re-open evidence. Appellant s motion requested that the trial court re-open evidence to submit a non-compete agreement in support of his claim of probable injury.

Appellees contend this Court lacks jurisdiction to address the trial court s denial of appellant s motion to re-open evidence. We agree. There is no statute authorizing appellate jurisdiction over an interlocutory order denying a motion to re-open evidence, nor can such an order be considered final. // When a party appeals from two interlocutory orders, only one of which is made appealable by statute, the proper course is to dismiss that portion which is non-appealable, and to rule on the portion from which an appeal may be taken. // Accordingly, we dismiss appellant s second issue. //

We affirm the trial court s order denying the temporary injunction.

LINDA REYNA YA EZ

Justice

Memorandum opinion delivered and filed this the

31st day of March, 2005.