Penelope Fanning, Ana Bergman, Celia Cisneros, Barbara Ofsowiz and Linda McEvoy v. James Place and Gerry Saum

i i i i i i

MEMORANDUM OPINION

No. 04-09-00555-CV & No. 04-09-00702-CV

Penelope FANNING, Ana Bergman, Celia Cisneros, Barbara Ofsowitz, and Linda McEvoy,
Appellants

v.

James PLACE and Gerry Saum,
Appellees

From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2009-CI-10922
Honorable Karen Pozza, Judge Presiding1

Opinion by: Steven C. Hilbig, Justice

Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice

Delivered and Filed: August 25, 2010

REVERSED AND REMANDED, TEMPORARY INJUNCTIONS DISSOLVED

Appellants appeal the trial court’s orders granting two temporary injunctions. Without

addressing the merits of the injunctive relief, we hold the orders granting the temporary injunctions

do not meet the specificity requirements of Texas Rule of Civil Procedure 683. Accordingly, we

1
… The first order granting temporary injunction was signed by the Honorable Karen Pozza and the second
order was signed by the Honorable Janet Littlejohn.
 04-09-00555-CV & 04-09-00702-CV

reverse the trial court’s orders, dissolve the temporary injunctions, and remand the case to the trial

court for further proceedings.

BACKGROUND

All of the parties in this case own condominiums at Barrington Condominiums and are either

present or past board members of the condominium association. Disputes arose among the parties

regarding Appellants’ actions as Board members. James Place and Gerry Saum, in their individual

capacities, sued Appellants for breach of fiduciary duty, fraud, negligence, gross negligence, and for

declaratory and injunctive relief. Place and Saum first obtained a temporary injunction that ordered

the Appellants:

Cease and desist from holding any future meeting of the Board of Directors of the
Barrington Condominium Association ("Association”) which purports to be
conducting business on behalf of the Association unless said meetings are properly
noticed and called strictly pursuant to the Bylaws and directed to the following
legally constituted Board of Directors, to wit:

(a.) Penelope “Penny” Fanning, President
(b.) Ana Rosa Bergman, Vice President
(c.) Celia “Sallie” Cisneros, Secretary
(d.) Jean Goetz, Treasurer
(e.) Gerry Saum
(f.) James Place

If one or more of the above Board members are removed or replaced by the
membership of the Association at a duly held and constituted meeting, or if one or
more of the said members terms of office expire, then notice shall be delivered to
their legally elected and/or duly appointed successor.

The appellants filed an interlocutory appeal of this order on September 2, 2009.

In the meantime, Place and Saum obtained a second temporary injunction. The second

injunction provided the appellants were enjoined and restrained:

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 04-09-00555-CV & 04-09-00702-CV

From taking any activity as the Board of Directors of the Barrington Condominium
Association (“Association”) which purports to be conducting business on behalf of
the Association unless said meetings are (i) properly noticed and called strictly
pursuant to the Declarations and Bylaws of the Association and (ii) are among only
th following legally constituted Board of Director Members, to-wit:

(a.) Penelope “Penny” Fanning, President
(b.) Ana Rosa Bergman, Vice President
(c.) Celia “Sallie” Cisneros, Secretary
(d.) Jean Goetz, Treasurer
(e.) Gerry Saum
(f.) James Place

If one or more of the above Board members are removed or replaced by the
membership of the Association at a duly held and constituted meeting, or if one or
more of the said members terms of office expire, then notice and participation shall
be to their legally elected and/or duly appointed successor(s).

The second injunction also restrained the appellants from terminating a management contract or

withdrawing funds from the association unless such action was the result of a majority vote of a

legally constituted Board of Directors. Additionally, the second injunction prohibited any board

meeting from taking place without notice and participation of Place, Saum and Jean Goetz.

Both injunctions included the following language:

That unless the defendants are temporarily enjoined as set forth herein, Defendants
will continue to act and pass resolutions in the purported capacity of, and in the name
of, the Board of Director [sic] for and on behalf of the Barrington Condominium
Association, when in fact said Defendants lack the authority and/or capacity to sit as
a Board of Directors or to act and/or pass resolutions in the name of the Board of
Directors, or act or pass resolutions for or on behalf of the Barrington Condominium
Association; said actions and/ or resolutions has and will subject the Barrington
Condominium Association to liability, cause irreparable injury to the Plaintiffs and
the Barrington Condominium Association without legal remedy to prevent the
conduct before it occurs.

The appellants appeal both orders granting the temporary injunctions.

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 04-09-00555-CV & 04-09-00702-CV

DISCUSSION

The appellants argue that the two injunction orders are void because they do not comply with

the mandatory requirements of Texas Rule of Civil Procedure 683. Rule 683 requires the order

granting the temporary injunction “set forth the reasons for its issuance” and be “specific in terms.”

TEX . R. CIV . P. 683. The provisions in Rule 683 are mandatory and must be strictly followed. Qwest

Commc’s. Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex. 2000). Failure of a temporary injunction

order to meet the strict requirements of Rule 683 renders the order fatally defective and void. Qwest,

24 S.W.3d at 337. An order that only recites “irreparable injury will result” if injunctive relief is not

granted does not comply with the specificity requirements of Rule 683. See Indep. Capital Mgmt.,

L.L.C. v. Collins, 261 S.W.3d 792, 795-96 (Tex. App.—Dallas 2008, no pet.) (injunction order simply

setting out elements necessary for relief, and failing to identify the injury from denial of the

injunction, was conclusory and void); AutoNation, Inc. v. Hatfield, 186 S.W.3d 576, 581 (Tex.

App—Houston [14th Dist.] 2005, no pet.) (mere recital of “irreparable harm” does not meet Rule

683’s specificity requirements). When an order only states that harm will occur if a party is not

restrained from taking the action sought to be restrained, and there are not underlying facts given in

the order, the order is conclusory and void. Kotz v. Imperial Capital Bank, 04-09-00433-CV, 2010

WL 1063919, *1 (Tex. App.—San Antonio Mar. 24, 2010, no pet.); see also City of Corpus Christi

v. Friends of the Coliseum, 311 S.W.3d 706, 708 -709 (Tex. App.—Corpus Christi 2010, no pet. h.).

In Kotz, we held the order granting an injunction was not sufficient to satisfy Rule 683 when

it did not provide specific reasons why injury would result if an injunction was not issued. Kotz, 2010

WL 1063919, at *2. The intervenors sought an injunction to restrain Carole Kotz from taking

possession of certain commercial real estate, communicating with tenants on the property, or

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receiving any rents from the tenants under leases held by the intervenors. The order granting the

injunction read as follows:

The Court finds that Intervenors Patrick Man and Grace Man will suffer irreparable
injury in their possession and use of the Subject Property in the event that the
requested injunctive relief is not granted, that they have no adequate remedy at law,
and that the requested injunctive relief is necessary to preserve the status quo pending
final trial.

Id. at *1. We held the order was conclusory because the order did not set forth any underlying facts

to support the finding that “irreparable injury in [the Mans’] possession and use of the Subject

Property” will occur. Id. (citing Arkoma Basin Exploration Co. v. FMF Associates 1990-A Ltd., 249

S.W.3d 380, 389 n. 32 (Tex. 2008)(“‘conclusory’ is defined as: expressing a factual inference without

stating the underlying facts on which the inference is based”). We stated: “At most, this language

characterizes by what means harm will occur unless Kotz is enjoined from taking possession and use

of the subject property—but does not state or explain the reasons why irreparable injury will result

absent an injunction.” Id. at *2.

Here, the orders state that unless the appellants are restrained from taking any actions, Place

and Saum will suffer irreparable injury “without legal remedy to prevent the conduct before it

occurs.”2 This language, as the language in Kotz, does not state the reasons why Place and Saum will

be injured if the appellants are not restrained from acting. See Kotz, 2010 WL 1063919, at *2 and

cases cited therein. Rather, the language merely concludes Saum and Place will suffer irreparable

harm if the board is not prevented from acting. The specificity requirements of Rule 683 are not

satisfied by merely stating that “defendants are enjoined from doing X because X will be done unless

2
… Although the orders state the association will be subject to liability if the injunctions are not issued, the
association is not a party and the order does not include underlying facts to support this conclusion.

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so enjoined.” Byrd Ranch, Inc. v. Interwest Sav. Ass’n, 717 S.W.2d 452, 454 (Tex. App.—Fort Worth

1986, no writ).

CONCLUSION

The orders are conclusory and do not provide specific reasons why Place and Saum would be

harmed if the injunctions did not issue. Kotz, 2010 WL 1063919, at *1; Friends of Coliseum, 311

S.W.3d at 708 -709. Because we conclude the orders granting the temporary injunctions fail to meet

the specificity requirements of Rule 683, they are void. We reverse the orders, dissolve the temporary

injunctions and remand this matter to the trial court for further proceedings.

Steven C. Hilbig, Justice

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