Marshall v. Marshall

ELAINE T. MARSHALL, EDWARD ALEXANDER, ADAM JOHNSON,WAYNE THOMPSON, LILYNN CUTRER, AND KAREN AUCION, Appellants v. PRESTON MARSHALL, Appellee

NO. 14-17-00930-CV

State of Texas in the Fourteenth Court of Appeals

March 16, 2021

On Appeal from the Probate Court No. 4 Harris County, Texas

Trial Court Cause Nos. 365,053 & 365,053-404

MEMORANDUM OPINION

The original trustee and five co-trustees of two trusts appeal the trial court's order granting a temporary injunction preventing the co-trustees from receiving compensation, disposing of trust assets, and participating in litigation against the beneficiary. We hold that the trial court abused its discretion by granting the injunction in the absence of evidence of an imminent and irreparable injury or a need for an anti-suit injunction. Accordingly, we reverse the trial court's order and render a judgment denying the application for a temporary injunction.

I. BACKGROUND

Preston Marshall is a beneficiary of two inter vivos trusts settled by his late father: the Harrier Trust and the Falcon Trust. Preston's mother, Elaine Marshall, is the trustee of each trust. The trust instruments provide that the trustee is entitled to reasonable compensation. The trusts are governed by the Louisiana Trust Code, and the trustee "shall apply to the 14^th Judicial District Court for Calcasieu Parish, Louisiana, for instructions regarding any questions that might arise regarding administration of the Trust."

The Harrier trust is a principal beneficiary of another trust, the EPM Marital Income Trust, for which Elaine is also a trustee. As discussed in this court's prior opinion, Elaine took actions to merge the Marital Income Trust into another trust in Wyoming. See Marshall v. Marshall, No. 14-18-00094-CV, 2021 WL 208459, at *2-3 (Tex. App.—Houston [14th Dist.] Jan. 21, 2021, no pet. h.) (mem. op.).

After Preston sued Elaine in the Harris County Probate Court for an accounting and other claims, she appointed the five other appellants in this case as co-trustees of the Harrier and Falcon Trusts. The appointment and acceptance documents describe a compensation scheme for the co-trustees that is based on, in part, the gross trust receipts of the trusts and the value of the trusts' interests in the Marital Income Trust.

Elaine then filed a petition for declaratory relief in the 14^th Judicial District Court for Calcasieu Parish, Louisiana, requesting the court declare, among other things, that (1) the co-trustees were properly appointed as co-trustees of the Harrier Trust, and (2) a Wyoming judgment regarding the Marital Income Trust is "entitledto full faith and credit and that the Trustees of the Harrier Trust be and are bound thereby." Elaine moved for a partial summary judgment regarding the first declaration.¹

In his original petition in this case, Preston applied for a temporary injunction to prohibit the co-trustees from exercising powers, obligations, responsibilities, and rights to compensation from the trusts. The co-trustees filed a special appearance and a general denial subject to the special appearance. Their attorney appeared at the temporary injunction hearing subject to the special appearance.²

After the hearing, the trial court signed an order granting the temporary injunction along with findings of fact and conclusions of law. The court enjoined the co-trustees from taking the following actions:

• Receiving compensation in accordance with the December 2016 Appointment Documents;

• Taking any action that could affect the Harrier and Falcon Trust assets, including but not limited to transferring, selling, offering for sale, encumbering, or pledging the trust assets;• Attempting to circumvent this Court's jurisdiction over the Harrier and Falcon Trust by 1) seeking validation of the compensation provisions set out in the December 2016 Appointment Documents in any other court; and 2) seeking a determination that the rulings in Wyoming with respect to such Trusts are entitled to full faith and credit; [and]

• Assisting Mrs. Marshall in any litigation against Preston Marshall concerning the Harrier and Falcon Trusts.

Elaine and the co-trustees appeal.

II. ANALYSIS

In their dispositive issues on appeal, the co-trustees contend that the trial court abused its discretion by rendering (1) an impermissible anti-suit injunction and (2) an injunction in the absence of evidence of probable, imminent, and irreparable harm. Preston responds that the co-trustees waived any complaint that the injunction is an anti-suit injunction, the injunction is necessary to protect the trial court's jurisdiction, and the injunction is supported by evidence of irreparable harm.

A. General Principles and Standard of Review

A temporary injunction's purpose is to preserve 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). A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Id. To obtain a temporary injunction, the applicant must plead and prove three 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. Id.

This court may reverse an order granting a temporary injunction only if the trial court abused its discretion. Id. A trial court does not abuse its discretion ifsome evidence reasonably supports the trial court's decision. Wash. DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 740 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (en banc) (citing Butnaru, 84 S.W.3d at 211). But, a trial court has no discretion to grant a temporary injunction without supporting evidence. See Ron v. Ron, 604 S.W.3d 559, 568 (Tex. App.—Houston [14th Dist.] 2020, no pet.). We view the evidence in the light most favorable to the trial court's decision. Wash. DC Party Shuttle, 406 S.W.3d at 740.

B. No Waiver

Generally, a party must preserve error as a prerequisite to presenting a complaint for appellate review. See Tex. R. App. 33.1(a). But, in a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence may be made for the first time on appeal in the complaining party's brief. Tex. R. App. 33.1(d). The co-trustees contend that their complaints fall within this category of error for which preservation is not required. We agree.

We must construe the brief liberally and reasonably so the right to appeal is not lost by waiver. Lion Copolymer Holdings, LLC v. Lion Polymers, LLC, 614 S.W.3d 729, 732 (Tex. 2020). We hesitate to resolve cases based on procedural defects and instead endeavor to resolve cases on the merits. Id. We look to the wording of the issues and the arguments under each heading to assess the intent of the parties. See id.

The co-trustees argue in their brief that there is "no legal or factual support" and the "facts do not support" the anti-suit injunction. The co-trustees contend that there is "no evidence" of a probable, imminent, and irreparable harm. The co-trustees detail how the evidence presented at the temporary injunction hearing does not support the trial court's findings or the legal requirements for a temporaryinjunction. We construe these arguments as challenges to the sufficiency of the evidence to support the trial court's temporary injunction. See id.

Preston's authorities are procedurally distinct and do not command a different result. The first case, Ford v. Ruth, involved a direct attack on a default judgment that granted a permanent injunction. See No. 03-14-00460-CV, 2016 WL 1305209, at *2 (Tex. App.—Austin Mar. 31, 2016, pet. denied) (mem. op.). Noting that the appellants did not file any pleadings in the trial court or a motion for new trial or bill of review, the Austin Court of Appeals held that the defendants' complaints about venue and the overbreadth of the permanent injunction were ones that had to be preserved. See id. In Ford, because the defendants filed no answer, the plaintiff had no burden to prove its entitlement to a permanent injunction, which is not a claim for unliquidated damages. See Siddiqui v. West Bellfort Prop. Owners Ass'n, 819 S.W.2d 657, 658-59 (Tex. App.—El Paso 1991, no writ) (no error to grant permanent injunction by default without a statement of facts because a permanent injunction is not a claim for unliquidated damages); see also Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (noting that a defendant's failure to answer means the defendant admits all facts properly pled in the petition). But here, the co-trustees answered with a general denial, so Preston was required to offer evidence and prove all aspects of his claim. See Dolgencorp, 288 S.W.3d at 930.³

In Preston's second case, Snell v. Spectrum Association Management L.P., the San Antonio Court of Appeals held that a defendant who "affirmatively agreedto the injunction" could not complain on appeal about the lack of an evidentiary hearing for an anti-suit injunction. See No. 04-10-00285-CV, 2010 WL 3505139, at *1, *4 (Tex. App.—San Antonio Sept. 8, 2010, no pet.) (mem. op.). But the court held that a party who did not appear at the hearing and did not agree to the temporary injunction could complain about the lack of an evidentiary hearing. See id. at *3. Here, the co-trustees did not affirmatively agree to the injunction, so they have not waived challenges to the legal or factual support for the trial court's order.

C. Error to Issue Anti-Suit Injunction

The principle of comity requires that courts exercise the power to enjoin foreign suits "sparingly, and only in very special circumstances." Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex. 1996) (quoting Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex. 1986)). An anti-suit injunction may be appropriate to (1) address a threat to the court's jurisdiction, (2) prevent the evasion of important public policy, (3) prevent a multiplicity of...