DK8, LLC, HBT Land, LLC And Kenneth L. Schnitzer, Jr., an Individual v. HBT JV, LLC, a Texas Limited Liability Company, and Victor Bernal, an Individual

Dismissed and Opinion Filed October 19, 2016

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00320-CV

DK8, LLC, HBT LAND, LLC, AND KENNETH L. SCHNITZER, JR., AN INDIVIDUAL,
Appellants
V.
HBT JV, LLC, A TEXAS LIMITED LIABILITY COMPANY, AND
VICTOR BERNAL, AN INDIVIDUAL, Appellees

On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-00270

MEMORANDUM OPINION
Before Justices Francis, Stoddart, and Schenck
Opinion by Justice Francis
This is an accelerated interlocutory appeal from a temporary injunction. Appellants DK8,

LLC, HBT Land, LLC, and Kenneth Schnitzer, Jr., an individual, contend the trial court abused

its discretion in granting the injunction because appellees HBT JV, LLC, a Texas limited liability

company, and Victor Bernal, an individual, cannot show a probable right of recovery or

irreparable harm. Appellants further contend the bond set by the trial court is insufficient to

protect them from the potential damages caused by the temporary injunction. We conclude this

appeal constitutes an improper attempt to obtain an advisory opinion on the merits. We decline

to address the issues presented and dismiss the appeal
 To obtain a temporary injunction, the applicant must plead and prove three specific

elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and

(3) a probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84

S.W.3d 198, 204 (Tex.2002). In an appeal from an order granting or denying a temporary

injunction, the merits of the underlying case are not presented for review. See Brooks v. Expo

Chem. Co. Inc., 576 S.W.2d 369, 370 (Tex. 1979. Appellate review is strictly limited to

determining whether there has been a clear abuse of discretion by the trial court. See Dallas/Fort

Worth Int’l Airport Bd. v. Ass’n of Taxicab Operators, USA, 335 S.W.3d 361, 364 (Tex. App.—

Dallas 2010, no pet.).

In this appeal, appellants contend the temporary injunction should be dissolved, either in

whole or in part, because Bernal cannot show a probable right of recovery. Their brief on appeal

focuses almost entirely on the merits of Bernal’s claims. After this appeal was filed, appellee

filed a motion for partial summary judgment in the trial court addressing the identical issues

raised by appellants here. In their response to the motion, appellants repeatedly urged the trial

court to refrain from ruling on the merits of the motion stating “there is no reason for the [trial

court] to rule on these issues prior to the court of appeal’s opinion.”1 In the alternative,

appellants requested the trial court deny the motion because a denial would not “affect the

potential relief” that this Court might grant. Indeed, appellants argued

[t]he two legal issues in Bernal’s Motion are fully briefed to the Dallas Court of
Appeals and oral argument is set for October 4, 2016. Depending on how the
appellate court rules, Bernal can renew his motion for summary judgment or
Defendants can file their anticipated cross-motion for summary judgment.
Nothing will be lost by waiting for guidance from the Dallas Court of Appeals.
And very little will be gained by a potentially inconsistent ruling from this Court
on Bernal’s Motion at this time.

1
Although Bernal’s motion for summary judgment and appellants’ response to the motion are not a part of the
record on appeal, we may sua sponte take judicial notice of matters of public record. TEX. R. EVID. 201; Langdale v.
Villamil, 813 S.W.2d 187, 189–90 (Tex. App.—Houston [14th Dist.] 1991, no writ).

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A hearing was held on the motion for partial summary judgment on September 13, 2016.

Although the parties informed us during oral argument that the trial court orally denied the

motion at the conclusion of the hearing, to date no written order on the motion has been entered

in the trial court’s record.

A party may not use an appeal of a temporary injunction ruling to get an advance ruling

on the merits. Id. We have considered and disapproved of this tactic many times in the past.

See e.g. id.; Reeder v. Intercontinental Plastics Mfg. Co. Inc., 581 S.W.2d 497, 499 (Tex. App.—

Dallas 1979, no writ); Hiss v. Great N. Am. Cos., Inc. 871 S.W.2d 218, 220 (Tex. App.—Dallas

1993, no writ); Brar v. Sedey, 307 S.W.3d 916, 920 (Tex. App.—Dallas 2010, no pet.); Senter

Invs., L.L.C. v. Veerjee, 358 S.W.3d 841, 846 (Tex. App.—Dallas 2012, no pet.). Such a

practice delays the ultimate resolution of the merits of the parties’ dispute and wastes judicial

resources. See Barnett v. Manuel Griego, Jr., 337 S.W.3d 384, 387 (Tex. App.—Dallas 2011, no

pet.). However we dispose of this appeal, the trial court will still have to resolve the case on the

merits and render a final judgment which will be subject to an appeal that would bring the issues

before us for a second time. See Dallas/Fort Worth Int’l Airport Bd., 335 S.W.3d at 365.

Generally the most expeditious way to obviate the hardship caused by an unfavorable

preliminary order is to try the case on the merits and thus secure a hearing in which the case may

be fully developed and the courts, both trial and appellate, may render judgments finally

disposing of the controversies. See Babu v. Zeek, 478 S.W.3d 852, 855 (Tex. App.—Eastland

2015, no pet.).

In the trial court, appellants relied on Texas Rule of Appellate Procedure 29.5 to contend

that any ruling by the trial court other than a denial of appellees’ motion for summary judgment

would interfere with or impair the jurisdiction of this Court or the effectiveness of any relief they

have sought or we might grant. See TEX. R. APP. P. 29.5. Under appellants’ proffered

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application of the rule, a trial court could never address the merits of a party’s claims while an

appeal of a temporary injunction was pending. This is directly contrary to both section 51.014 of

the Texas Civil Practice and Remedies Code and rule 683 of the Texas Rule of Civil Procedure.

Section 51.014 expressly excludes appeals from temporary injunctions from those interlocutory

appeals that stay commencement of a trial in the trial court pending resolution of the appeal. See

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp. 2016). Rule 683, which governs the

form and scope of injunctive orders, states that “the appeal of a temporary injunction shall

constitute no cause for delay of the trial.” TEX. R. CIV. P. 683. A summary judgment proceeding

is a trial within the meaning of the rules of civil procedure. See AmeriPath, Inc.v. Hebert, 447

S.W.3d 319, 344 (Tex. App.—Dallas 2014, pet. denied).

Appellants explicitly attempted to delay having the trial court rule on the merits of the

issues pending before us in an effort to obtain an advisory opinion from this Court. It is

particularly disconcerting that appellants attempted to delay final resolution of matters that were

already presented and argued to the trial court. See Brar, 307 S.W.3d at 920. The record below,

as well as on appeal, demonstrates that both sides are ready to present these issues to the trial

court on the merits and appellants stated during oral argument that these issues are “purely legal”

in nature. Appellants’ response to Bernal’s motion for summary judgment states that they are

waiting to file their “anticipated cross-motion for summary judgment” until they receive

“guidance” from this Court. Judicial economy dictates that we not reward this behavior. See

Dallas/Fort Worth Int’l Airport Bd., 335 S.W.3d at 366. Accordingly, we decline to address

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appellant’s arguments and we dismiss this appeal. See Hiss, 871 S.W.2d at 220.

/Molly Francis/
MOLLY FRANCIS
JUSTICE

160320F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

DK8, LLC, HBT LAND, LLC; AND On Appeal from the 95th Judicial District
KENNETH L. SCHNITZER, JR., AN Court, Dallas County, Texas
INDIVIDUAL, Appellant Trial Court Cause No. DC-16-00270.
Opinion delivered by Justice Francis.
No. 05-16-00320-CV V. Justices Stoddart and Schenck participating.

HBT JV, LLC, A TEXAS LIMITED
LIABILITY COMPANY, AND VICTOR
BERNAL, AN INDIVIDUAL, Appellee

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellees HBT JV, LLC, A TEXAS LIMITED LIABILITY
COMPANY, AND VICTOR BERNAL, AN INDIVIDUAL recover their costs of this appeal
from appellants DK8, LLC, HBT LAND, LLC; AND KENNETH L. SCHNITZER, JR., AN
INDIVIDUAL.

Judgment entered October 19, 2016.

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