Ratna Vasireddy Babu v. Ingrid N. Zeeck ( 2015 )


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  • Opinion filed October 8, 2015
    In The
    Eleventh Court of Appeals
    __________
    No. 11-15-00028-CV
    __________
    RATNA VASIREDDY BABU, Appellant
    V.
    INGRID N. ZEECK, Appellee
    On Appeal from the 161st District Court
    Ector County, Texas
    Trial Court Cause No. B-139,003
    OPINION
    This is an accelerated, interlocutory appeal from a temporary injunction. We
    conclude that, for the most part, this appeal seeks an impermissible advisory opinion
    from this court in the form of an advance ruling on the merits. We affirm the trial
    court’s temporary injunction order.
    Background Facts
    Ingrid N. Zeeck filed this suit against Ratna Vasireddy Babu alleging a breach
    of contract over Babu’s attempt to convey real property located in Odessa. Zeeck
    asserted that Babu breached Zeeck’s purported right of first refusal concerning a
    conveyance of the subject property. Zeeck requested a temporary injunction to
    enjoin Babu from selling the property to a third party during the pendency of the
    underlying suit. The trial court granted Zeeck’s request for a temporary injunction
    and enjoined Babu from transferring the subject property “until trial in the cause or
    until further order” of the trial court. Babu then filed a notice of appeal seeking an
    interlocutory appeal of the temporary injunction. See TEX. CIV. PRAC. & REM. CODE
    ANN. § 51.014(a)(4) (West 2015). A trial on the merits was initially scheduled for
    June 16, 2015, under the provisions of the temporary injunction order. The trial has
    now been postponed to October 19, 2015.
    Analysis
    To obtain a temporary injunction, the 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 v. Ford Motor Co., 
    84 S.W.3d 198
    , 204 (Tex. 2002). The only issue before
    the trial court in a temporary injunction hearing is whether the applicant may
    preserve the status quo of the suit’s subject matter pending trial on the merits.
    Iranian Muslim Org. v. City of San Antonio, 
    615 S.W.2d 202
    , 208 (Tex. 1981);
    Davis v. Huey, 
    571 S.W.2d 859
    , 862 (Tex. 1978); Hiss v. Great N. Am. Cos., 
    871 S.W.2d 218
    , 219 (Tex. App.—Dallas 1993, no writ). Thus, the merits of the
    underlying case are not properly presented for appellate review in an appeal from an
    order granting or denying a temporary injunction. Brooks v. Expo Chem. Co., 
    576 S.W.2d 369
    , 370 (Tex. 1979); Dallas/Fort Worth Int’l Airport Bd. v. Ass’n of
    Taxicab Operators, USA, 
    335 S.W.3d 361
    , 364 (Tex. App.—Dallas 2010, no pet.).
    “Appellate review of an order granting or denying a temporary injunction is strictly
    limited to determining whether there has been a clear abuse of discretion by the trial
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    court in granting or denying the interlocutory order.” Dallas/Fort Worth Int’l
    Airport 
    Bd., 335 S.W.3d at 364
    ; see 
    Butnaru, 84 S.W.3d at 204
    .
    Babu presents two issues on appeal. In her first issue, Babu asserts that the
    evidence before the trial court at the temporary injunction hearing did not establish
    a probable right of recovery in favor of Zeeck. In support of her first issue, Babu
    asserts that the evidence failed to show that she was on notice of Zeeck’s purported
    right of first refusal at the time she obtained her interest in the property.
    Additionally, Babu presents an analysis of various conveyances of the property
    involving Babu, Zeeck, and third parties dating back more than thirty years. Babu
    asserts in her second issue that the trial court misapplied the law to facts. She
    additionally asserts in her second issue that the temporary injunction “accomplished
    the entirety of Zeeck’s lawsuit.”
    We first address Babu’s contention that the temporary injunction
    accomplished the entirety of Zeeck’s lawsuit. She bases this contention on the
    assertions that Zeeck sought specific performance of the right of first refusal and that
    the temporary injunction enforces all of the relief sought by Zeeck in the lawsuit.
    We disagree with Babu’s interpretation of the applicable law.
    The temporary relief awarded by a temporary injunction cannot be such as “to
    accomplish the object of the suit.” Tex. Foundries, Inc. v. Int’l Moulders & Foundry
    Workers’ Union, 
    248 S.W.2d 460
    , 464 (Tex. 1952); see Friona Indep. Sch. Dist. v.
    King, 
    15 S.W.3d 653
    , 657 (Tex. App.—Amarillo 2000, no pet.). “To do so is
    tantamount to adjudicating the litigants’ respective rights without the benefit of a
    trial and, therefore, is error.” 
    Friona, 15 S.W.3d at 657
    . This principle is based
    upon a concern for timing and delay. The facts in Friona illustrate this principle.
    The case involved a high school senior that had been suspended from his school
    baseball team by the school district. 
    Id. at 656.
    His parents sought and obtained a
    temporary injunction reinstating him to the team. 
    Id. A final
    trial on the merits was
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    not scheduled until after he would have completed his last season of baseball. 
    Id. at 659.
    The Amarillo Court of Appeals concluded that the trial court’s temporary
    injunction accomplished the object of the suit in violation of the tenets of Texas
    Foundries, because “the heart of the controversy” was the student’s opportunity to
    play baseball, yet the case was not set for trial until after the season would be
    concluded. 
    Id. Unlike the
    situation in Friona, the right that Zeeck sought to protect was not
    one of limited duration. The temporary injunction entered by the trial court did not
    accomplish the entirety of Zeeck’s lawsuit because it was limited in duration—“until
    trial in the cause or until further order.” The temporary injunction served the purpose
    of preserving the status quo between the parties pending a final trial on the merits.
    The portion of Babu’s second issue complaining that the temporary injunction
    accomplished the entirety of Zeeck’s lawsuit is overruled.
    The remaining portion of Babu’s second issue and the entirety of her first issue
    focus solely on Zeeck’s probable right to recover. As we noted previously, a party
    seeking a temporary injunction must plead and prove a probable right of recovery.
    See 
    Butnaru, 84 S.W.3d at 204
    . However, an appeal of a temporary injunction based
    upon this ground is problematic because “a party may not use an appeal of a
    temporary injunction ruling to get an advance ruling on the merits.” Dallas/Fort
    Worth Int’l Airport 
    Bd., 335 S.W.3d at 364
    . As noted by the Dallas Court of
    Appeals:
    Furthermore, no final judgment exists for this Court to affirm or
    reverse. However we dispose of this appeal, the trial court will still
    have to resolve the case on the merits and render a final judgment,
    which will be subject to appeal. Therefore, any determination we may
    make as to the issues presented . . . in this appeal would be advisory.
    
    Id. at 365.
    The court in Dallas/Fort Worth International Airport Board declined to
    reach the merits of the appellant’s arguments until the trial court had an opportunity
    4
    to consider them on a full trial of the merits for the reason that an appellate court has
    no jurisdiction to issue advisory opinions. 
    Id. (citing Valley
    Baptist Med. Ctr. v.
    Gonzalez, 
    33 S.W.3d 821
    , 822 (Tex. 2000) (per curiam)).
    Babu’s first issue and the bulk of her second issue essentially present the
    merits of the underlying controversy for our determination. A party may not use an
    appeal of a temporary injunction to obtain an advance ruling on the merits. 
    Id. In light
    of the foregoing authority, we do not address Babu’s first issue and the
    remainder of her second issue because they have not fully been developed in a trial
    on the merits. To make judgments on those matters would constitute an advance
    ruling on the merits and would amount to an advisory opinion, which we are not
    permitted to issue. Id.; see Layton v. Ball, 
    396 S.W.3d 747
    , 751 (Tex. App.—Tyler
    2013, no pet.).
    Moreover, the final trial on the merits has been postponed during the pendency
    of this appeal. The appeal of a temporary injunction “shall constitute no cause for
    delay of the trial.” TEX. R. CIV. P. 683 (emphasis added). Courts have repeatedly
    disapproved of the practice of postponing the trial on the merits of a case in order to
    obtain a ruling on the appeal of a temporary injunction. See Dallas/Fort Worth Int’l
    Airport 
    Bd., 335 S.W.3d at 366
    –67 and the cases cited therein. “Generally the most
    expeditious way of obviating the hardship and [discomfort] of an unfavorable
    preliminary order is to try the case on its merits and thus secure a hearing wherein
    the case may be fully developed and the courts, both trial and appellate, may render
    judgments finally disposing of controversies.” 
    Id. at 366
    n.7 (quoting Sw. Weather
    Research, Inc. v. Jones, 
    327 S.W.2d 417
    , 422 (Tex. 1959)). “The best practice is for
    the trial judge to set an early trial on the merits, giving it precedence over other cases,
    at the time he grants a temporary injunction . . . . Such a practice will obviate most
    interlocutory appeals.” 
    Id. (alteration in
    original) (quoting Reeder v. Intercont’l
    Plastics Mfg. Co., 
    581 S.W.2d 497
    , 499 (Tex. Civ. App.—Dallas 1979, no writ)).
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    Accordingly, we decline to address the merits of Babu’s first issue and the remainder
    of her second issue.
    This Court’s Ruling
    We have overruled Babu’s second issue in part, and we have determined that
    her remaining issues are not properly before us at this juncture. Accordingly, we
    affirm the temporary injunction order issued by the trial court. See 
    Layton, 396 S.W.3d at 755
    n.4. We urge counsel and the trial court to proceed expeditiously to
    a trial on the merits.
    JOHN M. BAILEY
    JUSTICE
    October 8, 2015
    Panel consists of: Wright, C.J.,
    Willson, J., and Bailey, J.
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