Castine McIlhargey and Jody McIntyre, Individually and Derivatively on Behalf of A+Pro Recovery and Towing, LLC v. Erik M. Hager, Jason Rios, Eduardo Pena, Joanna Pena, and South Padre Towing and Recovery, LLC

NUMBER 13-20-00407-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CASTINE MCILHARGEY AND
JODY MCINTYRE, INDIVIDUALLY
AND DERIVATIVELY ON BEHALF
OF A+PRO RECOVERYAND TOWING, LLC, Appellants,

v.

ERIK M. HAGER, JASON RIOS,
EDUARDO PENA, JOANNA PENA,
AND SOUTH PADRE TOWING
AND RECOVERY, LLC, Appellees.

On appeal from the 107th District Court
of Cameron County, Texas.

MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
 Appellants Castine McIlhargey and Jody McIntyre, individually and derivatively on

behalf of A+Pro Recovery and Towing, LLC (A+Pro), have appealed an order granting

injunctive relief. The underlying dispute arises over the ownership and control of A+Pro

and the operation of a competing towing business. By one issue, appellants assert that

the trial court abused its discretion by ordering a temporary injunction without setting a

trial date or bond, hearing evidence, or setting forth its reasons as expressly required by

Rules 683 and 684 of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 683, 684.

We reverse and remand.

I. BACKGROUND

According to appellants’ pleadings, McIntyre and Erik M. Hager established A+Pro,

a towing company based in South Padre Island, Texas, and agreed to be equal members

and managers of the company. A+Pro then purchased the assets of A-Pro Recovery and

Towing, LLC (A-Pro), a company owned by Joanna Pena and managed by Eduardo

Pena. Jason Rios, who ultimately formed and owned South Padre Towing and Recovery,

LLC (South Padre), drafted the documents for the purchase on behalf of A-Pro. As part

of the asset purchase transaction, the parties entered a non-compete agreement.1

Hager and McIntyre’s relationship deteriorated. According to appellants, Hager

began to shut McIntyre out of the business and unilaterally utilize its funds for his personal

use, and Hager, Rios, and the Penas conspired to violate the non-compete agreement by

forming a competing towing company. Appellants alleged that McIntyre and Hager

1
The non-compete agreement contained an arbitration provision. Appellants filed a separate
petition for writ of mandamus in our cause number 13-20-00395-CV seeking to compel the trial court to rule
on their motion to compel arbitration. We have disposed of that original proceeding by a separate opinion
issued this same date. See In re McIlhargey, No. 13-20-00395-CV, 2021 WL _____, at *_ (Tex. App.—
Corpus Christi–Edinburg Mar. 18, 2021, orig. proceeding) (mem. op.).

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ultimately determined to end their association, and Hager withdrew his membership in

A+Pro and McIlhargey, McIntyre’s daughter, became a member of A+Pro in his place.

McIntyre and McIlhargey discussed purchasing Hager’s interests in A+Pro, but Hager

informed them that he was transferring the assets of A+Pro to the Penas because A+Pro

had defaulted on payments under its asset purchase agreement. Appellants asserted that

Hager, the Penas, and South Padre unlawfully appropriated A+Pro’s assets and began

directly competing against A+Pro.

Ultimately, appellants filed suit against Hager, Rios, the Penas, and South Padre

alleging claims for breach of contract, fraud in the inducement, breach of fiduciary duty,

conversion, tortious interference, fraudulent transfer, conspiracy, and joint enterprise.

Appellants sought declaratory relief regarding the legal relationship between themselves

individually, A+Pro, and Hager. They requested temporary injunctive relief preserving the

status quo, that is, preventing Hager’s attempted transfer of A+Pro’s assets and an order

compelling arbitration.2 In their prayer, appellants sought, inter alia, temporary and

injunctive relief, an order compelling arbitration, actual damages, exemplary damages,

and equitable relief. The trial court granted a temporary restraining order in favor of

appellants.3

On July 24, 2020, the Penas filed an “Original Counter-Petition and Cross-Claim”

against appellants and Hager. They sued for breach of contract, promissory estoppel,

fraud, and conversion relating to the failure to make payments under the agreed payment

2
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 171.083, 171.086(a)(1)(3)(6) (regarding injunctive relief
under the Texas Arbitration Act).
3
This order does not appear in the clerk’s record or supplemental clerk’s record.

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plan as identified in the asset purchase agreement. The Penas sought damages and the

return of A-Pro and its associated property.

On July 27, 2020, Hager filed a “Response to Plaintiffs’ Application for Temporary

Injunction, Motion to Dissolve Temporary Restraining Order, Motion to Dismiss

Arbitration, and in the Alternative, Motion to abate Arbitration.” Hager denied the

allegations made by appellants and expressly denied that he had withdrawn as a member

of A+Pro. That same day, Hager filed a “Motion for Appointment of Reciever [sic], or, in

the Alternative, Application for Temporary Injunction.” In these pleadings, Hager accused

McIntyre of inequitable conduct regarding A+Pro and, inter alia, requested the

appointment of a receiver for the company.

On August 13, 2020, the trial court signed an “Agreed Order Granting Plaintiffs’

Emergency Motion for Continuance, Extending Temporary Restraining Order, and Re-

Setting Hearing Dates.”4

The trial court thereafter held hearings on August 18, 2020, and September 2,

2020. On September 4, 2020, the trial court signed the order subject to appeal in this

case. The “Order Granting Defendant’s [sic] Motions to Quash and Set Aside Plaintiffs[’]

Subpoena Duces Tecum and Other Orders Deemed Necessary to Perserve [sic] Property

and Status Quo” grants a motion to withdraw filed by appellants’ counsel, resets various

motions to be heard on a subsequent date, grants McIlhargey and McIntyre a period “until

the next hearing” to obtain new counsel, and quashes various subpoenas. The order also

states:

4
This order provides that it was signed both on August 3, 2020 and August 13, 2020. Appellees
refer to this order as having been signed on August 13, 2020. This discrepancy is not material to our
analysis.

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 It is further ORDERED, until further notice, Plaintiffs Castine McIlhargey and
Jody McIntyre, individually and derivatively on behalf of A+Pro Recovery
and Towing, LLC, are prohibited from:

(1) Transferring, assigning, selling, or altering any assets (tangible or
intangible) belonging to A-Pro Towing and Recovery, LLC or Joanna
Pena individually, as a secured lien holder of the Asset Purchase
Agreement dated and signed on December 24, 2019[,] between
A+Pro Recovery and Towing, LLC and A-Pro Towing and Recovery,
LLC;

(2) Transferring, assigning, selling or altering any of the materials or
equipment belonging to A-Pro Towing and Recovery, LLC, as per the
Asset Purchase Agreement dated and signed on December 24,
2019[,] between A+Pro Recovery and Towing, LLC and A-Pro
Towing and Recovery, LLC;

(3) Destroying or altering any books, records, receipts, documents, or
other evidence pertaining to or relating to the income, revenue,
monies collected from Jody McIntyre, Castine McIlhargey,
individually or on behalf of A+Pro Recovery and Towing, LLC, from
January 1, 2020[,] to present; [and]

(4) Utilizing or expending any income, revenue or monies collected from
A+Pro Recovery and Towing, LLC.

This appeal ensued. As stated previously, appellants assert that the trial court

erred by ordering a temporary injunction in violation of Rules 683 and 684 of the Texas

Rules of Civil Procedure. See TEX. R. CIV. P. 683, 684. The appellees, in response, assert

that: (1) appellants should not, in equity, be allowed to ask the trial court for injunctive

relief securing their ownership interest in the contested towing assets and then complain

that the trial court committed error; (2) the trial court did not abuse its discretion by

ordering injunctive relief in accordance with appellants’ pleadings, evidence, and

requests; and (3) alternatively, if this Court determines the order is an improper injunction,

the entire order is not subject to interlocutory review and only the injunctive portion may

be reviewed in this appeal. By supplemental brief, appellees contend that the order

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subject to appeal is a “variant” of the original status quo order and appellants failed to

timely appeal the original status quo order. Appellants thereafter filed a reply brief in

support of their appeal.

II. STANDARD OF REVIEW

The purpose of a temporary injunction is to maintain the status quo of the

litigation’s subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84

S.W.3d 198, 204 (Tex. 2002); RWI Constr., Inc. v. Comerica Bank, 583 S.W.3d 269, 274–

75 (Tex. App.—Dallas 2019, no pet.); Tex. Ass’n of Bus. v. City of Austin, Tex., 565

S.W.3d 425, 437–38 (Tex. App.—Austin 2018, pet. denied). The “status quo” is the “last,

actual, peaceable, noncontested status which preceded the pending controversy.” In re

Newton, 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding) (quoting Janus Films, Inc.

v. City of Fort Worth, 358 S.W.2d 589, 589 (Tex. 1962)).

A temporary injunction is an extraordinary remedy and does not issue as a matter

of right. Butnaru, 84 S.W.3d at 204. RWI Constr., Inc., 583 S.W.3d at 274–75. “An

injunction is a remedial writ that depends on the issuing court’s equity jurisdiction.” Qwest

Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (per curiam); see In re

Estate of Skinner, 417 S.W.3d 639, 642–43 (Tex. App.—Houston [14th Dist.] 2013, no

pet.); RP & R, Inc. v. Territo, 32 S.W.3d 396, 400 (Tex. App.—Houston [14th Dist.] 2000,

no pet.). To obtain a temporary injunction, an applicant must plead and prove (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, 84 S.W.3d at 204; RWI

Constr., Inc., 583 S.W.3d at 274–75; Tex. Ass’n of Bus., 565 S.W.3d at 437–38.

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 We review a trial court’s order granting or denying a request for a temporary

injunction under an abuse of discretion standard. See Butnaru, 84 S.W.3d at 204; RWI

Constr., Inc., 583 S.W.3d at 274–75; Tex. Ass’n of Bus., 565 S.W.3d at 437–38. The

reviewing court should reverse an order granting injunctive relief only if the trial court

abused its discretion in granting said relief. Butnaru, 84 S.W.3d at 204. The reviewing

court must not substitute its judgment for that of the trial court unless the trial court’s action

was so arbitrary that it exceeded the bounds of reasonable discretion. Id.

III. ANALYSIS

By one issue, appellants assert that the trial court abused its discretion by issuing

the “Order Granting Defendant’s Motions to Quash and Set Aside Plaintiffs Subpoena

Duces Tecum and other Orders Deemed Necessary to [Preserve] Property and Status

Quo.” Appellants assert, inter alia, that the order violates Rules 683 and 684 of the Texas

Rules of Civil Procedure because it fails to include a trial date, a bond, or its reasons for

issuance. See TEX. R. CIV. P. 683, 684. As stated previously, the appellees assert,

essentially, that the appellants have received exactly what they requested from the trial

court. They argue that appellants should not request injunctive relief and then complain

that the trial court committed error in granting such relief. They contend that the trial court

acted in accordance with appellants’ pleadings, evidence, and requests.

A. Invited Error

We first address appellees’ arguments that appellants requested that the trial court

take the actions that the appellants now complain about in this appeal. Although appellees

do not utilize this terminology, we conclude that they invoke the invited error doctrine.

“The invited error doctrine applies to situations where a party requests the court to make

7
a specific ruling, then complains of that ruling on appeal.” In re Dep’t of Family &

Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009) (orig. proceeding); see Tittizer v.

Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (“[A] party cannot complain on appeal

that the trial court took a specific action that the complaining party requested, a doctrine

commonly referred to as ‘the invited error’ doctrine.”).

We disagree with appellees that the invited error doctrine applies here. Appellants

requested general injunctive relief but did not request the trial court to issue the injunctive

relief granted in the order at issue in this appeal. Appellants did not ask the trial court to,

inter alia, grant appellees’ motion to quash discovery or to prohibit appellants from

transferring assets or destroying records. In other words, appellants did not request the

trial court to make the specific rulings at issue in this case. See In re Dep’t of Family &

Protective Servs., 273 S.W.3d at 646; Tittizer, 171 S.W.3d at 862. Accordingly, we

conclude that the invited error doctrine does not apply to bar our consideration of the

alleged errors.

B. Timeliness

Appellees further argue that the trial court acted in response to the appellants’

request in issuing the August 13, 2020 “status quo” order, appellants did not timely appeal

that order, and now appellants appeal a subsequent “variant” of the initial status quo

order. Appellees assert that appellants should have—but did not—appeal the August 13,

2020 order and thus their notice of appeal was untimely filed on September 24, 2020.

Appellees cite no authority in support of this proposition.

The August 13, 2020 “status quo” order granted a continuance, extended the

temporary restraining order, and reset various hearing dates. The order is substantively

8
distinct from the subsequent order that is subject to appeal in this case. Further, the

August 13, 2020 order constitutes neither a final judgment nor a statutorily authorized

interlocutory appeal. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012);

CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); see also In re Newton, 146

S.W.3d at 652 (stating that a temporary restraining order is generally not appealable).

The order at issue in this appeal was signed on September 4, 2020. Appellants

filed their notice of appeal on September 24, 2020. We reject appellees’ contention that

appellants’ appeal was untimely. See TEX. R. APP. P. 26.1(b).

C. Injunctive Relief

We proceed to address the merits of appellants’ contentions on appeal. Appellants’

sole issue presented presupposes that the trial court’s September 4, 2020 order

constitutes an appealable temporary injunction. Appellees assert, in contrast, that the

entirety of the trial court’s order is not subject to review on interlocutory appeal.

In determining whether a particular order constitutes a temporary injunction that is

subject to an interlocutory appeal, the Texas Supreme Court has explained that “it is the

character and function of an order that determine its classification” and has thus rejected

the notion that “matters of form control the nature of the order itself.” Del Valle Indep. Sch.

Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992). Thus, although an order may lack

features of a typical temporary injunction, those deficiencies do not control the

classification. Qwest Commc’ns Corp., 24 S.W.3d at 336 (holding that the trial court’s

order granted a temporary injunction even though it was for a fixed duration of three years;

the order did not set a bond or trial date; and the trial court did not order the issuance of

a writ of injunction); Del Valle Indep. Sch. Dist., 845 S.W.2d at 809 (“To reject the order’s

9
status as a temporary injunction based on a deficiency in form is to deny review of any

defects that may render the order void.”); In re Estate of Skinner, 417 S.W.3d at 642

(recognizing that “although an order may lack features of a typical temporary injunction,

those deficiencies do not control the classification”); Markel v. World Flight, Inc., 938

S.W.2d 74, 78 (Tex. App.—San Antonio 1996, no writ) (stating that appellate jurisdiction

is not defeated “merely by the label [the trial court] attaches to the interlocutory order”).

In assessing the character and function of an order, a temporary injunction is an

order that “operates until dissolved by an interlocutory order or until the final hearing.”

Qwest Commc’ns Corp., 24 S.W.3d at 336. An injunction may be prohibitive or mandatory

in nature. Helix Energy Sols. Grp., Inc. v. Howard, 452 S.W.3d 40, 42–43 (Tex. App.—

Houston [14th Dist.] 2014, no pet.); RP & R, Inc. v. Territo, 32 S.W.3d 396, 400 (Tex.

App.—Houston [14th Dist.] 2000, no pet.). A prohibitive injunction forbids certain conduct

or stated otherwise, restrains motion, and enforces inaction. Qwest Commc’ns Corp, 24

S.W.3d at 336; In re Estate of Skinner, 417 S.W.3d at 642–43; RP & R, Inc., 32 S.W.3d

at 400. A mandatory injunction, in contrast, orders a party to engage in particular conduct.

In re C.D.E., 533 S.W.3d 367, 372 (Tex. App.—Houston [14th Dist.] 2015, no pet.); In re

Estate of Skinner, 417 S.W.3d at 642–43.

As noted by appellees, portions of an order can be injunctive in nature and, thus,

final and appealable, while other provisions of the same order can be interlocutory and

unreviewable because they do not grant injunctive relief. Alexander Dubose Jefferson &

Townsend LLP v. Chevron Phillips Chem. Co., L.P., 540 S.W.3d 577, 587 (Tex. 2018)

(per curiam). Therefore, when an order grants both injunctive relief and noninjunctive

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relief, a court of appeals possesses interlocutory appellate jurisdiction over only the

injunctive portion of the order. See id.; Markel, 938 S.W.2d at 78.

Here, the trial court’s September 4, 2020 order: grants appellants’ counsel’s motion

to withdraw, resets the hearings to be held on various motions, allows appellants a

specified period to obtain new counsel, grants appellees’ motions to quash and vacates

certain subpoenas, and prohibits appellants from specified activity. Those provisions in

the order which forbid specified conduct by appellants clearly provide for prohibitive

injunctive relief. See Qwest Commc’ns Corp, 24 S.W.3d at 336; In re Estate of Skinner,

417 S.W.3d at 642–43; RP & R, Inc., 32 S.W.3d at 400. As previously specified, the order

restrains appellants from: (1) transferring, assigning, selling or altering any assets

(tangible or intangible) belonging to A-Pro or Joanna; (2) transferring, assigning, selling

or altering any of the materials or equipment belonging to A-Pro; (3) destroying or altering

any books, records, receipts, documents, or other evidence pertaining to or relating to the

income, revenue, or monies collected from McIntyre, McIlhargey, or A+Pro from January

1, 2020, to present; and (4) utilizing or expending any income, revenue or monies

collected from A+Pro.

Other provisions in the order neither mandate certain conduct nor forbid it, and

thus do not constitute mandatory or prohibitive injunctive relief. See Helix Energy Sols.

Grp., Inc. 452 S.W.3d at 42–43; RP & R, Inc., 32 S.W.3d at 400. The provisions of the

order which grant a motion to withdraw filed by appellants’ counsel, reset motions to be

heard on a subsequent date, allow McIlhargey and McIntyre a period “until the next

hearing” to obtain new counsel, and quash various subpoenas are not subject to

11
interlocutory review as injunctive relief. Accordingly, we express no opinion as to the

merits of these provisions of the September 4, 2020 order.

D. Requirements of Temporary Injunction

We proceed to review the injunctive provisions of the order. In relevant part, Texas

Rule of Civil Procedure 683 requires every order granting a temporary injunction to: (1)

set forth the reasons for its issuance; (2) be specific in terms; (3) describe in reasonable

detail, and not by reference to the complaint or other document, the acts sought to be

restrained; and (4) include an order setting the cause for trial on the merits with respect

to the ultimate relief sought. TEX. R. CIV. P. 683. Further, an applicant must “execute and

file with the clerk a bond to the adverse party . . . [b]efore the issuance of the temporary

restraining order or temporary injunction.” See id. R. 684. The requirements of rules 683

and 684 are mandatory and must be strictly followed. Qwest Commc’ns Corp., 24 S.W.3d

at 337; InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.

1986) (per curiam); Caniglio v. Woods, 593 S.W.3d 856, 858 (Tex. App.—Texarkana

2019, no pet.); Taylor Hous. Auth. v. Shorts, 549 S.W.3d 865, 880 (Tex. App.—Austin

2018, no pet.). If a temporary injunction fails to meet these requirements, it is to be

declared void and dissolved by the reviewing court. Qwest Commc’ns Corp., 24 S.W.3d

at 337; InterFirst Bank San Felipe, 715 S.W.2d at 641; Taylor Hous. Auth., 549 S.W.3d

at 880; Sargeant v. Al Saleh, 512 S.W.3d 399, 409 (Tex. App.—Corpus Christi–Edinburg

2016, no pet.).

Here, the order does not comply with the mandatory requirements of Rule 683

because it fails to set forth the reasons for its issuance or to include an order setting the

cause for trial on the merits with respect to the ultimate relief sought. See TEX. R. CIV. P.

12
683. A temporary injunction that fails to meet the requirements of Rule 683 is subject to

being declared void and dissolved. See Qwest Commc’ns Corp., 24 S.W.3d at 337;

InterFirst Bank San Felipe, 715 S.W.2d at 64; Hoist Liftruck Mfg., Inc. v. Carruth-Doggett,

Inc., 485 S.W.3d 120, 122 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Conway v.

Shelby, 432 S.W.3d 377, 381 (Tex. App.—Texarkana 2014, no pet.); Conlin v. Haun, 419

S.W.3d 682, 687 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see also Vantage Bank

Tex. v. Gonzalez, No. 13-19-00265-CV, 2020 WL 1615662, at *4 (Tex. App.—Corpus

Christi–Edinburg Apr. 2, 2020, no pet.) (mem. op.); Reiss v. Hanson, No. 05-18-00923-

CV, 2019 WL 1760360, at *2 (Tex. App.—Dallas Apr. 22, 2019, no pet.) (mem. op.).5

As shown above, the trial court’s order does not state a reason for its issuance,

include a trial date, or otherwise meet the mandatory requirements of Rule 683. We

conclude that the trial court abused its discretion in issuing the order. See Qwest

Commc’ns Corp., 24 S.W.3d at 337; InterFirst Bank San Felipe, 715 S.W.2d at 64; Hoist

Liftruck Mfg., Inc., 485 S.W.3d at 122; Conway, 432 S.W.3d at 381. We sustain

appellants’ sole issue, in part, as it pertains to the injunctive provisions of the trial court’s

order.

5
In Senter Investments, L.L.C. v. Veerjee, 358 S.W.3d 841, 845–46 (Tex. App.—Dallas 2012, no
pet.), the Dallas Court of Appeals held that at least some of the requirements of Rules 683 and 684, such
as the requirement for a trial date, are inapplicable to a temporary injunction issued in a case that has been
compelled to arbitration. See id. We note that the trial court has not rendered a decision on arbitration yet
in this case, and thus find the Senter decision inapplicable here. See id. (“Any trial setting would be abated
pending the resolution of the arbitration proceeding and would serve little purpose. Because the TAA
requires—and the temporary injunction expressly ordered—a stay of the case pending arbitration, the
temporary injunction’s failure to include an order setting the case for trial does not render it void.”).

13
 IV. CONCLUSION

We reverse and remand. Specifically, we declare the injunctive provisions of the

trial court’s order void, dissolve them, and remand this case to the trial court for

proceedings consistent with this opinion.

GINA M. BENAVIDES
Justice

Delivered and filed on the
18th day of March, 2021.

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