Summary
holding that appeal from first temporary-injunction order was rendered moot by amended injunction that afforded appellant all relief sought on appeal as to first injunction
Summary of this case from Tex. Health & Human Servs. Comm'n v. Advocates for Patient Access, Inc.Opinion
No. 05-11-00913-CV
02-23-2012
COMPASS BANK, N.A. A/K/A BBVA COMPASS BANK, Appellant v. SANJECK, LLP, Appellee
DISMISS and Opinion February 23, 2012
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-11-05447
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Bridges and Fillmore
Opinion By Justice Fillmore
In this interlocutory appeal, Compass Bank, N.A. a/k/a BBVA Compass Bank (Compass), argues the trial court erred by entering a temporary injunction order preventing Compass from foreclosing on a piece of property owned by SanJeck, LLP. We dismiss this appeal as moot. The background of this case and the evidence adduced at the hearing on the application for injunctive relief are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion because the law to be applied in this case is well settled. See Tex. R. App. P. 47.1, 47.4. Background
Only Compass filed a notice of appeal in this case. Jack M. Kuykendall, in his capacity as trustee, is listed as an appellant in Compass's brief, but he neither filed a notice of appeal nor joined in Compass's notice. Under the rules of appellate procedure, "[a] party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal. Tex. R. App. P. 25.1(c). We do not have jurisdiction to consider issues brought by a party who does not file or join in a timely notice of appeal. Kishor v. TXU Energy Retail Co., LLC, No. 05-10-01496-CV, 2011 WL 5857215, at *1 (Tex. App.-Dallas Nov. 17, 2011, no pet.) (mem. op). Therefore, Kuydendall is not a party to this appeal, and we will not consider any issues raised in Compass's brief as they relate to Kuydendall. See id.
In 2007, SanJeck applied for a loan from Compass to finance the construction of a shopping center on property owned by SanJeck. Joel Nwoke, the owner of SanJeck's general partner, testified he requested a "conventional" loan for a period of fifteen years with a fixed rate of interest. Compass, however, offered SanJeck a conventional loan with a variable rate of interest accompanied by a "swap agreement" to effectively convert the floating rate note into a fixed payment note. According to Nwoke, he did not understand the swap agreement, but trusted Compass to protect SanJeck's interests. Nwoke admitted he did not read the closing documents, but claimed an employee of Compass told him not to read the documents because he would not understand them.
A general description of a "swap agreement" is found in Thrifty Oil Co. v. Bank of America National Trust & Savings Ass'n, 322 F.3d 1039, 1042-43 (9th Cir. 2002).
SanJeck did not make all the required payments under the note and the swap agreement, and Compass posted the property for foreclosure. SanJeck filed this suit asserting a number of claims against Compass and requested a temporary restraining order and a temporary injunction to prevent the foreclosure. On June 27, 2011, the trial court signed a temporary injunction order preventing Compass from "foreclosing, posting for foreclosure and/or selling the property." In the temporary injunction order, the trial court required SanJeck to post a bond in the amount of $30,308.71. On July 14, 2011, Compass filed its notice of interlocutory appeal of the trial court's temporary injunction order.
Compass also filed a motion in the trial court to increase the amount of SanJeck's bond. On August 12, 2011, the trial court signed an order granting Compass's motion and amending the temporary injunction order to increase the amount of the required bond to $75,000. On December 14, 2011, the trial court signed an amended temporary injunction order. In the amended order, the trial court expanded on the reasons SanJeck would be irreparably harmed if injunctive relief was not granted. The amended order incorporated the increased bond amount of $75,000 previously set by the trial court and allowed the cash bond of $30,308.71 previously posted by SanJeck to be applied toward the bond amount. The amended temporary injunction order also provided that, if SanJeck failed to post the "remaining balance" within ten days, the "Temporary Injunction previously entered by the court on June 27, 2011 shall be dissolved."
On January 10, 2012, SanJeck filed an emergency motion in the trial court to reduce the bond amount or, alternatively, to release the bond. In the motion, SanJeck requested the trial court lower the bond to $5,000 or, alternatively, to the "$30,000 posted." Otherwise, SanJeck requested the trial court "enter an order releasing the previously posted bond back to [SanJeck] as it cannot afford to post a $75,000 bond." Analysis
We must first consider the effect on this appeal of the trial court's two orders amending the June 27, 2011 temporary injunction order. "While an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and unless prohibited by statute may make further orders, including one dissolving the order complained of on appeal." Tex. R. App. P. 29.5. However, the trial court must not make an order that "interferes with or impairs the jurisdiction of the appellate court or effectiveness of any relief sought or that may be granted on appeal." Tex. R. App. P. 29.5(b).
In this case, the trial court first amended the temporary injunction order on August 11, 2011 to increase the amount of bond that SanJeck was required to post. It amended the June 27, 2011 temporary injunction order a second time on December 14, 2011. The December 14, 2011 order is identical to the June 27, 2011 order except that it (1) expands on the reasons that SanJeck would be irreparably harmed if injunctive relief was not granted, (2) incorporates the increased bond requirement and allows the original bond posted by SanJeck to be applied to the required bond, and (3) provides that if SanJeck failed to post the balance of the bond within ten days, the June 27, 2011 temporary injunction would be dissolved. Neither the August 11th nor the December 14th orders interfered with or impaired our jurisdiction or the effectiveness of the relief sought in this appeal. Accordingly, the trial court had jurisdiction to make both the August 11th and the December 14th orders. See Tex. R. App. P. 29.5; Sweet v. Inkjet Int'l, Ltd., No. 05-03-00233-CV, 2003 WL 22254695, at *1 (Tex. App.-Dallas Oct. 2, 2003, no pet.) (mem. op.) (trial court had jurisdiction to amend temporary injunction during pendency of interlocutory appeal to clarify definition); Tanguy v. Laux, 259 S.W.3d 851, 855 (Tex. App.-Houston [1st Dist.] 2008, no pet.).
In this appeal, Compass requested the Court reverse the June 27, 2011 temporary injunction order. However, the December 14, 2011 amended temporary injunction order superseded the June 27, 2011 order. See Sweet, 2003 WL 22254695, at *2; Ahmed v. Shimi Ventures, L.P., 99 S.W.3d 682, 687-88 (Tex. App.-Houston [1st Dist.] 2003, no pet.). Because Compass has received all relief now sought on appeal as to the June 27, 2011 temporary injunction order, Compass's appeal of that order is moot. See Smith v. Smith, 681 S.W.2d 793, 797 (Tex. App.-Houston [14th Dist.] 1984, no writ) (orders contained in supplemental order "supercede any prior injunctive orders that may have been issued by trial court" and, because appellant did not complain about supplemental order on appeal, nothing was preserved for appellate review); see also Reeves v. City of Dallas, 68 S.W.3d 58, 60 (Tex. App.-Dallas 2001, pet. denied) (amended temporary injunction order that vacated original temporary injunction order rendered appeal from first order moot).
Further, pursuant to the December 14, 2011 amended temporary injunction order, the June 27, 2011 temporary injunction order is either dissolved or subject to being dissolved due to SanJeck's failure to timely post the balance of the required bond.
See also Nexus Fuels, Inc. v. Hall, No. 05-98-02147-CV, 1999 WL 993929, at *2 (Tex. App.-Dallas Nov. 1, 1999, no pet.) (not designated for publication) (appeal was moot because "[o]nce an amended temporary injunction order is entered, it supersedes the original order" and appellant's complaints on appeal related only to original order).
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We next turn to whether the December 14, 2011 amended temporary injunction order is subject to review in this appeal.
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:
(1) a further appealable interlocutory order concerning the same subject matter; andTex. R. App. P. 29.6(a). The amended temporary injunction order was a "complete temporary injunction in itself concerning exactly the same subject matter" as the June 27, 2011 temporary injunction order. See Ahmed, 99 S.W.3d at 687 (upon motion by party pursuant to rule of appellate procedure 29.6, appellate court reviewed modified temporary injunction order entered while interlocutory appeal was pending because it concerned same subject matter as prior order and was complete temporary injunction); see also Tanguy, 259 S.W.3d at 855 (amended temporary injunction was further appealable interlocutory order that concerned same subject matter). The amended temporary injunction order, therefore, was a further appealable order concerning the same subject matter as the June 27, 2011 temporary injunction order. However, Compass did not file a notice of appeal from the amended temporary injunction order and has not requested the Court consider the order in this appeal.
(2) any interlocutory order that interferes with or impairs the effectiveness of the relief sought or that may be granted on appeal.
Before a trial court issues a temporary injunction, the applicant must execute a bond to the adverse party and file the bond with the court clerk. Tex. R. Civ. P. 684; Goodwin v. Goodwin, 456 S.W.2d 885, 885 (Tex. 1970) (per curiam); Pigott v. Miller, No. 12-09-00431-CV, 2011 WL 198598, at *2 (Tex. App.-Tyler Jan. 19, 2011, no pet.) (mem. op.). The filing of a bond is a condition precedent to the issuance of a temporary injunction, and the failure of the applicant to file a bond renders the injunction void ab initio. Goodwin, 456 S.W.2d at 885; Bayoud v. Bayoud, 797 S.W.2d 304, 311 (Tex. App.-Dallas 1990, writ denied). The record does not reflect the clerk has issued a writ of injunction. See Tex. R. Civ. P. 687-89. However, SanJeck has admitted it has not, and is unable to, post the required bond. Accordingly, any writ of injunction issued based on the December 14, 2011 amended temporary injunction order would be void ab initio. See Goodwin, 456 S.W.2d at 886; Bayoud, 797 S.W.2d at 311. We, therefore, decline to review on our own initiative the December 14, 2011 amended temporary injunction order. See Tex. R. App. P. 29.6.
We dismiss this appeal as moot.
ROBERT M. FILLMORE
JUSTICE
110913F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
COMPASS BANK, N.A., A/K/A BBVA COMPASS BANK, Appellant
V.
SANJECK, LLP, Appellee
No. 05-11-00913-CV
Appeal from the 44th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. DC-11- 05447).
Opinion delivered by Justice Fillmore, Chief Justice Wright and Justice Bridges participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is DISMISSED. It is ORDERED that the parties bear their own costs on appeal.
Judgment entered February 23, 2012.
ROBERT M. FILLMORE
JUSTICE