Michael J. DeLitta And DeLCom Properties, LLC v. Nancy Schaefer

ACCEPTED

03-15-00085-CV

5176028

THIRD COURT OF APPEALS

AUSTIN, TEXAS

5/6/2015 2:03:07 PM

JEFFREY D. KYLE

No. 03-15-00085-CV CLERK

_______________________________________

FILED IN

In the Third Court of Appeals 3rd COURT OF APPEALS

AUSTIN, TEXAS

Austin, Texas 5/6/2015 2:03:07 PM

_______________________________________JEFFREY D. KYLE

Clerk

Michael J. DeLitta and DelCom Properties, LLC,

Appellants,

v.

Nancy Schaefer,

Appellee.

_______________________________________

BRIEF OF APPELLEE

_______________________________________

Donald R. Taylor Lisa Bowlin Hobbs

State Bar No. 19688800 State Bar No. 24026905

dtaylor@taylordunham.com Lisa@KuhnHobbs.com

Stacey Reese (Of Counsel) Kurt Kuhn

State Bar No. 24056188 State Bar No. 24002433

stacey@reeselawpractice.com Kurt@KuhnHobbs.com

TAYLOR DUNHAM & RODRIGUEZ LLP KUHN HOBBS PLLC

301 Congress Avenue, Suite 1050 3307 Northland Drive, Suite 310

Austin, Texas 78701 Austin, Texas 78731

(512) 473-2257 (512) 476-6003

(512) 478-4409 (fax) (512) 476-6002 (fax)

Howard F. Carter, Jr.,

State Bar No. 03916500

sam@scarterlawfirm.com

HOWARD F. CARTER, JR., P.C.

5600 Tennyson Parkway, Suite 160

Plano, Texas 75024

(972) 455-2001

(972) 455-2015 (fax)

COUNSEL FOR APPELLEE

May 6, 2015 Oral Argument Conditionally Requested

TABLE OF CONTENTS

Table of Contents ...................................................................................................................... ii

Index of Authorities ................................................................................................................. iv

Statement of the Case ............................................................................................................ viii

Statement Regarding Oral Argument .................................................................................... ix

Issues Presented......................................................................................................................... x

Statement of Facts ..................................................................................................................... 1

A.  The parties enter into a highly negotiated and agreed temporary

injunction. ........................................................................................................... 1

B.  For months, DeLitta acknowledges the binding force of the agreed

injunction and even seeks enforcement of its terms. ................................... 1

C.  DeLitta retains new counsel who attempts to declare the agreed

injunction void.................................................................................................... 3

D.  When the trial court enforces the Agreed Order as both an

injunction and a Rule 11 agreement, DeLitta seeks review from this

Court, without success. ..................................................................................... 4

E.  Undeterred, DeLitta tries to take another bite at the apple in the

trial court. ............................................................................................................ 5

Summary of Argument ............................................................................................................. 6

Argument .................................................................................................................................... 7

I.  On appeal from a denial of a motion to dissolve, an appellate court has

no jurisdiction to review the validity of the original temporary injunction. ......... 7

II.  Litigants should be able to dispense with the formal requirements of Rule

683 and enter into an agreed temporary injunction without fear that one

party to the agreed order will later attempt to declare the order void................. 10

A.  Neither this Court nor the Texas Supreme Court has held an agreed

injunction void for failure to strictly comply with Rule 683, yet

other appellate courts are split on the issue. ................................................ 11

ii

B.  The cases DeLitta cites are distinguishable. ................................................. 15

C.  Cases that appear to prohibit agreed temporary injunctions

misconstrue Texas Supreme Court precedent and are not soundly

reasoned............................................................................................................. 17

D.  DeLitta is estopped from now challenging the Agreed Order

because he agreed to its issuance and has himself sought to enforce

it. ......................................................................................................................... 22

III.  The trial court was within its discretion to deny DeLitta’s motion because

the Agreed Order is enforceable as a Rule 11 Agreement. ................................... 24

A.  The Texas Supreme Court allows enforcement of litigation-related

agreements under Rule 11 even when the agreement might not

otherwise be enforceable as an agreed judgment. ....................................... 25

B.  The Agreed Order meets all the elements of an enforceable Rule

11. ....................................................................................................................... 27

Conclusion ................................................................................................................................ 28

Certificate of Compliance ...................................................................................................... 30

Certificate of Service ............................................................................................................. 30

iii

INDEX OF AUTHORITIES

CASES

Brazzel v. Murray,

481 S.W.2d 801 (Tex. 1972) .......................................................................................21

C.W. 100 Louis Henna, Ltd. v. El Chico Rest. of Tex., L.P.,

295 S.W.3d 748 (Tex. App.—Austin 2009, no pet.) ..............................................25

Carle v. Carle,

234 S.W.2d 1002 (Tex. 1950) .....................................................................................23

Certain Underwriters at Lloyd’s v. Bristol-Myers Squibble Co.,

No. 09-97-00540 CV, 1998 WL 429096 (Tex. App.—Beaumont July 30,

1998, no writ) (unpublished op.) (per curiam) .......................................................... 9

Chambers v. Rosenberg,

916 S.W.2d 633 (Tex. App.—Austin 1996, writ denied) (per curiam) ......... 13, 14

Cisneros v. Cisneros,

787 S.W.2d 550 (Tex. App.—El Paso 1990 no writ) ...................................... 15, 16

Claxton v. Fork Water Control & Improvement Dist. No. 1,

220 S.W.3d 537 (Tex. App.—Texarkana 2007, pet. denied).......................... 15, 16

Cleere v. City of Mesquite,

594 S.W.2d 831 (Tex. App.—Dallas 1980, no writ)...............................................12

CMH Homes v. Perez,

340 S.W.3d 444 (Tex. 2011) ......................................................................................... 7

Comm’n for Lawyer Discipline v. Schaefer,

364 S.W.3d 831 (Tex. 2012) .......................................................................................20

Conlin v. Haun,

419 S.W.3d. 682 (Tex. App. Houston [1st Dist.] 2013, no pet.) .................. passim

Cummings v. Powell,

8 Tex. 80 (1852) .................................................................................................... 19, 20

David Jason W. & Pydia, Inc. v. State,

212 S.W.3d 513 (Tex. App.—Austin 2006, no pet.) ..............................................13

Deen v. Kirk,

508 S.W2d 70 (Tex. 1974) ..........................................................................................22

iv

DeLee v. Allied Fin. Co.,

408 S.W.2d 245 (Tex. Civ. App.— Dallas 1966, no writ) .....................................23

Desai v. Reliance Mach. Works, Inc.,

813 S.W.2d 640 (Tex. App.—Houston [14th Dist.] 1991, no writ)................ 9, 10

Dunman v. Hartwell,

9 Tex. 495 (1853) .........................................................................................................22

Emerson v. Fires Out, Inc.,

735 S.W.2d 492 (Tex. App.—Austin 1987, no writ) ..............................................13

Ex Parte Coffee,

328 S.W.2d 283 (Tex. 1959) .......................................................................................21

Ex Parte Kimberlin,

126 Tex. 60 (1935) .......................................................................................................21

Fortis Benefits v. Cantu,

234 S.W.3d 642 (Tex. 2007) ................................................................................ 25, 28

Gray Wireline Serv., Inc. v. Cavanna,

374 S.W.3d 464 (Tex. App.—Waco 2011, no pet.) ......................................... 15, 16

Henke v. Peoples State Bank of Halletsville,

6 S.W.3d 717 (Tex. App.—Corpus Christi 1999, dis’d w.o.j.) .......... 12, 13, 14, 22

Hernandez v. Telles,

663 S.W.2d 91 (Tex. App.—El Paso 1983, no writ) ..............................................14

In re Corcoran,

343 S.W.3d 268 (Tex. App.—Houston [14th Dist.] 2011, orig.

proceeding) ...................................................................................................................17

In re Garza,

126 S.W.3d 268 (Tex. App.—San Antonio 2003, orig. proceeding) ...... 17, 18, 20

In re Graybar Elec. Co.,

No. 13-08-00341-CV (consolidated), 2008 WL 3970865 (Tex. App.—

Corpus Christi Aug. 26, 2008, orig. proceeding) (mem. op.) .................................. 9

In re Kahn,

No. 09-14-00028-CV, 2014 WL 199024 (Tex. App.—Beaumont Jan. 16,

2014, orig. proceeding) (mem. op.) ...........................................................................16

v

In re Krueger,

No. 03-12-00838-CV, 2013 WL 2157765 (Tex. App.—Austin May 16,

2013, orig. proceeding) (mem. op.) ...........................................................................17

In re U.S. Silica Co.,

157 S.W.3d 434 (Tex. 2005) (orig. proceeding) (per curiam) ................................20

Interfirst Bank San Felipe, N.A. v. Paz Constr. Co.,

715 S.W.2d 640 (Tex. 1986) (per curiam) ................................................... 11, 18, 19

K-Mart Corp. v. Honeycutt,

24 S.W.3d 357 (Tex. 2000) (per curiam) ..................................................................25

Mapco, Inc. v. Forrest,

795 S.W.2d 700 (Tex. 1990) (orig. proceeding) (per curiam) ................................20

Murphy v. McDaniel,

20 S.W.3d 873 (Tex. App.—Dallas 2000, no pet.) ........................................ 8, 9, 24

Padilla v. LaFrance,

907 S.W.2d 454 (Tex. 1995) ................................................................................ 26, 27

Parham Family Ltd. P ’ship v. Morgan,

434 S.W.3d 744 (Tex. App.-Houston [14th Dist.] 2014, no pet.) ........................17

Poole v. U.S. Money Reserve Inc.,

No. 09-08-137-CV, 2008 WL 4735602 (Tex. App.—Beaumont, Oct. 30,

2008, no pet.) ................................................................................................... 12, 15, 17

Qwest Commc’ns Corp. v. AT&T Corp.,

24 S.W.3d 334 (Tex. 2000) (per curiam) ..................................................... 11, 18, 19

Roccaforte v. Jefferson Cnty.,

341 S.W.3d 919 (Tex. 2011) .......................................................................................22

Schlumberger Tech. Corp. v. Swanson,

959 S.W.2d 171 (Tex. 1997) .......................................................................................14

Scott-Richter v. Taffarello,

186 S.W.3d 182 (Tex. App.—Fort Worth 2006, pet. denied) ..............................25

State v. Ruiz Wholesale Co.,

901 S.W.2d 772 (Tex. App.—Austin 1995, no writ) ................................................ 9

vi

Tex. Dep’t of Transp. v. City of Sunset Valley,

8 S.W.3d 727 (Tex. App.—Austin 1999, no pet.)..................................................... 7

Tex. State Bank v. Amaro,

87 S.W.3d 538 (Tex. 2002) .........................................................................................23

Tober v. Turner of Tex., Inc.,

668 S.W.2d 831 (Tex. App.—Austin 1984, no writ) ...................................... passim

Uvalde Country Club v. Martin Linen Supply Co.,

690 S.W.2d 884 (Tex. 1985) .......................................................................................22

Wood v. HSBC Bank USA, N.A.,

439 S.W.3d 585 (Tex. App.—Houston [14th Dist] 2014, pet. filed) ...................19

RULES

TEX. R. APP. P. 24.1 ................................................................................................................22

TEX. R. CIV. P. 11 ....................................................................................................................27

vii

STATEMENT OF THE CASE

Nature of the Case: The underlying suit is a business dispute between business

partners Michael DeLitta1 and Nancy Schaefer over the

ownership of Axiom Medical Consulting, LLC (“Axiom”).

To preserve their disputed rights and interests in the

company during the course of the litigation, the parties

entered into a highly negotiated and agreed temporary

injunction, which was signed by the trial court on October

29, 2013 (the “Agreed Order”).2

Despite agreeing to the injunction, and later seeking

enforcement of its terms, DeLitta eventually sought relief

from the restraints on his conduct. His tactics resulted in

several appellate proceedings, all of which failed.3

Undeterred, on October 22, 2014, DeLitta made yet another

attempt to renege, this time by filing a Motion to Dissolve

and Declare Temporary Injunction Void.4

Trial Court: The Honorable Amy Meachum, 201st District Court, Travis

County, Texas.

Trial Court Disposition: The trial court signed an order denying DeLitta’s motion on

January 16, 2015.5 The order does not state the reasons for

its issuance.

1

Appellants in this appeal are Michael J. DeLitta and DelCom Properties, LLC only and will be

referred to in this brief as simply “DeLitta.”

2

Exh. A to Brief of Appellant; see also CR115–23

3

See No. 03-14-00423-CV (original proceeding seeking to declare injunction void, denied on July 11,

2014); No. 03-14-00426-CV (appeal of an order enforcing the terms of the injunction dismissed for

lack of jurisdiction on November 6, 2014). DeLitta also appealed an order appointing a receiver over

Axiom, No. 03-13-000425-CV, which was dismissed for failure to prosecute on October 17, 2014.

4

CR329–48

5

CR379–81

viii

STATEMENT REGARDING ORAL ARGUMENT

Appellee does not believe oral argument is necessary for the Court to fully

understand and properly resolve this appeal. This is an interlocutory appeal from an

order denying Appellants’ Motion to Dissolve and Declare Temporary Injunction Void.

The relevant facts are undisputed, and the law is not difficult to grasp. However, to the

extent that the Court has remaining questions after reviewing the briefing, Appellee

would gladly participate in any oral argument to answer those questions.

ix

ISSUES PRESENTED

1. Does this Court have jurisdiction to review an interlocutory order signed in October

2013—over 15 months before this appeal was perfected—when the sole complaint on

appeal concerns the validity of the original injunction, not a trial court’s failure to

dissolve based on changed circumstances?

2. The parties negotiated an agreed temporary injunction to govern their conduct

through trial, signed the temporary injunction with the notation “agreed as to form and

substance,” and submitted it to the judge for approval.

a. Does omitting the reasons for issuance make an agreed temporary injunction

void when all the parties understand that the injunction was issued because it was

agreed?

b. Does a subsequent agreed continuance of the trial date stated in the injunction

make an injunction retroactively void?

c. Does a party waive the right to challenge a temporary injunction for failing to

comply with Rule 683 by agreeing to the injunction in the first instance, by not

appealing it, and/or by themselves seeking to enforce it?

3. May a trial court refuse to dissolve an agreed temporary injunction because the

agreed order meets all the requirement of Texas Rule of Civil Procedure 11 and is thus

enforceable in contract?

x

STATEMENT OF FACTS

This is a business dispute over the ownership of Axiom Medical Consulting,

LLC.6 Schaefer and DeLitta are two managers and members of Axiom who each

control 50% of the company.7 The relationship between the two deteriorated and, in

October 2013, Schaefer filed suit seeking to confirm her ownership in Axiom and, to

maintain her status quo within the company, obtained a temporary restraining order.8

A. The parties enter into a highly negotiated and agreed temporary

injunction.

Before the restraining order dissolved, the parties requested the trial court

approve a highly negotiated consent order and agreement which was entitled a

“temporary injunction” (the “Agreed Order”).9 The Agreed Order was signed on

October 29, 2013.10 It prohibited the parties from undertaking certain acts and also

obligated the parties to file a joint motion for appointment of a provisional member to

break deadlock between Schaefer and DeLitta.11

B. For months, DeLitta acknowledges the binding force of the agreed

injunction and even seeks enforcement of its terms.

The parties proceeded for over eight months in this litigation under the terms of

the Agreed Order and in full acknowledgement of its binding force. For example,

months after its issuance, on March 13, 2014, DeLitta filed a motion titled “Motion to

6

CR134–36

7

CR132

8

CR3

9

CR115

10

CR121

11

CR122

1

Enforce, Modify and/or Dissolve Certain Provisions of the Temporary Injunction.”12

As the title implies, the motion sought to enforce certain provisions of the injunction.

The motion was heard, along with a competing enforcement motion by Schaefer,13 on

April 14, 2014—after the April 7, 2014 trial date set in the Agreed Order.14 Ultimately,

DeLitta’s motion was denied and Schaefer’s motion granted.15 The order was signed

April 21, 2014.16

Around the same time, DeLitta filed a “Joint Application for TRO and Motion

to Rescind the Order Appointing a Provisional Member.”17 The motion sought to limit

the powers of the provisional member who was appointed and selected under the terms

of the Agreed Order. By filing this motion, DeLitta again acknowledged the binding

force of the Agreed Order. The application and motion were denied.18

No interlocutory appeals were taken from any of these orders. DeLitta never

challenged the validity of the injunction or sought to declare the injunction void through

these motions. DeLitta likewise never appealed the trial court’s orders denying their

request to alter or dissolve portions of the original injunction.

12

See SuppCR21

13

SuppCR100

14

Compare SuppCR121 (noting date of hearing) and CR121 (Agreed Order setting trial date)

15

SuppCR121–23

16

SuppCR123

17

SuppRR60–70

18

SuppCR120

2

C. DeLitta retains new counsel who attempts to declare the agreed injunction

void.

The dispute between Schaefer and DeLitta continued to escalate through the

Spring of 2014. Despite repeated judicial refusal to modify or dissolve the terms of the

injunction, DeLitta still snubbed the agreed terms. Schaefer filed a second motion to

enforce on May 16, 2014, this time seeking the appointment of a receiver over certain

aspects of the company’s financial operations, as well as enforcement of the Agreed

Order.19

Shortly before the day of the hearing on Schaefer’s motion, new counsel

appeared20 and, the day of the hearing, filed a written response in opposition to the

motion to enforce and motion for contempt.21 The response argued (for the first time)

that the original injunction was “void,” “expired as a matter of law,” and thus could not

form the basis of a contempt order.22 The response contained no allegation of changed

circumstances that would justify re-litigation of issues.23

Following an evidentiary hearing, the trial court signed an order enforcing the

Agreed Order on June 19, 2014.24 The order expressly found it was being enforced, not

just as a temporary injunction, but also as a Rule 11 agreement.25 The court found that

19

SuppCR124

20

CR641

21

SuppRR37

22

Id.

23

SuppRR37–47

24

SuppCR191–93

25

SuppCR192 (finding that the Agreed Order “is an agreed order approved as to ‘form and content’

by all parties, signed by the court and filed in the clerk’s office” and “is enforceable as a court order

and as a Rule 11 agreement between the parties”)

3

DeLitta had willfully violated the Agreed Order through several specifically enumerated

acts.26 Further, although it “had the authority to enforce the Agreed order by

contempt,” it “declin[ed] to do so.”27 The trial court reiterated, however, that “all parties

[shall] strictly abide by the terms of the” Agreed Order.28 The Court also, by separate

order, appointed a partial receiver over Axiom.29

D. When the trial court enforces the Agreed Order as both an injunction and

a Rule 11 agreement, DeLitta seeks review from this Court, without

success.

Three appeals followed. DeLitta filed two interlocutory appeals: one appeal of

the June 19, 2014 enforcement order30 and one appeal of the order appointing the

receiver.31 DeLitta also filed a petition for writ of mandamus, seeking to vacate the

October 2013 agreed temporary injunction.32

None of the appeals were successful. The Court denied the mandamus petition33

and dismissed the interlocutory appeal of the enforcement order for want of

jurisdiction.34 DeLitta abandoned the receivership appeal.35

26

Id.

27

Id.

28

Id. (emphasis in original)

29

SuppCR194–98

30

No. 03-14-00426-CV

31

No. 03-14-00425-CV

32

No. 03-14-00423-CV

33

See No. 03-14-00423-CV (Order dated July 11, 2014)

34

No. 03-14-00426-CV (Order and Judgment dated Nov. 6, 2014)

35

The Court dismissed the appeal for failure to prosecute on October 17, 2014. See No. 03-14-00425-

CV.

4

E. Undeterred, DeLitta tries to take another bite at the apple in the trial court.

Three appellate losses did not deter DeLitta. By December, he was back before

another Travis County district judge seeking to dissolve the Agreed Order.36 Essentially

cutting and pasting from his failed briefing to this Court, DeLitta argued that the Agreed

Order was void because it did not comply with the mandatory requirements of Texas

Rules of Civil Procedure 683 and 684.37 DeLitta’s motion was silent to the fact that the

Agreed Order had already been determined to be an enforceable Rule 11 agreement.38

Nor did the motion contain any allegations of changed circumstances that would justify

re-litigation of the various issues.39

The trial court denied DeLitta’s motion on January 16, 2015, without stating the

reasons.40 This appeal followed.41

36

See RR (transcript of Dec. 15, 2014, hearing on DeLitta’s Motion to Dissolve and Declare Temporary

Injunction Void, which was filed on Oct. 22, 2014).

37

CR329–37

38

See generally id.

39

SuppRR37–47

40

CR379

41

CR632

5

SUMMARY OF ARGUMENT

DeLitta voluntarily agreed to restraints on his conduct, by signing a highly

negotiated Agreed Temporary Injunction under the notation “agreed as to form and

content,” while Schaefer pursued her claims concerning the ownership of Axiom. He

sought the benefit of the Agreed Order, when it behooved him to do so, by twice

moving to enforce the terms of the order. Yet he has spent the majority of the last year

hoping desperately that the judiciary will allow him to renege on his promise. No judge

has let him off the hook yet. Nor should this Court.

DeLitta’s main argument is that the Agreed Order is void for failing to state the

reasons for its issuance, a requirement for court-imposed temporary injunctions under

Texas Rule of Civil Procedure 683. This argument makes no sense. A party should not

be able to “void” an order for failing to state the reason for its issuance when the reason

the trial court entered the order was because the parties asked it to.

DeLitta insists the Agreed Order is void because, otherwise, he loses under a

myriad of equitable principles. His consent to the order removed any alleged error in

it. He has twice pursued the benefits of the injunctive terms, so he is estopped from

challenging the order now. And he waited too long to appeal.

But the Court need not reach any of these issues. The trial court previously

enforced the Agreed Order as a Rule 11 Agreement. Rule 11 agreements are

enforceable in contract even if they would not be enforceable as a judgment. The trial

court’s refusal to dissolve the Agreed Order may be affirmed on this ground alone.

6

ARGUMENT

I. On appeal from a denial of a motion to dissolve, an appellate court has no

jurisdiction to review the validity of the original temporary injunction.

The Court should dismiss this interlocutory appeal for lack of jurisdiction.

Appellate courts consider their interlocutory jurisdiction “narrow” and thus “strictly

apply statutes granting interlocutory appeals.” CMH Homes v. Perez, 340 S.W.3d 444,

447 (Tex. 2011); see also Tex. Dep’t of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 730

(Tex. App.—Austin 1999, no pet.).

Here, DeLitta seeks review of an agreed injunction issued October 23, 2013—

well over a year before this appeal was perfected on February 4, 2015. Unlike most

interlocutory appeals of an order refusing to dissolve a temporary injunction, DeLitta

did not allege changed circumstances that warrant the injunction’s dissolution.

Therefore, DeLitta does not seek review of the exercise of discretion to dissolve an

injunction. Instead, DeLitta seeks review of the original injunction itself. This Court

simply has no jurisdiction to review that order.

The Court decided the issue just over 30 years ago in Tober v. Turner of Texas, Inc.,

668 S.W.2d 831 (Tex. App.—Austin 1984, no writ). The trial court in Tober signed a

temporary injunction on October 11, 1982. Id. at 833. The following month, on

November 16, 1982, and after the time for filing an interlocutory appeal for immediate

review of the injunction, Tober (the party restrained) sought to “set aside” the

temporary injunction. Id. Soon thereafter, on December 1, 1982, the trial court signed

7

an order overruling Tober’s motion (apparently treating it as a motion to dissolve the

temporary injunction). Id.

Tober appealed, purporting to challenge both the December 1 order and the

original November 16 injunction. Id. This Court, construing its jurisdiction narrowly,

rebuffed Tober’s tactic. The Court started by noting that Tober did not timely perfect

an appeal from the original injunction and, as such, the Court had no jurisdiction to

review it. Id. at 833–34. The Court also refused to consider any issues that touched on

the propriety of the initial grant of the injunction. Id. at 834. Doing so, it reasoned,

would allow a party to circumvent Section 51.014:

If a litigant is permitted, upon motion to dissolve, to again challenge the

original temporary injunction grant, without an allegation of changed

conditions, then the litigant could accomplish indirectly what he could not

directly do . . . thereby render meaningless the appellate timetable

applicable to accelerated appeals. . . . [A] litigant, after unsuccessfully

opposing a temporary injunction, could wait for an indefinite period to

perfect an appeal of the grant of the temporary injunction (by filing a

subsequent motion to dissolve, which raises the points of error which

could have, and should have, been raised in a direct appeal of the order

granting temporary injunction).

Id. at 835. The Court was adamant: “[a] motion to dissolve may not be used as a means

of evading or expanding the rules applicable to appealing interlocutory orders.” Id.

Thus, unless a temporary injunction order is timely appealed, appellate courts “must

presume the trial court’s initial decision to grant the temporary injunction was proper.”

Murphy v. McDaniel, 20 S.W.3d 873, 879 (Tex. App.—Dallas 2000, no pet.).

8

The Tober Court does not convey a single justification for its ruling; it teeters

between viewing the issue an equitable one and a jurisdictional one.42 But other

decisions make clear the issue is one of jurisdiction:

 “[W]here the time to review the order granting the temporary injunction has

expired . . . [w]e do not have jurisdiction to consider the propriety of the trial

court’s decision to grant the temporary injunction.” Murphy v. McDaniel, 20

S.W.3d at 879.

 “An interlocutory order that is not timely appealed is not reviewable by this

Court. . . . [Appellants’] failure to perfect an interlocutory appeal from [the

temporary injunction] order precludes this Court from reviewing its validity.”

State v. Ruiz Wholesale Co., 901 S.W.2d 772, 775 (Tex. App.—Austin 1995, no

writ).

 “[A]ppellees did not perfect an appeal from the initial order, and the time limit

for doing so has long since expired. Accordingly, we have no jurisdiction to

review the validity of the trial court’s . . . order granting the temporary

injunction.” Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640, 641 (Tex. App.—

Houston [14th Dist.] 1991, no writ).43

42

Compare 668 S.W.2d at 834 (“By failing to perfect an appeal from the grant of the temporary

injunction, Tober has now, upon appeal of the motion to dissolve, waived the right to complain of

the specified alleged errors.”) with id. at 835 (“A motion to dissolve may not be used as a means of

evading or expanding the rules applicable to appealing interlocutory orders. A statute authorizing an

appeal from an interlocutory order must be given a strict construction since the statute is in derogation

of the general rule that only final judgments and orders are appealable.”); see also id. at 836 (“[O]ur

holding does not here turn solely upon jurisdiction, but is also grounded upon Tober’s failure to prove

that the trial court abused its discretion in overruling the motion to dissolve.”).

43

See also In re Graybar Elec. Co., No. 13-08-00341-CV (consolidated), 2008 WL 3970865, *13 (Tex.

App.—Corpus Christi Aug. 26, 2008, orig. proceeding) (mem. op.) (mandamus consolidated with

interlocutory appeals) (refusing to consider challenge under Rule 683 brought more than 20 days after

temporary injunction entered); Certain Underwriters at Lloyd’s v. Bristol-Myers Squibble Co., No. 09-97-

00540 CV, 1998 WL 429096, at *1 (Tex. App.—Beaumont July 30, 1998, no writ) (unpublished op.)

(per curiam) (dismissing appeal because no jurisdiction to review temporary injunction that allegedly

fails to set forth reasons for issuance where time to appeal long passed). But see Conlin v. Haun, 419

S.W.3d 682, 685 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (recognizing that Tober holds that an

appellate court should not, on appeal from a motion to dissolve a temporary injunction, review the

validity of the trial court’s original decision to grant the injunction in the first instance, but then,

confusingly, determining the validity of the injunction anyway).

9

DeLitta’s sole complaint in this appeal concerns the validity of the original

injunction. But, as this Court expressed in Tober, to permit DeLitta to have unlimited

opportunity to “challenge the original temporary injunction grant[] without an

allegation of changed conditions,” would allow them to “accomplish indirectly what

[he] could not directly do . . . thereby render meaningless the appellate timetable

applicable to accelerated appeals.” 668 S.W.2d at 835. The Court’s jurisdiction to

review the validity of the agreed temporary injunction has long ago expired. See Desai,

813 S.W.2d at 641. This appeal should be dismissed for lack of jurisdiction.

II. Litigants should be able to dispense with the formal requirements of Rule

683 and enter into an agreed temporary injunction without fear that one

party to the agreed order will later attempt to declare the order void.

DeLitta argues that the October 2013 Agreed Temporary Injunction is void

because it does not state the reasons for its issuance and because the trial date stated in

the Agreed Order has now expired.44 It is “irrelevant,” DeLitta asserts, that the

injunction was agreed to.45

The ramifications of DeLitta’s position, if accepted by this Court, are

momentous. Agreed temporary injunctions are entered in Texas state courts almost

daily. The reason for their issuance need not be stated; they are issued because they

are agreed. And rarely would opposing counsel agree to an injunction that stated any

44

Br. at 12-14

45

Br. at 15

10

other reason for its issuance, as certainly it is not good strategy to concede that the

proponent of the temporary injunction will otherwise suffer harm at your hands.

Texas law has run amuck on this point. A careful study of supreme court

precedent will lead the Court to the logical holding that parties can agree to a temporary

injunction that does not meet all the requirements of Rule 683 and, once agreed, the

parties waive their right to challenge the propriety of the injunction absent fraud,

collusion, or misrepresentation.

A. Neither this Court nor the Texas Supreme Court has held an agreed

injunction void for failure to strictly comply with Rule 683, yet other

appellate courts are split on the issue.

The requirements of Texas Rule of Civil Procedure 683 are, Schaefer concedes,

“mandatory and must be strictly followed” when a court enters a contested temporary

injunction. Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000) (per

curiam); Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.

1986) (per curiam). But the Texas Supreme Court has never intimated that parties

cannot agree to the entry of a temporary injunction that does not fully comport with

Rule 683.

DeLitta cites several appellate court decisions for the controversial proposition

that “Rule 683’s mandatory requirements are, in fact, mandatory—and cannot be

11

waived.”46 But he sweeps under the rug the split of authority on the issue—perhaps a

sign that he does not want to defend the cases he cites.

A persuasive case on all fours is Cleere v. City of Mesquite, 594 S.W.2d 831 (Tex.

App.—Dallas 1980, no writ). The parties agreed to the entry of an injunction. Years

later, on appeal, the party restrained by the temporary injunction argued it was void for

failing to comply with Rule 683. As here, the party complained the agreed injunction

did not state the reasons for its issuance. The Dallas court was unpersuaded:

Although the reasons are not specified in the order, this defect does not

invalidate the injunction under the circumstances shown here. The

purpose of the requirement for reasons is to inform the violator of why

he is enjoined. When a party agrees to an injunction, he is in no position

to complain that he was not informed of the reasons.

Id. at 833 (citations omitted). In other words, a party cannot void an order for failing

to state the reasons for its issuance when the reason the order was entered was simply

because the parties asked it to. By agreeing to an injunction, and joining in the motion

to enter it, as DeLitta did here, any complaints about the injunction are waived.

Another court of appeals likewise found waiver in Henke v. Peoples State Bank of

Halletsville, 6 S.W.3d 717, 719 (Tex. App.—Corpus Christi 1999, dis’d w.o.j.). The

parties in that case, as here, agreed to a temporary injunction. One party challenged the

agreed order on appeal. The court did not take the bait. It relied on solid precedent

46

Br. at 15 (emphasis in original) (citing Poole v. U.S. Money Reserve Inc., No. 09-08-137-CV, 2008 WL

4735602 (Tex. App.—Beaumont, Oct. 30, 2008, no pet.); Conlin v. Haun, 419 S.W.3d. 682, 686-87

(Tex. App. Houston [1st Dist.] 2013, no pet.)).

12

that “a party may not appeal from or attack a judgment to which he has agreed, absent

allegation and proof of fraud, collusion, or misrepresentation.” Id. at 720.

This Court has recognized the split of authority on this issue47 and even has

precedent on both sides of the issue. In Emerson v. Fires Out, Inc., the issue arose, not in

the context of an agreed injunction, but in the context of simple error preservation. 735

S.W.2d 492 (Tex. App.—Austin 1987, no writ). The temporary injunction did not

provide reasons for its issuance, in violation of Rule 683, but the appellant had not

objected to the omission in the trial court. This Court held that error was waived. Id.

at 493. It explained that “[p]rinciples of sound judicial administration support

application of the waiver rule” in this context:

It serves no good purpose to permit appellants to lie in wait and present

this error in form for the first time on appeal. On proper request, the

district court could easily have added to the judgment a description of the

specific harm avoided by granting the temporary injunction. Appellants

would then have obtained proper notice of the district court’s reasoning

and appellate review would have been facilitated.

Id. at 494.

Yet, more recently, in the context of related Rule 684, the Court reached the

opposite result. A temporary injunction was entered in Chambers v. Rosenberg without

ordering a bond, in violation of Rule 684. 916 S.W.2d 633 (Tex. App.—Austin 1996,

writ denied) (per curiam). The failure to require a bond, the Court held, made the

injunction void, not just voidable. Id. at 635. Contrary to its prior decision in Emerson

47

David Jason W. & Pydia, Inc. v. State, 212 S.W.3d 513, 520 n.4 (Tex. App.—Austin 2006, no pet.).

13

(a decision not mentioned in Chambers), the Court found that “the strong theme of

literal construction of the rule convinces us that we should construe the rule literally in

this case.” Id. Notably, however, the Court recognized that “none of the cited cases

explicitly concerns an agreed order.” The Court was nevertheless “persuaded” to hold

the injunction void “because the parties here did not explicitly waive the protection of

a bond.” Id.

Despite its equivocal precedent on the issue, this Court has never addressed the

precise rationale of Henke: “a party may not appeal from or attack a judgment to which

he has agreed, absent allegation and proof of fraud, collusion, or misrepresentation.”

See 6 S.W.3d at 720. Henke was correct to apply this general rule in the context of agreed

temporary orders. After all, Texas law strongly favors and encourages voluntary and

orderly dispute resolution. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex.

1997). “The law has always favored the resolution of controversies through

compromise and settlement rather than through litigation and it has always been the

policy of the law to uphold and enforce such contracts if they are fairly made and are

not in contravention of some law or public policy.” Hernandez v. Telles, 663 S.W.2d 91,

93 (Tex. App.—El Paso 1983, no writ). Agreements should be encouraged, particularly

early in litigation, to open the door to communication and, hopefully, compromise.

Nothing in Rules 683 or 684 governing the scope or form of temporary injunctions

overrides this policy favoring compromise. The Court should reconcile its conflicting

14

precedent in favor of voluntary dispute resolution and hold that parties may agree to

dispense with the procedural protections of Rules 683 and 684.

B. The cases DeLitta cites are distinguishable.

DeLitta cites three cases for the proposition that “Rule 683’s mandatory

requirements cannot be waived.”48 These cases are distinguishable from this case.

Most significantly, neither Poole nor Gray Wireline involve an injunction that was

entered into voluntarily. Gray Wireline does not appear to involve an agreed injunction

at all. 374 S.W.3d at 467. And the party seeking relief in Poole agreed to the injunction

“as to form” only. 2008 WL 4735602, at *11 (“Agreed as to Form Only”).

Here, however, the parties signed the temporary injunction with the notation

“agreed as to form and content.”49 This distinction is significant. Approving a judgment

“as to form” is a “professional courtesy”—“a usual and harmless procedure.” Cisneros

v. Cisneros, 787 S.W.2d 550, 552 (Tex. App.—El Paso 1990, no writ). “Approval as to

substance,” on the other hand, means the signatory agrees that all the essential

requirements have been met. Claxton v. Fork Water Control & Improvement Dist. No. 1,

220 S.W.3d 537, 544 (Tex. App.—Texarkana 2007, pet. denied). A party who approves

the substance of an order is precluded from later arguing that statutory requirements have

not been met. Cisneros, 787 S.W.2d at 552 (counsel’s approval of form of judgment

48

Br. at 15-16 (citing Conlin v. Haun, 419 S.W.3d. 682 (Tex. App.—Houston [1st Dist.] 2013, no pet.);

Gray Wireline Serv., Inc. v. Cavanna, 374 S.W.3d 464 (Tex. App.—Waco 2011, no pet.); Poole v. U.S. Money

Reserve Inc., No. 09-08-137-CV, 2008 WL 4735602 (Tex. App.—Beaumont, Oct. 30, 2008, no pet.)).

49

CR121 (emphasis added)

15

precluded former husband from asserting that judgment did not meet statutory

requirements for child support).

The signature on the temporary injunction by DeLitta’s attorney signifies that all

essential requirements are met. Claxton, 220 S.W.3d at 544; Cisneros, 787 S.W.2d at 552.

His complaint here that the injunction omitted one requirement—the reasons for its

issuance—is belied by the signatures on the document and thus has no merit.

Conlin and Gray Wireline involve the trial court’s failure to provide a trial date on

the agreed injunction itself. See Conlin, 419 S.W.3d. at 687; Gray Wireline, 374 S.W.3d at

472. Here, in contrast, the agreed injunction did set a trial date.50 Thus, the agreed

injunction is not “void on its face,” as found in other cases. See Gray Wireline, 374

S.W.3d at 472.

DeLitta twists these cases to apply to the facts here by arguing that, because the

Agreed Order “no longer carries an effective trial date,” it is somehow retroactively

void—a “nullity” at its very issuance. DeLitta cites no cases to support this nonsensical

position. Several Texas cases undercut DeLitta’s argument. For example, in In re Kahn,

the Beaumont court of appeals held that a trial court may hold a litigant in contempt

after the trial date set in the original temporary injunction when the original trial date is

later continued. No. 09-14-00028-CV, 2014 WL 199024, at *1 (Tex. App.—Beaumont

Jan. 16, 2014, orig. proceeding) (mem. op.). A Houston court of appeals has come to

50

CR121 (setting case for trial on April 7, 2014)

16

a similar conclusion. Parham Family Ltd. P ’ship v. Morgan, 434 S.W.3d 774 (Tex. App.—

Houston [14th Dist.] 2014, no pet.) (rejecting the argument that a temporary injunction

expired because the order stated it was set for trial on a particular date but was later

continued several times). If an injunction immediately became a “nullity” upon the

passing of the stated trial date, as DeLitta argues here, these cases would have come out

differently.51

C. Cases that appear to prohibit agreed temporary injunctions misconstrue

Texas Supreme Court precedent and are not soundly reasoned.

To the extent Conlin or Poole can be read to broadly support DeLitta’s proposition

that “Rule 683’s mandatory requirements cannot be waived,” they were wrongly

decided. Both cases rely on a single case from San Antonio. In re Garza, 126 S.W.3d

268 (Tex. App.—San Antonio 2003, orig. proceeding).52 Garza reaches the radical result

that a party can agree to be bound by a temporary injunction and then, later, seek the

aide of the appellate courts to renege on that agreement when the party no longer

desires to be bound by its terms. The reasoning the Garza court offers to support this

view of Texas law is questionable, at best.

51

DeLitta suggests he never agreed to the terms of the Agreed Order beyond the original April 7,

2014. But DeLitta asked for the agreed injunction to be enforced after the April 7 trial date.

SuppCR121. Thus, the trial court was reasonable in rejecting any factual argument that DeLitta did

not intend to be bound throughout the entirety of this litigation.

52

See Poole, 2008 WL 4735602, at *11–12 (relying on Garza); Conlin, 419 S.W.3d at 686 (relying on

Garza and In re Corcoran, 343 S.W.3d 268, 269 (Tex. App.—Houston [14th Dist.] 2011, orig.

proceeding), which also had followed Garza). This Court has also cited Garza favorably in a

memorandum opinion. See In re Krueger, No. 03-12-00838-CV, 2013 WL 2157765, at *9 n.7 (Tex.

App.—Austin May 16, 2013, orig. proceeding) (mem. op.).

17

It is worth noting, as an initial matter, that Garza would have come out differently

had it been presented in this Court. This Court would likely follow Tober v. Turner of

Texas, 668 S.W.2d 831 (Tex. App.—Austin 1984, no writ) and its progeny. As explained

previously,53 this line of cases holds that unless the original temporary injunction is

timely appealed, an appellate court—on review of a subsequent order related to the

original injunction—will presume that the trial court’s initial decision to grant the

temporary injunction was proper and will not consider any issues that could have been

raised in a prior appeal. Tober, 668 S.W.2d at 835; see also Desai, 813 S.W.2d at 641 (no

jurisdiction to review original temporary injunction that failed to include trial date). In

Garza, the allegedly void injunction had been entered two years prior, with no appeal

taken. 126 S.W.3d at 270. The objection that the injunction was void was not raised

until the denial of a second round of competing motions to dissolve and for contempt.

Id. Thus, pursuant to Tober, this Court would likely have denied the Garza petition on

this ground alone.

But Garza is wrong for other reasons too. Garza held that a temporary injunction

that does not comply with Rules 683 and 684 is void, not voidable, and, as such, a party

does not waive its right to attack the injunction—even if the party agreed to its issuance.

In reaching this conclusion, the Garza court relied heavily on two per curiam opinions

from the Texas Supreme Court: Qwest, 24 S.W.3d at 334; Interfirst, 715 S.W.2d at 641.

53

See infra, Sec. I.

18

Importantly, however, neither Qwest nor Interfirst concerned an agreed temporary

injunction. Interfirst is a two-paragraph opinion that mentions nothing about the entry

of the injunction. In Qwest, the parties reached a tentative agreement concerning the

injunction at the entry hearing, which they then read into the record, but “[u]ltimately,

the parties could not agree to the terms of the written order to be submitted to the trial

court.” 23 S.W.3d at 335. So neither opinion addressed whether parties may agree to

dispense with the requirements of Rule 683 and 684. In fact, the Qwest court stated that

the “single issue in this petition is whether the trial court’s interlocutory order is a

temporary injunction.” Id. Anything the Court wrote about the voidability of an

injunction was not relevant to the “single issue” before it and was thus dicta.

Equally critical is the actual language used in Qwest and Interfirst. In both cases,

the court stated that an order that does not adhere to the requirements of the injunction

rules “is subject to being declared void and dissolved.” Qwest, 24 S.W.3d at 337; Interfirst,

715 S.W.2d at 641. If an order is “subject to being declared void,” it is voidable. “[T]he

key distinction between a void act and a voidable act . . . is a party’s ability—either

through its own action or through the judicial process—to disaffirm, ratify, or confirm

a voidable act.” Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585, 591 (Tex. App.—

Houston [14th Dist] 2014, pet. filed). In other words, a voidable order is “subject to

being declared void,” upon an affirmative act by a party or court. See Cummings v. Powell,

8 Tex. 80, 80 (1852) (“[A] voidable act is one which is obligatory upon others until

disaffirmed by the party with whom it originated, and which may be subsequently

19

ratified or confirmed.”). A void order, on the other hand, “is entirely null, not binding

on either party and not susceptible of ratification.” Id.

The Garza court rejected this argument, emphasizing the Court’s explanation in

Qwest that, in InterFirst, the court “declared the temporary injunction void.” Garza, 126

S.W.3d at 273. But, even assuming this dicta has any meaning, the declaration in

InterFirst does not answer the question of whether a non-compliant temporary

injunction is void or voidable. The declaration in InterFirst was made because a party,

at that point, had challenged the order. The voidable order, when challenged (or

“disaffirmed,” to use the Cummings language), was, at that moment, declared void.

Texas supreme court cases actually deciding the issue of whether an order is void

or merely voidable are far more instructive than Qwest and InterFirst, which do not.

These cases emphasize that void orders are “rare.” Comm’n for Lawyer Discipline v.

Schaefer, 364 S.W.3d 831, 836 (Tex. 2012); In re U.S. Silica Co., 157 S.W.3d 434, 438–39

(Tex. 2005) (orig. proceeding) (per curiam). A judgment or order is void only when it

is apparent that the court rendering it had no jurisdiction of the parties, no jurisdiction

of the subject matter, no jurisdiction to enter the judgment or order, or no capacity to

act as a court. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig. proceeding)

(per curiam). The high court has applied this principal in the context of allegedly

erroneous temporary injunctions and emphasized: “[I]t is evident that the writ was not

wholly void for want of jurisdiction, but at most was only voidable as to some of the

acts sought to be restrained. . . . If the district had jurisdiction of the parties and the

20

matter adjudicated, the injunction cannot be said to be absolutely void.” Ex Parte

Kimberlin, 126 Tex. 60, 66 (1935).

The same is true of an injunction issued without precise compliance with Rule

683. Judgments which are rendered without observance of statutory requirements

which are purely procedural are not void, however irregular or erroneous they may be.

Id. (“Absent one of those rare circumstances that makes the [order] void, the mere fact

that an action by a court [ ] is contrary to a statute, constitutional provision or rule of

civil or appellate procedure makes it ‘voidable’ or erroneous.”); see also Brazzel v. Murray,

481 S.W.2d 801, 803 (Tex. 1972); Ex Parte Coffee, 328 S.W.2d 283, 234 (Tex. 1959)

(“Judgments which are rendered without observance of statutory requirements which

are purely procedural are not void, however irregular or erroneous they may be.”).

Thus, contrary to the holding in Garza, non-compliance with Rule 683 makes an

injunction voidable, not void. The Rule 683 requirements are “purely procedural.”

Those requirements do not affect the jurisdiction of the court over the parties or the

subject matter. Thus, an order that does not strictly comply with Rule 683 is “subject

to being declared void,” if “disaffirmed,” but is not void when entered. As a voidable

order, a defective temporary injunction is subject to all equitable principles, including

estoppel and waiver.

Garza led multiple courts astray in concluding otherwise, and this Court should

not follow its sister courts down this flawed path. Of course, litigants can agree to

dispense with procedural protections afforded by the Texas Rules of Procedure,

21

including those in Rule 683. They do so every day—from the beginning of a suit54 to

the end.55 And Texas’ policy favors doing so. The procedural requirements governing

temporary injunctions are not special and should not be treated any differently than

Texas’ other procedural requirements and protections.

D. DeLitta is estopped from now challenging the Agreed Order because he

agreed to its issuance and has himself sought to enforce it.

Because any deficiencies in the form of the temporary injunction make the

injunction simply voidable, and not void, DeLitta’s complaints are subject to general

principles of equity and error preservation. See Roccaforte v. Jefferson Cnty., 341 S.W.3d

919, 923 (Tex. 2011). The equitable principles that apply to bar DeLitta’s objections to

the Agreed Order are myriad.

First and foremost, DeLitta agreed to the temporary injunction. A party may not

appeal from or attack a judgment to which he has agreed, absent allegation and proof

of fraud, collusion, or misrepresentation. Henke, 6 S.W.3d at 720. As the Texas

Supreme Court succinctly stated: “consent takes away error.” Dunman v. Hartwell, 9

Tex. 495, 496 (1853). “Having consented to the action of the court in entering” the

temporary injunction, DeLitta “waive[d] all errors committed or contained in the

judgment, thus leaving nothing which could properly be considered by an appellate

54

For example, issuance, service, and return of citation are mandatory and the failure to strictly comply

with the governing procedural rules “renders the attempted service of process invalid and of no

effect.” Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Yet parties

can agree to waive service. Deen v. Kirk, 508 S.W2d 70, 71 (Tex. 1974).

55

Parties may also agree to waive a supersedeas bond. See TEX. R. APP. P. 24.1(a)(1).

22

court, except want of jurisdiction.” See DeLee v. Allied Fin. Co., 408 S.W.2d 245, 247

(Tex. Civ. App.— Dallas 1966, no writ).

This is particularly true when, as here, the party objecting to the temporary

injunction twice acknowledged its binding effect. The parties proceeded for over eight

months in this litigation under the terms of the Agreed Order and in full

acknowledgement of its binding force. “A litigant cannot treat a judgment as both right

and wrong.” Carle v. Carle, 234 S.W.2d 1002, 1004 (Tex. 1950). Rather, a party who

accepts the benefits of a judgment is estopped from challenging the judgment by appeal.

See Tex. State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002).

DeLitta, just a few months after entry of the injunction, sought to enforce some

provisions of the injunction56—those still desirable to him. This motion was heard

(along with a competing motion by Schaefer) on April 14, 2014—after the April 7, 2014

trial date set in the Agreed Order.57 Around the same time, DeLitta also sought to limit

the powers of the provisional member who was appointed and selected under the terms

of the agreed temporary injunction.58 This Court should refuse to allow DeLitta to treat

the temporary injunction “as both right and wrong.” Having pursued the benefits of

injunctive terms when it suited him, he is now estopped from challenging the judgment

here.

56

SuppCR21

57

Compare SuppCR121 (noting date of hearing) and CR121 (Agreed Order setting trial date)

58

SuppRR60–70

23

Finally, as previously explained,59 a party waives any challenge to a temporary

injunction by not appealing the injunction when it is first signed. See Tober, 668 S.W.2d

at 834. “A motion to dissolve may not be used as a means of evading or expanding the

rules applicable to appealing interlocutory orders.” Id. Thus, unless a temporary

injunction order is timely appealed, appellate courts “must presume the trial court’s

initial decision to grant the temporary injunction was proper.” Murphy v. McDaniel, 20

S.W.3d at 879. DeLitta’s sole complaint on appeal concerns the validity of the original

injunction. But the injunction issued in October 2013. The 20 day window to challenge

the injunction has long since passed. DeLitta waived his right to challenge the

temporary injunction in this late appeal.

III. The trial court was within its discretion to deny DeLitta’s motion because

the Agreed Order is enforceable as a Rule 11 Agreement.

Conspicuously missing from DeLitta’s brief is the fact that the trial court had

previously enforced the Agreed Order as a valid and binding Rule 11 agreement. On

June 19, 2014, the trial court signed an order enforcing the Agreed Order.60 The order

expressly found it was being enforced, not just as a temporary injunction, but also as a

Rule 11 agreement.61 The court’s order emphasized that “all parties [shall] strictly abide

by the terms of the” Agreed Order.62

59

See infra, Sec. I

60

SuppCR193

61

SuppCR192 (finding that the Agreed Order “is an agreed order approved as to ‘form and content’

by all parties, signed by the court and filed in the clerk’s office” and “is enforceable as a court order

and as a Rule 11 agreement between the parties”)

62

Id. (emphasis in original)

24

The trial court was correct to do so. The parties’ agreement meets all the

requirements of Rule 11 and is thus a valid agreement, even if it does not meet the

requirements of a valid temporary injunction under Rule 683. As such, the trial court

had a ministerial duty to enforce the Agreed Order as a Rule 11 agreement. See Fortis

Benefits v. Cantu, 234 S.W.3d 642, 651 (Tex. 2007); Scott-Richter v. Taffarello, 186 S.W.3d

182, 189 (Tex. App.—Fort Worth 2006, pet. denied) (“A trial court has a ministerial

duty to enforce a valid Rule 11 agreement.” (internal citations omitted)). Dissolving the

Agreed Order would have been a breach of that obligation. Thus, the trial court’s order

should be affirmed on this basis. See generally K-Mart Corp. v. Honeycutt, 24 S.W.3d 357,

360 (Tex. 2000) (per curiam) (an appellate court may affirm on any meritorious ground);

C.W. 100 Louis Henna, Ltd. v. El Chico Rest. of Tex., L.P., 295 S.W.3d 748, 753 (Tex.

App.—Austin 2009, no pet.) (same).63

A. The Texas Supreme Court allows enforcement of litigation-related

agreements under Rule 11 even when the agreement might not otherwise

be enforceable as an agreed judgment.

Even if the agreed temporary injunction is unenforceable as a judgment, it is

undoubtedly enforceable in contract. Padilla v. LaFrance is dispositive. 907 S.W.2d 454

63

The trial judge that signed the June 19 order was not the same judge. But the trial court knew that

the Agreed Order had been enforced previously as a Rule 11 agreement. CR372-76 (arguing the trial

court had a ministerial duty to enforce the Agreed Order as a Rule 11). Under the central docket

system, trial judges are reluctant to overrule prior rulings of their colleagues. See TRAVIS CO. DIST.

CT. L.R. 1.4 (“A request to be heard on a motion for new trial or any other motion challenging a prior

ruling, except one by default, must be presented to the judge who made the ruling, including a visiting

judge.”), available at https://www.traviscountytx.gov/images/courts/docs/local_rules

_civildistrict.pdf (last visited April 29, 2015). Thus, the trial court was within its discretion to deny

DeLitta’s motion on this purely procedural ground. Tober, 668 S.W.2d at 835 (trial court has no duty

to reconsider the propriety of the granting of a temporary injunction).

25

(Tex. 1995). Padilla was a personal injury case. Id. at 455. Through a series of

communications, the parties appeared to reach a settlement agreement. Id. at 455–56.

When the plaintiff refused to accept payment, the defendant filed a counterclaim in the

pending action seeking enforcement of the settlement agreement. Id. at 457. Both sides

moved for summary judgment on the counterclaim. Id. The trial court found that the

series of emails did not constitute an enforceable agreement under Rule 11 and granted

summary judgment for the plaintiff.

The Texas Supreme Court reversed. It first found that, contrary to the trial

court’s ruling, the parties did have an enforceable agreement under Rule 11. Id. at 461.

It then addressed the plaintiffs’ argument that the settlement agreement, if one was

reached, was unenforceable because the plaintiffs withdrew consent before judgment

was rendered. Absent consent, the plaintiffs argued, a trial court has no authority to

render an agreed judgment. Id.

The Texas Supreme Court disagreed. The agreement, the Court said, was

enforceable in contract even if it would not meet the requirements of an agreed

judgment. Id. It explained:

The LaFrances . . . confuse the requirements for an agreed judgment with

those for an enforceable settlement agreement. Although a court cannot

render a valid agreed judgment absent consent at the time it is rendered,

this does not preclude the court, after proper notice and hearing, from

enforcing a settlement agreement complying with Rule 11 even though

one side no longer consents to the settlement. The judgment in the latter

case is not an agreed judgment, but rather is a judgment enforcing a

binding contract.

26

Id.

Like the plaintiffs in Padilla, DeLitta “confuse[s] the requirements” for a

temporary injunction for those of an enforceable Rule 11 agreement. See id. at 461.

DeLitta assumes that if he attacks one the other falls. But Padilla holds otherwise.

Padilla instructs that one can fail as a judgment (there, for lack of consent) and still be

enforceable in contract. Under the same reasoning, if the Agreed Order meets the

requirements of Rule 11, it is enforceable as a Rule 11 agreement, even if it would

otherwise fail as a temporary injunction.

B. The Agreed Order meets all the elements of an enforceable Rule 11.

The October 2013 Agreed Order meets all the requirements of Rule 11 and is

thus enforceable as a Rule 11 agreement. Rule 11 provides:

Unless otherwise provided in these rules, no agreement between attorneys

or parties touching any suit pending will be enforced unless it be in writing,

signed and filed with the papers as part of the record, or unless it be made

in open court and entered of record.

TEX. R. CIV. P. 11.

A trial court must enforce any agreement that meets the elements of Rule 11.

Fortis Benefits, 234 S.W.3d at 651 (“As this is a valid pretrial agreement under Rule 11,

the trial court had a duty to enforce its terms.”). Those elements are quite simple:

 The agreement must be between attorneys or parties and touching

on a pending lawsuit;

 The agreement must be in writing;

 The agreement must be signed; and

 The agreement must be made a part of the record.

27

The October 2013 order meets these requirements. Nancy Schaefer filed suit on

October 9, 2013,64 and the parties agreed to the injunctive provisions on October 29,

2013,65 while the suit was still pending.66 The agreement touched on the lawsuit in that

the 9 pages of agreed terms were intended to govern the parties’ conduct as it relates to

Axiom (the company which is the subject matter of the lawsuit) during the litigation.67

The agreement was in writing.68 It was signed—“agreed as to form and content”—by

all the party attorneys: Howard Carter and Mark Stromberg, attorneys for plaintiff, as

well as Teresa De Ford, attorney for the Axiom defendants, and Joe Griffin, attorney

for Michael J. DeLitta and DeLCom Properties, LLC.69 It was filed in the court’s record

on the same day as it was signed by the parties.70

The October 2013 order meets all the requirements of Rule 11. Accordingly, it

is an enforceable agreement. The Axiom defendants “entered into and [are] bound by

the specific language in the Rule 11 agreement.” Fortis Benefits, 234 S.W.3d at 651. The

Court can affirm the trial court’s refusal to dissolve the Agreed Order on this ground.

CONCLUSION

For these reasons, Appellee asks that the Court to affirm the trial court’s order.

Appellee seeks any other relief to which she may be entitled.

64

CR3

65

CR121

66

CR2 (docket sheet)

67

See CR115–23

68

Id.

69

CR121

70

Compare CR115 (filestamp) with CR121 (date of signature)

28

Dated: May 6, 2015 Respectfully submitted,

/s/Lisa Bowlin Hobbs

Donald R. Taylor Lisa Bowlin Hobbs

State Bar No. 19688800 State Bar No. 24026905

dtaylor@taylordunham.com Lisa@KuhnHobbs.com

Stacey Reese (Of Counsel) Kurt Kuhn

State Bar No. 24056188 State Bar No. 24002433

stacey@reeselawpractice.com Kurt@KuhnHobbs.com

TAYLOR DUNHAM & RODRIGUEZ LLP KUHN HOBBS PLLC

301 Congress Avenue, Suite 1050 3307 Northland Drive, Suite 310

Austin, Texas 78701 Austin, Texas 78731

(512) 473-2257 (512) 476-6003

(512) 478-4409 (fax) (512) 476-6002 (fax)

Howard F. Carter, Jr.,

State Bar No. 03916500

sam@scarterlawfirm.com

HOWARD F. CARTER, JR., P.C.

5600 Tennyson Parkway, Suite 160

Plano, Texas 75024

(972) 455-2001

(972) 455-2015 (fax)

COUNSEL FOR APPELLEE

29

CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this brief contains 7,691

words. This is a computer-generated document created in Microsoft Word, using 14-

point typeface for all text, except for footnotes which are in 12-point typeface. In

making this certificate of compliance, I am relying on the word count provided by the

software used to prepare the document.

/s/ Lisa Bowlin Hobbs

Lisa Bowlin Hobbs

CERTIFICATE OF SERVICE

I hereby certify that on May 6, 2015, I served a copy of this Brief of Appellee on

counsel of record electronically, in accordance with the Court’s rules on electronic

filing, as listed below:

Douglas R. Drucker via e-Service

Kirby D. Hopkins

DRUCKER | HOPKINS LLP

21 Watery Avenue, Suite 300

The Woodlands, TX 77380

Counsel for Appellants Michael J. DeLitta and DelCom Properties, LLC

Eric J. Taube via e-Service

HOHMANN, TAUBE & SUMMERS LLP

100 Congress Avenue, 18th Floor

Austin, Texas 78701

Counsel for the Axiom entities and Receiver/Provisional Member Jeff Compton

/s/ Lisa Bowlin Hobbs

Lisa Bowlin Hobbs

30

Brazzel v. Murray, 481 S.W.2d 801 (1972)

481 S.W.2d 801

Supreme Court of Texas.

John BRAZZEL, Petitioner,

v.

Sid MURRAY et al., Respondents.

No. B—3103. | April 12, 1972. | Rehearing Denied June 7, 1972.

The 105th District Court, Nueces County, Horace S. Young, J., dismissed plaintiff's suit on ground that there was no mandate

filed after the Court of Civil Appeals had reversed a judgment in plaintiff's favor, and plaintiff appealed. The Corpus Christi

Court of Civil Appeals, Thirteenth Supreme Judicial District, Nye, C.J., affirmed, 472 S.W.2d 814, and application for writ of

error was granted. The Supreme Court, McGee, J., held that where mandate was on file with trial court from date of original

mandate until date original mandate was recalled, it was, although unauthorized for failure to comply with requirement that

costs be paid prior to issuance of mandate, valid until recalled; thus, where at no time had there been period of 12 months in

which no mandate had been filed with trial court, as required by procedural rule as prerequisite to dismissal, dismissal of case

for want of a valid mandate was error.

Reversed and remanded for new trial.

West Headnotes (4)

[1] Judgment Errors and Irregularities

Judgments which are rendered without observance of statutory requirements which are purely procedural are not void

however irregular or erroneous they may be, but merely voidable.

4 Cases that cite this headnote

[2] Appeal and Error Making and Issuance

Civil procedural rules dealing with issuance of return of the mandate subsequent to judgment of remand in the Court

of Civil Appeals are procedural and not necessary to the jurisdiction of the trial court. Rules of Civil Procedure, rules

443–445.

5 Cases that cite this headnote

[3] Appeal and Error Operation and Effect

Where mandate was on file with trial court from date of original mandate until date original mandate was recalled,

it was, although unauthorized for failure to comply with requirement that costs be paid prior to issuance of mandate,

valid until recalled; thus, where at no time had there been period of 12 months in which no mandate had been filed with

trial court, as required by procedural rule as prerequisite to dismissal, dismissal of case for want of a valid mandate

was error. Rules of Civil Procedure, rules 443, 445.

2 Cases that cite this headnote

[4] Appeal and Error Operation and Effect

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1

Brazzel v. Murray, 481 S.W.2d 801 (1972)

Until mandate was recalled by Court of Civil Appeals which had issued it erroneously before collection of appellate

costs, mandate was lawful order upon which all parties could rely and was not void ab initio. Rules of Civil Procedure,

rules 443, 445.

4 Cases that cite this headnote

Attorneys and Law Firms

*801 William Emerson Wright, Houston, for petitioner.

Wood, Burney, Nesbitt & Ryan, Allen Wood, Corpus Christi, for respondents.

Opinion

*802 McGEE, Justice.

This case involves the effect of the erroneous issuance of a mandate by the Clerk of the Court of Civil Appeals, the costs of

court having not been paid at the time and subsequent dismissal of the cause purportedly under Rule 445, Texas Rules of Civil

Procedure (T.R.C.P.).

The original suit was filed by John Brazzel on January 4, 1964, against Sid Murray and others. The trial court rendered judgment

upon the jury verdict for Brazzel on July 28, 1967. The Court of Civil Appeals (Waco Court) reversed the trial court judgment

and remanded the cause for new trial with costs assessed against Brazzel on February 6, 1969. 438 S.W.2d 382. Judgment

became final November 26, 1969 when Brazzel's application for writ of error was overruled by this Court.

The Clerk of the Waco Court issued the mandate to the trial court on December 4, 1969, although Brazzel had failed to pay the

costs at that time as ordered by the judgment of the Waco Court and as required by Rule 443, T.R.C.P., which provides:

'On the rendition of a final judgment or decree in the Court of Civil Appeals, the clerk of said court shall

not issue and deliver the mandate of the court nor certify the proceedings to the lower court until all costs

accruing in the case in such appellate court have been paid, subject to the provisions of Rule 444.'

Rule 444, T.R.C.P., provides for the filing of affidavits of inability to pay the costs as required in Rule 443, T.R.C.P.

Murray subsequently filed a motion in the Waco Court to recall the mandate because of the non-payment of the costs. This

motion was granted, and the mandate was recalled on January 22, 1971, and returned to the Waco Court, whereupon the Clerk

issued a certificate on February 18, 1971, which stated: ‘Except for the Mandate of this Court issued December 4, 1969, no

mandate in the above has been taken out.’

Murray filed a motion to dismiss the cause in the trial court on February 17, 1971. On March 4, 1971 the trial court entered its

order of dismissal relying upon Rule 445, T.R.C.P., which provides as follows:

'In cases which have been reversed and remanded by a Court of Civil Appeals, If no mandate shall have been taken out and filed

in the court where the cause originated within one year after the motion for rehearing is overruled or final judgment rendered,

Then upon the filing in the court below of a certificate of the clerk of the Court of Civil Appeals where the cause was pending

That no mandate has been taken out, the case shall be dismissed from the docket.' (Emphasis added)

On appeal from the order of dismissal, the Court of Civil Appeals (Corpus Christi Court) held that the original mandate, having

been mistakenly issued by the Waco Court, was void Ab initio and the wording of the Clerk's certificate need not state that

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2

Brazzel v. Murray, 481 S.W.2d 801 (1972)

‘no mandate has been taken out’ within one year of final judgment and affirmed the judgment of the trial court. 472 S.W.2d

814. With these holdings we disagree.

Petitioner's application for writ of error was granted on the following points:

'1. The Court of Civil Appeals erred in holding, that the mandate, ‘having been mistakenly issued,’ was void Ab initio.

'2. The Court of Civil Appeals erred in affirming dismissal under Rule 445, T.R.C.P., as a valid mandate was on file with the

trial court from final remand until dismissal.

'3. The Court of Civil Appeals erred in affirming dismissal in the absence of compliance with the requirements of Rule 445,

T.R.C.P., that the Clerk certify *803 that ‘no mandate has been taken out’ within one year of final judgment.'

Points one and two will be treated together and are considered controlling; thus, point three is not discussed.

[1] The distinction between a Void and Voidable judicial act is clearly set out in Murchison v. White, 54 Tex. 78 (1880)

as follows:

'A void act is one entirely null within itself, not binding on either party, and which is not susceptible of ratification or

confirmation. Its nullity cannot be waived.

'A voidable act is one which is not absolutely void within itself, but which is binding until disaffirmed, and which may be made

finally valid by failure within the proper time to have it annulled, or by subsequent ratification or confirmation.'

In Murchison, the Court found the judgment fraudulently obtained in the probate proceedings to be voidable, not void, holding

the judgment of a court having jurisdiction, if so irregularly or erroneously rendered as to make it liable to be vacated by a direct

proceeding for this purpose, or to be reversed on appeal or writ of error, is nevertheless valid until thus vacated or reversed.

Other early Texas cases which uphold this distinction stated in Murchison are Wheeler v. Ahrenbeak, 54 Tex. 535 (1881);

Cummings v. Powell, 8 Tex. 80 (1852); Burditt v. Howth, 45 Tex. 466 (1876); Fitch v. Boyer, 51 Tex. 336 at 344 (1876);

Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66 (1920).

In similar situations in which a collateral attack is brought against a judgment, the judgment has been held to be voidable and

not void. Moore v. Hanscom, 101 Tex. 293, 108 S.W. 150 (1908); White v. White, 142 Tex. 499, 179 S.W.2d 503 (1944). In

Ex Parte Coffee, 160 Tex. 224, 328 S.W.2d 283 (1959), this Court held that judgments which are rendered without observance

of statutory requirements which are purely procedural are not void, however irregular or erroneous they may be.

[2] The Texas Rules of Civil Procedure dealing with the issuance and return of the mandate subsequent to judgment of

remand in the Court of Civil Appeals are procedural and not necessary to the jurisdiction of the trial court. Continental Casualty

Company v. Street, 364 S.W.2d 184 (Tex.1963). In Continental, the case had been retried and judgment entered before the

mandate was taken out. This second judgment of the trial court upon remand was held not to be a void judgment.

[3] From December 4, 1969, the date of the original mandate, until February 12, 1971, the date the original mandate was

recalled, a mandate was on file with the trial court in this cause. It was an unauthorized mandate, but was valid until recalled.

In any event, Petitioner still had an additional year to pay the costs and obtain the issuance of a mandate after the date of recall

of the mandate. At no time has there been a period of twelve months in which no mandate has been filed with the trial court,

as required by Rule 445, T.R.C.P., as a basis for dismissal.

[4] The Corpus Court erred in holding that the mandate was void Ab initio. Until the mandate was recalled by the Waco Court

which had issued it erroneously before collection of appellate costs, the mandate was a lawful order of the Court upon which

all parties could rely. Murchison v. White, supra.

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 3

Brazzel v. Murray, 481 S.W.2d 801 (1972)

The judgments of the courts below are reversed and the cause remanded to the trial court for new trial.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 4

C.W. 100 Louis Henna, Ltd. v. El Chico Restaurants of..., 295 S.W.3d 748 (2009)

295 S.W.3d 748

Court of Appeals of Texas,

Austin.

C.W. 100 LOUIS HENNA, LTD., Appellant,

v.

EL CHICO RESTAURANTS OF TEXAS, L.P., and El Chico Restaurants, Inc., Appellees.

No. 03–08–00555–CV. | Aug. 27, 2009.

Synopsis

Background: Landlord brought action against tenant, alleging breach of commercial ground lease in tenant's failure to repair

damages to air conditioning units that had been subject to copper vandals and hail damage. The District Court, Williamson

County, 277th Judicial District, Ken Anderson, J., entered summary judgment in favor of tenant. Landlord appealed.

[Holding:] The Court of Appeals, Bob Pemberton, J., held that air conditioning units were trade fixtures and not improvements

such that tenant was under no obligation to repair units upon expiration of lease.

Affirmed.

West Headnotes (10)

[1] Appeal and Error Particular orders or rulings reviewable in general

Appeal and Error Rendering Final Judgment

Where the parties file cross-motions for summary judgment on overlapping issues, and the trial court grants one motion

and denies the other, the appellate court should review the summary-judgment evidence supporting both motions and

render the judgment that the trial court should have rendered.

Cases that cite this headnote

[2] Appeal and Error Reasons for Decision

If the district court did not specify the ground on which it relied in granting summary motion, the appellate court may

affirm the summary judgment if any ground is meritorious.

1 Cases that cite this headnote

[3] Estates in Property Ground rents

Fixtures Trade fixtures

Air conditioning units that were purchased and installed by tenant for purpose of running restaurant within leased

premises were trade fixtures, and not improvements, such that tenant was not responsible for repairing the units upon

expiration of lease; parties' commercial ground lease unambiguously manifested the drafters' intent that the units

tenant was to install on the building would be temporary additions to the realty to aid tenant in operating a restaurant

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

C.W. 100 Louis Henna, Ltd. v. El Chico Restaurants of..., 295 S.W.3d 748 (2009)

there, which tenant would continue to own at the lease's conclusion, and not “Improvements” that it was required to

maintain or repair for the landlord's benefit.

2 Cases that cite this headnote

[4] Contracts Construction as a whole

Contracts Language of contract

When courts construe a written contract, the primary concern is to ascertain and give effect to the intentions the parties

have objectively manifested in that instrument; to that end, courts construe the contract in its entirety, considering

each part in relation to every other part so that the effect of each part on others may be determined and that no part

will be rendered meaningless.

1 Cases that cite this headnote

[5] Contracts Language of Instrument

Contract terms are given their plain, ordinary, and generally accepted meanings unless the contract itself shows them

to be used in a technical or different sense.

1 Cases that cite this headnote

[6] Contracts Subject, object, or purpose as affecting construction

Contracts Extrinsic circumstances

In determining the meaning of contract terms, courts may consider the context of the circumstances existing at the

time the contract was executed and the particular business activity sought to be served.

Cases that cite this headnote

[7] Contracts Existence of ambiguity

Contracts Ambiguity in general

If courts can give the contract a definite or certain legal meaning, it is unambiguous and it will be construed as a

matter of law; if, on the other hand, the contract is subject to two or more reasonable interpretations, it is ambiguous,

which creates a fact issue as to the parties' intent.

Cases that cite this headnote

[8] Contracts Ambiguity in general

Whether a contract is ambiguous is a question of law.

Cases that cite this headnote

[9] Fixtures Trade fixtures

As between a landlord and his tenant, the term “trade fixtures” refers to and means such articles as may be annexed to

the realty by the tenant to enable him properly or efficiently to carry on the trade, profession, or enterprise contemplated

by the tenancy contract or in which he is engaged while occupying the premises, and which can be removed without

material or permanent injury to the freehold.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

C.W. 100 Louis Henna, Ltd. v. El Chico Restaurants of..., 295 S.W.3d 748 (2009)

1 Cases that cite this headnote

[10] Fixtures Trade fixtures

Landlord and Tenant Improvements by landlord and covenants therefor

For purposes of distinguishing between trade fixtures and improvements to rental property, improvements made by

a landlord are made to enhance the value of the estate, and to be permanent, whereas those made by the tenant are

temporary and made for purposes of his trade.

2 Cases that cite this headnote

Attorneys and Law Firms

*750 Forest D. Cook, Austin, TX, for Appellant.

Joel R. White, Austin, TX, for Appellees.

Before Justices PATTERSON, PEMBERTON and WALDROP.

OPINION

BOB PEMBERTON, Justice.

This is an appeal from a final summary judgment, on cross-motions, in a dispute between a landlord, appellant C.W. 100 Louis

Henna, Ltd. (Henna), a tenant, appellee El Chico Restaurants of Texas, L.P. (El Chico), and the tenant's guarantor, El Chico

Restaurants, Inc., over the proper construction of their commercial ground lease. The principal issue concerns whether air-

conditioning units that El Chico installed on a building that the lease required it to construct are “improvements” that the lease

obligated El Chico to maintain and deliver to Henna in good condition upon the lease's expiration, as Henna contends, or are

trade fixtures that are excluded from the lease's definition of “improvements,” as appellees argue. We agree with appellees that

the air-conditioning units are trade fixtures and not “improvements” as a matter of law. Because this is one of the grounds on

which the district court could have relied in granting summary judgment for appellees, we will affirm the judgment.

BACKGROUND

The material underlying facts are undisputed. On September 24, 1996, El Chico and Henna's predecessor, Boardwalk Center,

Ltd., entered into a ground lease of a parcel of land located in Round Rock that Boardwalk owned and was developing as

part of a new retail shopping center. On the same day, El Chico Restaurants, Inc. signed an agreement to guarantee El Chico's

obligations under the ground lease.

Among its other obligations under the ground lease, El Chico was required to construct a building on the parcel it was leasing

(defined as the “Land”) within the permissible building area reflected in the project's site plan and “pursuant to plans and

specifications approved in writing by Landlord [Boardwalk].” The lease defined this “building and other improvements and

appurtenances that may hereafter be erected” on the Land as the “Improvements” and defined the Land and Improvements

collectively as the “Premises.” The referenced “plans and specifications” included or depicted two 12.5–ton 1 air conditioning

units and two 10–ton units (the “HVAC units”), which were to be installed on top of the building.

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C.W. 100 Louis Henna, Ltd. v. El Chico Restaurants of..., 295 S.W.3d 748 (2009)

The lease authorized El Chico to use the Premises to operate a “restaurant, a related cocktail lounge, such other uses as are

incidental to the operation thereof and for any other lawful purpose,” subject to its complying with “all applicable governmental

and regulatory requirements and regulations.” The lease was to run for an initial term expiring on the tenth anniversary of the

“Rent Commencement Date”—a date tied to when El Chico opened for business on the Premises—subject to El *751 Chico's

right to renew the lease for up to four additional terms of five years each. While the lease was in effect, El Chico would own the

Improvements “hereafter constructed or placed on the Land during the Term,” but El Chico had “no right to demolish, remove or

alter the Improvements without Landlord's prior written consent.” El Chico was further required to carry specified insurance on

the Premises and “take good care of the Improvements during the Term, including repairs to the interior, exterior and structure,

it being understood that Landlord shall not be required to maintain the Premises or make any repairs to the Improvements during

the Term.” At the end of the lease, El Chico was required to “deliver up the Land with the Improvements then situated thereon in

good repair and condition, loss by fire or other casualty, condemnation, act of God, ordinary wear and tear, decay, depreciation

and obsolescence being excepted,” whereupon the Improvements were to “be and become the property of Landlord ... without

compensation therefor.” However, paragraph 12 of the lease provided that “trade and business fixtures ... shall not be deemed

to be part of the Premises but shall remain the property of Tenant.”

The “Rent Commencement Date” was in April 1997, which meant that the ten-year initial lease term ran until April 2007. The

record reflects that, in April 2006, Boardwalk conveyed its interest in the Premises and the ground lease to Henna Blvd., L.L.C.,

which then assigned these interests to Henna. Around the same time, El Chico gave written notice to Henna Blvd., L.L.C. that El

Chico had ceased doing business in the Premises and that it would permit the lease to expire at the end of the initial term without

renewing it. In this document, El Chico also waived any rights it possessed under the lease that would have prevented Henna

Blvd., L.L.C. (or Henna, its successor) from marketing and selling or leasing the Premises, and El Chico agreed to execute a

document terminating the lease upon the landlord's request if the landlord succeeded in selling or leasing the Premises.

In June 2006, El Chico sold Henna “all furniture, fixtures and equipment (collectively, the ‘Assets') located, as of this date, in the

El Chico® restaurant at 100 Louis Henna Boulevard, Round Rock.” Henna acknowledged and agreed that it “ha[d] inspected

the Assets at the Premises and [was] acquiring the Assets in their ‘AS IS' condition.” Around the same time, El Chico and Henna

amended the ground lease to provide that effective June 23, 2006, Henna would assume responsibility for paying all charges for

utility services at the Premises, including the security alarm system, and for maintaining the grounds around the Improvements.

However, El Chico continued to make monthly rental payments through the end of the initial lease term in April 2007.

In January 2007, a few months before the lease's April expiration, Henna learned that the HVAC units on top of the restaurant

building had been vandalized by copper thieves and damaged by hail. Henna obtained an estimate of $38,496 to repair the

damage. A series of communications ensued between the parties or their agents in which it was disputed whether Henna or

El Chico was responsible for repairing and/or insuring against the damage to the HVAC units. Eventually, in August and

September of that year, counsel for Henna sent letters to both El Chico and, as guarantor, El Chico Restaurants, Inc., demanding

payment of the $38,496 estimated repair amount. In October, Henna sued these entities.

Henna alleged that appellees were obligated under the ground lease to insure or *752 repair the HVAC units and had failed to

perform. It asserted a cause of action for breach of contract and sought damages and attorney's fees. Henna filed a “traditional”

motion for partial summary judgment as to appellees' liability for breaching the lease. It attempted to conclusively establish each

of the elements of its breach-of-contract cause of action; namely, that: (1) a valid contract existed between the parties; (2) Henna

had performed or tendered performance; (3) appellees had breached the contract; and (4) Henna was damaged as a result of the

breach. See New York Life Ins. Co. v. Miller, 114 S.W.3d 114, 121 (Tex.App.-Austin 2003, no pet.). Appellees filed a response

and a “traditional” cross-motion in which they attempted to conclusively negate each of these elements, as well as Henna's

entitlement to attorney's fees. Regarding breach, the parties joined issue as to whether the HVAC units are Improvements that

appellees were obligated under the ground lease to repair or insure, as Henna argued, or are trade fixtures that were excluded

from that obligation, as appellees contended. The parties also joined issue as to whether Henna had complied with the default or

remedy provisions of the lease, whether Henna had incurred any damages, or whether Henna had any entitlement to attorney's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

C.W. 100 Louis Henna, Ltd. v. El Chico Restaurants of..., 295 S.W.3d 748 (2009)

fees. Following a hearing, the district court rendered final judgment denying Henna's summary-judgment motion and granting

appellees' motion without stating the specific grounds on which it relied. Henna thereafter filed a motion for new trial, which

the district court denied by written order following a hearing. This appeal ensued.

ANALYSIS

Henna brings twelve issues on appeal. It disputes whether appellees were entitled to prevail on any of the summary-judgment

grounds presented in their motion—specifically, whether appellees conclusively negated the elements of breach (points five

and six), Henna's performance (points seven and eight), damages (points nine and ten), or Henna's entitlement to attorney's fees

(point twelve). Henna also brings a corresponding set of points complaining that the district court erred in denying Henna's

summary-judgment motion. Henna asserts that it established each of the elements of its breach-of-contract cause of action as

a matter of law: breach (points one and two), performance (point three), and damages (point four), and that it was entitled to

attorney's fees (point eleven).

Standard of review

[1] We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Summary judgment is proper when

there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c).

In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true proof favorable to

the non-movant, and we indulge every reasonable inference and resolve any doubt in favor of the non-movant. Randall's Food

Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). Where, as here, the parties file cross-motions for summary judgment

on overlapping issues, and the trial court grants one motion and denies the other, we should review the summary-judgment

evidence supporting both motions and “render the judgment that the trial court should have rendered.” FM Props. Operating

Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

*753 [2] As the movant in a “traditional” summary-judgment motion challenging Henna's breach-of-contract cause of action,

appellees had the initial burden of conclusively negating at least one element of that cause of action (i.e., establishing one of

the grounds in their motion as a matter of law). See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d

746, 748 (Tex.1999). Assuming appellees met that burden as to at least one element, the burden shifted to Henna to present

summary-judgment evidence raising a genuine issue of material fact as to that element or elements. See M.D. Anderson Hosp.

& Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex.2000) (per curiam). Because the district court did not specify the ground on

which it relied in granting appellees' motion, we may affirm the summary judgment if any ground is meritorious. State Farm

Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

If the district court properly granted appellees' summary-judgment motion, it follows that it did not err in denying Henna's

motion on the same grounds. See FM Props. Operating Co., 22 S.W.3d at 872. If we conclude that the district court erred in

granting appellees' motion, then we consider whether it also erred in denying Henna's motion. To prevail on its motion, Henna

had the burden of establishing its entitlement to judgment as a matter of law by conclusively establishing each element of its

breach-of-contract cause of action. See Willrich, 28 S.W.3d at 23 (citing Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–

23 (Tex.1999); Oram v. General Am. Oil Co., 513 S.W.2d 533, 534 (Tex.1974) (per curiam)).

“Improvements” versus trade fixtures

[3] Appellees' summary-judgment ground attacking the breach element of Henna's cause of action was premised on its

argument that, as a matter of law, the HVAC units were “trade or business fixtures” under paragraph 12 of the ground lease and

not “Improvements” that the lease required them to repair or insure. Henna challenges this legal conclusion in its fifth issue,

contending that the district court erred in granting summary judgment on this ground because the HVAC units were instead

“Improvements” as a matter of law, or that at least a fact issue remains as to the parties' intent. Similarly, in its first issue, Henna

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C.W. 100 Louis Henna, Ltd. v. El Chico Restaurants of..., 295 S.W.3d 748 (2009)

argues that because the HVAC units were “Improvements” as a matter of law, it established the breach element of its cause

of action as a matter of law. Our resolution of these issues turns on construction of the ground lease. See Tempo Tamers, Inc.

v. Crow–Houston Four, Ltd., 715 S.W.2d 658, 664 (Tex.App.-Dallas 1986, writ ref'd n.r.e.) (observing that such issues turn

on the parties' intent, which courts ascertain by looking to relevant provisions of a contract governing their use of the realty);

Jim Walter Window Components v. Turnpike Dist. Ctr., 642 S.W.2d 3, 4 (Tex.App.-Dallas 1982, writ ref'd n.r.e.) (“The intent

of the parties regarding the right to remove additions at the termination of a lease is to be determined from the provisions of

the lease agreement.”).

[4] [5] [6] [7] [8] When we construe a written contract, such as the ground lease, our primary concern is to ascertain and

give effect to the intentions the parties have objectively manifested in that instrument. Frost Nat'l Bank v. L & F Distribs., Ltd.,

165 S.W.3d 310, 311–12 (Tex.2005) (per curiam); see Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex.2006) (“As with

any other contract, the parties' intent is governed by what they said, not by what they intended to say but did not.”). To that end,

we construe the lease in its entirety, considering each part in relation to every other part so that the effect of each *754 part

on others may be determined and that no part will be rendered meaningless. See City of Keller v. Wilson, 168 S.W.3d 802, 811

(Tex.2005); Valence Operating Co., 164 S.W.3d at 662. Contract terms are given their plain, ordinary, and generally accepted

meanings unless the contract itself shows them to be used in a technical or different sense. Valence Operating Co., 164 S.W.3d

at 662. In determining the meaning of contract terms, we may also consider the context of the circumstances existing at the

time the contract was executed and the particular business activity sought to be served. See Columbia Gas Transmission Corp.

v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996); Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987). If

we can give the contract a definite or certain legal meaning, it is unambiguous and we construe it as a matter of law. Willis

v. Donnelly, 199 S.W.3d 262, 275 (Tex.2006); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). If, on the

other hand, the contract is subject to two or more reasonable interpretations, it is ambiguous, which creates a fact issue as to the

parties' intent. Columbia Gas Transmission Corp., 940 S.W.2d at 589. Whether a contract is ambiguous is a question of law. Id.

At the center of the parties' competing contentions is paragraph 12 of the lease, which explicitly excludes “trade or business

fixtures” from “Improvements”:

12. Equipment, Fixtures and Signs

(a) Tenant shall have the right to erect, install, maintain and operate on the Premises such equipment, trade and business

fixtures, signs (including, without limitation, pylon signage) and other personal property as Tenant may deem necessary

or appropriate, and such shall not be deemed to be part of the Premises, but shall remain the property of Tenant. Any

such installations shall be in accordance with applicable local codes and Tenant's pylon signage and monument signage,

if applicable, shall be installed in those locations designated therefor as reflected in the Site Plan. At any time during the

Term and within thirty (30) days after the expiration or termination of the Term, Tenant shall have the right to remove

all or any part of Tenant's equipment, removable fixtures, signs (including, without limitation, its pylon signage, if any)

and other personal property from the Premises, provided that Tenant repairs all damage to the Improvements caused by

such removal. Any property remaining in the Improvements after such thirty (30) day period shall be deemed to have

been abandoned by Tenant.

(Italics added.) Because the “Premises” from which “trade or business fixtures” are excluded are defined elsewhere in the lease

to mean the “Land” plus the “Improvements,” paragraph 12 means that anything constituting a “trade or business fixture” (or,

for that matter, anything constituting “such equipment, ... signs ... and other personal property as Tenant may deem necessary

or appropriate” to install or operate on the Premises) cannot be an Improvement.

[9] [10] The ground lease does not contain a definition of trade or business fixtures. However, the term “trade fixture” has

acquired a well-established, commonly understood meaning in Texas law. As one of our sister courts has observed:

The term “trade fixture” has been defined many times by the courts.... “It is now well settled that, as between a landlord and

his tenant, the term ‘trade fixtures' refers to and means such articles *755 as may be annexed to the realty by the tenant

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to enable him properly or efficiently to carry on the trade, profession, or enterprise contemplated by the tenancy contract

or in which he is engaged while occupying the premises, and which can be removed without material or permanent injury

to the freehold.”

Boyett v. Boegner, 746 S.W.2d 25, 27 (Tex.App.-Houston [1st Dist.] 1988, no writ) (quoting Granberry v. Texas Pub. Serv. Co.,

171 S.W.2d 184, 186 (Tex.Civ.App.-Amarillo 1943, no writ)). It is also well established that trade fixtures are distinguished

from “improvements” and other types of fixtures (i.e., personal property affixed to realty). “An improvement includes all

additions to the freehold except for trade fixtures which can be removed without injury to the property.” Sonnier v. Chisholm–

Ryder Co., 909 S.W.2d 475, 479 (Tex.1995); see also Reames v. Hawthorne–Seving, Inc., 949 S.W.2d 758, 761 (Tex.App.-

Dallas 1997, pet. denied) (“The class of improvements is considered to be broader than that of fixtures, which are items of

personalty that have become permanent parts of the realty to which they are affixed. Therefore, although all improvements are

not necessarily fixtures, any fixture, unless it is a trade fixture, is considered an improvement. A trade fixture is an item, which

can be removed without material or permanent injury to the freehold, that a tenant annexes to realty to enable the tenant to carry

on its business.” (Citations omitted.)). The rationale for these distinctions is that “[i]mprovements made by a vendor, mortgagor

or ancestor are made to enhance the value of the estate, and to be permanent; while those made by the tenant are temporary and

made for purposes of his trade.” Jim Walter Window Components, 642 S.W.2d at 5 (quoting Menger v. Ward, 28 S.W. 821,

823 (Tex.Civ.App.-San Antonio 1894), rev'd on other grounds, 87 Tex. 622, 30 S.W. 853 (1895)).

The drafters' use of “trade or business fixtures” within paragraph 12 without providing definitions of these terms that would

be unique to this agreement suggests their intent to employ the well-established definitions and concepts set out in case law.

After granting the tenant the right to install or maintain “equipment,” “trade or business fixtures,” “signs,” and “other personal

property,” paragraph 12 provides the tenant a corresponding right to remove all or part of its “equipment,” “removable fixtures,”

“signs,” and “other personal property from the Premises, provided that Tenant repairs all damage to the Improvements caused by

such removal.” This usage reflects that, consistent with the common meaning of trade fixtures in Texas law, “trade or business

fixtures” under the lease are considered to be removable personal property. Similarly, paragraph 12 excluded “trade or business

fixtures” from the lease's definition of “Improvements,” just as trade fixtures are excluded from improvements under Texas law.

Appellees conclusively established that the HVAC units at issue met the commonly understood definition of trade fixtures.

They presented uncontroverted summary-judgment evidence that the HVAC units were not attached to the building, but were

designed to be and were placed on curbs on the roof so they could be removed and replaced without injury to the building, and

that such units needed to be replaced periodically as they reached the end of their useful life cycles. Appellees likewise presented

undisputed evidence that the HVAC units here were approaching the end of their useful lives, and that the units ultimately were

replaced without injury to the building. Further, appellees presented uncontroverted summary-judgment evidence *756 that

the 45 tons of air-conditioning capacity provided by the HVAC units facilitated the building's use as a restaurant, but was many

times greater than that needed if the building were to be used for other retail or office use. Several Texas courts, addressing

similar facts, have held that air-conditioning units are trade fixtures as a matter of law. See Boyett, 746 S.W.2d at 27–28; White v.

Cadwallader & Co., 299 S.W.2d 189, 190–92 (Tex.Civ.App.-San Antonio 1957, writ ref'd n.r.e.); Moskowitz v. Calloway, 178

S.W.2d 878, 879–80 (Tex.Civ.App.-Texarkana 1944, writ ref'd w.o.m.); cf. Nine Hundred Main, Inc. v. City of Houston, 150

S.W.2d 468, 471–73 (Tex.Civ.App.-Galveston 1941, writ dism'd judgm't cor.) (distinguishing tenant-installed air-conditioning

system that had been constructed in a manner making it an integral part of the building).

Henna correctly observes that there is no rule or presumption in Texas law that air-conditioning units are always trade fixtures.

The issue, rather, turns on the parties' intent, which here we ascertain from the ground lease. See Tempo Tamers, Inc., 715 S.W.2d

at 664. Henna argues that portions of the ground lease outside paragraph 12 reflect the drafter's intent that the HVAC units be

considered “Improvements” under the lease and that this definition, not the commonly understood definitions of improvements

and trade fixtures, must control. See id. at 664–66 (example of case where lease language demonstrated that “the parties in this

case could not have reasonably intended that ‘trade fixtures' have the legal meaning ascribed to it by the courts”). Henna relies

on paragraph 1 of the lease, which defines “Improvements” as “any building and other improvements and appurtenances that

may hereafter be erected” on the Land, in conjunction with paragraph 5:

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5. Construction. The Improvements shall be constructed and situated on the Land within the permissible

building area reflected on the Site Plan and pursuant to plans and specifications approved in writing by

Landlord; provided, however, that Tenant shall have the right to revise the permissible building area and

the approved plans and specifications subject to Landlord's prior written consent, which consent shall

not be unreasonably withheld or delayed. Notwithstanding anything contained herein to the contrary,

however, Landlord hereby consents to and approves of the prototypical plans and specifications which

are being used by Tenant on the Effective Date of this Lease and hereby agrees that Tenant shall have the

right to construct the Improvements without any further consent by Landlord so long as the Improvements

are constructed generally in accordance with such prototypical plans....

Henna presented uncontroverted summary-judgment evidence that the “plans and specifications” referenced in paragraph

5 included a drawing of a four-unit, 45–ton HVAC system like that El Chico later installed. Thus, Henna reasons, the

“Improvements [that] shall be constructed ... pursuant to plans and specifications” under paragraph 5 included the HVAC units

that El Chico later installed.

Based on this premise, Henna argues that paragraph 5 evinces the drafters' agreement and intent to impose an obligation on El

Chico to include the HVAC units at issue when constructing the building. Henna also relies on paragraphs 6 and 30 of the ground

lease for a similar proposition. Paragraph 6 authorized El Chico to use the Premises “for the operation of a restaurant ... and

for any other lawful purpose, subject, however, to ... all applicable governmental and regulatory requirements and restrictions.”

Similarly, *757 paragraph 30 provided that, during the lease term, “Tenant ... shall conform to and comply with all ordinances,

regulations and laws (federal, state, or municipal) ... affecting the Premises....” Henna presented summary-judgment evidence

that El Chico had obtained a certificate of occupancy for its restaurant from the City of Round Rock based on the plans and

specifications. From this, Henna reasons that El Chico had obligations under paragraphs 6 and 30 to install the HVAC units

in order to comply with this “regulatory requirement.”

The existence of these agreements and obligations on the part of El Chico to install the HVAC units when constructing

its restaurant building, Henna further reasons, distinguishes the HVAC units from a trade fixture, which, Henna asserts, is

characterized by a tenant's unilateral decision to affix personalty to an existing building that the tenant has leased. Relatedly,

Henna argues that the HVAC units were part of the consideration the landlord bargained to obtain under the ground lease. In sum,

Henna urges that “[t]he decision to originally incorporate the HVAC system was neither unilateral nor voluntary; rather, such

decision was bilateral, between El Chico and its landlord, as well as required under the plans and specifications incorporated into

the ground lease, itself, of course, the product of arms-length negotiation between the parties, a factual distinction absolutely

determinative in the present appeal.”

The chief flaw in Henna's reasoning is its foundational premise that the ground lease's definition of “Improvements”

encompassed the HVAC units because the plans and specifications called for two 12–ton units and two 10–ton units like El Chico

installed. Contrary to Henna's argument, paragraph 5 does not purport to incorporate into the lease's “Improvements” definition

whatever property might have been depicted in the plans and specifications. Paragraph 5 requires that “[t]he Improvements

shall be constructed ... pursuant to [the] plans and specifications,” which means that the Improvements must be constructed

in a manner carrying out or in conformity with the plans and specifications. 2 It does not follow from this requirement that

any piece of property depicted in the plans and specifications, even if otherwise considered a trade fixture, equipment, or other

personal property, would be an Improvement. For example, appellees presented summary-judgment evidence that the plans

and specifications also included depictions of El Chico's walk-in coolers, freezers, tables and chairs, and other trade fixtures

or restaurant equipment. If, as Henna argues, paragraph 5 means that all property depicted in the plans and specifications is

an “Improvement” that El Chico could not remove without the landlord's approval, it would conflict with paragraph 12, which

grants El Chico the right to “remove all or any part of Tenant's equipment, removable fixtures, signs ... and other personal

property from the Premises, provided that Tenant repairs all damage to the Improvements caused by such removal.” We must

instead construe these provisions in relation to one another so as to give both effect. See Valence Operating Co., 164 S.W.3d

at 662. Consequently, we cannot conclude that the drafters intended paragraph 5 to mean that all property depicted in the plans

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and specifications is “Improvements” that El Chico could not remove and that the landlord would own after the lease expired.

In short, paragraph 5 does *758 not mean that the HVAC units are “Improvements” under the ground lease.

We are similarly unpersuaded by Henna's argument that the HVAC units cannot be trade fixtures because the drafters anticipated

at the inception of the ground lease that El Chico would install such units when constructing the restaurant building. Henna

is correct that the reported Texas cases holding that air-conditioning units are trade fixtures have involved units that a tenant

installed in a preexisting building during a lease term—not, as here, a ground lease where the parties contemplated that the tenant

would construct a building and install the units. See Boyett, 746 S.W.2d at 27–28; White, 299 S.W.2d at 190–92; Moskowitz, 178

S.W.2d at 879–80. Although Henna is correct as a factual matter, we disagree that the legal principle governing these decisions

turns solely on whether or when the tenant and/or landlord anticipated that the units would be installed. The critical issue, rather,

is whether the parties intended the air-conditioning units to be permanent additions to the building, for the landlord's ownership

and benefit as part of the realty, or temporary additions to aid the tenant, El Chico, while it was operating a restaurant in the

building. See Jim Walter Window Components, 642 S.W.2d at 5 (quoting Menger, 28 S.W. at 823). We ascertain such intent, as

Henna has acknowledged, from the terms of the ground lease. Id. at 4 (“The intent of the parties regarding the right to remove

additions at the termination of a lease is to be determined from the provisions of the lease agreement.”); see Tempo Tamers,

Inc., 715 S.W.2d at 664.

The drafters' use of “trade or business fixtures” in paragraph 12 of the ground lease, as discussed, manifests their intent to

incorporate the commonly understood meaning of trade fixtures under Texas law. Paragraph 5 of the lease does not reflect

a contrary intent, nor do paragraphs 6 and 30, the other provisions on which Henna relies. As appellees observe, Henna's

arguments concerning the restaurant's certificate of occupancy are simply inapposite. The fact that El Chico submitted the plans

and specifications to the City of Round Rock when obtaining a certificate of occupancy permitting it to operate a restaurant

in the building has no bearing on whether the drafters intended the HVAC units or other property depicted in the plans and

specifications to be “Improvements” or trade fixtures.

Appellees conclusively established that the HVAC units are trade fixtures under the established definition of that term in Texas

law. Paragraph 12 explicitly excludes “trade or business fixtures” from the “Premises” and, thus, the “Improvements” under

the lease. In other words, the ground lease unambiguously manifests the drafters' intent that the HVAC units El Chico was

to install on the building would be temporary additions to the realty to aid El Chico in operating a restaurant there, which El

Chico would continue to own at the lease's conclusion, and not “Improvements” that it was required to maintain or repair for

the landlord's benefit. We are bound to give effect to this unambiguous language as the controlling indicator of the bargain the

drafters intended to strike. See Willis, 199 S.W.3d at 275; J.M. Davidson, Inc., 128 S.W.3d at 229.

In a final argument, Henna asserts that El Chico “didn't consider the HVAC system a fixture” in its June 2006 sale of “all

furniture, fixtures and equipment” to Henna because the HVAC units did not appear in the list of property attached to the

bill of sale. Henna suggests this evidence raises an inference that, as late as June 2006, El Chico intended or understood that

the HVAC units were not trade fixtures. We disagree. First, even assuming that *759 “fixtures” as used in the bill of sale

would have included trade fixtures, the record does not support Henna's factual premise that El Chico excluded the HVAC units

from that category of property—the bill of sale explicitly covers “all furniture, fixtures and equipment, whether or not listed

in Exhibit ‘A.’ ” Second, and more importantly, even if this evidence supported an inference as to El Chico's subjective intent

or understanding regarding whether the HVAC units were trade fixtures, it would be incompetent to raise a fact issue as to the

parties' intent in the face of the unambiguous ground lease. See Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32

(1958) (parol-evidence rule is a limitation of substantive contract law and not merely a rule of evidence).

Henna's breach-of-contract claims are predicated on the legal conclusion that the HVAC units were “Improvements” under

the ground lease. Because the HVAC units were not “Improvements” as a matter of law, the district court properly granted

summary judgment for appellees on the ground that Henna cannot prove breach. Accordingly, we overrule Henna's fifth point

of error and its corresponding first point of error.

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Because this ground alone is sufficient to support summary judgment, see S.S., 858 S.W.2d at 380, we need not reach Henna's

contentions regarding other grounds and elements. See Tex.R.App. P. 47.1.

CONCLUSION

We affirm the district court's judgment.

Footnotes

1 A “ton” is a measure of air conditioning power. It refers to the cooling power of one ton of ice melting in a 24–hour period. Webster's

Third New International Dictionary 2407 (1986).

2 “Pursuant to” is defined as “in conformance to or agreement with” or “according to.” Webster's Third New International Dictionary

1848 (1986).

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Carle v. Carle, 149 Tex. 469 (1950)

234 S.W.2d 1002

149 Tex. 469

Supreme Court of Texas.

CARLE et al.

v.

CARLE.

No. A-2892. | Nov. 29, 1950. | Rehearing Denied Jan. 10, 1951.

Ollie Mae Carle sued Louis M. Carle for divorce, partition of certain real properties, and attorney's fees. From parts of a judgment

of the District Court of Bexar County, defendants appealed to the El Paso Court of Civil Appeals of the Eighth Supreme Judicial

District, which dismissed the appeal in part and reversed the judgment and remanded the case in part, 234 S.W.2d 907, and on

motions for rehearing, 234 S.W.2d 916, reversed the judgment and rendered judgment in part and certified four questions to the

Supreme Court. The Supreme Court, Hickman, C. J., held that the Court of Civil Appeals did not err in holding that appellant

was estopped from complaining of a portion of the judgment declaring two properties to be plaintiff's separate properties, but

erred in holding that defendant was not estopped from complaining of a portion declaring another property plaintiff's separate

property.

One question answered in the negative, two questions answered in the affirmative, and another question not answered.

Appellee's second motion in the Court of Civil Appeals for rehearing, 235 S.W.2d 924, was granted in part and the judgments

of such court set aside the part, and the motion was overruled and the judgments adhered to in other respects, in conformity

with the answers to the certified questions.

West Headnotes (6)

[1] Appeal and Error Payment of or on Judgment

Generally, a litigant voluntarily accepting benefits of judgment cannot appeal therefrom, unless reversal thereof cannot

possibly affect his right to such benefits.

118 Cases that cite this headnote

[2] Appeal and Error Acceptance of sum absolutely due or admitted to be due

A litigant accepting only benefits which adverse party concedes or is bound to concede are due such litigant under

judgment is not estopped from prosecuting appeal involving only his right to further recovery.

123 Cases that cite this headnote

[3] Divorce Estoppel

The Court of Civil Appeals did not err in holding that divorced husband, accepting half of community money, used

in paying obligations against certain real properties from divorced wife's interest in community estate, could not

complain of portion of judgment, declaring such properties wife's separate properties, on appeal therefrom, but erred

in holding that husband was estopped from complaining of portion declaring another property wife's separate property,

as benefit to him under judgment would be affected, if he succeeded in appeal and established his claim that property

was community on another trial, while wife's right to partition of property might be prejudiced. Rev.St.1925, art. 4638.

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Carle v. Carle, 149 Tex. 469 (1950)

234 S.W.2d 1002

29 Cases that cite this headnote

[4] Divorce Discretion of court in general

Divorce Equity and proportionality in general

The statute providing that court granting divorce shall also decree and order division of parties' estate as court deems

just and right vests discretion in court to determine proper division of community estate and does not require court,

as matter of law, to divide such estate equally between parties. Rev.St.1925, art. 4638.

25 Cases that cite this headnote

[5] Divorce Balance and effect of allocation or other award

The fact that divorce decree, requiring husband to pay all of wife's attorney's fees, may result in award to him of

smaller part of community estate than that awarded wife, does not alone condemn decree, as attorney's fee is merely

a factor to be considered by court in making equitable division of estate, considering parties' conditions and needs

and all surrounding circumstances. Rev.St.1925, art. 4638.

78 Cases that cite this headnote

[6] Husband and Wife Community and Separate Debts

The Court of Civil Appeals erred in holding that attorney's fee, charged by decree granting wife divorce solely against

husband's interest in community estate divided between parties by decree, was chargeable as matter of law against

community estate as whole. Rev.St.1925, art. 4638.

4 Cases that cite this headnote

Attorneys and Law Firms

*470 **1002 Dibrell & Gardner, James F. Gardner and Sam J. Dotson, all of San Antonio, for appellants.

Conger, Baskin & Casseb, Paul E. Casseb, San Antonio, for appellee.

Opinion

HICKMAN, Chief Justice.

The certificate from the Court of Civil Appeals, 8th District, at El Paso recites:

**1003 ‘This was an action for divorce instituted by Ollie Mae Carle against her husband, Louis M. Carle. She sought the

divorce and a partition of certain properties in the city of San Antonio; part of it she alleged was her separate property and

the remainder community property of herself and her husband. She likewise sought to recovery attorney's fees in the sum of

$6500.00 against defendant. Plaintiff recovered as her separate property (1) the residence at 344 Park Drive, San Antonio,

Texas, and the household furnishings located therein; (2) the service station property together with fixtures and equipment

thereon at 5401 South Flores Street, San Antonio, Texas; (3) the property located at 605 Guadalupe Street in San Antonio. The

judgment provided as to the property located at 344 Park Drive that it was subject to an offset in favor of defendant in the sum

of $7,000.00. Under the verdict it was found $14,000.00 of community funds had been used to pay off indebtedness against the

property at Park Drive; $900.00 was likewise found to have been paid out of the community funds on the furnishings in this

house adjudged to plaintiff; obligations in the sum of $500.00 on the property at 5401 South Flores Street was found to have

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Carle v. Carle, 149 Tex. 469 (1950)

234 S.W.2d 1002

been paid out of community funds. These respective amounts, to-wit, $7,000.00, $450.00 and $250.00 were charged against

plaintiff's interest in the community property. The balance of the property involved was held to be community property and

a commissioner was appointed to sell same under the direction of the court and divide the proceeds in accordance with the

judgment under the direction of the court. Defendant perfected an appeal from parts of this judgment. He appealed from that

part of the judgment declaring the three pieces of property hereinbefore described as *471 the separate property of his wife,

from that portion of the judgment allowing his wife the recovery of an attorney's fee of $6500.00 and charging the same against

his interest in the community property.

‘Appellee has filed a supplemental transcript herein which in substance shows that the commissioner under the direction and

authority of the court has sold all community property in accordance with the judgment, has disposed of all the money arising

therefrom except the sum of $2666.79 which under the order of the court he paid into the registry of the court, and was

discharged. Some of these distributions were requested by the defendant. The attorney's fees in the sum of $6500.00 have been

paid and same were charged against the interest of defendant in the community. The charges made in favor of the community

estate for indebtedness paid on obligations against property adjudged to plaintiff as her separate property have been paid to

defendant, that is, one-half thereof has been charged as against plaintiff's interest in the community estate and paid to the

defendant in the sum of $7700.00.

‘In our original disposition of the case we held that the accepting by defendant of the offsets adjudged in his favor as to the

property located at 5401 South Flores Street and at 344 Park Drive, each of which piece of property was adjudged to be separate

property of plaintiff, estopped him from complaining of the trial judge's judgment decreeing same to be the separate property of

plaintiff. To this view in ruling on the motion for a rehearing we still adhere. Further, in regard to the property at 605 Guadalupe

Street as to which appellee (plaintiff) has filed a motion for rehearing, we still adhere to the view expressed in the original

opinion that defendant is not estopped from claiming that same is community property. In regard to the fee for $6500.00 allowed

to plaintiff we granted defendant's motion for rehearing and rendered judgment charging said fee to the community estate of

plaintiff and defendant. For further facts we refer to our original opinion and our opinion on our holding granting the motion

for rehearing, and likewise as to our reasons for the disposition made of the respective matters in controversy.’

The first and second questions certified are:

‘Question No. 1. Did we err in holding that defendant was not entitled to complain on appeal of that portion of the **1004

judgment decreeing the property at 344 Park Drive as the separate property of plaintiff and that portion of the judgment decreeing

*472 the property at 5401 South Flores Street as the separate property of plaintiff on account of the fact that he accepted

and collected from plaintiff's interest in the community estate one-half of the community money used in paying obligations

against said property?’

‘Question No. 2. Did we err in holding that defendant by his action subsequent to the rendition of the judgment had not estopped

himself from complaining of the court's action in decreeing the property at 605 Guadalupe Street as the separate property of

plaintiff?’

[1] [2] A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment,

he cannot afterward prosecute an appeal therefrom. That is the general rule which appears to be universally recognized. It was

announced by this court in the early case of Matlow v. Cox, 25 Tex. 578. The rule is based on the principle of estoppel. It,

however, is subject to the exception that ‘* * * where the reversal of a judgment cannot possibly affect an appellant's right to

the benefit secured under a judgment, then an appeal may be taken, * * *.’ 2 Am.Jur., Appeal and Error, Sec. 215. Numerous

authorities, approaching the exception from a slightly different angle, define it, in effect, in this language: Where an appellant

accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment he is not estopped to

prosecute an appeal which involves only his right to a further recovery. Embry v. Palmer, 107 U.S. 3, 2 S.Ct. 25, 27 L.Ed. 346;

Hodges v. Smith, 34 Tex.Civ.App. 635, 79 S.W. 328, error dismissed; Tyler v. Shea, 4 N.D. 377, 61 N.W. 468, 50 Am.St.Rep.

660; Bass v. Ring, 210 Minn. 598, 299 N.W. 679, 169 A.L.R. 980.

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Carle v. Carle, 149 Tex. 469 (1950)

234 S.W.2d 1002

[3] The exception is narrow. Whether or not this case falls within it must be determined from answers to these questions:

Could a reversal of the portions of the judgment referred to in these two certified questions possibly affect appellant's right to

the benefits secured by him under the judgment? And would appellee be compelled to concede upon another trial that appellant

has the right to retain those benefits regardless of the outcome of the litigation?

As we understand the facts stated in the certificate and in the opinion of the Court of Civil Appeals, 234 S.W.2d 907, appellee

instituted this suit in which she claimed that the property mentioned in these questions belonged to her in her separate right. The

appellant claimed that it belonged to *473 the community estate. His claim was denied and he seeks to have that portion of

the judgment revised. As the matter now stands, appellant has been awarded and has voluntarily accepted $7,700.00 in cash on

the basis of a holding by the trial court that the property belongs to appellee as her separate estate, a part of which was charged

with an indebtedness of $15,400.00 in favor of the community. Should the judgment be reversed and the cause remanded to the

trial court it would become its mandatory duty to divide the estate of the parties. Article 4638, R.S.1925. If upon another trial it

should be adjudged that the property is community property, the court, for instance, might deem it just and right to award one

of these lots to one party and the other two lots to the other party. Clearly, the court would have the authority to to so under the

article of the statutes above mentioned by making provisions for adjudicating equities. In order to restore the status quo so the

court could partition it in the manner indicated it would be necessary for appellant to restore the amount ($7,700.00) received

by him under the original judgment. The amount of the community funds remaining undistributed is much less than that sum. It

appears, then, that if appellant should be successful in his appeal and then successful upon another trial in establishing his claim

that the property is community, the benefit secured by him under the judgment appealed from would necessarily be affected.

Besides, the right of appellee to a partition of the property might well be prejudiced. She certainly would **1005 not concede

that appellant would be entitled to retain the money paid him on the ground that the property is not community while pressing

his claim that it is community. We accordingly answer the first question, ‘No,’ and the second question, ‘Yes.’

Questions 3 and 4 are as follows:

‘Question No. 3. Did we err in holding on rehearing that defendant by his action subsequent to the rendition of the judgment had

not estopped himself from complaining of the court's action in charging the attorney's fees against his half of the community

estate?’

‘Question No. 4. Did we err in holding on rehearing that the attorney's fee charged by the trial court solely against the defendant's

interest in the community estate was as a matter of law chargeable against the community estate as a whole?’

[4] [5] [6] We first consider question No. 4. The decisions of various courts of civil appeals with respect to this question

cannot well be harmonized. *474 As we view the problem, it is not a correct approach to its solution to classify the wife's

attorney's fees as a necessity, and then apply the rule that necessities are primarily the obligations of the community and

secondarily of the husband's separate estate. That reasoning fails to take into account Article 4638, supra, which provides: ‘The

court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the

court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be

construed to compel either party to divest himself or herself of the title to real estate.’

That statute clearly vests discretion in the trial court in determining the proper division of the community estate of the parties.

The court is not required, as a matter of law, to divide that estate equally between them. In practical effect, a decree that the

husband pay all of the wife's attorney's fees may be to award him less of the community estate than that awarded to the wife,

but that alone does not condemn it. The attorney's fee is but a factor to be considered by the court in making an equitable

division of the estate, considering the conditions and needs of the parties and all of the surrounding circumstances. We answer

question No. 4, ‘Yes.’

In view of our answer to question No. 4, question No. 3 becomes immaterial.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Carle v. Carle, 149 Tex. 469 (1950)

234 S.W.2d 1002

Parallel Citations

234 S.W.2d 1002

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Certain Underwriters at Lloyd's v. Bristol-Myers Squibb Co., Inc., Not Reported in...

1998 WL 429096

Only the Westlaw citation is currently available.

NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TX R RAP RULE

47.7, UNPUBLISHED OPINIONS HAVE NO PRECEDENTIAL VALUE BUT

MAY BE CITED WITH THE NOTATION “(not designated for publication).”

Court of Appeals of Texas, Beaumont.

CERTAIN UNDERWRITERS AT LLOYD'S, et al., Appellants

v.

BRISTOL-MYERS SQUIBB CO., INC. and MEDICAL ENGINEERING CORP., Appellees

NO. 09-97-540 CV | July 30, 1998

On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-145,672-F

Before WALKER, C.J., BURGESS and STOVER, JJ.

OPINION

PER CURIAM.

*1 Certain Underwriters at Lloyd's, London, and other British and European insurance companies (referred to collectively as

BES) are plaintiffs in an action against Bristol-Myers Squibb Co., Inc. and Medical Engineering Corp (referred to collectively

as Bristol-Myers).

The underlying suit arises from a contract BES entered into with Bristol-Myers to provide comprehensive general liability

insurance. BES attempted to rescind the contract and in response Bristol-Myers sued. One of the conditions of coverage is

a mandatory arbitration clause. Bristol-Myers sought and was granted an anti-suit injunction designed to prevent BES from

commencing arbitration.

BES filed a Motion to Compel Arbitration and to Dissolve the Anti-Suit Injunction, which the trial court denied December 5,

1997. BES then filed an interlocutory appeal from the denial of the motion to dissolve the anti-suit injunction. 1

The order of the trial court granting the anti-suit injunction forming the basis of this appeal was signed January 27, 1995. 2 BES'

notice of appeal was filed December 23, 1997 (amended notice of appeal was filed December 26, 1997). “An interlocutory

order that is not timely appealed is not reviewable by this Court.” State v. Ruiz Wholesale Co., 901 S.W.2d 772, 775 (Tex.App.-

Austin 1995, no writ)(citing Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640, 641 (Tex.App.-Houston [14th Dist.] 1991,

no writ); Cellular Mktg., Inc. v. Houston Cellular Tel. Co., 784 S.W.2d 734, 735 (Tex.App.-Houston [14th Dist.] 1990, no

writ); Tober v. Turner of Texas, Inc., 668 S.W.2d 831, 833-34 (Tex.App.-Austin 1984, no writ)). BES argues none of the four

circumstances permitting entry of an anti-suit injunction in Texas are present and that the trial court failed to set forth specific

reasons for issuance of an injunction. However, BES' failure to perfect an interlocutory appeal from that order precludes this

Court from reviewing its validity.

BES did not perfect an appeal from the initial order, and the time limit for doing so has long since expired. TEX. R. APP. P.

26.1(b); TEX. R. APP. P. 28.1. Accordingly, we have no jurisdiction to review the validity of the trial court's January 27, 1995,

order. TEX. R. APP. P. 42.3(a).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Certain Underwriters at Lloyd's v. Bristol-Myers Squibb Co., Inc., Not Reported in...

APPEAL DISMISSED.

Footnotes

1 BES filed separately a petition for writ of mandamus asking this court to direct the trial court to order arbitration. In re Certain

Underwriters at Lloyd's, et. al., No. 09-98-001-CV (Tex.App.-Beaumont July 30, 1998, n.w.h.)(orig.proceeding)(not designated for

publication).

2 Extending the trial court's December 16, 1994, injunction.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Chambers v. Rosenberg, 916 S.W.2d 633 (1996)

916 S.W.2d 633

Court of Appeals of Texas,

Austin.

Russell CHAMBERS, Appellant

v.

Ronald ROSENBERG, Appellee.

No. 03–95–00325–CV. | Feb. 7, 1996. | Rehearing Overruled March 20, 1996.

Motion was filed to hold respondent in contempt for allegedly violating terms of agreed temporary injunction and agreed final

judgment and permanent injunction. The 250th Judicial District Court, Travis County, B.F. Coker, J., entered order denying

motion for contempt, and ruled that agreed temporary injunction was void ab initio for lack of bond. Appeal was taken. The

Court of Appeals held that even agreed temporary injunction was void ab initio for lack of bond, in case in which parties had

not explicitly waived protection of bond.

Affirmed.

West Headnotes (6)

[1] Contempt Decisions reviewable

Denial of motion for contempt is not “final order” from which appeal will lie.

4 Cases that cite this headnote

[2] Appeal and Error Injunction

Trial court's declaration that agreed temporary injunction was void ab initio was judgment from which appeal would

lie.

2 Cases that cite this headnote

[3] Injunction Necessity and waiver in general

Requirement that, prior to issuance of temporary restraining order or temporary injunction, applicant must execute

and file with clerk a bond to adverse party is to be strictly construed. Vernon's Ann.Texas Rules Civ.Proc., Rule 684.

6 Cases that cite this headnote

[4] Injunction Necessity and waiver in general

Temporary orders or injunctions filed without bond are void, not merely voidable. Vernon's Ann.Texas Rules

Civ.Proc., Rule 684.

2 Cases that cite this headnote

[5] Injunction Necessity and waiver in general

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Chambers v. Rosenberg, 916 S.W.2d 633 (1996)

Even agreed temporary injunction, which was entered with consent of parties, was void ab initio for lack of bond,

where parties did not explicitly waive protection of bond. Vernon's Ann.Texas Rules Civ.Proc., Rule 684.

2 Cases that cite this headnote

[6] Judgment Effect of Invalidity

Judgment Judgment void on its face in general

Judgment which discloses its invalidity on its face is nullity and may be disregarded anywhere, at any time.

1 Cases that cite this headnote

*634 Appeal from the District Court of Travis County, 250th Judicial District, No. 443,045; B.F. (Bill) Coker, Judge Presiding.

Attorneys and Law Firms

Douglass D. Hearne, Jr., Hearne & Eppright, Austin, for Appellant.

Ronald Rosenberg [No Appellee's Brief filed], Austin, Pro Se.

Before CARROLL, C.J., and JONES and B.A. SMITH, JJ.

Opinion

PER CURIAM.

Russell Chambers appeals from the trial court's denial of his motion for contempt by Ronald Rosenberg. Chambers contends

that Rosenberg's actions violated an agreed temporary injunction and an agreed final judgment and permanent injunction. The

trial court held that the temporary injunction was void ab initio because no bond was executed. The court found that the final

judgment was vague, ambiguous, overly broad, and unenforceable, but did not find it void; the court simply denied the motion

for contempt. We will affirm the order of the trial court.

[1] We cannot review the denial of the motion for contempt of the agreed final judgment and permanent injunction. The denial

of a motion for contempt is not appealable because it is not a final order. Norman v. Norman, 692 S.W.2d 655, 655 (Tex.1985);

Velez v. DeLara, 905 S.W.2d 43, 46 (Tex.App.—San Antonio 1995, no writ). We therefore overrule points three and four by

which Chambers complains of the court's assessment of the final judgment.

[2] [3] [4] [5] We can review the declaration that the agreed temporary injunction was void ab initio because of the lack

of a bond. The supreme court has construed strictly the requirement of Texas Rule of Civil Procedure 684 that, before a trial

court issues a temporary restraining order or temporary injunction, the applicant shall execute and file with the clerk a bond to

the adverse party. Goodwin v. Goodwin, 456 S.W.2d 885, 885 (Tex.1970) (holding that the failure of the applicant to file a bond

before the issuance of the temporary injunction renders the injunction void ab initio ); Lancaster v. Lancaster, 155 Tex. 528, 291

S.W.2d 303, 308 (1956) (holding that bond provisions of Rule 684 are mandatory *635 and that an injunction issued without

a bond is void); see also Ex parte Jordan, 787 S.W.2d 367, 368 (Tex.1990) (holding temporary restraining order void for lack

of requirement of separate bond); Ex parte Lesher, 651 S.W.2d 734, 735–36 (Tex.1983) (holding temporary restraining order

void because court waived bond); but see Ludewig v. Houston Pipeline Co., 737 S.W.2d 15, 16 (Tex.App.—Corpus Christi.

1987, no writ) (holding that errors other than jurisdiction render the judgment voidable within the standard appellate timetable).

The court has held that temporary orders filed without the bond are void, not merely voidable. Goodwin, 456 S.W.2d at 885;

Lesher, 651 S.W.2d at 735–36. Though none of the cited cases explicitly concerns an agreed order, we find the strong theme of

literal construction of the rule convinces us that we should construe the rule literally in this case; we are particularly persuaded

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Chambers v. Rosenberg, 916 S.W.2d 633 (1996)

to do so because the parties here did not explicitly waive the protection of a bond. The temporary injunction was void for lack

of a bond. We overrule point two.

[6] Chambers contends by point one that the trial court exceeded its jurisdiction in improperly setting aside the consent

agreements. Our affirmance of the conclusion that the temporary injunction was void, however, defeats this claim. The supreme

court has held that a judgment which discloses its invalidity on its face is a nullity and may be disregarded anywhere at any

time. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961). Though courts generally apply this rule only for jurisdictional

defects, the supreme court's insistence that temporary injunctions issued without bonds are void convinces us that the trial

court correctly disregarded the temporary injunction here. The trial court did not set aside the final judgment and permanent

injunction. We overrule point one.

We do not reach point five, which concerned the scope of the temporary injunction. We need not consider the scope of a void

order.

We affirm the order of the trial court.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Cisneros v. Cisneros, 787 S.W.2d 550 (1990)

787 S.W.2d 550

Court of Appeals of Texas,

El Paso.

Thomas CISNEROS, III, Appellant,

v.

Elva Alice CISNEROS, Appellee.

No. 08–89–00245–CV. | March 28, 1990.

Former wife sued former husband for child support arrearages. The 312th District Court, Harris County, Robert S. Webb, III,

J., entered judgment for former wife and former husband appealed. The Court of Appeals, Koehler, J., held that: (1) dissolution

decree provision calling for automatic increase in child payments beginning in the second year was valid, and (2) counsel's

approval of form of judgment precluded former husband from asserting that judgment did not meet statutory requirements for

child support order.

Affirmed.

West Headnotes (3)

[1] Child Support Other Particular Defenses or Grounds for Reduction of Arrearages

Provisions in dissolution decree that child support payments would increase beginning with the “first payment due in

the second year” was not too ambiguous to support a judgment award for arrearages.

3 Cases that cite this headnote

[2] Child Support Contracts Relating to Support

Child Support Automatic or Built-in Adjustments

Provision in dissolution decree calling for automatic increase in amount of child support payments starting the second

year of such payments was valid; increase had been agreed upon by parties to dissolution agreement and court had

found agreement to be in best interests of child.

2 Cases that cite this headnote

[3] Child Support Estoppel and Waiver

Approval by attorney for former husband of the substance of a judgment requiring him to pay an increased amount of

child support starting in the second year of the payments precluded challenge to judgment as not complying with the

specific statutory requirements for judgments covering past due child support. V.T.C.A., Family Code § 14.33(a).

9 Cases that cite this headnote

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Cisneros v. Cisneros, 787 S.W.2d 550 (1990)

Attorneys and Law Firms

*550 Bruce A. Baughman, Baytown, for appellant.

Ron Hayes, John R. Coe, Houston, for appellee.

Before OSBORN, C.J., and WOODARD and KOEHLER, JJ.

OPINION

KOEHLER, Justice.

This is an appeal from a judgment awarding $3,500.00 in child support arrearages following a non-jury hearing. We affirm.

Appellant brings three points of error, complaining (1) that the original divorce decree being too ambiguous to be enforced

by contempt is also too ambiguous to support a judgment for arrearages, (2) that the provision in the decree for an automatic

increase in child support in the second year is unenforceable, and (3) that the judgment for arrearages, being an enforcement

order, does not meet the requirements of Section 14.33 of the Family Code and is therefore unenforceable.

The parties were divorced on January 19, 1982. Appellee was named managing conservator of the only child of the marriage.

In the decree, the court found that the parties had entered into a written agreement containing provisions for conservatorship

and child support, which were found to be “in the best interest of the child.” Appellant, as possessory conservator, was ordered

to make child support payments of $300.00 per month beginning on February 1, 1982. The decree then provided that:

Beginning with the first payment due in the second year of such support payments, said support shall

automatically, without further action from the Court, increase to the sum of THREE HUNDRED FIFTY

AND NO/100 ($350.00) DOLLARS per month,....

Originally brought as a contempt motion, Appellee pled, and the evidence supported a finding, that Appellant had failed to make

the additional $50.00 monthly payment *551 commencing with the payment due on February 1, 1983 and extending for each

month through December 1988. At a pretrial hearing, upon a suggestion by the court that the order pertaining to the automatic

increase was too ambiguous to be enforceable by contempt, Appellee amended her pleadings by requesting a judgment for

the arrearages, in addition to enforcement by contempt. However, at the commencemen

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