Opinion
No. 10-05-00134-CV
Opinion delivered and filed February 8, 2006.
Appeal from the 74th District Court, McLennan County, Texas, Trial Court No. 2004-559-3.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurring and dissenting)
MEMORANDUM OPINION
Phillip Roberts brings this interlocutory appeal from an order dissolving a temporary injunction in his favor and replacing it with a temporary injunction in favor of Randall Roberts and Roberts Publishing Company ("RPC"). Phillip contends in two issues that: (1) the court abused its discretion by dissolving the first temporary injunction and replacing it with another; and (2) the court properly granted the first temporary injunction. We will affirm.
This appeal and the underlying lawsuits arise from a dispute between Phillip and Randall, who are brothers, concerning ownership and control of RPC, a family-owned business, and the alleged wrongful conversion of assets belong to RPC. Phillip, then president of RPC, hired counsel to file suit in Midland County in the name of RPC against Randall for wrongful conversion of corporate assets. Randall, then vice-president and secretary of RPC, joined Phillip as a third-party defendant, making similar allegations against Phillip.
During the pendency of the suit, Phillip was convicted of a felony and sentenced to prison. Randall called a special meeting of RPC shareholders to be held on January 23, 2004, about one week before a scheduled pretrial hearing. At this meeting, the shareholders elected Randall as president and his alleged paramour as secretary/treasurer. At a directors meeting later that day, the directors approved a resolution to dismiss the corporation's lawsuit against Randall.
See Roberts v. State, 141 S.W.3d 685 (Tex.App.-Waco 2004, pet. ref'd) (per curiam).
Phillip (through counsel) challenged the legitimacy of the specially-called shareholder's meeting on several grounds at the pretrial hearing. It was brought to the attention of the Midland court that a regularly-scheduled shareholders meeting was to be held later in February. That court continued the trial setting so that the shareholders could resolve the issues of: (1) whether counsel hired by Phillip retained authority to represent RPC in the suit; (2) whether the specially-called meeting of January 23 was valid; and (3) how corporate shares were allocated between Phillip and Randall.
Shortly before the February shareholders meeting however, Phillip obtained an ex parte temporary restraining order from a McLennan County court prohibiting Randall or RPC from holding the shareholders meeting, from transferring corporate assets other than in the ordinary course of business, from dismissing the Midland County lawsuit, and from allowing Randall to act as president or appointing someone else as president. The Waco court subsequently converted the TRO to a temporary injunction following a hearing. Randall and RPC perfected an interlocutory appeal from that injunction.
Several months after the entry of the temporary injunction, Phillip mailed a letter to "all publishers" doing business with RPC. Purporting to act as president of RPC, Phillip advised the publishers that he was "suspending the payment of all management fees effective immediately" due to "the sluggish economy." In response, the publishers advised RPC that they were no longer paying the management fees.
Randall and RPC filed a motion to dissolve the temporary injunction with the Waco court arguing that the cessation of payment of management fees would "destroy the company" and cause irreparable harm. Randall and RPC asked the court to enter an injunction against Phillip prohibiting him from acting as president of RPC or from otherwise interfering with the operations of RPC.
After a hearing, the court granted the motion of Randall and RPC to dissolve the temporary injunction and enter a different temporary injunction.
The initial injunction was granted by the Honorable Alan Mayfield, the elected judge of the 74th District Court of McLennan County. Judge Mayfield was unavailable for the hearing on the motion to dissolve this injunction, so it was heard by the Honorable Ralph Strother, the elected judge of the 19th District Court of McLennan County. See TEX. GOV'T CODE ANN. § 74.094(a) (Vernon 2005).
Phillip contends in his first issue that the court abused its discretion by dissolving the previous temporary injunction and replacing it with another because the court "did not allow the parties to present testimony at the hearing."
Phillip's first issue presents 2 sub-issues: (1) whether the court conducted an "inadequate hearing"; and (2) whether Randall and RPC presented evidence of changed circumstances sufficient to justify the dissolution of the temporary injunction. Phillip does not challenge the sufficiency of the evidence to support the court's decision to grant Randall's and RPC's request for a temporary injunction.
The hearing consisted primarily of statements by opposing counsel regarding their respective views of the pertinent facts and the legal effect of those facts. Counsel for Randall and RPC offered two documents in evidence. The court took "judicial notice of everything in the file" then asked whether the witnesses' testimony would differ in any significant respect from the attorneys' summaries. Counsel for Randall and RPC responded that he had "proferred pretty well what we think the proof is going to be." The court then asked Phillip's counsel, "[A]re there any witnesses you want to call for this?" Counsel stated that some of the publishers were available to testify but he didn't "think they w[ould] disagree with [his summary of the pertinent facts]."
A trial court cannot take judicial notice of testimony from a prior hearing unless a transcription of the testimony is offered in evidence. See Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 539-40 (Tex.App.-San Antonio 2004, pet. denied); Escamilla v. Est. of Escamilla, 921 S.W.2d 723, 726 (Tex.App.-Corpus Christi 1996, writ denied). Nevertheless, we presume that this requirement may be waived if no objection is made to a proponent's failure to offer the transcription in evidence. See TEX. R. APP. P. 33.1(a)(1).
Statements of counsel do not generally constitute evidence unless made under oath. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997); Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 338 (Tex.App.-Texarkana 2004, pet. denied). However, the oath requirement can be waived if the opposing party fails to object when he knows or should know that an objection is necessary. Id.
Phillip's counsel should have known that an objection was necessary when Judge Strother asked whether the available witnesses would provide testimony any different than what had been stated by counsel and advised counsel that he did not think an evidentiary hearing was necessary. Phillip did respond that Judge Strother should not dissolve the prior injunction "without the benefit of all that evidence" which Judge Mayfield heard when he granted the initial injunction. Phillip never called or attempted to call a single witness and was not prevented from doing so despite his appellate protestations to the contrary. He did not pursue an objection to the lack of a formal evidentiary hearing in a motion for new trial or other post-order motion.
At best, the statements of Phillip's counsel would constitute an objection to dissolving the prior injunction without the introduction of evidence. To the extent that Phillip's complaint relates to the court's decision to grant a temporary injunction in favor of Randall and RPC without hearing live testimony, he has failed to preserve that complaint for appellate review. See Tex.R.App.P. 33.1(a)(1); Banda, 955 S.W.2d at 272; Russ, 128 S.W.3d at 338.
To the extent that Phillip's complaint relates to the court's decision to dissolve the prior temporary injunction, we will conclude hereinafter that the court had sufficient evidence before it to dissolve the injunction.
We review an order dissolving an injunction for an abuse of discretion. See Lee-Hickman's Invs. v. Alpha Invesco Corp., 139 S.W.3d 698, 702 (Tex.App.-Corpus Christi 2004, no pet.) (per curiam); Chase Manhattan Bank v. Bowles, 52 S.W.3d 871, 879 (Tex.App.-Waco 2001, no pet.). An injunction may be dissolved upon a showing of changed circumstances which have altered the status quo since the granting of the injunction. See Chase Manhattan Bank, 52 S.W.3d at 878-79; Murphy v. McDaniel, 20 S.W.3d 873, 878 (Tex.App.-Dallas 2000, no pet.).
A trial court also retains the inherent authority to dissolve an injunction absent a showing of changed circumstances. See GXG, Inc. v. Texacal Oil Gas, Inc., 882 S.W.2d 850, 852 (Tex.App.-Corpus Christi 1994, no writ); Tober v. Turner of Tex., Inc., 668 S.W.2d 831, 835 (Tex.App.-Austin 1984, no writ). However, a court will not generally be found to have abused its discretion by refusing to dissolve an injunction absent a showing of changed circumstances. See Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717, 721 (Tex.App.-Corpus Christi 1999, pet. dism'd w.o.j.); Tober, 668 S.W.2d at 835.
Here, Randall and RPC offered in evidence the letter that Phillip, after the entry of the temporary injunction, mailed to the publishers purporting to suspend the requirement that they pay management fees to RPC. They also offered in evidence a letter from the publishers' attorney advising RPC that the publishers intended to suspend payment of the management fees accordingly.
Because Randall and RPC presented evidence of changed circumstances which would alter the status quo, we cannot say that the court abused its discretion by dissolving the temporary injunction. Id. Accordingly, we overrule Phillip's first issue and do not reach his second issue.
We affirm the judgment.
CONCURRING AND DISSENTING OPINION
Like two ships passing in the night, the litigants in this proceeding attended the same hearing, but you would not know it from their briefs. The majority becomes an unsuspecting passenger on one of those ships and, thus, ignores the other. I can ignore neither ship.
BACKGROUND
For ease of presenting the issues, I will refer to the two sides simply as Phillip and Randall. Phillip and Randall are brothers. They are fighting over control of a family business. Litigation was commenced and proceeding in Midland County. Shortly before trial in Midland, Randall called a special board meeting and purported to make himself president of the business. Then, Phillip commenced a separate suit in McLennan County. Phillip obtained a temporary restraining order enjoining certain actions of Randall. The temporary restraining order had the effect of continuing the trial in Midland County because the annual shareholders meeting with Randall at the controls had been restrained by the order from the district court, Judge Mayfield, in McLennan County.
The estate of Phillip's and Randall's mother was pending in Andrews. The estate was under Randall's control, and it had control of shares of stock in the company that would ultimately be divided equally to Phillip and Randall.
As required, a hearing on a temporary injunction soon followed the temporary restraining order in McLennan County. After an extensive evidentiary hearing, Phillip's request for a temporary injunction was granted. Randall appealed the temporary injunction in favor of Phillip. We docketed the appeal of the temporary injunction as case number 10-04-00112-CV.
As company president, Phillip took certain actions that Randall contended impacted his ability to manage the estate of their mother. Randall filed a motion seeking to have the existing temporary injunction dissolved. Randall also sought a temporary injunction against Phillip's interference with Randall's management of the estate. There was a hearing before a different judge, Judge Strother, sitting in for Judge Mayfield, on Randall's motion to dissolve the first temporary injunction and Randall's application for a second temporary injunction, one enjoining Phillip. The trial court dissolved the first temporary injunction and granted a second. This is the order giving rise to this accelerated appeal.
THE ISSUE
Phillip uses the "relaxed" form of issue identification authorized by the rules to introduce the problem, the trial court's alleged error, and how the error contributed to an improper result, harm. The issue and argument are that the hearing was inadequate. The full text of Phillip's first issue is as follows:
The majority bashes Phillip's use of the broad issue by asserting he is not complaining about the sufficiency of the evidence. See Maj. Op. at pg 3, fn 3. They thus avoid addressing the sufficiency of the evidence on one of the motions, but they cannot resist the need to discuss the sufficiency of the evidence on the other motion. See Maj. Op. at pg 5 ("We will conclude hereinafter that the court had sufficient evidence before it to dissolve the injunction."). Sufficiency of the evidence is the result of having a deficient hearing, which is the broad issue argued by Phillip. It is the only issue that either the majority or the dissent is reviewing. As a subsidiary question, the sufficiency of the evidence is fairly included in the issue and is appropriately addressed by the majority as to one motion. It is also relevant as to the other motion, and it should, therefore, also be addressed. TEX. R. APP. P. 38.1(e), 47.1.
Issue I: The Honorable Judge Ralph Strother abused his discretion by granting Appellee's injunction and dissolving the temporary injunction granted by Honorable Judge Alan Mayfield without allowing the parties to present evidence. At a temporary injunction hearing, the parties have a right to offer testimony and present evidence. Further, although the decision to dissolve a temporary injunction is within the discretion of the court, the purpose of such a motion is to show that changed circumstances compel the dissolution of the temporary injunction. A hearing to dissolve a temporary injunction is not to be used as an opportunity by the unsuccessful party to relitigate the propriety of granting the injunction.
A proper analysis of this issue requires that we recognize the distinction in the legal requirements regarding the dissolution of Phillip's temporary injunction from the legal requirement to grant Randall's temporary injunction. There would be no legal impediment to having both temporary injunctions in force at the same time if Phillip and Randall presented evidence which properly entitled each of them to an injunction. If, however, there was a conflict between the terms of the two injunctions, if both were properly rendered, the issue of which controls would have to be resolved. The propriety of the rendition of the first injunction is no longer being appealed. Randall moved to dismiss his own appeal of that injunction as moot.
It is easiest if we begin with an analysis of whether we are dealing with one temporary injunction or two. Thus, I will begin my analysis with the law applicable to the dissolution of a temporary injunction, one that has already been granted.
DISSOLUTION OF A TEMPORARY INJUNCTION
The law applicable to the dissolution of a temporary injunction is not entirely clear. As one court has stated:
Much of the confusion as to the proper scope of a motion to dissolve arises from cases decided at a time when no distinction was made as between injunctive relief granted before and injunctive relief granted after a full evidentiary hearing. Apparently, under prior law it was standard procedure for a trial court to issue a temporary injunction solely upon the applicant's sworn petition; therefore, upon filing a motion to dismiss, the opposite party had a right to a full evidentiary hearing upon the issue of whether the temporary injunction should have, in the first instance, been granted. See Plateau Oil Co. v. Choate Oil Corp., 235 S.W. 686 (Tex.Civ.App. 1921, writ dism'd).
Under current rules the trial court may not enter a temporary injunction against a party before that party has presented its defenses and has rested its case. Tex. R. Civ. P. Ann. 681 (1967); Great Lakes Engineering, Inc. v. Andersen, 627 S.W.2d 436 (Tex.App. 1981, no writ); City of Austin v. Texas Public Emp. Ass'n, 528 S.W.2d 637 (Tex.Civ.App. 1975, no writ). Under this procedure the party opposing the temporary injunction has an opportunity to fully litigate the issue of whether the temporary injunction should be granted prior to the granting of such; there is no longer any reason for requiring the trial court to reexamine the legal and factual basis of the preliminary injunction upon motion to dissolve. See Nu-Tred Tire Co. v. Dunlop Tire Rubber Corp., 577 P.2d 268, 118 Ariz. 417 (1978). The purpose of the motion to dissolve is to provide a means to show that changed circumstances or changes in the law require the modification or dissolution of the injunction; the purpose is not to give an unsuccessful party an opportunity to relitigate the propriety of the original grant.
Tober v. Turner of Texas, Inc., 668 S.W.2d 831, 836 (Tex.App.-Austin 1984, no writ).
Tober also stated that a trial court had the authority to dissolve a temporary injunction order even without a showing of changed circumstance. Id. at 835. It relied upon City of Hudson v. Ivie for this statement. See City of Hudson v. Ivie, 592 S.W.2d 658 (Tex.Civ.App.-Beaumont 1979, no writ). This statement in Tober is dicta because the trial court in Tober did not dissolve the temporary injunction. The statement has also been criticized in another opinion, and Ivie, on which Tober relied, has been distinguished. Murphy v. McDaniel, 20 S.W.3d 873, 879 (Tex.App.-Dallas 2000, no pet.). In Murphy, the court discussed Tober and Ivie as follows:
We recognize that in Tober, the Austin court of appeals, relying on City of Hudson v. Ivie, 592 S.W.2d 658 (Tex.Civ.App.-Beaumont 1979, no writ), stated that a trial court has the authority to reverse its prior temporary injunction order absent a showing of changed circumstances. Tober, 668 S.W.2d at 835. The procedural posture of this case, however, is different from Ivie. In Ivie, the trial court granted a temporary injunction after an evidentiary hearing. Five days later, after a non-evidentiary hearing, the trial court granted the defendant's motion to dissolve the injunction. On the same day, the trial court dismissed the entire proceeding. The court of appeals determined that the trial court abused its discretion in dismissing the case after holding only a preliminary hearing. However, it affirmed the trial court's order dissolving the injunction because it "read the statement of facts containing the evidence offered at the [temporary injunction] hearing and [could] not conclude that the trial court abused its discretion in dissolving the temporary injunction which had been improvidently granted a few days earlier." Ivie, 592 S.W.2d at 659-60.
In Ivie, unlike in this case where the time to review the order granting the temporary injunction has expired, the court of appeals had jurisdiction to review the propriety of the trial court's decision to grant the temporary injunction. The court of appeals' determination that the trial court had the authority to dissolve its previously granted temporary injunction was, in reality, a determination that the temporary injunction had been improperly granted. Such is not the case here. We do not have jurisdiction to consider the propriety of the trial court's decision to grant the temporary injunction. Rather, we must presume the trial court's initial decision to grant the temporary injunction was proper. See Tober, 668 S.W.2d at 834. Because we must recognize the trial court properly granted the temporary injunction, we conclude that, absent changed circumstances, the temporary injunction should remain in effect until a final disposition of the parties' claims.
Id. at 879
The Murphy court had already concluded that upon a showing of changed circumstances, a trial court could dissolve a temporary injunction. In the words of the court:
The trial court unquestionably has the authority to dissolve a temporary injunction upon a showing of changed circumstances. Tober, 668 S.W.2d at 834. In our view, a "change in circumstances" refers to a change in conditions occurring since the granting of the temporary injunction. Changed circumstances may include an agreement of the parties, newly revealed facts, or a change in the law that make the temporary injunction unnecessary or improper. Cf. Desai, 813 S.W.2d at 641-42 (dissolution of temporary injunction where appellees showed they had been effectively excluded from participation in operation and management of company); see also City of Tyler v. St. Louis S.W. Ry. Co., 405 S.W.2d 330, 333 (Tex. 1966) (only trial court has jurisdiction to modify or vacate permanent injunction based on "changed conditions" because trial court can subpoena witnesses, take evidence, and make findings of fact).
Id. at 878. The Desai opinion relied upon in Murphy had previously reached the same conclusion, that upon a showing of changed circumstances, the trial court could dissolve a temporary injunction. Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640, 642 (Tex.App.-Houston [14th Dist.] 1991, no pet.).
Thus, we must determine if the movant, in this case Randall, presented evidence of changed circumstances and, if so, whether the trial court abused its discretion by dissolving the temporary injunction based upon the evidence of changed circumstances.
The Hearing — What Happened
If you read Randall's brief and the majority opinion, there was a hearing at which ample evidence was introduced, but if the trial court erred by failing to conduct an evidentiary hearing such that no evidence was introduced, it was Phillip's burden to object.
I believe that even a cursory reading of the record, and certainly a close reading of the record, will reveal that the majority has lost their perspective of the record and what happened, and misplaced the burden of proof and, therefore, erred in determining who has the duty to object under the circumstances presented.
To understand this, we must delve into the reporter's record in some detail to see what happened at this hearing. Rather than quote long excerpts — much of which is arguments by counsel about the merits of the case — as you would hope, we must focus our attention on the procedure because that is where Phillip contends the trial court erred.
Mr. Jim Dunnam and Mr. Vance Dunnam represent Randall. Mr. David Deaconson represents Phillip.
The following occurred at the hearing:
THE COURT: Mr. Dunnam, this is you-all's motion.
Pg. 4, l.20-21.
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MR. JIM DUNNAM: I think I can sort of try to get you some of the facts, most of which are, I think, undisputed to get the Court up to speed. Then I can put some proof to the same effect.
Pg. 4, l.25-pg. 5, l.1-3.
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THE COURT: Everything else [other than payment of the company's attorney fees] you're contesting?
MR. DEACONSON: Yes, Your Honor.
Pg. 6, l.8-10.
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MR. VANCE DUNNAM: Judge, we want to invoke the rule.
Pg. 6, l.21-22.
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MR. JIM DUNNAM: . . . And a lawsuit was pending in Midland, and a dispute arose in Midland, and this is all in the prior transcript . . . there is actually an order to that effect which is in the record, I believe, or if not, I can get the Court a copy . . . I'll provide you with that order.
Pg. 10, l.16-18; pg. 11, l.4-6, 22.
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MR. JIM DUNNAM: Well, Judge Mayfield didn't think so. We argued that the matter should be abated because all the parties, all of the issues — we had the transcripts from the Midland hearings, and if you read everything, and Mr. Deaconson will probably say this isn't — but I believe if you read the record, you'll see that everything that was brought to the attention of Judge Mayfield about damage to the corporation, any wrongdoing by my client was part of the Midland debate.
Pg. 12, l.6-15.
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MR. JIM DUNNAM: The Midland court issued a judgment and is done. I think that's right.
Pg. 14, l. 23-24.
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MR. JIM DUNNAM: . . . We're asking the Court, Number 1, we want to take care of this immediate situation, this injunc — this letter that was sent out to enjoin him again because this was basically — this is basically the same injunction that they got in the 109th District Court that we presented as, Number 1, against him interfering with his use of these shares, also a sufficient order that we can send it to these publishers to let them know that they are to disregard it, and, Number 2, to dissolve the current injunction because this was an injunction that was heard in February of last year. The reasons it's set for trial this month is because I said, "David, we've got to get this thing over with." . . . You know, it has come to the point where we think the injunction should be dissolved.
Pg. 18, l.25-pg. 19, l.1-13; pg. 20, l.2-3.
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MR. DEACONSON: Your Honor, I want to bring out some things. Judge Mayfield heard an extended hearing where he heard testimony . . . That's what happened. Judge Mayfield saw through the efforts and said, "No, you can't do that because you called an illegal meeting based on the evidence I have before me. You are not the president. You can't appoint yourself as president." . . . So you've got a situation where evidence was heard. . . . Very simple. Judge Mayfield heard the evidence. He granted the temporary injunction, made it very clear that they are not to dispose of the assets because one of the things that the evidence brought out in that hearing was Randall was contacting various companies that held the assets, the money of the company, and was trying to get access to them. . . . and the evidence you will hear today will be that these publishers, whether this Court says that letter is good, bad or indifferent that Phillip Roberts wrote, they hired lawyers, they were going to take that action anyway because they feel for the last several years since the Roberts boys' dad has died, they have basically had to pay a fee and gotten absolutely nothing in return . . . Phillip is president before Randall tried to do that. Undisputed, based on Randall's testimony both in the Midland trial and at the temporary injunction hearing,
Pg. 20, l.12-14; pg. 21, l.15-19, 22-23; pg. 22, l.15-22; pg. 23, l.17-24; pg. 24, l.16-19.
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MR. DEACONSON: But if you look at — and I think the evidence — if you will look at the order granting the temporary injunction, what the status quo is is that the meeting in January, and I think the evidence is clear based on all of the transcripts of this proceeding and the Court's order, the evidence will show that the status was, the meeting in January was not recognized as a valid meeting, so you go before that, and thus the parties have both — the evidence will show both have acknowledged that Phillip was president prior to that meeting, and so therefore he acted in his capacity as president, and that's what I think the evidence will show. As far as the issue on dissolving the temporary injunction, Judge, there was a full-blown evidentiary hearing. All of this that they are submitting today, they either had the ability to or was submitted at trial — I mean at the temporary injunction hearing. The judge granted the temporary injunction hearing after hearing all of the evidence.
Pg. 25, l.20-pg. 26, l.1-13.
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MR. JIM DUNNAM: . . . This is the order, the order continuing trial, David. Here's what happened in Midland. This is right before they filed in Waco. The judge in Midland issued that order.
Pg. 27, l.20-23.
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MR. JIM DUNNAM: . . . the dilemma for the Court is twofold. The first one is pretty simple. The status quo has been and always been that the management fee has been paid. . . . And he should be enjoined from interfering with the operation of Roberts Publishing Company, . . .
Pg. 30, l.16-19, 22-24; pg. 31, l.4-5.
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MR. DEACONSON: Judge, obviously the Court hasn't heard any evidence other than the two documents that are before it, and that's argument. I do point the Court to the order, the temporary injunction in place, and particularly the second page of that, the order where the Court made specific orders.
Pg. 31, l.25-pg. 32, l.1-5.
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MR. DEACONSON: We can rehash what evidence was or wasn't and what everybody's position was or wasn't with regard to the Midland court. The evidence before the Court was transcripts of the arguments of Randall Roberts' attorney, and everything that shows, and the reason Judge Mayfield ruled the way he ruled, is based on the evidence. . . . You then get to what we're here today is they are basically saying, Judge, two and a half weeks before jury trial is set, "Let's dissolve — even though there has already been full-blown hearings, let's dissolve the temporary injunction in place" two and a half weeks before trial when a trial on the merits is going to take place and all of these issues are going to be sorted out in a full-blown trial with all the evidence before it. And the only issue that they are bringing before this Court as to the justification for that is they are saying Phillip Roberts, by sending that letter, has impacted this Court.
Pg. 32, l.11-17; pg. 33, l.4-15.
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THE COURT: Look, first of all the Court takes judicial notice of everything in the file, and all this is in here. Now, what other — do we really need an evidentiary hearing on this? I mean, is there anything different that the evidence — that witnesses are going to say that you-all haven't already told me? Do we need an evidentiary hearing for me to make a ruling is what I'm asking. I don't think we do.
MR. JIM DUNNAM: I think that we have proferred [sic] pretty well what we think the proof is going to be.
THE COURT: Mr. Deaconson, are there any witnesses you want to call for this?
MR. DEACONSON: Well, I mean, I've got publishers out there that are represented by that letter, and I do think, and I don't think they will disagree with me, they have been conducting the quarterly board meetings of all of these publications continuously.
Pg. 35, l.5-23.
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THE COURT: All right. Look, I think to give affect to what everybody agrees is a valid order from the 109th District Court in Andrews on the estate, I think this injunction prevents that order from being enforced or executed, so I'm going to grant the motion to lift the injunction, and I'll grant your injunction, Mr. Dunnam.
Pg. 37, l.17-23.
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THE COURT: All right. I'm going to grant your relief, then, and Judge Mayfield can sort this out. I hope I haven't messed it up much for him. We'll see where we are.
Pg. 38, l.6-9.
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MR. JIM DUNNAM: And we think that [sic] what is going to happen — we believe what is going to happen in the estate is Randall — I mean Phillip. I'm sorry — Phillip took several hundred thousand dollars out of the estate, and because of that, we believe we will received — the only other significant asset are the shares we believe we're going to receive an offsetting shares of those shares, but that's something for that Court to decide.
Pg. 39, l.10-18.
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MR. DEACONSON: That's highly disputed. . . . They had the full opportunity to present all this stuff before Judge Mayfield at that time. They chose for whatever reason to submit only what they wanted to submit, . . . The whole purpose of the injunction was to preserve the assets of the company overall because the issues before Judge Mayfield were the dissipation of the assets by Randall . . you still get back to the central issue that Judge Mayfield dealt with, and that doesn't impact his ability to continue to take care of the estate and transfer the shares as they are supposed to be transferred. If they want —
THE COURT: It does impact his ability to be able to deal with the publishers and to receive the management fee, and that's what I'm —
MR. DEACONSON: Ordering the manage — withdrawing the issue on the management fee is one thing, but dissolving the entire injunction is a totally different thing when you haven't had the benefit of all of the evidence that was presented before Judge Mayfield and all the evidence that is out there. It's one thing to say, "Pull that letter back" but another thing then to dissolve an entire injunction when you're two and a half weeks away from trial.
Pg. 39, l.19; pg. 40, l.12-15, 18-21; pg. 41, l.7-23.
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THE COURT: It seems to me that the injunction that was in place is causing harm to the entire operation, perhaps to the estate and to the company, because that letter from your client, Mr. Deaconson, just freezes everything.
MR. DEACONSON: Which is, in essence, what Judge Mayfield did because of the issues and the evidence that was before him on how the parties were conducting themselves, specifically in this case, Randall. We don't have — this Court doesn't have the benefit of all that evidence.
THE COURT: Well, I'm dissolving the injunction. You-all send me the order.
Pg. 42, l.9-21.
Duties
As noted at the beginning of the hearing, it was Randall's motion(s). The evidence necessary to obtain relief was never presented to Judge Strother. There was a lot of discussion about what the evidence was going to be, in some instances even referencing what evidence from prior hearings had been, but that did not make it evidence in this proceeding.
The transcripts from the earlier hearings in Andrews (the estate), the company meeting litigation (Midland), and the earlier injunction hearing (before Judge Mayfield) were never marked as exhibits and introduced into evidence.
To suggest on this record that Phillip did not adequately apprise the trial court that the trial court did not have the evidence before him to either dissolve the injunction or to render judgment for a comprehensive new injunction against Phillip ignores what went on at this hearing.
But it was not even Phillip's duty to bring the evidence and get it in front of the court. That was Randall's duty. Randall failed to introduce any evidence other than two pieces of paper which will be more fully discussed below. Everything else, literally everything else, was a presentation to the court about the prior history of the case, background contextual statements, generally known as an opening statement, about what the attorneys believe the evidence will show. This hearing was defective, and Phillip directed the trial court's attention to that defect. See Austin v. Texas Public Employees Asso., 528 S.W.2d 637, 640 (Tex.Civ.App.-Austin 1975, no writ).
I would hold that Phillip had no duty to object to Randall's failure to prove his case by the presentation of evidence. Further, if for some reason the burden was on Phillip to bring to the court's attention that the court did not have before it the evidence necessary to render the judgment, Phillip clearly did so. Re-read the end of the hearing transcript. It is clear that Phillip fulfilled his duty, if any, to point out the error of the trial court at a time and in a manner that would allow the trial court to correct it. TEX. R. APP. P. 33.1(a). That is all that is necessary. Id. The trial court, as well as Randall's counsel, in an effort to move things along expeditiously, fell into the trap of making arguments and rendering judgment without any evidentiary support. The trial court thus erred. And Phillip brought this error to the trial court's attention.
What Is Not Evidence
But the majority relies on testimony from the prior hearings and statements from counsel as evidence. I disagree.
— previous hearings
After some discussion about the contents of the previous order granting Phillip's temporary injunction, the trial court said it would take "judicial notice of everything in the file." Generally, a trial court may take judicial notice of its own records in a case involving the same subject matter between the same parties. Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 539 (Tex.App.-San Antonio 2004, pet. denied); Escamilla v. Estate of Escamilla, 921 S.W.2d 723, 726 (Tex.App.-Corpus Christi 1996, writ denied). But what a trial court cannot do is take judicial notice of testimony from a prior hearing at a subsequent hearing unless a properly authenticated transcription of that prior testimony is admitted into evidence. Paradigm Oil, 161 S.W.3d at 539-540; Escamilla, 921 S.W.2d at 726.
In a footnote, the majority states, without any analysis, "we presume that this requirement may be waived if no objection is made to a proponent's failure to offer the transcription in evidence." Whether the requirement can or cannot be waived is not something to be resolved at this juncture. The point here is, no one ever asked the court to take judicial notice of any prior testimony and the court never said it was going to take judicial notice of any prior testimony. We do not even know if transcripts of the prior hearings were in the "file" at the time the court made this statement. There is certainly nothing in this record to indicate their presence at that time. How can someone be required to object to something that was never asked and never done? What the court did was take judicial notice of what was already in the court's file. That's it — nothing else. The testimony from the prior hearings was not in evidence.
— counsel's statements
Further, the majority erroneously relies on statements made by Randall's attorney and faults Phillip's attorney for not making an objection. The majority uses two cases for the proposition that normally, an attorney's statements must be made under oath to be considered evidence; but the opponent of the testimony can waive the oath requirement by failing to object when he knows or should know that an objection is necessary. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997); Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 338 (Tex. App-Texarkana 2004, pet. denied). I agree. But these cases are easily distinguishable from the facts of this case.
In Banda, Banda's attorney discussed with the court the terms and conditions of an oral settlement agreement. The Texas Supreme Court held that Garcia's attorney should have known to object to the unsworn statements. Banda, 955 S.W.2d at 272. Banda's attorney placed Garcia's attorney on notice with phrases such as, "as an officer of the court I can just state under oath what — what I am telling the court and what my representations were . . ." and "this agreement that I'm testifying to today before the court as an officer of the court. . . ." Id. (emphasis added by opinion). In Russ, the Texarkana Court stated that the evidentiary nature of the statements made by Russ's counsel was obvious. Russ, 128 S.W.3d at 338. Counsel offered to take the witness stand but the trial court stated that counsel was an officer of the court. The court of appeals determined that this statement by the trial court implied there was no need to be sworn and concluded that defense counsel waived the requirement of an oath by failing to object. Id.
This case is different. Even a cursory reading of the record shows that the statements made were not intended to be evidence. No one offered to take the witness stand. No one prefaced or concluded their statements by saying they were an officer of the court. No one said they were testifying. No one said anything that could be inferred as testimony. No one was providing the court with testimony based on personal knowledge. The statements made to the trial court were just that — statements. For example, at the beginning of the hearing, Mr. Jim Dunnam made statements such as, "If I may give the Court just a little background," and "I think I can sort of try to get you some of the facts, most of which are, I think, undisputed to get the Court up to speed. Then I can put some proof to the same effect." Toward the end of the hearing he stated, "I think that we have proferred [sic] pretty well what we think the proof is going to be." These are not statements that would put someone on notice that an attorney was presenting testimony without being administered an oath. This was not testimony.
Thus, no objection was needed to prohibit the consideration of counsel's statements as evidence. Counsel's statements were not evidence.
Evidence Admitted
This might be the end of the discussion. However, during the course of the hearing, two exhibits were marked, offered, and admitted into evidence. There is no complaint on appeal that these exhibits were improperly admitted into evidence.
One of these exhibits was an order in the probate proceeding of Phillip's and Randall's mother. The order was signed on January 22, 2004. The hearing on Phillip's motion for a temporary injunction was held on March 22, 2004, two months after the order was rendered in the probate proceeding. As a matter of law, it cannot constitute a change in circumstances.
The other exhibit admitted into evidence was a letter dated November 22, 2004, from Phillip, as president of the company, to the publishers of various companies. The letter suspended "the payment of all management fees effective immediately." The letter went on to state that:
This is being done because of the sluggish economy that we have all been dealing with the past few years coupled with the fact that Roberts Publishing has no management expertise available with which to provide a management service. I hope that this will provide a financial boost to all of the properties.
The problem with this second letter is that it, alone, cannot establish a change in circumstances. Unless there is already evidence to establish current practices, dollars being transferred, etc., there is nothing to measure whether this is a real change of circumstances. Randall certainly argued that it was. But argument is not evidence. See McCain v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex.App.-Dallas 1993, no pet.). See also Lunn v. Baron Budd, P.C., 1997 Tex. App. LEXIS 1591, *8 (Tex.App.-Dallas 1997, no pet.) (not designated for publication) (Counsel's arguments are not evidence sufficient to support a temporary injunction.).
Therefore, I would hold that there was no evidence before the trial court to indicate a change in circumstances warranting the dissolution of the first temporary injunction and that the trial court abused its discretion in doing so.
ISSUANCE OF A SECOND TEMPORARY INJUNCTION
The letter was, however, enough evidence given the nature of the claims, for Judge Strother to enjoin Phillip's pursuit to accomplish the objectives/conduct set out in the letter. The function of a temporary injunction is to maintain the status quo, which is "the last, actual, peaceable, noncontested status which preceded the pending controversy." Transport Co. of Texas v. Robertson Transports, 261 S.W. 2d 549, 553-54 (Tex. 1953); Jordan v. Rash, 745 S.W.2d 549, 555 (Tex.App.-Waco 1988, no writ). The scope of appellate review of a temporary injunction is limited to the narrow question of whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion. Janus Films, Inc. v. Ft. Worth, 163 Tex. 616, 617 (Tex. 1962). On this record, I cannot hold that the trial court abused its discretion in returning the parties to the status quo immediately prior to the letter.
CONCLUSION
Thus, I concur in the affirmance of the trial court's judgment to the limited extent of granting Randall's temporary injunction to the suspension of the effect of Phillip's letter to the publishers. However, I believe the majority errs in its analysis and conclusion that the trial court did not abuse its discretion in dissolving the temporary injunction and must, therefore, dissent to that portion of this Court's opinion and judgment and to any injunction of Phillip beyond enjoining the effect of the letter as above described.
POSTLUDE
This case presents a classic reason why a trial court should not dissolve a temporary injunction absent a fundamental change in circumstances. As repeated throughout the arguments of counsel, trial in this matter was less than three weeks away. The trial schedule was being pushed by the party restrained, Randall. Randall purported to be pushing for a final resolution of the issues. Randall is now in control of the estate and the family business. Now that Randall has the control that he was seeking, why push for a trial on the merits? Why risk loss of control by a final disposition? Here we are now, almost a year later, and there has been no trial. This case languishes in the system awaiting a final disposition. As some of the cases discussing the impropriety of dissolving a temporary injunction without a change in circumstances have stated, the best course of conduct is not to retry the granting of the temporary injunction, it is to obtain a final judgment on the merits of the proceeding. If the temporary injunction had not been dissolved, I have no doubt that this matter would, by now, have a final judgment.
"From a practical standpoint, if a litigant could, by motion to dissolve, force reconsideration of the original grant, without a showing of changed conditions, then there is an incentive for him to do so at least once, or more often, in hope that he will be able to wear down the resistance of the original trial judge, or in hope that he will be able to secure a hearing before a different trial judge who may be more sympathetic. Such actions needlessly add to the judicial caseload, both at the trial and appellate level. Recognition of the principle that the trial court has no duty to reconsider the validity of the original grant of temporary injunction upon motion to dissolve enables the trial court to dispose of motions to dissolve solely upon the pleadings when the motion to dissolve, on its face, shows that the litigant offers no new evidence." Tober v. Turner of Texas, Inc., 668 S.W.2d 831, 835 (Tex.App.-Austin 1984, no writ) (emphasis added).