Opinion
No. 05-04-01781-CV
Opinion issued February 3, 2005.
Original Proceeding from the 44th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 02-5182.
Writ of Mandamus Granted.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Relators Deponte Investments, Inc. and Brent Deponte (collectively Deponte) assert the trial court abused its discretion in requiring Deponte to deposit funds into the registry of the court and that they do not have an adequate remedy at law. We agree and conditionally grant the writ of mandamus.
Ten limited liability corporations, BAMMF 1-10, and their owners Charles and Orville Allen, entered into a series of contracts with Deponte to develop land in New Mexico. Disputes arose between the parties. BAMMF 1-10 and Allen sued Deponte for breach of contract, breach of fiduciary duty, trespass, and rescission. One of the disputed issues is the Allens' responsibility for payment of past due ad valorem taxes, penalties, and interest concerning some of the properties. The Allens filed a motion requesting the trial court order Deponte to: (1) make an accounting to the Allens for leases on named tracts; (2) pay the Allens their share of the revenue from the leases; and (3) execute documents with the lessees to have the Allens' share of future lease payments paid directly to them. The parties entered into an agreement about future tax and revenue payments, but the 2004 revenues and past tax payments remained in contention. Deponte asserted the Allens are not entitled to their total share of 2004 revenues because Deponte paid the Allens' share of past due ad valorem taxes, penalties and interest on the named tracts.
No witnesses testified, and no documentary evidence was admitted at the hearing on the Allens' motion. The trial court ordered the Allens to deposit their share of the 2004 taxes into the registry of the court. The court ordered Deponte, within ten days of the date the Allens made their deposit, to deposit the Allens' share of the revenue from the named tracts into the registry of the court. Deponte then brought this original proceeding asserting the trial court's order requiring it to deposit funds into the registry of the court amounted to an improper pre-judgment attachment.
We review the trial court's ruling for an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). The record reveals that the parties disagree about their rights to possession of the revenues at issue. The Allens assert a right to possession of the funds as their share of the revenue, and that, if they have any obligation to reimburse Deponte, they will do so at a later time out of their own funds. Deponte asserts it is entitled to the keep at least a portion of the 2004 revenues as an offset or reimbursement for expenses paid on the Allen's behalf. Deponte contends the trial court's order amounts to an improper prejudgment attachment or injunction. The Allens argue the order is merely an order for the safekeeping of funds in the registry of the court.
The trial court's order does not specify the legal basis on which it rests. At a minimum, the order would be insufficient as an injunction because it does not set forth the reasons for its issuance, does not include an order setting a trial, and does not specify the amount of a bond. Tex. R. Civ. P. 683 and 684. However, we need not determine whether the order constitutes a pre-judgment attachment or a temporary injunction. Even under the Allens' theory that the order is merely an order to deposit funds into the registry of the court for safekeeping, the trial court abused its discretion in entering the order.
A trial court can order disputed funds paid into the registry of the court if there is evidence the funds are in danger of being lost or depleted. Castilleja v. Camero, 414 S.W.2d 431, 433 (Tex. 1967) (orig. proceeding). Thus, the Allens were required to present evidence the revenues in Deponte's possession were in danger of being lost or depleted. They did not do so. We conclude that absent any evidence, the trial court abused its discretion in ordering Deponte to deposit the funds into the registry of the court. Further, we conclude Deponte does not have an adequate remedy at law. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-40 (Tex. 2004) (orig. proceeding).
Accordingly, we conditionally grant the writ of mandamus. We order the trial court to enter an order vacating its order of December 2, 2004 directing Deponte to deposit into the registry of the court fifty per cent of all revenues received in 2004 for rent or other payments from Clear Channel attributable to Tracts D and F. The trial court is ordered to file a certified copy of its order in compliance with this order with this Court within thirty days of the date of this order. Should the trial court fail to comply, the writ will issue.