Opinion filed October 8, 2015
In The
Eleventh Court of Appeals
__________
No. 11-15-00028-CV
__________
RATNA VASIREDDY BABU, Appellant
V.
INGRID N. ZEECK, Appellee
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-139,003
OPINION
This is an accelerated, interlocutory appeal from a temporary injunction. We
conclude that, for the most part, this appeal seeks an impermissible advisory opinion
from this court in the form of an advance ruling on the merits. We affirm the trial
court’s temporary injunction order.
Background Facts
Ingrid N. Zeeck filed this suit against Ratna Vasireddy Babu alleging a breach
of contract over Babu’s attempt to convey real property located in Odessa. Zeeck
asserted that Babu breached Zeeck’s purported right of first refusal concerning a
conveyance of the subject property. Zeeck requested a temporary injunction to
enjoin Babu from selling the property to a third party during the pendency of the
underlying suit. The trial court granted Zeeck’s request for a temporary injunction
and enjoined Babu from transferring the subject property “until trial in the cause or
until further order” of the trial court. Babu then filed a notice of appeal seeking an
interlocutory appeal of the temporary injunction. See TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a)(4) (West 2015). A trial on the merits was initially scheduled for
June 16, 2015, under the provisions of the temporary injunction order. The trial has
now been postponed to October 19, 2015.
Analysis
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). The only issue before
the trial court in a temporary injunction hearing is whether the applicant may
preserve the status quo of the suit’s subject matter pending trial on the merits.
Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex. 1981);
Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); Hiss v. Great N. Am. Cos., 871
S.W.2d 218, 219 (Tex. App.—Dallas 1993, no writ). Thus, the merits of the
underlying case are not properly presented for appellate review in an appeal from an
order granting or denying a temporary injunction. Brooks v. Expo Chem. Co., 576
S.W.2d 369, 370 (Tex. 1979); 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.).
“Appellate review of an order granting or denying a temporary injunction is strictly
limited to determining whether there has been a clear abuse of discretion by the trial
2
court in granting or denying the interlocutory order.” Dallas/Fort Worth Int’l
Airport Bd., 335 S.W.3d at 364; see Butnaru, 84 S.W.3d at 204.
Babu presents two issues on appeal. In her first issue, Babu asserts that the
evidence before the trial court at the temporary injunction hearing did not establish
a probable right of recovery in favor of Zeeck. In support of her first issue, Babu
asserts that the evidence failed to show that she was on notice of Zeeck’s purported
right of first refusal at the time she obtained her interest in the property.
Additionally, Babu presents an analysis of various conveyances of the property
involving Babu, Zeeck, and third parties dating back more than thirty years. Babu
asserts in her second issue that the trial court misapplied the law to facts. She
additionally asserts in her second issue that the temporary injunction “accomplished
the entirety of Zeeck’s lawsuit.”
We first address Babu’s contention that the temporary injunction
accomplished the entirety of Zeeck’s lawsuit. She bases this contention on the
assertions that Zeeck sought specific performance of the right of first refusal and that
the temporary injunction enforces all of the relief sought by Zeeck in the lawsuit.
We disagree with Babu’s interpretation of the applicable law.
The temporary relief awarded by a temporary injunction cannot be such as “to
accomplish the object of the suit.” Tex. Foundries, Inc. v. Int’l Moulders & Foundry
Workers’ Union, 248 S.W.2d 460, 464 (Tex. 1952); see Friona Indep. Sch. Dist. v.
King, 15 S.W.3d 653, 657 (Tex. App.—Amarillo 2000, no pet.). “To do so is
tantamount to adjudicating the litigants’ respective rights without the benefit of a
trial and, therefore, is error.” Friona, 15 S.W.3d at 657. This principle is based
upon a concern for timing and delay. The facts in Friona illustrate this principle.
The case involved a high school senior that had been suspended from his school
baseball team by the school district. Id. at 656. His parents sought and obtained a
temporary injunction reinstating him to the team. Id. A final trial on the merits was
3
not scheduled until after he would have completed his last season of baseball. Id. at
659. The Amarillo Court of Appeals concluded that the trial court’s temporary
injunction accomplished the object of the suit in violation of the tenets of Texas
Foundries, because “the heart of the controversy” was the student’s opportunity to
play baseball, yet the case was not set for trial until after the season would be
concluded. Id.
Unlike the situation in Friona, the right that Zeeck sought to protect was not
one of limited duration. The temporary injunction entered by the trial court did not
accomplish the entirety of Zeeck’s lawsuit because it was limited in duration—“until
trial in the cause or until further order.” The temporary injunction served the purpose
of preserving the status quo between the parties pending a final trial on the merits.
The portion of Babu’s second issue complaining that the temporary injunction
accomplished the entirety of Zeeck’s lawsuit is overruled.
The remaining portion of Babu’s second issue and the entirety of her first issue
focus solely on Zeeck’s probable right to recover. As we noted previously, a party
seeking a temporary injunction must plead and prove a probable right of recovery.
See Butnaru, 84 S.W.3d at 204. However, an appeal of a temporary injunction based
upon this ground is problematic because “a party may not use an appeal of a
temporary injunction ruling to get an advance ruling on the merits.” Dallas/Fort
Worth Int’l Airport Bd., 335 S.W.3d at 364. As noted by the Dallas Court of
Appeals:
Furthermore, no final judgment exists for this Court to affirm or
reverse. 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 appeal. Therefore, any determination we may
make as to the issues presented . . . in this appeal would be advisory.
Id. at 365. The court in Dallas/Fort Worth International Airport Board declined to
reach the merits of the appellant’s arguments until the trial court had an opportunity
4
to consider them on a full trial of the merits for the reason that an appellate court has
no jurisdiction to issue advisory opinions. Id. (citing Valley Baptist Med. Ctr. v.
Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam)).
Babu’s first issue and the bulk of her second issue essentially present the
merits of the underlying controversy for our determination. A party may not use an
appeal of a temporary injunction to obtain an advance ruling on the merits. Id. In
light of the foregoing authority, we do not address Babu’s first issue and the
remainder of her second issue because they have not fully been developed in a trial
on the merits. To make judgments on those matters would constitute an advance
ruling on the merits and would amount to an advisory opinion, which we are not
permitted to issue. Id.; see Layton v. Ball, 396 S.W.3d 747, 751 (Tex. App.—Tyler
2013, no pet.).
Moreover, the final trial on the merits has been postponed during the pendency
of this appeal. The appeal of a temporary injunction “shall constitute no cause for
delay of the trial.” TEX. R. CIV. P. 683 (emphasis added). Courts have repeatedly
disapproved of the practice of postponing the trial on the merits of a case in order to
obtain a ruling on the appeal of a temporary injunction. See Dallas/Fort Worth Int’l
Airport Bd., 335 S.W.3d at 366–67 and the cases cited therein. “Generally the most
expeditious way of obviating the hardship and [discomfort] of an unfavorable
preliminary order is to try the case on its merits and thus secure a hearing wherein
the case may be fully developed and the courts, both trial and appellate, may render
judgments finally disposing of controversies.” Id. at 366 n.7 (quoting Sw. Weather
Research, Inc. v. Jones, 327 S.W.2d 417, 422 (Tex. 1959)). “The best practice is for
the trial judge to set an early trial on the merits, giving it precedence over other cases,
at the time he grants a temporary injunction . . . . Such a practice will obviate most
interlocutory appeals.” Id. (alteration in original) (quoting Reeder v. Intercont’l
Plastics Mfg. Co., 581 S.W.2d 497, 499 (Tex. Civ. App.—Dallas 1979, no writ)).
5
Accordingly, we decline to address the merits of Babu’s first issue and the remainder
of her second issue.
This Court’s Ruling
We have overruled Babu’s second issue in part, and we have determined that
her remaining issues are not properly before us at this juncture. Accordingly, we
affirm the temporary injunction order issued by the trial court. See Layton, 396
S.W.3d at 755 n.4. We urge counsel and the trial court to proceed expeditiously to
a trial on the merits.
JOHN M. BAILEY
JUSTICE
October 8, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
6