Percy L. Wayne Isgitt, Individually, and Isgitt & Associates, PC v. Christine Godwin, as Permanent Guardian of Craig Godwin ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00001-CV
PERCY L. WAYNE ISGITT, INDIVIDUALLY,
AND ISGITT & ASSOCIATES, PC,
Appellants
v.
CHRISTINE GODWIN, AS PERMANENT
GUARDIAN OF CRAIG GODWIN,
Appellees
From the County Court at Law
Walker County, Texas
Trial Court No. 8422-G
MEMORANDUM OPINION
The trial court entered an order enjoining appellants, Percy L. Wayne Isgitt,
individually, and Isgitt & Associates, P.C., from, among other things, removing,
transferring, or taking money from an escrow account created for Craig Godwin. The
injunction was premised on the allegation that Isgitt has failed to return the funds
contained in the escrow account—approximately $200,000—despite numerous requests
made by appellee, Christine Godwin, as permanent guardian of Craig.1 Appellants
have now filed an accelerated, interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a)(4) (West 2015). For the reasons set forth below, we reverse the trial
court’s order and remand the case for further proceedings consistent with this opinion.
I. ANALYSIS
Appellants contend inter alia that the order at issue is void because it does not
comply with Texas Rule of Civil Procedure 683. See TEX. R. CIV. P. 683. The
requirements of rule 683 are mandatory, and “an order granting a temporary injunction
that does not meet them is subject to being declared void and dissolved.” Qwest
Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000); see InterFirst Bank San
Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986) (per curiam). Rule 683
does not expressly require that a trial date be set. See TEX. R. CIV. P. 683. However, it
provides that “[e]very order granting a temporary injunction shall include an order
setting the cause for trial on the merits with respect to the ultimate relief sought.” Id.
This Court and several of our sister courts have held that an order granting a
temporary injunction that does not set the case for trial on the merits, such as the order
in this case, is void. See Leighton v. Rebeles, 343 S.W.3d 270, 273 (Tex. App.—Dallas 2011,
1 In her original petition and applications for a temporary restraining order and a temporary
injunction, Christine, Craig’s permanent guardian, noted that Craig was left incapacitated as a result of a
vehicular accident on or about October 27, 2012. As a result of the accident, Craig purportedly received a
$302,500 settlement from the Texas Farm Bureau under Craig’s uninsured/underinsured motorist policy.
According to Christine, Isgitt requested that she give him the proceeds of the settlement to be held in
trust for Craig. Christine alleged that Isgitt requested more money from her to negotiate a settlement
regarding Craig’s medical bills. Christine further alleged that despite receiving money to pay medical
bills, Isgitt did not pay any of Craig’s medical bills. In addition, Christine noted that Isgitt has refused to
return to her any of the funds contained in the escrow account established for Craig.
Isgitt v. Godwin Page 2
no pet.) (“Failure of the order to meet the requirements of rule 683 renders the order
fatally defective and void . . . .”); Gray Wireline Serv., Inc. v. Cavanna, 374 S.W.3d 464, 472
(Tex. App.—Waco 2011, no pet.); Bay Fin. Sav. Bank, FSB v. Brown, 142 S.W.3d 586, 591
(Tex. App.—Texarkana 2004, no pet.) (concluding that although error concerning the
mandatory requirements of rule 683 was not raised on appeal, the temporary injunction
was void because it did not include an order setting the cause for trial on the merits);
Henke v. Peoples State Bank, 6 S.W.3d 717, 721 (Tex. App.—Corpus Christi 1999, pet.
dism’d w.o.j.) (holding a temporary-injunction order defective for failing to set forth a
trial date); Moreno v. Baker Tools, Inc., 808 S.W.2d 208, 210 (Tex. App.—Houston [1st
Dist.] no writ) (stating that an injunction order must include a specific date for trial on
the merits); Corpus Christi Caller-Times v. Mancias, 794 S.W.2d 852, 854 (Tex. App.—
Corpus Christi 1990, no pet.) (holding an injunction order void for failing to include the
required trial date); Higginbotham v. Clues, 730 S.W.2d 129, 129 (Tex. App.—Houston
[14th Dist.] 1987, no writ) (holding that an injunction order violated rule 683 because it
failed to include a date for trial on the merits); see also Padgett v. LSKR, Inc., No. 03-06-
00262-CV, 2007 Tex. App. LEXIS 530, at **5-6 (Tex. App.—Austin Jan. 24, 2007, no pet.)
(mem. op.) (dissolving a temporary injunction that did not set the case for trial on the
merits). “A void order has no force or effect and confers no right; it is a nullity.” Gray
Wireline Serv., Inc., 374 S.W.3d at 472 (citing In re Garza, 126 S.W.3d 268, 273 (Tex.
App.—San Antonio 2003, orig. proceeding)).
Isgitt v. Godwin Page 3
Because the trial court’s order does not set the case for trial on the merits, the
order is void.2 See TEX. R. CIV. P. 683. We sustain appellants’ third issue. See EOG Res.,
Inc. v. Gutierrez, 75 S.W.3d 50, 52-53 (Tex. App.—San Antonio 2002, no pet.) (“We have
held that the failure to meet the requirements of rule 683 renders the injunction order
fatally defective and void, whether specifically raised by point of error or not.”).
II. CONCLUSION
Based on the foregoing, we reverse the trial court’s temporary-injunction order
and order that the trial court dissolve it.3 See Gray Wireline Serv., Inc., 374 S.W.3d at 472
(citing Paz Constr. Co., 715 S.W.2d at 641). Accordingly, we remand this matter to the
trial court for further proceedings.
AL SCOGGINS
Justice
2 In response to appellants’ contention that the trial court’s temporary-injunction order is void,
Christine asserts that appellants have waived this complaint. See Texas Tech Univ. Health Sci. Ctr. v. Rao,
105 S.W.3d 763, 768 (Tex. App.—Amarillo 2003, pet. dism’d). As recognized in Rao, there appears to be a
split of authority on the question of whether a party can waive the right to complain about a temporary
injunction that fails to comply with rule 683. See id. However, Rao concedes that the great majority of the
Courts of Appeal who have considered the question have concluded that the Texas Supreme Court’s
instruction in Paz that the requirements of rule 683 are mandatory means that the right to raise the issue
on appeal is not waived by failing to make an objection in the trial court. See id. at 768; see also InterFirst
Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986) (per curiam). Given the wealth of
authority holding that violations of rule 683 are not waived by failing to make an objection in the trial
court, we decline Christine’s invitation to follow Rao.
3And given our resolution of this matter, we need not comment on or address appellant’s
remaining issues. See TEX. R. APP. P. 47.1.
Isgitt v. Godwin Page 4
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and remanded
Opinion delivered and filed April 16, 2015
[CV06]
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