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declining to review an interlocutory appeal under rule 29.6 because the trial court's order does not interfere with the appellate court's ability to review the relief sought
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No. 04-15-00605-CV
03-16-2016
George B. DOMBART, Appellant v. Marci MADLA and Brandon Brigance, Appellees
MEMORANDUM OPINION
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-10992
Honorable David A. Canales, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice REVERSED AND RENDERED
George B. Dombart appeals the trial court's order granting a temporary injunction, asserting the order is void because it does not set the cause for trial on the merits. We reverse the trial court's order and dissolve the temporary injunction. The cause is remanded to the trial court for further proceedings.
BACKGROUND
Appellees Marci Madla and Brandon Brigance filed the underlying cause alleging numerous breaches and deficiencies arising from Dombart's efforts to foreclose on their home. The appellees obtained a temporary restraining order to prevent the foreclosure. After a hearing, the trial court granted the appellees' request for a temporary injunction. The trial court signed the temporary injunction order on September 1, 2015, and Dombart timely appealed that order.
On September 3, 2015, the appellees filed a motion for judgment nunc pro tunc and to set aside foreclosure sale. The motion alleged Dombart wrongfully posted their home for a September 1, 2015 foreclosure sale, and, on September 2, 2015, Dombart's attorney faxed the appellees' attorney a letter stating the house had been sold at foreclosure and Dombart was the successful bidder.
On September 4, 2015, the trial court held a hearing on the appellees' motion. After the hearing, the trial court signed an order granting appellees' motion for judgment nunc pro tunc. On December 1, 2015, the trial court signed an order setting aside the foreclosure sale. On December 23, 2015, Dombart filed a motion in this court requesting that we also review the trial court's order setting aside the foreclosure sale. By order dated December 29, 2015, Dombart's motion was carried with the appeal.
ABSENCE OF TRIAL SETTING
"The Texas Rules of Civil Procedure require that an order granting a temporary injunction set the cause for trial on the merits." Qwest Commc'ns Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex. 2000); see also TEX. R. CIV. P. 683. This procedural requirement is mandatory, "and an order granting a temporary injunction that does not meet [the requirement] is subject to being declared void and dissolved." Qwest Commc'ns Corp., 24 S.W.3d at 337 (citing InterFirst Bank San Felipe, N.A. v. Paz Const. Co., 715 S.W.2d 640, 641 (Tex. 1986)); see also In re Garza, 126 S.W.3d 268, 271-73 (Tex. App.—San Antonio 2003, orig. proceeding [mand. denied]) (holding temporary injunction order that fails to comply with rule 683 is void). "The reason for requiring that an injunction order include a trial date is to prevent the temporary injunction from effectively becoming permanent without a trial." EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 53 (Tex. App.—San Antonio 2002, no pet.). "Accordingly, a trial date must be included in an injunction order to protect the parties from being subject to a temporary injunction made permanent by a court's failure to set the matter for a final determination on the merits." Id.
In this case, the trial court's temporary injunction order does not include a trial date. Accordingly, we declare the temporary injunction void and order it dissolved. Qwest Commc'ns Corp., 24 S.W.3d at 337.
SCOPE OF REVIEW
"An appellate court lacks jurisdiction to review an interlocutory order unless a statute specifically authorizes an exception to the general rule, which is that appeals may only be taken from final judgments." Qwest Commc'ns Corp., 24 S.W.3d at 336. Section 51.014(a)(4) of the Texas Civil Practice and Remedies Code specifically authorizes an appeal from a trial court's order granting a temporary injunction. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (West Supp. 2015).
No statute authorizes an appeal from an interlocutory order setting aside a foreclosure sale, see Kaplan v. Tiffany Dev. Corp., 69 S.W.3d 212, 217 (Tex. App.—Corpus Christi 2001, no pet.), and it is undisputed that no final judgment has been entered in the underlying cause. Nevertheless, Dombart requests that this court review the trial court's order setting aside the foreclosure sale pursuant to Rule 29.6 of the Texas Rules of Appellate Procedure. Rule 29.6 provides, in pertinent part:
(a) Motion to Review Further Orders. While an appeal from an interlocutory order is pending, on a party's motion or on the appellate court's own initiative, the appellate court may review the following:TEX. R. APP. P. 29.6(a). In his motion, Dombart contends the trial court's order setting aside the foreclosure sale interferes with or impairs the effectiveness of the relief sought in this appeal because the order is based on a violation of the temporary injunction. We disagree. The trial court's order setting aside the foreclosure sale does not interfere with or impair this court's ability to declare the order granting the temporary injunction void and to dissolve the temporary injunction, which is the relief we have held Dombart is entitled to receive in this appeal. See InterFirst Bank San Felipe, N.A., 715 S.W.2d at 641 ("When a temporary injunction order does not adhere to the requirements of Rule 683[,] the injunction order is subject to being declared void and dissolved."). Moreover, at the hearing before the trial court, the appellees' attorney also argued the foreclosure sale was invalid because the appellees were not given proper notice of a default and an opportunity to cure, and Dombart's attorney responded to those arguments. Therefore, the record does not establish the trial court's order setting aside the foreclosure was based on the trial court finding a violation of the temporary injunction order. See TEX. R. CIV. P. 67 (noting issues may be tried by express or implied consent). Dombart's motion is denied.
(1) a further appealable interlocutory order concerning the same subject matter; and
(2) any interlocutory order that interferes with or impairs the effectiveness of the relief sought or that may be granted on appeal.
CONCLUSION
The trial court's order granting the temporary injunction is void, and the temporary injunction is dissolved. The cause is remanded to the trial court for further proceedings.
Rebeca C. Martinez, Justice