Gregory R. Mattox and Barbara Wilkerson v. Clifford Jackson and Eleanor Jean Jackson

Opinion issued February 3, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00736-CV

———————————

Gregory R. Mattox

and Barbara Wilkerson , Appellants

V.

Clifford Jackson and Eleanor Jackson ,

Appellees

On

Appeal from the 506th District Court

Grimes

County, Texas

Trial Court Case No. 30753

O P I

N I O N

Appellants Gregory R. Mattox and Barbara

Wilkerson appeal the trial court’s granting of Appellees Clifford Jackson and

Eleanor Jackson’s oral application for temporary injunction. In eight points of error, appellants argue

that the trial court erred by: (1) granting an order for a temporary

restraining order based on an unverified oral application; (2) granting a

request for a temporary injunction based on an unverified oral application; (3)

not allowing evidence to be presented at the temporary injunction hearing; (4) granting

a request for a temporary injunction based on insufficient evidence; (5) granting

a request for a temporary injunction that did not contain all of the

statutorily required information; and (6) amending the order granting a temporary

injunction after the notice of appeal had been filed. Additionally, appellants ask this Court “to

rule that they are entitled to an award of attorney[s’] fees and costs as

plead[ed].”

We reverse and remand.

Background

In May 2005, Mattox and Wilkerson purchased two adjacent

lots in the Hill Forest Manor Subdivision.

Some time after their purchase, they discovered that a portion of their

property was encumbered by an unpaved roadway dedicated as a county road. The last 134 feet of the roadway lies on

their property, terminating at the border between their property and the

Jacksons’ property. The Jackson’s

property is not a part of the Hill Forest Manor Subdivision, and the easement

in dispute is not necessary for the Jacksons to access their property.

Following the discovery of the easement, Mattox and

Wilkerson filed an application with the Grimes County Commissioners Court to

cancel the dedication of the 134-foot portion of the roadway that lies across

their land. That application lead to a

suit that is separate from the underlying litigation. [1]

In March 2007, the Jacksons filed suit against Mattox and

Wilkerson seeking declaratory and injunctive relief. The Jacksons alleged that Mattox and

Wilkerson’s predecessor in interest in title erected a fence and planted two

pear trees on the roadway easement in 1991 in order to keep people from using

the roadway. They further alleged that

Mattox and Wilkerson refused to remove the obstructions. The Jacksons sought a declaration from the

trial court that the roadway is a public road.

They also sought a permanent injunction requiring Mattox and Wilkerson

to remove the current obstructions and enjoining Mattox and Wilkerson from

erecting any other obstructions along the roadway.

The parties agree that, some time around July 2010, Mattox

and Wilkerson erected additional barriers across the roadway that prevented

passage along the roadway. On July 26,

2010, the trial court entered an order noting that the Jacksons had “orally

filed an application for a temporary injunction.” The trial court set a hearing date for the

application on August 2, 2010. At the

hearing, the trial court repeatedly stated that it did not want to get into the

facts of the case. The trial court

stated that, instead, it only wanted to know the status of the suit concerning

the cancellation of the dedication and whether the status quo of the roadway

had changed.

Both parties agreed that the suit concerning the

cancellation of the dedication had been on appellate review and an opinion had

issued but mandate had not yet issued.

They also agreed that there had been a change in the status quo.

During the hearing, counsel for Mattox and Wilkerson repeatedly

attempted to discuss the facts concerning the change in the status quo of the

roadway and, at one point, represented to the trial court that he was prepared

to present evidence. Each time, the

trial court repeated that it did not want to get into the facts of the case and

determined that Mattox and Wilkerson’s allegations were fact issues.

Based on the parties’ agreement that the suit concerning

the cancellation of the dedication was still ongoing and that the status quo of

the roadway had changed, the trial court granted the request for a temporary

injunction ordering Mattox and Wilkerson to remove the barricades and fencing

that had changed the status quo of the case and to return the roadway to its

status quo.

On August 11, 2010, Mattox and Wilkerson filed their

notice of appeal. Six days later, the

Jacksons filed a motion asking the trial court to make certain modifications to

its temporary injunction order. On the

same day, the trial court issued an Order for Issuance of Temporary Injunction

Nunc Pro Tunc. The trial court also

issued, at Mattox and Wilkerson’s request, findings of fact and conclusions of

law.

Standard of Review

A temporary injunction is an extraordinary remedy that

does not issue unless the party seeking relief pleads and proves three specific

elements: (1) a cause of action; (2) a probable right to the relief sought; and

(3) a probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co. , 84 S.W.3d 198,

204 (Tex. 2002). A

trial court at a temporary injunction hearing determines whether the applicant

is entitled to preserve the status quo pending trial on the merits. Id. ; Davis v. Huey , 571 S.W.2d

859, 862 (Tex. 1978). The status quo is

defined as the last, actual, peaceable, non-contested status that preceded the

pending controversy. In re Newton , 146 S.W.3d 648, 651 (Tex. 2004).

On appeal, the scope of review

is limited to the validity of the temporary injunction order. See Walling v. Metcalfe , 863 S.W.2d

56, 58 (Tex. 1993). We do not review the

merits of the underlying case. Davis ,

571 S.W.2d at 861 . Instead, we determine

whether there has been an abuse of discretion by the trial court in granting or

denying the relief. Id. at

862 . In making this determination, we

may not substitute our judgment for that of the trial court unless its decision

was so arbitrary that it exceeded the bounds of reasonableness. See Butnaru , 84 S.W.3d at 204 . A trial court abuses its discretion in

granting or denying a request temporary injunction when it misapplies the law

to the established facts. See State

v. Sw. Bell Tel. Co. , 526 S.W.2d 526, 528 (Tex. 1975).

Temporary Restraining Order

In their first point of error, Mattox and Wilkerson argue

that the trial court erred by granting a request for a temporary restraining

order based on an oral application. We

do not reach the merits of this point of error because it exceeds the scope of

our review under this interlocutory appeal.

Except as

provided by statute, a party may not appeal an interlocutory order. Bally

Total Fitness Corp. v. Jackson , 53 S.W.3d 352, 352 (Tex. 2001). Mattox and Wilkerson have brought this

interlocutory appeal pursuant to subsection 51.014(a)(4) of the Civil Practice

and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4)

(Vernon 2008). Under that subsection,

appellate review is limited to an order that “ grants or refuses a

temporary injunction or grants or overrules a motion to dissolve a temporary

injunction as provided by Chapter 65.” Id.

This section does not provide for appellate review of a temporary

restraining order. Accordingly, the

validity of the temporary restraining order is beyond the scope of this appeal. See In

re Tex. Natural Res. Conservation Comm’n , 85 S.W.3d 201, 205 (Tex. 2002)

(holding grant or denial of temporary restraining order is generally not

appealable).

We overrule Mattox and Wilkerson’s first point of error.

Temporary Injunction

In their second point of error, Mattox and Wilkerson argue

that the trial court erred by granting a request for a temporary injunction

without a written application for temporary injunction and without any

verification or affidavit.

The Jacksons’ petition only sought a permanent

injunction. There is no application in

the petition for a temporary restraining order or a temporary injunction. Nor is the petition verified. The trial court noted in its order setting

the hearing date for the temporary injunction that the application was

oral. The Jacksons never submitted a

written application to the court or any affidavit in support of their oral

application.

“No writ of injunction shall be granted unless the

applicant therefor shall present his petition to the judge verified by his

affidavit and containing a plain and intelligible statement of the grounds for

such relief.” Tex. R. Civ. P. 682. A

verified petition for injunctive relief is not required to grant a temporary

injunction, however, when a full evidentiary hearing on evidence independent of

the petition has been held. Georgiades v. Di Ferrante , 871 S.W.2d

878, 882 (Tex. App.—Houston [14th Dist.] 1994, writ denied). We must turn, then, to the hearing on the

application for temporary injunction.

In their third, fourth, and fifth points of error, Mattox

and Wilkerson argue that the trial court erred by not allowing evidence to be

presented at the temporary injunction hearing and by granting a request for a

temporary injunction based on insufficient evidence.

At the hearing, the trial court repeatedly stated that it

did not want to get into the facts of the case.

The trial court stated that, instead, it only wanted to know the status

of the suit concerning the cancellation of the dedication and whether the

status quo of the roadway had changed. Counsel

for Mattox and Wilkerson repeatedly attempted to discuss the facts concerning

the change in the status quo of the roadway and at one point represented to the

trial court that he was prepared to present evidence. Each time, the trial court repeated that it

did not want to get into the facts of the case and determined that Mattox and

Wilkerson’s allegations were fact issues.

Accordingly, we hold there is no evidence independent of the petition

that would render the lack of a verification harmless.

The only argument raised by the Jacksons in their brief is,

“The purpose of a temporary injunction is to preserve the status quo until a

trial on the merits,” citing Walling v.

Metcalfe for this proposition. 863

S.W.2d at 57 . A trial court may grant a

request for a temporary injunction to preserve the status quo, however, only after

“the applicant establishes a probable right on final trial to the relief

sought, and a probable injury in the interim.”

Id. The applicants must prove that they are

entitled to preservation of the status quo.

It is not presumed that a change in the status quo entitles the

applicant to an injunction.

It was the Jackson’s burden to plead and prove three

specific elements: (1) a cause of action; (2) a probable right to the relief

sought; and (3) a probable, imminent, and irreparable injury in the interim. See

Butnaru , 84 S.W.3d at 204 .

Because there was no verified application for temporary injunction and

because the Jacksons did not present any evidence at an evidentiary hearing in

order for them to carry their burden, we hold that the trial court abused its

discretion in granting the Jacksons’ oral application for temporary injunction.

We sustain Mattox and Wilkerson’s second, third, fourth,

and fifth points of error. [2]

Attorneys’ Fees

At the end of their brief, Mattox and Wilkerson note that

the suit stems from the Jacksons’ declaratory judgment action. They further note that an award of attorneys’

fees is provided for in a declaratory judgment action. See

Tex. Civ. Prac. & Rem. Code Ann.

§ 37.009 ( Vernon 2008). Mattox and

Wilkerson ask this Court “to rule that they are entitled to an award of

attorney[s’] fees and costs as plead[ed].”

They recognize that this issue has been raised for the first time on

appeal but claim, without citation to any legal authority, that the issue could

not be presented until the completion of this appeal. Even if this were true, the scope of review

on appeal of an order granting a request for a temporary injunction is limited

to the validity of the temporary injunction order. See Walling , 863 S.W.2d at 58 .

We deny Mattox and Wilkerson’s request for a ruling that

they are entitled to an award of attorneys’ fees and costs.

Conclusion

We reverse the trial court’s order granting the Jackson’s

request for a temporary injunction and remand the cause for further

proceedings.

Laura

Carter Higley

Justice

Panel consists of Justices Jennings, Higley, and Brown.

[1] See generally Mattox

v. Grimes Cnty. Comm’rs Court , 305 S.W.3d 375 (Tex. App.—Houston [14th

Dist.] 2010, pet. denied).

[2] Because we reverse the order granting the request for a temporary

injunction based on these points of error, we do not need to address Mattox and

Wilkerson’s remaining points of error concerning the injunction.