Michael J. DeLitta And DeLCom Properties, LLC v. Nancy Schaefer

ACCEPTED
03-15-00085-CV
4511551
THIRD COURT OF APPEALS
CAUSE NO. 03-15-00085-CV AUSTIN, TEXAS
3/16/2015 1:38:15 PM
JEFFREY D. KYLE
CLERK
In the Third Court of Appeals
Austin, Texas FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
3/16/2015 1:38:15 PM
MICHAEL J. DELITTA & DELCOM PROPERTIES, LLC
JEFFREY D. KYLE
Appellants Clerk

v.

NANCY SCHAEFER
Appellee

Appeal from the 201st Judicial District Court
Travis County, Texas; Cause No. D-1-GN-13-003516

APPELLANTS’ BRIEF
(Oral Argument Requested)

DRUCKER | HOPKINS LLP
Douglas R. Drucker
Texas Bar No. 06136100
Kirby D. Hopkins
Texas Bar No. 24034488
21 Waterway Avenue, Suite 300
The Woodlands, Texas 77380
281.362.2863 (phone)
855.558.1745 (fax)
drucker@druckerhopkins.com (email)
hopkins@druckerhopkins.com (email)

ATTORNEYS FOR APPELLANTS
MICHAEL J. DELITTA AND
DELCOM PROPERTIES, LLC
 Identity of Parties and Counsel

Pursuant to Texas Rule of Appellate Procedure 38.1, Appellants submit

the following designation of parties and counsel, and trial court:

APPELLANTS: Michael J. DeLitta
DelCom Properties, LLC
(Defendants in Underlying Suit)

APPELLANTS’ COUNSEL: Douglas R. Drucker
Kirby D. Hopkins
Drucker | Hopkins LLP
21 Waterway Avenue, Suite 300
The Woodlands, Texas 77380

APPELLEE: Nancy Schaefer
(Plaintiff in Underlying Suit)

APPELLEE’S COUNSEL: Lisa Bowlin Hobbs
Kurt Kuhn
Kuhn Hobbs PLLC
3307 Northland Drive, Suite 310
Austin, Texas 78731

Howard F. (Sam) Carter
The Carter Law Firm
14185 Dallas Parkway
Suite 1275
Dallas, Texas 75254

Donald Taylor
Taylor Dunham and Rodriguez, LLP
301 Congress Avenue
Suite 1050
Austin, Texas 78701

1
ADDITIONAL PARTIES: Jeff Compton
(Provisional Member and Limited-
Receiver of Certain Defendants)
Axiom Medical Consulting, LLC,
Axiom Professionals, LLC, and
Axiom Properties, LLC

ADDITIONAL PARTIES’ For Provisional Member Jeff Compton
COUNSEL: and Axiom entities:

Eric J. Taube
Hohmann, Taube & Summers, LLP
100 Congress Avenue
18th Floor
Austin, Texas 78701

TRIAL COURT: Honorable Amy Clark Meachum
201st Judicial District Court
Travis County, Texas

2
 Table of Contents

Identity of Parties and Counsel ..................................................................................1
Table of Contents .......................................................................................................3

Table of Authorities ...................................................................................................4

Statement of the Case.................................................................................................6

Statement regarding Oral Argument ..........................................................................7

Issues Presented .........................................................................................................8

First Issue: Did the Trial Court Err in Refusing to Declare the October 29, 2013
Temporary Injunction Void? ..................................................................................8
Second Issue: Did the Trial Court Err in Refusing to Dissolve the October 29, 2013
Temporary Injunction?............................................................................................8
Statement of Facts ......................................................................................................9
Summary of the Argument.......................................................................................11

Argument..................................................................................................................12

The trial court erred in denying Appellants’ motion to dissolve and to
declare void the temporary injunction. ............................................................12

1. The temporary injunction is void for two reasons. .....................................12

2. And it is irrelevant whether the temporary injunction was “agreed” to. ...15
Conclusion ...............................................................................................................15

Prayer .......................................................................................................................16

Certificate of Compliance ........................................................................................17
Certificate of Service ...............................................................................................18

Appendix ..................................................................................................................19

3
 Table of Authorities

Cases
Page(s)
Bankler v. Vale,
75 S.W.3d 29 (Tex. App.—San Antonio 2001, no pet.)…………………...............12

Conlin v. Haun,
419 S.W.3d 682 (Tex. App. Houston [1st Dist.] 2013, no pet.).................................15

Emex Holdings LLC v. Naim,
2010 WL 2163139 (Tex. App.—Corpus Christi 2010, no pet.)...………………….14

EOG Res., Inc. v. Gutierrez,
75 S.W.3d 50 (Tex. App.—San Antonio 2002, no pet.)………….………………..14

Fasken v. Darby,
901 S.W.2d 591 (Tex. App.—El Paso 1995, no writ)………………….…………..13

Gray Wireline Service, Inc. v. Cavanna,
374 S.W.3d 464, 472 (Tex. App.--Waco 2011, no pet.)............................................16

Indep. Capital Mgmt., LLC v. Collins,
261 S.W.3d 792, 795 (Tex. App.—Dallas 2008, no pet.) ……………….…………14

InterFirst Bank San Felipe, N.A. v. Paz Constr. Co.,
715 S.W.2d 640 (Tex. 1986) (per curiam)……………….……………………13, 15

Internat’l Broth. of Elec. Workers Local Un. 479 v. Becon Constr. Co., Inc.,
104 S.W.3d 239 (Tex. App.—Beaumont 2003, no pet.)..……………..……….12, 13

Kotz v. Imperial Capital Bank,
319 S.W.3d 54 (Tex. App.—San Antonio 2010, no pet.)……………….................13

Poole v. U.S. Money Reserve, Inc.,
No. 09-08-137CV, 2008 WL 4735602, *9-13
(Tex. App.—Beaumont, Oct. 30, 2008, no pet.) (memo. op.)……………………..15

4
Qwest Comms. Corp. v. AT&T Corp.,
24 S.W.3d 334 (Tex. 2000) (per curiam)….……….…….………………………...13

State v. Cook United, Inc.,
464 S.W.2d 105 (Tex. 1971)….………………………………….………………..12

Stoner v. Thompson,
553 S.W.2d 150 (Tex. Civ. App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.)
………………………………………………………………….…………………13

Rules

Texas Rule of Civil Procedure 683……..…………………………………..Passim

5
 Statement of the Case

This suit is, essentially, a dispute over the ownership and control of

defendants’ Axiom Medical Consulting, LLC, Axiom Properties, LLC, and

Axiom Professionals LLC.

On October 29, 2013, the parties agreed to a temporary injunction,

which the trial court entered. [Appendix, Exhibit A]

On October 22, 2014, Appellants filed a motion to dissolve and to

declare void that temporary injunction. [Appendix, Exhibit B.]

On January 16, 2015, the trial court entered an order denying the

Appellants’ motion. [Appendix, Exhibit C.]

On February 5, Appellants timely appealed the trial court’s January 16,

2015 order.

6
 Statement regarding Oral Argument

Appellants believe that oral argument should be permitted, given the

relative complexity of the case, related proceedings, and issues presented.

Specifically, the Court’s decision process would be aided by oral

argument by (among other things):

 providing further factual or procedural background not

adequately addressed in the briefing;

 responding to concerns over the proper use and application of

certain legal principles; and

 answering prudential questions concerning the future impact of

the Court’s ruling.

7
 Issues Presented

First Issue: Did the Trial Court Err in Refusing to Declare the
October 29, 2013 Temporary Injunction Void?

Second Issue: Did the Trial Court Err in Refusing to Dissolve the
October 29, 2013 Temporary Injunction?

8
 Statement of Facts

2013:

On October 29, 2013, Plaintiff and the Defendants agreed to a

temporary injunction order (the “temporary injunction”) that the trial court

signed. [Appendix, Exhibit A.]

On its face, the temporary injunction gave no reason for its issuance

and set a trial date of April 7, 2014. Id. The temporary injunction order failed

to identify any other possible date for its expiration, or provide any way for

its terms to be renewed. Id.

2014:

On October 22, 2014, Appellants filed a motion to declare void and to

dissolve the temporary injunction. [Appendix, Exhibit B.]

(In 2014, Appellants had two cases in this Court. First, this Court

addressed whether it should provide mandamus relief for a trial court’s

refusal to declare a temporary injunction void1 (not an issue here, as

Appellants are not seeking mandamus relief). Second, this Court addressed

whether it had jurisdiction to declare a temporary injunction void absent a

1See In re DeLitta et al., Cause No. 03-14-00423-CV, 2014 WL 3414187 (Tex. App.-Austin July 11, 2014,
orig. proceeding) (mem. op.).

9
relevant motion, instead of a responsive pleading2 (not an issue here, as

Appellants filed a motion).)

2015:

On January 16, 2015, the trial court denied the motion by order.

[Appendix, Exhibit C.]

Appellants timely filed their accelerated notice of appeal.

2 See DeLitta v. Schaefer, Cause No. 03-14-00426-CV (Tex. App.—Austin). Defendants’ motion for
rehearing and for en banc reconsideration in that case is still pending.

10
 Summary of the Argument

Again and again, the Texas Supreme Court has emphasized that the

requirements of Rule 683 are “mandatory.” That court has, accordingly,

repeatedly held that injunctions not meeting those requirements are “void.”

Moreover, neither the Texas Rules of Civil Procedure nor the Texas

Supreme Court have made any exceptions for “agreed” temporary

injunctions. Indeed, other appellate courts have concluded—following the

high court’s clear language—that even “agreed” temporary injunctions must

meet these requirements, or be declared void.

As such, the temporary injunction here—which does not meet the

requirements of Rule 683, for two independent reasons—is void. The trial

court therefore erred in denying Appellants’ motion to declare the temporary

injunction void and to dissolve it.

11
 Argument

The trial court erred in denying Appellants’ motion to dissolve
and to declare void the temporary injunction.

1. The temporary injunction is and was void for two reasons.

First, the temporary injunction fails to provide legally-sufficient

reasons for its issuance.

“Every order granting an injunction and every restraining order shall

set forth the reasons for its issuance.” TEX. R. CIV. P. 683 (emphasis

added). In other words, while the trial court need not give its reasons for

believing the applicant, “it is necessary to give the reasons why the injury

will be suffered if the interlocutory relief is not ordered.” State v. Cook

United, Inc., 464 S.W.2d 105, 106 (Tex. 1971 (emphasis added). Giving the

reasons why the injury will be suffered includes “defining the injury and

describing why it is irreparable.” Bankler v. Vale, 75 S.W.3d 29, 33 (Tex.

App.—San Antonio 2001, no pet.) (emphasis added).

Moreover, the reasons provided by the trial court in the order of

injunction “must be specific and legally sufficient, and not mere

conclusory statements.” See Internat’l Broth. of Elec. Workers Local Un.

12
479 v. Becon Constr. Co., Inc., 104 S.W.3d 239, 244 (Tex. App.—Beaumont

2003, no pet.) (emphasis added).3

An injunction that fails to follow this requirement of Rule 683 is void

and not valid. See Qwest Comms. Corp. v. AT&T Corp., 24 S.W.3d 334, 337

(Tex. 2000) (per curiam) (noting that the procedural requirements of Rule

683 “are mandatory, and an order granting a temporary injunction that

does not meet them is subject to being declared void and dissolved.”)

(emphasis added); InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715

S.W.2d 640, 641 (Tex. 1986) (per curiam) (declaring temporary injunction

void where it failed to satisfy requirements of Rule 683, as “[t]he

requirements of Rule 683 are mandatory and must be strictly

followed.”) (emphasis added); see also Fasken v. Darby, 901 S.W.2d 591,

593 (Tex. App.—El Paso 1995, no writ) (vacating order and dissolving

temporary injunction for failing to comply with Rule 683).

Here, the temporary injunction gives no reason—much less a legally

sufficient one—for its issuance. See Appendix, Exhibit A. It is therefore void.

3 See also, e.g., Stoner v. Thompson, 553 S.W.2d 150, 151 (Tex. Civ. App.—Houston [1st Dist.]
1977, writ ref’d n.r.e.) (“The conclusion that the situation is harmful is not a reason why injury
will be suffered if the interlocutory relief is not ordered.”); Kotz v. Imperial Capital Bank, 319
S.W.3d 54, 57 (Tex. App.—San Antonio 2010, no pet.) (“At most, [] language [that Kotz will
“suffer irreparable injury” to certain assets] 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.”).

13
And a “trial court abuses its discretion by issuing a temporary injunction

order that does not comply with the requirements of rule 683.” Indep.

Capital Mgmt., LLC v. Collins, 261 S.W.3d 792, 795 (Tex. App.—Dallas 2008,

no pet.).

Second, the temporary injunction expired, and no longer carries an

effective trial date.

A temporary injunction must include an order setting the case for a

trial on the merits. TEX. R. CIV. P. 683. This rule works “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.” See EOG

Res., Inc. v. Gutierrez, 75 S.W.3d 50, 53 (Tex. App.—San Antonio 2002, no

pet.); see also Emex Holdings LLC v. Naim, No. 13-09-591-CV, 2010 WL

2163139, *1-2 (Tex. App.—Corpus Christi 2010, no pet.). Right now, the

appellants are subject to what amounts to a permanent injunction, even

though they only agreed to terms through April 7, 2014 (e.g., paying

appellee’s salary).

Rule 683 places the onus on the party requesting the injunctive relief

to renew the injunction if the trial is delayed beyond the trial date set in the

order. See Emex Holdings LLC, 2010 WL 2163139 at *2.

14
 When a temporary injunction fails to comply with Rule 683’s

procedural requirements, it is void. See, e.g., InterFirst, 715 S.W.2d at 641.

Here, the temporary injunction, by its own terms, was set to expire on

April 7, 2014—the initial trial date. See Appendix, Exhibit A. No party ever

moved to extend the temporary injunction, and the temporary injunction

provides no method or mechanism for extending its terms beyond that time.

In short, the temporary injunction expired then—and is now therefore void.

2. And it is irrelevant whether the temporary injunction was “agreed” to.

Neither Rule 683 nor the Texas Supreme Court has ever made any

exception to these principles for “agreed” temporary injunctions.

Moreover, other appellate courts have correctly followed these

principles in concluding that Rule 683’s mandatory requirements are, in

fact, mandatory—and cannot be waived. See, e.g., Conlin v. Haun, 419

S.W.3d. 682, 686-87 (Tex. App. Houston [1st Dist.] 2013, no pet.) (where

parties agreed to temporary injunction—and then sought appellate review

more than four years later—rejecting estoppel argument and declaring

injunction void for failing to comply with Rule 683); Poole v. U.S. Money

Reserve, Inc., No. 09-08-137CV, 2008 WL 4735602, *9-13 (Tex. App.—

Beaumont, Oct. 30, 2008, no pet.) (memo. op.).

15
 In sum, a “void order has no force or effect and confers no rights; it is

a mere nullity.” Gray Wireline Service, Inc., 374 S.W.3d at 472 (emphasis

added) (reversing trial court, dissolving temporary injunction, and holding

void-ness cannot be waived).

Conclusion

The trial court erred in refusing to declare the temporary injunction

void and in refusing to dissolve it. The temporary injunction does comply

with Rule 683’s requirement--in that the temporary injunction never

included required reasons and currently has no effective trial date (as the

specified—April 7, 2014—date has passed). And the Texas Supreme Court

has made clear that such a temporary injunction is void. Moreover, no

exception exists for “agreed” injunctions.

No harm will occur as a result of reversal by the appellate court here,

as there is a court-appointed Receiver in place and appellee can re-apply for

a temporary injunction that complies with Rule 683.

Prayer

Appellants DelCom Properties, LLC and Michael J. DeLitta

respectfully requests that this Court:

16
(a) Reverse the trial court’s January 16, 2015 order denying

Appellants’ motion to dissolve and to declare void the October

29, 2013 temporary injunction; and

(b) reverse, vacate, dissolve, and declare void the trial court’s

October 29, 2013 temporary injunction; and

(c) grant them all other and further relief to which they may be

entitled.

Respectfully submitted,

DRUCKER | HOPKINS LLP

/s/ Douglas R. Drucker
Douglas R. Drucker
Texas Bar No. 06136100
Kirby D. Hopkins
Texas Bar No. 24034488
21 Waterway Avenue, Suite 300
The Woodlands, Texas 77380
281.362.2863 (phone)
855.558.1745 (fax)
drucker@druckerhopkins.com (email)
hopkins@druckerhopkins.com (email)

ATTORNEYS FOR DEFENDANTS/APPELLANTS
MICHAEL J. DELITTA &
DELCOM PROPERTIES, LLC

17
 Certificate of Compliance

Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned

certifies that the number of words in this computer-generated document

(according to the Word program’s word count function)—excluding the

captions, identity of parties and counsel, statement regarding oral argument,

table of contents, index of authorities, statement of the case, statement of

issues presented, signature, proof of service, certification, certificate of

compliance, and appendix—is 1,454 (text) and 133 (footnotes), for a total of

1,597.

Date: March 16, 2015 /s/ Kirby Hopkins
Kirby Hopkins

18
 Certificate of Service

Per Texas Rules of Appellate Procedure 6 and 9.5, I certify that I have
served this document on all other parties on March 16, 2015 as follows:

Howard F. Carter via Electronic-filing
The Carter Law Firm
14185 Dallas Parkway, Suite 1275
Dallas, Texas 75254
COUNSEL FOR PLAINTIFF NANCY SHAEFER

Donald Taylor via Electronic-filing
Taylor Dunham & Rodriguez, LLP
301 Congress Avenue, Suite 1050
Austin, Texas 78701
COUNSEL FOR PLAINTIFF NANCY SHAEFER

Lisa Bowlin Hobbs via Electronic-filing
Kurt Kuhn
Kuhn Hobbs PLLC
3307 Northland Drive, Suite 310
Austin, Texas 78731
COUNSEL FOR PLAINTIFF NANCY SHAEFER

Eric J. Taube via Electronic-filing
Hohmann, Taube & Summers LLP
100 Congress Avenue
18th Floor
Austin, Texas 78701
COUNSEL FOR PROVISIONAL MEMBER JEFF COMPTON OF CERTAIN DEFENDANTS,
AND OF CERTAIN DEFENDANTS

Date: March 16, 2015 /s/ Kirby Hopkins
Kirby Hopkins

19
 Appendix

The following constitutes the Appendix as required by Texas Rules of

Appellate Procedure 38.1(k):

A Agreed Temporary Injunction of October 29, 2013

B Motion to Dissolve and Declare Void Temporary
Injunction of October 22, 2014
C January 16, 2015 Trial Court Order Denying Appellants’
Motion

20
A
1
2
3
4
5
6
7
8
9
B
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394
395
C
468
469
470