Opinion
No. 05-04-01548-CV
Opinion issued August 3, 2005.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-2523-04.
Vacated and Remanded.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
MEMORANDUM OPINION
Appellants Marsa J. Bennett, individually and on behalf of her minor children Nicholas Bennett, Troy Bennett, and Natalie Bennett, and Nancy Boesch appeal the trial court's entry of a temporary injunction against them in favor of appellees Cisco Systems, Inc. and Cisco Systems Capital Corporation. The facts of this appeal are known to the parties, and we do not recite them here. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We vacate the temporary injunction order entered by the trial court on October 11, 2004, and remand the cause to the trial court for further proceedings. In their first issue, appellants challenge the legal and factual sufficiency of the evidence to support the trial judge's ruling, and allege the trial judge abused his discretion in granting the injunction. We sustain appellants' first issue. Appellees called no witnesses at the temporary injunction hearing. The record consists of ten exhibits and argument of counsel. Appellants objected to all of the exhibits except one. The trial judge took judicial notice of the exhibits and admitted them into evidence.
To establish their right to a temporary injunction, appellees were required to prove a cause of action against appellants, a probable right to the relief sought, and a probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). We reverse an order granting injunctive relief only if the trial judge abused his discretion. See Butnaru, 84 S.W.3d at 204. A trial judge does not abuse his discretion if some evidence reasonably supports his decision. Butnaru, 84 S.W.2d at 211. If no evidence is presented, absent an agreement of the parties, a writ of injunction is improper. Wyly v. Preservation Dallas, 165 S.W.3d 460, 464 (Tex.App.-Dallas 2005, no pet. h.) (citing Millwrights Local Union No. 2484 v. Rust Eng'g Co., 433 S.W.2d 683, 686 (Tex. 1968)). The party applying for the injunction has the burden of production, and evidence must be adduced under standard rules of evidence; testimony by affidavit does not suffice. Wyly, 165 S.W.3d at 464 (citing Millwrights, 433 S.W.2d at 687).
Appellees pleaded appellants fraudulently transferred assets into a certain piece of real property in Plano, Texas. A transfer is fraudulent as to a creditor if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor or without receiving a reasonably equivalent value in exchange for the transfer, as set forth in more detail in the Fraudulent Transfer Act. See Tex. Bus. Com. Code Ann. §§ 24.001 et seq.; 24.005 (Vernon 2002). While appellees argue Boesch is related to Bennett and purchased the property with fraudulently transferred funds, they did not offer any evidence as to Boesch's relationship to appellants or as to any transfer of funds from Bennett to Boesch. Although appellees cite to their petition and application for temporary injunction to support these allegations, their petition is not evidence. See Millwrights, 433 S.W.2d at 686 (in absence of agreement by parties, proof required to support judgment issuing writ of temporary injunction may not be made by affidavit; thus sworn petition did not constitute evidence supporting trial court's judgment); see also Alert Synteks, Inc. v. Jerry Spencer, L.P., 151 S.W.3d 246, 253 (Tex.App.-Tyler 2004, no pet.) (sworn petition does not constitute evidence supporting judgment issuing temporary injunction). They also cite to an affidavit Boesch attached to her motion to dissolve temporary injunction; however, absent the parties' agreement, affidavits attached to pleadings and not admitted into evidence do not constitute evidence. See Ahmed v. Shimi Ventures, L.P., 99 S.W.3d 682, 698 n. 2 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (citing Millwrights, 433 S.W.2d at 685-86).
Appellees were not required to establish they will prevail upon a final trial. See Butnaru, 84 S.W.3d at 204. If no evidence that would support a temporary injunction was presented to the trial court, however, it is an abuse of discretion for the trial judge to issue the injunction. Alert Synteks, 151 S.W.3d at 253. Without evidence to support their probable right to recovery, appellees' application for injunction should have been denied. We vacate the trial court's temporary injunction order and remand the cause for further proceedings.