Pastor Rick Barr and Philemon Homes, Inc. v. the City of Sinton ( 2003 )

                                   NUMBER 13-02-079-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTIBEDINBURG

PASTOR RICK BARR AND

PHILEMON HOMES,

INC.,                                                                                        Appellants,

                                                   v.

THE CITY OF SINTON,                                                       Appellee.

                        On appeal from the 343rd District Court

                               of San Patricio County, Texas.

                          MEMORANDUM OPINION

          Before Chief Justice Valdez and Justices Yañez and Castillo

                                   Opinion by Justice Yañez

This is an accelerated, interlocutory appeal from the trial court=s order denying a  temporary injunction requested by appellants, Pastor Rick Barr and Philemon Homes, Inc.  Appellants contend the trial court erred in failing to grant a temporary injunction.  We affirm.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here.  See Tex. R. App. P. 47.4.

Jurisdiction

Under Texas procedure, appeals are allowed only from final orders and judgments.  Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding). Unless a statute specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction only over final judgments.  Qwest Communications Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (per curiam).  Section 51.014(a) of the civil practice and remedies code states:  A[a] person may appeal from an interlocutory order of a district court, county court at law, or county court that:  . . . grants or refuses a temporary injunction.@  Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a) (Vernon Supp. 2002).  Thus, we have jurisdiction to consider this interlocutory appeal.

Standard of Review

A temporary injunction is an extraordinary remedy and does not issue as a matter of right.  Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993) (per curiam)). A decision on whether to grant or deny a temporary injunction is within the sound discretion of the trial court and should only be reversed if the trial court abused its discretion.  Id. at 204;  Walling, 863 S.W.2d at 58.  At a temporary injunction hearing, the only issue before the trial court is whether the status quo should be preserved pending trial on the merits.  Walling, 863 S.W.2d at 58;  Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). The status quo is Athe last, actual, peaceable, non-contested status that preceded the pending controversy.@  State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975).  The reviewing court must not substitute its judgment for the trial court=s judgment unless the trial court=s order is so arbitrary, unreasonable, or based upon so gross and prejudicial an error of law as to establish abuse of discretion.  Butnaru, 84 S.W.3d at 204;  Johnson v. Fourth Ct. App., 700 S.W.2d 916, 918 (Tex. 1985) (orig. proceeding).  The trial court does not abuse its discretion if it bases its decision on conflicting evidence.  Davis, 571 S.W.2d at 862.

Elements of Temporary Injunction

Although the purpose of a temporary injunction is the preservation of the status quo, to obtain a temporary injunction, an applicant must plead and prove three specific elements: (1) a cause of action against the defendant;  (2) a probable right to the relief sought;  and (3) a probable, imminent, and irreparable injury in the interim.  Butnaru, 84 S.W.3d at 204;  Walling, 863 S.W.2d at 57;  Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968).

When a trial court does not make findings of fact or conclusions of law, we will uphold the judgment on any legal theory supported by the record.  See Davis, 571 S.W.2d at 862.  In this case, the trial court made no findings of fact or conclusions of law pertaining to the three elements of the appellants= application for temporary injunction.  Therefore, we will review the record to determine if the order of the court may be upheld under any legal theory supported in the record.

By one point of error, appellants contend that the trial court erred in failing to grant a temporary injunction.  However, appellants= brief to this Court fails to address how the trial court abused its discretion by deciding not to maintain the status quo until trial. Rather, appellants= brief raises issues that will be germane at the trial on the merits.  AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@  Tex. R. App. P. 38.1(h).  Since appellants= brief does not contain specific argument or authority identifying how the trial abused its discretion by denying the temporary injunction the point of error is waived.  See id.

Moreover, an independent review of the record reveals that appellants cannot establish a probable, imminent, and irreparable injury in the interim before trial because Pastor Barr admitted at the temporary injunction hearing that his homes were still receiving parolees.  Butnaru, 84 S.W.3d at 204.

In conclusion, we hold that it was within the trial court=s discretion to deny appellants= request for a temporary injunction.

The trial court=s order is AFFIRMED.

LINDA REYNA YAÑEZ

Justice

Opinion delivered and filed this the

23rd day of January, 2003.