Waymon Scott Hartwell & HHH Farms, LLC v. Star

528 S.W.3d 750

Waymon Scott HARTWELL and HHH Farms, LLC, Appellants

v.LONE STAR, PCA, Appellee

No. 06-17-00030-CV.

Court of Appeals of Texas, Texarkana.

Date Submitted: May 30, 2017

Date Decided: June 21, 2017

Rehearing Overruled July 18, 2017

William L. Wolf, Carling Nguyen, Wolf & Henderson, PC, 4309 Irving Ave, Ste 200, Dallas, TX 75219, for appellant.

Stephanie E. Kaiser, Lead Counsel, Doerner, Saunders, Daniel & Anderson, LLP, 6300 Ridglea Place, Ste 820, Fort Worth, TX 76116, Mark Domel, Doerner, Saunders, Daniel & Anderson, LLP, 711 W 7^th St., Austin, TX 78701, N. Lance Bryan, Doerner, Saunders, Daniel & Anderson, LLP, 2 West Second Street, Ste 700, Tulsa OK 74103, for appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Burgess

After Waymon Scott Hartwell (Hartwell) and HHH Farms, LLC (HHH) (collectively Appellants), defaulted on the payment due on two of their loans from Lone Star, PCA (Lone Star), they sold cattle securing the loans without paying the proceeds to Lone Star. After learning of the cattle sales and that some of the proceeds were used to pay other creditors, Lone Star sued Appellants for breach of contract, breach of fiduciary duty, conversion, unlawful misappropriation under the Texas Theft Liability Act, and misapplication of fiduciary property/property of a financial institution. In addition to damages, Lone Star sought temporary and permanent injunctions to preserve the collateral securing its loans. After a hearing, the trial court granted the temporary injunction as requested by Lone Star.

On appeal, Appellants argue that (1) the trial court abused its discretion in denying its motion for a continuance, (2) the evidence is factually and legally insufficient to support the temporary injunction, (3) the application for a temporary injunction was legally infirm and did not mirror the relief granted by the trial court, (4) the temporary injunction is overly broad and vague, (5) the temporary injunction is void because it includes a mandatory injunction, and (6) the trial court erred in extending the bond for the temporary restraining order to apply as the temporary injunction bond. We affirm the temporary injunction because (1) the trial court did not abuse its discretion in denying the motion for a continuance, (2) sufficient evidence supports the temporary injunction, (3) Appellants failed to preserve any complaint regarding the application, (4) Appellants failed to preserve their complaints that the temporary injunction is overly broad and vague, (5) sufficient evidence and reasons stated in the temporary injunction support the mandatory injunction, and (6) there was no abuse of discretion in extending the bond.

I. No Abuse of Discretion in Denying the Motion for a Continuance

In their first point of error, Appellants argue that the trial court abused its discretion in denying their motion for a continuance since their lead attorney had a prior setting at the same time in bankruptcy court in Plano and, consequently, could not be physically present at the hearing.¹

A trial court's denial of a motion for a continuance is reviewed for abuse of discretion. In re D.W., 353 S.W.3d 188, 192 (Tex. App.—Texarkana 2011, pet. denied). We will not disturb the trial court's decision unless the record shows a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) ; D.W., 353 S.W.3d at 192. The trial court abuses its discretion only when its decision is "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002) ).

Rule 251 provides that a continuance shall not "be granted except for good cause supported by affidavit." TEX. R. CIV. P. 251. In this case, although the hearing on the temporary injunction had been scheduled on January 17 when the trial court entered a temporary restraining order (TRO), Appellants did not file their motion for a continuance until shortly before 6:00 p.m. on Friday, January 27.² Appellants' grounds for continuance were that their lead attorney, William L. Wolf, had a previously scheduled hearing the same afternoon in bankruptcy court in Plano and that their preparation and filing of a motion to dissolve the trial court's TRO prevented them from adequately preparing for the hearing. The motion was signed by Wolf and listed Carling T. Nguyen as co-counsel. Wolf's affidavit in support of the motion sets forth the details of his previously set hearing in Plano, but recites no facts in support of Appellants' allegation that they were prevented from adequately preparing for the hearing. At the hearing on Appellants' motion, Wolf acknowledged that although the TRO was timely served on Appellants³ and delivered to his office, he did not look at it until Thursday, January 36, at which time he notified Lone Star's counsel of his conflict. Appellants offered no other evidence or explanation for their need for a continuance and did not contend that Wolf's co-counsel, Nguyen, was not available for the hearing.⁴

Lone Star pointed out that the TRO was set to expire on January 31, but indicated that it would be willing to agree to a continuance if there was also an agreement to extend the TRO. Consequently, the trial court recessed the hearing to allow the parties to conference in an effort to reach an agreement. When the hearing resumed, Lone Star's attorney advised the trial court that counsel for Appellants advised her that he was not prepared to discuss the case, which was not denied by Appellants. The trial court then denied Appellants' motion. The court also advised Wolf that he could attend the hearing by telephone. Wolf attended the temporary injunction hearing by telephone and participated in the hearing.⁵

Based on this record, we cannot say that the trial court abused its discretion in denying the motion for a continuance. To begin with, absence of counsel is generally not a good cause for a continuance. See TEX. R. CIV. P. 253 ; Guerrero-Ramirez v. Tex. State Bd. of Med. Exam'rs, 867 S.W.2d 911, 916 (Tex. App.—Austin 1993, no writ).⁶ In addition, it is not an abuse of discretion when there was no showing that the lead attorney was the only attorney who could represent Appellants at the hearing. Guerrero-Ramirez, 867 S.W.2d at 917. Further, although Appellants had been served with the TRO more than a week before, they did not file their motion until the Friday evening before the scheduled Tuesday hearing. A lack of diligence on the part of a party or its attorney is sufficient grounds for denying a motion for a continuance. See McGrede v. Coursey, 131 S.W.3d 189, 198 (Tex. App.—San Antonio 2004, no pet.). Finally, although Appellants now complain that the trial court could have granted the continuance and extended the TRO for fourteen days, when given the opportunity to agree to such an extension at the hearing, Appellants refused to do so. Since we find no abuse of discretion, we overrule Appellants' first point of error.⁷

II. Standard of Review for Review of a Temporary Injunction

Our review of the trial court's granting of a temporary injunction is limited to determining whether the trial court clearly abused its discretion. Gannon v. Payne, 706 S.W.2d 304, 305 (Tex. 1986) ; Bay Fin. Savs. Bank, FSB v. Brown, 142 S.W.3d 586, 589 (Tex. App.—Texarkana 2004, no pet.). It is an abuse of discretion when the trial court acts "arbitrarily and unreasonably, without reference to guiding rules or principles, or misappl[ies] the law to the established facts of the case." Brown, 142 S.W.3d at 589 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985) ). In an evidentiary challenge, we view the evidence in the light most favorable to the trial court's order and indulge every reasonable inference in its favor. Townson v. Liming, No. 06-10-00027-CV, 2010 WL 2767984, at *2 (Tex. App.—Texarkana July 14, 2010, no pet.) (mem. op.) (citing Moon v. Estate of Moon, 221 S.W.3d 327, 329 (Tex. App.—Texarkana 2007, no pet.) ). It is not an abuse of discretion "if some evidence reasonably supports the trial court's decision." Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). Additionally, we may not substitute our judgment for the trial court's reasonable judgment, even if we would have reached a contrary decision. Id.

The purpose of a temporary injunction is to preserve the status quo pending a trial on the merits. Id.at 204 (citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993) (per curiam)); Townson, 2010 WL 2767984, at *2. Generally, the status quo is "the last, actual, peaceable, non-contested status that preceded the pending controversy." State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975) (citing Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962) (per curiam)). A temporary injunction maintains the status quo by preventing "any act of a party which would tend to render the final judgment in the case ineffectual." Baucum v. Texam Oil Corp., 423 S.W.2d 434, 441 (Tex. Civ. App.—El Paso 1967, writ ref'd n.r.e.) (quoting Moffitt v. Lloyd, 98 S.W.2d 860 (Tex. Civ. App.—Waco 1936, no writ) ); see City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 976–77 (1931). To be entitled to a temporary injunction, the 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." Towson, 2010 WL 2767984, at *2 (citing Walling, 863 S.W.2d at 57 ; Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968) ).

III. Sufficient Evidence Supports the Temporary Injunction

In their second point of error, Appellants assert that there is insufficient evidence to support the entry of the temporary injunction. Specifically, Appellants argue that the evidence was insufficient to show (1) that Lone Star had a...