Mcmahan's Flooring, Inc. v. Morrison

637 S.W.3d 224

MCMAHAN'S FLOORING, INC., Appellant/Cross-Appellee

v.Shelly MORRISON and Steve Howe, Appellees/Cross-Appellant

No. 02-21-00077-CV

Court of Appeals of Texas, Fort Worth.

Delivered: November 24, 2021

Antonio U. Allen, for Appellees.

Brett L. Myers, Craig A. Bernstein, Dallas, for Appellant.

Before Womack, Wallach, and Walker, JJ.

Opinion by Justice Wallach This is an interlocutory appeal from the granting in part and denying in part of a temporary injunction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4). McMahan Flooring, Inc. (McMahan) challenges the trial court's denial of its requested injunctive relief on its claims for breach of noncompetition and nonsolicitation agreements. Morrison and Howe challenge the trial court's order granting injunctive relief to McMahan on its claims against Morrison and Howe for disclosure of trade secrets and breach of confidentiality. Because we hold that the temporary injunction order is void due to McMahan's failure to file a bond with the clerk for approval as required by Rule of Civil Procedure 684, we reverse the trial court's order granting the temporary injunction and remand the case to the trial court for further proceedings.

McMahan alleged it is in the business of selling flooring, countertops, blinds, window coverings, and other goods and services throughout Texas. McMahan sued Morrison and Howe, former employees, for breach of employment-related agreements regarding noncompetition and nonsolicitation, disclosure of trade secrets, and breach of confidentiality, among other allegations, and it sought temporary injunctive relief. After a hearing, on February 22, 2021, the trial court signed its Order Granting Application for Temporary Injunction. Relying on language from the written agreements between the parties, the court's order provided for a bond as follows: "It is further ORDERED that pursuant to Section 23 of the Morrison Agreement and Section 8 of the Howe Agreement, the bond is set in the amount of $0."¹

On March 3, 2021, Morrison and Howe filed their Motion to Dismiss for Lack of Jurisdiction, in which they contested the trial court's jurisdiction to enter the injunctive relief. On March 17, 2021, McMahan filed its Second Amended Emergency Motion for Reconsideration of the Court's Order Granting Plaintiff's Application for Temporary Injunction, and/or to Enter Revised Injunction Preventing Defendants from Breaching their Non-Compete Agreements, in which McMahan again requested the trial court to grant the previously denied injunctive relief. The trial court denied both motions. This interlocutory appeal ensued.

It is undisputed that McMahan has not filed a bond as ordered by the court, and the record is devoid of any evidence that a writ of injunction has been issued. Where the party that has requested and obtained an order granting temporary injunctive relief fails to file a bond as ordered by the trial court, the order granting the injunction is void ab initio. Diversified, Inc. v. Turner , 650 S.W.2d 175, 176–77 (Tex. App.—Houston [14th Dist.] 1983, no pet.) (holding that failure to file a temporary injunction bond as ordered by the court and to have it approved as required by Rule 684 renders the order void ab initio); Glennie v. Petty , 591 S.W.2d 951, 952 (Tex. App.—Tyler 1979, no pet.) (holding that, where order granting temporary injunction is signed but no bond is filed, the order granting the injunction is void ab initio). We hold that McMahan's failure to file the bond ordered by the court with...