¹ Appellants in this appeal are Michael J. DeLitta and DelCom Properties, LLC only and will be referred to in this brief as simply “DeLitta.” 2 Exh. A to Brief of Appellant; see also CR115–23 3 See No. 03-14-00423-CV (original proceeding seeking to declare injunction void, denied on July 11, 2014); No. 03-14-00426-CV (appeal of an order enforcing the terms of the injunction dismissed for lack of jurisdiction on November 6, 2014). DeLitta also appealed an order appointing a receiver over Axiom, No. 03-13-000425-CV, which was dismissed for failure to prosecute on October 17, 2014. 4 CR329–48 5 CR379–81 viii STATEMENT REGARDING ORAL ARGUMENT Appellee does not believe oral argument is necessary for the Court to fully understand and properly resolve this appeal. This is an interlocutory appeal from an order denying Appellants’ Motion to Dissolve and Declare Temporary Injunction Void. The relevant facts are undisputed, and the law is not difficult to grasp. However, to the extent that the Court has remaining questions after reviewing the briefing, Appellee would gladly participate in any oral argument to answer those questions. ix ISSUES PRESENTED 1. Does this Court have jurisdiction to review an interlocutory order signed in October 2013—over 15 months before this appeal was perfected—when the sole complaint on appeal concerns the validity of the original injunction, not a trial court’s failure to dissolve based on changed circumstances? 2. The parties negotiated an agreed temporary injunction to govern their conduct through trial, signed the temporary injunction with the notation “agreed as to form and substance,” and submitted it to the judge for approval. a. Does omitting the reasons for issuance make an agreed temporary injunction void when all the parties understand that the injunction was issued because it was agreed? b. Does a subsequent agreed continuance of the trial date stated in the injunction make an injunction retroactively void? c. Does a party waive the right to challenge a temporary injunction for failing to comply with Rule 683 by agreeing to the injunction in the first instance, by not appealing it, and/or by themselves seeking to enforce it? 3. May a trial court refuse to dissolve an agreed temporary injunction because the agreed order meets all the requirement of Texas Rule of Civil Procedure 11 and is thus enforceable in contract? x STATEMENT OF FACTS This is a business dispute over the ownership of Axiom Medical Consulting, LLC.6 Schaefer and DeLitta are two managers and members of Axiom who each control 50% of the company.7 The relationship between the two deteriorated and, in October 2013, Schaefer filed suit seeking to confirm her ownership in Axiom and, to maintain her status quo within the company, obtained a temporary restraining order.8 A. The parties enter into a highly negotiated and agreed temporary injunction. Before the restraining order dissolved, the parties requested the trial court approve a highly negotiated consent order and agreement which was entitled a “temporary injunction” (the “Agreed Order”).9 The Agreed Order was signed on October 29, 2013.10 It prohibited the parties from undertaking certain acts and also obligated the parties to file a joint motion for appointment of a provisional member to break deadlock between Schaefer and DeLitta.11 B. For months, DeLitta acknowledges the binding force of the agreed injunction and even seeks enforcement of its terms. The parties proceeded for over eight months in this litigation under the terms of the Agreed Order and in full acknowledgement of its binding force. For example, months after its issuance, on March 13, 2014, DeLitta filed a motion titled “Motion to 6 CR134–36 7 CR132 8 CR3 9 CR115 10 CR121 11 CR122 12 See SuppCR21 13 SuppCR100 14 Compare SuppCR121 (noting date of hearing) and CR121 (Agreed Order setting trial date) 15 SuppCR121–23 16 SuppCR123 17 SuppRR60–70 18 SuppCR120 26 Id. 27 Id. 28 Id. (emphasis in original) 29 SuppCR194–98 30 No. 03-14-00426-CV 31 No. 03-14-00425-CV 32 No. 03-14-00423-CV 33 See No. 03-14-00423-CV (Order dated July 11, 2014) 34 No. 03-14-00426-CV (Order and Judgment dated Nov. 6, 2014) 35 The Court dismissed the appeal for failure to prosecute on October 17, 2014. See No. 03-14-00425- CV. 36 See RR (transcript of Dec. 15, 2014, hearing on DeLitta’s Motion to Dissolve and Declare Temporary Injunction Void, which was filed on Oct. 22, 2014). 37 CR329–37 38 See generally id. 39 SuppRR37–47 40 CR379 41 CR632 44 Br. at 12-14 45 Br. at 15 46 Br. at 15 (emphasis in original) (citing Poole v. U.S. Money Reserve Inc., No. 09-08-137-CV, 2008 WL 4735602 (Tex. App.—Beaumont, Oct. 30, 2008, no pet.); Conlin v. Haun, 419 S.W.3d. 682, 686-87 (Tex. App. Houston [1st Dist.] 2013, no pet.)). 48 Br. at 15-16 (citing Conlin v. Haun, 419 S.W.3d. 682 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Gray Wireline Serv., Inc. v. Cavanna, 374 S.W.3d 464 (Tex. App.—Waco 2011, no pet.); Poole v. U.S. Money Reserve Inc., No. 09-08-137-CV, 2008 WL 4735602 (Tex. App.—Beaumont, Oct. 30, 2008, no pet.)). 49 CR121 (emphasis added) 50 CR121 (setting case for trial on April 7, 2014) 51 DeLitta suggests he never agreed to the terms of the Agreed Order beyond the original April 7, 2014. But DeLitta asked for the agreed injunction to be enforced after the April 7 trial date. SuppCR121. Thus, the trial court was reasonable in rejecting any factual argument that DeLitta did not intend to be bound throughout the entirety of this litigation. 52 See Poole, 2008 WL 4735602, at *11–12 (relying on Garza); Conlin, 419 S.W.3d at 686 (relying on Garza and In re Corcoran, 343 S.W.3d 268, 269 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding), which also had followed Garza). This Court has also cited Garza favorably in a memorandum opinion. See In re Krueger, No. 03-12-00838-CV, 2013 WL 2157765, at *9 n.7 (Tex. App.—Austin May 16, 2013, orig. proceeding) (mem. op.). 53 See infra, Sec. I. 54 For example, issuance, service, and return of citation are mandatory and the failure to strictly comply with the governing procedural rules “renders the attempted service of process invalid and of no effect.” Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Yet parties can agree to waive service. Deen v. Kirk, 508 S.W2d 70, 71 (Tex. 1974). 55 Parties may also agree to waive a supersedeas bond. See TEX. R. APP. P. 24.1(a)(1). 56 SuppCR21 57 Compare SuppCR121 (noting date of hearing) and CR121 (Agreed Order setting trial date) 58 SuppRR60–70 CERTIFICATE OF SERVICE I hereby certify that on May 6, 2015, I served a copy of this Brief of Appellee on counsel of record electronically, in accordance with the Court’s rules on electronic filing, as listed below: Douglas R. Drucker via e-Service Kirby D. Hopkins DRUCKER | HOPKINS LLP 21 Watery Avenue, Suite 300 The Woodlands, TX 77380 Counsel for Appellants Michael J. DeLitta and DelCom Properties, LLC Eric J. Taube via e-Service HOHMANN, TAUBE & SUMMERS LLP 100 Congress Avenue, 18th Floor Austin, Texas 78701 Counsel for the Axiom entities and Receiver/Provisional Member Jeff Compton /s/ Lisa Bowlin Hobbs Lisa Bowlin Hobbs 481 S.W.2d 801 Supreme Court of Texas. John BRAZZEL, Petitioner, v. Sid MURRAY et al., Respondents. No. B—3103. | April 12, 1972. | Rehearing Denied June 7, 1972. The 105th District Court, Nueces County, Horace S. Young, J., dismissed plaintiff's suit on ground that there was no mandate filed after the Court of Civil Appeals had reversed a judgment in plaintiff's favor, and plaintiff appealed. The Corpus Christi Court of Civil Appeals, Thirteenth Supreme Judicial District, Nye, C.J., affirmed, 472 S.W.2d 814, and application for writ of error was granted. The Supreme Court, McGee, J., held that where mandate was on file with trial court from date of original mandate until date original mandate was recalled, it was, although unauthorized for failure to comply with requirement that costs be paid prior to issuance of mandate, valid until recalled; thus, where at no time had there been period of 12 months in which no mandate had been filed with trial court, as required by procedural rule as prerequisite to dismissal, dismissal of case for want of a valid mandate was error. Reversed and remanded for new trial. West Headnotes (4) [1] Judgment Errors and Irregularities Judgments which are rendered without observance of statutory requirements which are purely procedural are not void however irregular or erroneous they may be, but merely voidable.

⁴ Cases that cite this headnote [2] Appeal and Error Injunction Trial court's declaration that agreed temporary injunction was void ab initio was judgment from which appeal would lie. 2 Cases that cite this headnote [3] Injunction Necessity and waiver in general Requirement that, prior to issuance of temporary restraining order or temporary injunction, applicant must execute and file with clerk a bond to adverse party is to be strictly construed. Vernon's Ann.Texas Rules Civ.Proc., Rule 684.

⁵ Cases that cite this headnote [3] Appeal and Error Operation and Effect Where mandate was on file with trial court from date of original mandate until date original mandate was recalled, it was, although unauthorized for failure to comply with requirement that costs be paid prior to issuance of mandate, valid until recalled; thus, where at no time had there been period of 12 months in which no mandate had been filed with trial court, as required by procedural rule as prerequisite to dismissal, dismissal of case for want of a valid mandate was error. Rules of Civil Procedure, rules 443, 445. 2 Cases that cite this headnote [4] Appeal and Error Operation and Effect © 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 Brazzel v. Murray, 481 S.W.2d 801 (1972) Until mandate was recalled by Court of Civil Appeals which had issued it erroneously before collection of appellate costs, mandate was lawful order upon which all parties could rely and was not void ab initio. Rules of Civil Procedure, rules 443, 445.

⁶ Cases that cite this headnote [4] Injunction Necessity and waiver in general Temporary orders or injunctions filed without bond are void, not merely voidable. Vernon's Ann.Texas Rules Civ.Proc., Rule 684. 2 Cases that cite this headnote [5] Injunction Necessity and waiver in general © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Chambers v. Rosenberg, 916 S.W.2d 633 (1996) Even agreed temporary injunction, which was entered with consent of parties, was void ab initio for lack of bond, where parties did not explicitly waive protection of bond. Vernon's Ann.Texas Rules Civ.Proc., Rule 684. 2 Cases that cite this headnote [6] Judgment Effect of Invalidity Judgment Judgment void on its face in general Judgment which discloses its invalidity on its face is nullity and may be disregarded anywhere, at any time. 1 Cases that cite this headnote *634 Appeal from the District Court of Travis County, 250th Judicial District, No. 443,045; B.F. (Bill) Coker, Judge Presiding. Attorneys and Law Firms Douglass D. Hearne, Jr., Hearne & Eppright, Austin, for Appellant. Ronald Rosenberg [No Appellee's Brief filed], Austin, Pro Se. Before CARROLL, C.J., and JONES and B.A. SMITH, JJ. Opinion PER CURIAM. Russell Chambers appeals from the trial court's denial of his motion for contempt by Ronald Rosenberg. Chambers contends that Rosenberg's actions violated an agreed temporary injunction and an agreed final judgment and permanent injunction. The trial court held that the temporary injunction was void ab initio because no bond was executed. The court found that the final judgment was vague, ambiguous, overly broad, and unenforceable, but did not find it void; the court simply denied the motion for contempt. We will affirm the order of the trial court. [1] We cannot review the denial of the motion for contempt of the agreed final judgment and permanent injunction. The denial of a motion for contempt is not appealable because it is not a final order. Norman v. Norman, 692 S.W.2d 655, 655 (Tex.1985); Velez v. DeLara, 905 S.W.2d 43, 46 (Tex.App.—San Antonio 1995, no writ). We therefore overrule points three and four by which Chambers complains of the court's assessment of the final judgment. [2] [3] [4] [5] We can review the declaration that the agreed temporary injunction was void ab initio because of the lack of a bond. The supreme court has construed strictly the requirement of Texas Rule of Civil Procedure 684 that, before a trial court issues a temporary restraining order or temporary injunction, the applicant shall execute and file with the clerk a bond to the adverse party. Goodwin v. Goodwin, 456 S.W.2d 885, 885 (Tex.1970) (holding that the failure of the applicant to file a bond before the issuance of the temporary injunction renders the injunction void ab initio ); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956) (holding that bond provisions of Rule 684 are mandatory *635 and that an injunction issued without a bond is void); see also Ex parte Jordan, 787 S.W.2d 367, 368 (Tex.1990) (holding temporary restraining order void for lack of requirement of separate bond); Ex parte Lesher, 651 S.W.2d 734, 735–36 (Tex.1983) (holding temporary restraining order void because court waived bond); but see Ludewig v. Houston Pipeline Co., 737 S.W.2d 15, 16 (Tex.App.—Corpus Christi. 1987, no writ) (holding that errors other than jurisdiction render the judgment voidable within the standard appellate timetable). The court has held that temporary orders filed without the bond are void, not merely voidable. Goodwin, 456 S.W.2d at 885; Lesher, 651 S.W.2d at 735–36. Though none of the cited cases explicitly concerns an agreed order, we find the strong theme of literal construction of the rule convinces us that we should construe the rule literally in this case; we are particularly persuaded © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Chambers v. Rosenberg, 916 S.W.2d 633 (1996) to do so because the parties here did not explicitly waive the protection of a bond. The temporary injunction was void for lack of a bond. We overrule point two. [6] Chambers contends by point one that the trial court exceeded its jurisdiction in improperly setting aside the consent agreements. Our affirmance of the conclusion that the temporary injunction was void, however, defeats this claim. The supreme court has held that a judgment which discloses its invalidity on its face is a nullity and may be disregarded anywhere at any time. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961). Though courts generally apply this rule only for jurisdictional defects, the supreme court's insistence that temporary injunctions issued without bonds are void convinces us that the trial court correctly disregarded the temporary injunction here. The trial court did not set aside the final judgment and permanent injunction. We overrule point one. We do not reach point five, which concerned the scope of the temporary injunction. We need not consider the scope of a void order. We affirm the order of the trial court. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Cisneros v. Cisneros, 787 S.W.2d 550 (1990) 787 S.W.2d 550 Court of Appeals of Texas, El Paso. Thomas CISNEROS, III, Appellant, v. Elva Alice CISNEROS, Appellee. No. 08–89–00245–CV. | March 28, 1990. Former wife sued former husband for child support arrearages. The 312th District Court, Harris County, Robert S. Webb, III, J., entered judgment for former wife and former husband appealed. The Court of Appeals, Koehler, J., held that: (1) dissolution decree provision calling for automatic increase in child payments beginning in the second year was valid, and (2) counsel's approval of form of judgment precluded former husband from asserting that judgment did not meet statutory requirements for child support order. Affirmed. West Headnotes (3) [1] Child Support Other Particular Defenses or Grounds for Reduction of Arrearages Provisions in dissolution decree that child support payments would increase beginning with the “first payment due in the second year” was not too ambiguous to support a judgment award for arrearages. 3 Cases that cite this headnote [2] Child Support Contracts Relating to Support Child Support Automatic or Built-in Adjustments Provision in dissolution decree calling for automatic increase in amount of child support payments starting the second year of such payments was valid; increase had been agreed upon by parties to dissolution agreement and court had found agreement to be in best interests of child. 2 Cases that cite this headnote [3] Child Support Estoppel and Waiver Approval by attorney for former husband of the substance of a judgment requiring him to pay an increased amount of child support starting in the second year of the payments precluded challenge to judgment as not complying with the specific statutory requirements for judgments covering past due child support. V.T.C.A., Family Code § 14.33(a).

⁸ Tex. 80 Supreme Court of Texas. CUMMINGS v. POWELL AND OTHERS. 1852. Opinion *80 A void act is one which is entirely null, not binding on either party and not susceptible of ratification; and a voidable act is one which is obligatory upon others until disaffirmed by the party with whom it originated, and which may be subsequently ratified or confirmed. The difference between the Spanish and the common law, in respect to the terms “null” and “void” in their application to the contracts of minors, &c., discussed. The tendency of decisions, for a century at least, has been for the extension *81 of the rule that the acts of infants shall be deemed voidable only, and subject to their election either to affirm or disallow them. On examination of the authorities, and with due regard to the object to be attained by the privilege of the infant, viz, his protection, we are justified in concluding that any delivery of a deed or thing granted which, if done by an adult, would pass the title, will, if done by an infant, be voidable but not void; and that if the semblance of benefit be regarded as a criterion, the more rational and consistent rule would be that the act should not be deemed void unless it was one of those which, as a general principle, for the benefit of the infant had better be deemed void than voidable. Quere? As to whether an infant's power of attorney is void or merely voidable. The sale and delivery of chattels by a minor may be avoided while under age; but the sale of real estate by a minor cannot be avoided on the ground of infancy merely until after he arrives at full age, although it seems he may enter and enjoy the rents and profits. No case has been cited in which an infant has by himself or guardian attempted, while within age, to recover lands passed from him by an executed conveyance on the ground of infancy merely, and it is probable that none such can be shown. Quere? Where an infant has sold real estate, and after arriving at full age wishes to avoid the sale, whether he ought not to give notice of his intention to disaffirm before bringing suit. Where it is sought to set aside a sale of real estate on the ground of infancy, there should be an offer to restore the purchase-money. (Note 19.) Error from Walker. The plaintiffs in error, viz, Elem and James Cummings, being minors, sued by their guardian for the undivided two-thirds of a half league of land, alleging that they had been with their adult brother, William Cummings, joint owners of the half league, and that in the year 1846 the defendant James Powell had fraudulently procured them to join with their said brother in a sale of the said land to the said defendant, and that the latter had since sold portions of the same to the other defendants who were holding, using, and cultivating the same. They prayed that their deed to Powell, so far as it affected their interests, be declared void; that the deeds from Powell to his co-defendants be set aside; that partition be made and *82 petitioners be put into quiet and peaceable possession of their respective shares. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Cummings v. Powell, 8 Tex. 80 (1852) The defendants demurred generally, and filed other pleas not necessary to be noticed. The demurrer was sustained and the petition dismissed. West Headnotes (6) [1] Infants Requisites, Validity, Operation, and Effect Infants Avoidance and disaffirmance A minor's deed is merely voidable, and conveys title until disaffirmance upon reaching majority.

⁹ Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Cisneros v. Cisneros, 787 S.W.2d 550 (1990) Attorneys and Law Firms *550 Bruce A. Baughman, Baytown, for appellant. Ron Hayes, John R. Coe, Houston, for appellee. Before OSBORN, C.J., and WOODARD and KOEHLER, JJ. OPINION KOEHLER, Justice. This is an appeal from a judgment awarding $3,500.00 in child support arrearages following a non-jury hearing. We affirm. Appellant brings three points of error, complaining (1) that the original divorce decree being too ambiguous to be enforced by contempt is also too ambiguous to support a judgment for arrearages, (2) that the provision in the decree for an automatic increase in child support in the second year is unenforceable, and (3) that the judgment for arrearages, being an enforcement order, does not meet the requirements of Section 14.33 of the Family Code and is therefore unenforceable. The parties were divorced on January 19, 1982. Appellee was named managing conservator of the only child of the marriage. In the decree, the court found that the parties had entered into a written agreement containing provisions for conservatorship and child support, which were found to be “in the best interest of the child.” Appellant, as possessory conservator, was ordered to make child support payments of $300.00 per month beginning on February 1, 1982. The decree then provided that: Beginning with the first payment due in the second year of such support payments, said support shall automatically, without further action from the Court, increase to the sum of THREE HUNDRED FIFTY AND NO/100 ($350.00) DOLLARS per month,.... Originally brought as a contempt motion, Appellee pled, and the evidence supported a finding, that Appellant had failed to make the additional $50.00 monthly payment *551 commencing with the payment due on February 1, 1983 and extending for each month through December 1988. At a pretrial hearing, upon a suggestion by the court that the order pertaining to the automatic increase was too ambiguous to be enforceable by contempt, Appellee amended her pleadings by requesting a judgment for the arrearages, in addition to enforcement by contempt. However, at the commencement of the hearing, Appellee waived the contempt action, requesting relief only by way of a money judgment for the arrearage. [1] Although it is not necessary for a resolution of this appeal, we do not conclude that the quoted portion of the decree was ambiguous. While it undoubtedly could have been made clearer, it would be difficult to construe “beginning with the first payment due in the second year of such support payments” to mean any date other than February 1, 1983. Had the first payment under the decree been due on December 1, 1982 instead of February 1, 1982, it would have made no sense to argue that the first payment in the second year could have meant January 1, 1983 or some date other than December 1, 1983. But assuming that there was some ambiguity, the worst that could have been contended was that the increased payments were to begin with the payment due on January 1, 1983. Appellee sought a judgment for the arrearages commencing with the payment due February 1, 1983 and waived enforcement by contempt. The fact there may have been some ambiguity as to whether the increased payment should start on January 1 or February 1, 1983 would not make the order void for vagueness for payments due from February 1, 1983 forward. Furthermore, since the provisions in the decree relating to conservatorship and child support were based on the written agreement of the parties, the ambiguity in this case would be susceptible to interpretation by the trial court after hearing the evidence as in the case of an agreed judgment. Richey v. Bolerjack, 594 S.W.2d 795 (Tex.Civ.App.—Tyler 1980, no writ); Johnson v. Johnson, 572 S.W.2d 364, 366 (Tex.Civ.App.—Amarillo 1978, no writ). This is particularly true where, as in this case, the petitioner is not seeking enforcement by contempt or summary process. Point of Error No. One is overruled. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Cisneros v. Cisneros, 787 S.W.2d 550 (1990) [2] Appellant cites several cases for the proposition that if a support order is void for purposes of contempt, it is also void for the purpose of a motion to reduce the arrearage to judgment. Howard v. Texas Department of Human Resources, 677 S.W.2d 667 (Tex.App.—Dallas 1984, no writ). In that case, the court, after holding that a contempt order, void because based on an ambiguous support order, could not be taken as a conclusive adjudication of the arrearage in a subsequent action to reduce the arrearage to judgment, remanded the case for a determination of the amount of the child support arrearage not ruled out by the ambiguity. In Marichal v. Marichal, 768 S.W.2d 383 (Tex.App.—Houston [14th Dist.] 1989, writ denied), the child support provision was not based on the agreement of the parties and the decree failed to order the obligor to pay any child support. In Templet v. Templet, 728 S.W.2d 844 (Tex.App.—Beaumont 1987, no writ), in an opinion lacking any factual recitation on the age of the children and whether or not the child support order was based on the agreement of the parties, it was held that an ambiguous, indefinite and uncertain order would not support a judgment for child support arrearages and furthermore, that the obligor was no longer under any obligation to continue the support payments, presumably because the youngest of two children had reached the age of eighteen years. In his second point, Appellant contends that the provision for automatic increase in child support is unenforceable, citing as authority In the Interest of J.M. and G.M., 585 S.W.2d 854 (Tex.Civ.App.—San Antonio 1979, no writ), and Doss v. Doss, 521 S.W.2d 709 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). While a court may not arbitrarily impose automatic or formula increases in child support, if the parties agree on an automatic increase in child support upon the happening of a certain event and the court has found that the *552 agreement is in the best interest of the child, the parties may be ordered to perform in accordance with that agreement and upon their failure to do so, the child support order as set forth in the decree may be enforced by all available remedies, including contempt. Doss, 521 S.W.2d at 713. Tex.Fam.Code Ann. sec. 14.06 (Vernon 1986). In the instant case, the parties had agreed in writing to provisions for child support and the court had found the agreement to be in the child's best interest. Appellant does not now claim, nor did he present any evidence in the trial court, that the child support order did not reflect the agreement of the parties. Point of Error No. Two is overruled. [3] In Appellant's final point of error, he challenges the judgment for past due child support as not meeting the requirements of Tex.Fam.Code Ann. sec. 14.33(a) (Vernon Supp.1990). That section in part states: (a) Contents. An enforcement order shall contain findings setting out in ordinary and concise language the provisions of the final order, decree, or judgment for which enforcement was sought, the acts or omissions that are the subject of the order, the manner of noncompliance, and the relief awarded by the Court. At the conclusion of the hearing, the court on the record made its order, which we conclude was in sufficient detail to comply with Section 14.33(a). The trial judge said: The Court finds that a judgment in the amount of $3,500 is hereby had against Mr. Thomas Cisneros, III in favor of Mrs. Elva Cisneros for the ordered payments of $50 per month commencing February 1st of '83 through February 15th of '89; and in accordance with the divorce decree ... through the Harris County Probation Department, Child Support Division at 1115 Congress in Houston, Texas. Judgment is here now had in the amount of $3,500 for which let execution issue. Each party will pay their own costs of Court and attorney fees incurred in this cause. The attorney for Appellant was in effect ordered to prepare the judgment, presumably in accordance with the court's oral order. Had she done so, the judgment in our opinion would have sufficiently met the requirements of Section 14.33(a). All of the cases cited by Appellant in support of his third point involved contempt and commitment situations, which admittedly and obviously require more specificity as to acts or omissions leading to the contempt than would a judgment for unpaid support. Under Tex.R.App.P. 81 (formerly Tex.R.Civ.P. 434), the normal course on this point would be to reform the judgment to conform to the judge's oral order and then affirm the judgment as reformed. However, such action is not indicated since the judgment may be affirmed for another reason. After its preparation, the judgment was then approved not only as to form (a usual and harmless procedure), but as to substance as well by the attorneys representing © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Cisneros v. Cisneros, 787 S.W.2d 550 (1990) both parties. Approval as to form is a matter of professional courtesy not necessary to a valid judgment. Such approval (as to form) does not waive any error in the proceedings or incident to the judgment itself. Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App.—Corpus Christi 1965, writ ref'd n.r.e.), cert. denied, 385 U.S. 901, 87 S.Ct. 199, 17 L.Ed.2d 132 (1966); 4 R. McDonald, Texas Civil Practice sec. 17.09.4 (Rev.1984). But approval as to substance is something else. Approval of the substance of a judgment is tantamount to an agreement by the signatory that the judgment meets all of its essential requirements. By Appellant's approval of the substance of the judgment, we hold that Appellant has waived any error in the judgment not complying with the requirements of Section 14.33(a). Point of Error No. Three is accordingly overruled. Judgment of the trial court is affirmed. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) 220 S.W.3d 537 Court of Appeals of Texas, Texarkana. Ray and Carol CLAXTON, Appellant, v. (UPPER) LAKE FORK WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1, Appellee. No. 06–06–00095–CV. | Submitted Dec. 18, 2006. | Decided Dec. 19, 2006. | Opinion Granting Rehearing May 2, 2007. | Rehearing Overruled May 22, 2007. Synopsis Background: Following judgment favoring plaintiffs, in a dispute against water improvement district concerning lake drainage, district filed motion for new trial. After granting new trial, the 62nd Judicial District Court, Hopkins County, Scott McDowell, J., granted district's motion for summary judgment. Plaintiffs appealed. The Court of Appeals dismissed the appeal for want of jurisdiction. Holdings: On rehearing, the Court of Appeals, Morriss, C.J., held that: [1] allegedly incorrect signing date recited in original judgment in favor of plaintiffs was a clerical error that could be corrected by judgment nunc pro tunc; [2] originally recited signing date was not binding on the parties as part of any agreement; and [3] sufficient evidence established that the originally recited signing date was erroneous. Appeal reinstated. West Headnotes (26) [1] Courts Acts and proceedings without jurisdiction The failure of a jurisdictional requirement deprives a court of the power to act, other than to determine that it has no jurisdiction. Cases that cite this headnote [2] Courts Acts and proceedings without jurisdiction Once a court determines that it has no jurisdiction, its only legitimate choice is to dismiss. Cases that cite this headnote [3] Appeal and Error Time for filing New Trial Commencement of time © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) Judgment, which disposed of all claims and parties in lawsuit, stated that it was final judgment, and was approved both as to form and substance by counsel for two remaining parties, was final on date it was signed, thus commencing time to file motion for new trial or notice of appeal. Rules App.Proc., Rule 26.1; Vernon's Ann.Texas Rules Civ.Proc., Rule 329b(d). 3 Cases that cite this headnote [4] Motions Entry nunc pro tunc Motions Amendment of orders An order nunc pro tunc, correcting only a true clerical error, may be granted by a trial court at any time, even after it has lost jurisdiction over the case. Cases that cite this headnote [5] Courts Acts and proceedings without jurisdiction Judicial action taken after the court's jurisdiction over a cause has expired is a nullity. Cases that cite this headnote [7] Appeal and Error Consent of parties Appeal and Error Waiver of objections Stipulations Matters which may be subject of stipulation Appellate jurisdiction cannot be created by consent, stipulation of the parties, or waiver, either by the court or by litigants. 2 Cases that cite this headnote [8] Appeal and Error Determination of questions of jurisdiction in general Lack of appellate jurisdiction is fundamental error, which can be raised by the court sua sponte. Cases that cite this headnote [9] Judgment Clerical errors Judgment Allowing amendment nunc pro tunc Allegedly incorrect signing date recited in original judgment was a clerical error, not a judicial error, and thus could be corrected by judgment nunc pro tunc. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [10] Judgment Authority of Court, Judge, or Judicial Officer Judicial errors in a judgment may not be corrected after the expiration of a court's plenary jurisdiction. Vernon's Ann.Texas Rules Civ.Proc., Rule 329b(f). Cases that cite this headnote [11] Judgment Clerical errors © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) Judgment Allowing amendment nunc pro tunc A “clerical error” that may be corrected by judgment nunc pro tunc is an error which does not result from judicial reasoning or determination. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [12] Judgment Judicial errors Judgment Allowing amendment nunc pro tunc For purposes of determining whether an error may be corrected by judgment nunc pro tunc, a “judicial error” is one which occurs in the rendering, as opposed to the entering, of a judgment. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [13] Judgment Allowing amendment nunc pro tunc A judgment nunc pro tunc may be issued to correct the recited signing date of an order if the original recited date is shown to have been incorrect. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [14] Motions Entry nunc pro tunc Motions Amendment of orders An order nunc pro tunc may not be used to backdate the signing of a written order that was not in fact signed earlier. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [15] Judgment Opening or vacating judgment Originally recited signing date in an agreed judgment was not binding on the parties as part of their agreement, and thus the signing date could be corrected nunc pro tunc, though judgment had been approved by the parties as to form and substance; the recited date of signing was not a material part of any agreement, as demonstrated by the fact that the parties overlooked the incorrect recited date until appellate court pointed it out four years later. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [16] Judgment Defects and objections Approval as to form of a judgment does not waive any error in the proceedings or incident to the judgment itself. 2 Cases that cite this headnote [17] Judgment Consent of Parties An agreed judgment means essentially the same thing as a judgment by consent. Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) [18] Judgment Consent of Parties A “judgment by consent” is a judgment in which the terms are settled and agreed to by the parties and which is entered of record by authorization of the trial court. 1 Cases that cite this headnote [19] Judgment Affidavits and other evidence Factually and legally sufficient evidence supported trial court's finding that signing date recited in original judgment was erroneous, such that it could be corrected by judgment nunc pro tunc; no party treated defendant's motion for new trial as untimely, even though it clearly was untimely based on recited date of signing, and transcript of hearing that occurred after the recited signing date indicated that the proposed judgment had not yet been signed. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [20] Judgment Affidavits and other evidence For a judgment nunc pro tunc to be properly granted, the evidence must be clear and convincing that a clerical error was made. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [21] Judgment Affidavits and other evidence Evidence that a clerical error was made in a judgment, warranting correction by judgment nunc pro tunc, may come from a number of sources, including oral testimony, written documents, previous judgments, docket entries, or the trial judge's personal recollection. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [22] Appeal and Error Amendment or vacation of judgment If the trial judge corrects a judgment nunc pro tunc, a presumption arises that his personal recollection supports the finding of clerical error in the judgment. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [23] Appeal and Error Amendment or vacation of judgment Recitations in a nunc pro tunc judgment alone may provide sufficient evidence that the court relied upon its recollection of the facts at the time the original judgment was rendered, that such recollection raises the presumption of the court's finding that clerical error had occurred in the entry of the judgment, and that the nunc pro tunc judgment correctly reflects the judgment rendered. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [24] Judgment Affidavits and other evidence Judgment Allowing amendment nunc pro tunc © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) The trial judge's recollection of the facts at the time the original judgment was rendered has the dignity and force of evidence, for purposes of determining whether there is sufficient evidence that a clerical error was made, warranting correction by judgment nunc pro tunc. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [25] Appeal and Error Amendment or vacation of judgment Even though it is presumed that the trial judge's personal recollection supports the finding of a clerical error in the original judgment, the record from the hearing on the motion for judgment nunc pro tunc may negate any such presumption through evidence to the contrary. Vernon's Ann.Texas Rules Civ.Proc., Rule 316. Cases that cite this headnote [26] Judgment Mode of rendition Judgment Necessity for entry Judgment Time of taking effect A judgment routinely goes through three stages: (1) rendition, (2) signing, and (3) entry, and the judgment becomes effective once it is rendered. Cases that cite this headnote [27] Judgment Mode of rendition A judgment is “rendered” when the matter submitted to the court for adjudication is officially announced either orally in open court or by memorandum filed with the clerk. Cases that cite this headnote Attorneys and Law Firms *539 John T. Palter, Riney Palter, PLLC, Dallas, for appellant. Buford A. Cates, Jr., Dallas, for Billy & Barbara Lynn. Roland M. Ferguson, Sulphur Springs, for Upper Lake Fork Water Control & Improvement District No. 1. Before MORRISS, C.J., ROSS and CARTER, JJ. *540 OPINION Opinion by Chief Justice MORRISS. In this dispute concerning drainage of a lake, two different judgments were signed, the first apparently signed July 12, 2002, favoring Ray and Carol Claxton, and the second signed July 19, 2006, favoring (Upper) Lake Fork Water Control and Improvement District No. 1. The Claxtons appeal from the 2006 judgment. Because we determine that the 2002 judgment became the final judgment in this case, we dismiss the appeal for lack of jurisdiction. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) In order to explain our analysis, we provide a chronology of the lawsuit, including two substantial periods of inactivity. June 1996 Claxtons seek injunction against District. 11/4/1996 (Upper) Lake Fork, as third party plaintiffs, add Billy and Barbara Lynn as third party defendants. 3/26/1997 Claxtons add the Lynns as defendants. 6/19/1997 Claxtons seek summary judgment against all defendants. 6/18/2002 Claxtons file motion for partial summary judgment. 7/12/2002 Judgment signed. Court grants partial summary judgment, Claxtons nonsuit all claims against Lynns, and all other claims against District, and District nonsuits all third party claims against the Lynns. Decretal language in judgment specifically renders judgment on all of the above and states that the judgment is final, that this is the final judgment, and that all relief not expressly granted is denied. The judgment is signed as “approved as to form and substance” by counsel for Claxtons and District. 9/6/2002 Judgment filemarked. 10/3/2002 District files motion for new trial. 11/15/2002 Order filed granting new trial. 8/22/2005 Claxtons again nonsuit Lynns. 9/1/2005 Claxtons file second motion for partial summary judgment against District, essentially same as original motion. 3/24/2006 District files motion for summary judgment. 3/27/2006 Claxtons file third motion for partial summary judgment against District, essentially the same as first and second motions. 7/19/2006 Final judgment signed. 1) Claxtons' third motion for partial summary judgment denied. 2) District's motion for summary judgment granted. [1] [2] The question confronting us is jurisdiction. The failure of a jurisdictional requirement deprives a court of the power to act (other than to determine that it has no jurisdiction). Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex.2004). And once a court determines that it has no jurisdiction, its only legitimate choice is to dismiss. State of Tex. v. Morales, 869 S.W.2d 941, 949 (Tex.1994). The judgment containing a signature date of July 12, 2002, disposes of all claims and parties in this lawsuit, and not only states that it is the final judgment, but was approved both as to form and substance by counsel for the two remaining parties. It appears, from its face, that it was therefore final on that date. All of the relevant timetables begin to run on the date that a judgment is signed. A motion for new trial must be filed within thirty days of that date. TEX.R. CIV. P. 329b. The date on which a notice of appeal must be filed is also calculated based on the date on which the judgment is signed. TEX.R.APP. P. 26.1. *541 [3] If the July 12, 2002, judgment was the final judgment in this case, as it says it is, then we must determine whether the case was timely appealed with reference to that date. Using that date, only one result is possible—the notice of appeal filed September 18, 2006, was untimely and could not establish our jurisdiction. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) We contacted the parties in connection with this issue, and have received briefing setting out their positions. Essentially, the Claxtons agree that the 2002 judgment is final, and now ask us to dismiss their appeal for want of jurisdiction. The District takes the position that we should disregard the notation on the judgment as to the date it was signed, because it was actually signed on the date it was ultimately filed. The extensive record provided contains nothing to support that position, other than the District's pleadings. The trial court's order granting the District's motion for new trial states that the prior agreed judgment “entered on September 6, 2002 (but bearing the erroneous date of July 12, 2002) should be, and it is hereby in all things, vacated and set aside.” [4] Even if the trial court had the jurisdiction to grant the motion for new trial—which on its face it did not—and assuming that some error exists in the face of a judgment signed as correct in form and substance by all counsel, and even if this were a document properly rendering a new judgment, it does not state the correct date on which the judgment was signed, and could not be used by this Court to establish a signing date different from that on the face of the judgment. 1 The question of our jurisdiction to hear an appeal of this case then depends on the determination of which of the two signed judgments is the valid one. There can only be one final judgment. TEX.R. CIV. P. 301. A trial court retains plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment within thirty days after the judgment is signed. TEX.R. CIV. P. 329b(d); First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex.1984). After the expiration of those thirty days, the trial court has no authority to set aside a judgment except by bill of review as provided by law. TEX.R. CIV. P. 329b(d); Thursby v. Stovall, 647 S.W.2d 953, 954 (Tex.1983). [5] [6] The trial court lost its plenary power to vacate the judgment August 11, 2002. The trial court therefore had no jurisdiction to enter the November 15, 2002, order granting a new trial some 126 days after the signing of the first judgment. State ex. rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995). Judicial action taken after the court's jurisdiction over a cause has expired is a nullity. Id. [7] [8] Even if both parties agreed that a different date actually existed, we are constrained by the rules to determine our jurisdiction by reference to the date on which the judgment was signed—a party cannot confer or waive jurisdiction by consent or agreement. Stine v. State, 908 S.W.2d 429 (Tex.Crim.App.1995). Appellate jurisdiction cannot be created by consent, stipulation of the parties, or waiver, either by the court or by litigants. Welder v. Fritz, 750 S.W.2d 930 (Tex.App.-Corpus Christi 1988, no writ). Jurisdiction is fundamental and cannot be ignored by this Court or waived by the parties. In re Marriage of Johnson, 595 S.W.2d 900, 902 (Tex.Civ.App.-Amarillo 1980, writ dism'd w.o.j.). Further, lack of appellate jurisdiction *542 is fundamental error, which can be raised by the court sua sponte. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex.1990). We have no option in this case but to recognize the state of the record before us and to act accordingly. The appeal is dismissed for want of jurisdiction. OPINION ON REHEARING In a protracted legal battle in Hopkins County pitting Ray and Carol Claxton against the (Upper) Lake Fork Water Control and Improvement District No. 1, the District first lost. A considerable time later, the trial court—after granting a new trial to the District—ultimately changed course and found for the District. Our initial opinion dismissed the Claxtons' appeal for lack of jurisdiction. We based that dismissal on apparently jurisdictional facts revealed by the appellate record, starting with the earlier judgment—against the District—which recited a signing date of July 12, 2002. We concluded then that the District's subsequently filed, and granted, motion for new trial had been filed too late to give the trial court any power to grant it. The result of our ruling was that the later, and ultimate, trial court judgment © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) —dated July 19, 2006, and favoring the District—was without effect, since our ruling was that the 2002 judgment—favoring the Claxtons—had become the final judgment. After our initial opinion was issued, the District obtained from the trial court a January 16, 2007, judgment nunc pro tunc changing the signing date recited in the 2002 judgment from July 19, 2002, to September 6, 2002. 2 If that nunc pro tunc change is effective, the District's 2002 motion for new trial was timely and therefore the 2006 judgment favoring the District is the final judgment of the trial court. Because we reach just that result in this opinion, we reinstate the appeal. In its motion for rehearing, the District urges us to find valid the changes made by the nunc pro tunc judgment and thus recognize the later trial court judgment favoring the District. In their response, the Claxtons argue that, for a few reasons, we should disregard the nunc pro tunc judgment and recognize the 2002 judgment as the final judgment of the trial court. We disagree because (1) the 2002 judgment's originally recited date of signing was a clerical error, (2) the originally recited signing date is not binding as part of any agreement of the parties, and (3) the date change is supported by the record. (1) The 2002 Judgment's Originally Recited Judgment Date Was a Clerical Error [9] The Claxtons assert that the nunc pro tunc date change was substantive or judicial in nature, and was thus not authorized. We conclude otherwise. [10] Clerical mistakes in a judgment may be corrected by the judge in open court, and judgment nunc pro tunc rendered by the trial court, according to the truth or justice of the case. TEX.R. CIV. P. 316. This may be done even after the expiration of the court's plenary power. TEX.R. CIV. P. 329b(f). Judicial errors, however, may not be corrected after the expiration of a court's plenary jurisdiction. *543 Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986). [11] [12] A clerical error is an error which does not result from judicial reasoning or determination. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986). A judicial error is one which occurs in the rendering, as opposed to the entering, of a judgment. Escobar, 711 S.W.2d at 231; Delaup v. Delaup, 917 S.W.2d 411, 413 (Tex.App.-Houston [14th Dist.] 1996, no writ). One type of situation exists when a judgment is substantively incorrect because of a mistake of counsel. 3 In that situation, the judgment is not erroneous, it does not provide different relief from that requested or pronounced in open court—it is simply not the relief anticipated by the parties. When such a mistake is made and memorialized accurately by the trial court, any change is judicial in nature. It may be a mistake, but it is not the result of a clerical error: thus, a nunc pro tunc judgment is not available. A different situation is presented where a written judgment is ultimately signed that differs from the terms of the judgment as pronounced by the court. 4 In that situation, a nunc pro tunc judgment is available, because the written judgment does not comport with the prior rendering. [13] [14] This case presents a third nunc pro tunc situation. It is an error that does not substantively alter the relief provided by the judgment. A judgment nunc pro tunc may be issued to correct the recited signing date of an order if the original recited date is shown to have been incorrect. See Traylor Bros., Inc. v. Garcia, 949 S.W.2d 368, 369 (Tex.App.-San Antonio 1997, no writ). Consistent with the definition of the term, however, an order nunc pro tunc may not be used to backdate the signing of a written order that was not in fact signed earlier. In re Taylor, 113 S.W.3d 385, 393 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding); see Jauregui Partners, Ltd. v. Grubb & Ellis Commercial Real Estate Servs., 960 S.W.2d 334, 337 (Tex.App.- Corpus Christi 1997, writ denied). In other words, it cannot be used as a fiction to alter signing dates—it must reflect reality. 5 In the present case, after conducting a hearing and reviewing the contemporaneous documents, the trial court concluded the indicated date was incorrect. In its order, the trial court stated that it did not actually sign the judgment on that earlier date, but signed it approximately two months later. 6 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) Accordingly, for the preliminary purposes of determining our jurisdiction over this appeal, we conclude that the correction was clerical in nature and that the remedy of judgment nunc pro tunc was available. 7 *544 (2) The Originally Recited Judgment Date Is Not Binding as Part of Any Agreement [15] The Claxtons argue that, because the July 2002 judgment was an agreed judgment, as shown by counsel's signature agreeing as to form and substance, the District could not now attack the judgment's terms, including the date of signature. [16] After its preparation, the judgment was then approved not only as to form (a usual and harmless procedure), but as to substance as well by the attorneys representing both parties. Approval as to form is a matter of professional courtesy not necessary to a valid judgment. Approval as to form does not waive any error in the proceedings or incident to the judgment itself. Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App.-Corpus Christi 1965, writ ref'd n.r.e.). Approval as to substance is something else. Approval of the substance of a judgment has been described as tantamount to an agreement by the signatory that the judgment meets all of its essential requirements. Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex.App.-El Paso 1990, no writ). [17] [18] An agreed judgment means essentially the same thing as a judgment by consent. A judgment by consent is a judgment in which the terms are settled and agreed to by the parties and which is entered of record by authorization of the trial court. Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871 (1939); Johnson v. Rancho Guadalupe, Inc., 789 S.W.2d 596, 603 (Tex.App.-Texarkana 1990, writ denied). While the 2002 judgment may have been an agreed or consent judgment, we find no reason to conclude the recited date of signing was actually a material part of any agreement of the parties. The best witness that the parties did not consider the judgment's recited signing date as material to their agreement is the uniform manner in which all parties overlooked the July 2002 recited date until this Court pointed it out in 2006. Additionally, the signing dates recited in judgments are intended to reflect reality, not some different agreement of the parties. “Judges, attorneys and clerks are directed to use their best efforts to cause all judgments ... to be reduced to writing and signed by the trial judge with the date of signing stated therein.” TEX.R. CIV. P. 306a(2). The rule contemplates that each judgment should accurately reflect the date it was actually signed by the court; it does not seem to contemplate allowing parties to include an agreed date of signing into the terms of consent judgments. We decline to treat the originally recited judgment signing date as part of any agreement of the parties. (3) The Date Change Is Supported by the Record [19] The Claxtons also argue that the nunc pro tunc judgment is unsupported by the record. They assert that the information available to the trial court was insufficient to allow it to determine that the date of signing was erroneous. [20] For a judgment nunc pro tunc to be properly granted, the evidence must be clear and convincing that a clerical error *545 was made. Avila v. Lone Star Radiology, 183 S.W.3d 814, 821 (Tex.App.-Waco 2005, no pet.); Barton v. Gillespie, 178 S.W.3d 121, 127 (Tex.App.-Houston [1st Dist.] 2005, no pet.); In re Broussard, 112 S.W.3d 827, 833 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding). [21] [22] [23] [24] That evidence may come from a number of sources, including oral testimony, written documents, previous judgments, docket entries, or the trial judge's personal recollection. Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 683 (Tex.App.-Houston [1st Dist.] 1997, no writ). Further, “if [the trial judge] corrects the judgment nunc pro tunc, a presumption arises that his personal recollection supports the finding of clerical error.” Pruet v. Coastal States Trading, Inc., 715 S.W.2d 702, 705 (Tex.App.-Houston [1st Dist.] 1986, no writ). Moreover, recitations in a nunc pro tunc judgment alone may, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) provide sufficient evidence that the court relied upon its recollection of the facts at the time the original judgment was rendered, [that] [s]uch recollection raises the presumption of the court's finding that clerical error had occurred in the entry of the [judgment], and that the nunc pro tunc judgment correctly reflects the judgment rendered. Id.; Thompson v. Tex. Dep't of Human Resources, 859 S.W.2d 482, 485 (Tex.App.-San Antonio 1993, no writ). The trial judge's recollection of facts has the dignity and force of evidence. Ft. Worth & D.C. Ry. Co. v. Roberts, 98 Tex. 42, 81 S.W. 25, 26 (1904); Blum v. Neilson, 59 Tex. 378 (1883); Wood v. Paulus, 524 S.W.2d 749, 756 (Tex.Civ.App.-Corpus Christi 1975, writ ref'd n.r.e.). [25] Even though it is presumed that the trial judge's personal recollection supports the finding of a clerical error, 8 the record from the hearing on the motion for judgment nunc pro tunc may negate any such presumption through evidence to the contrary. In re Fuselier, 56 S.W.3d 265, 268 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding). This is consistent with the requirements of Rule 316 of the Texas Rules of Civil Procedure, which requires that such clerical mistakes may “be corrected by the judge in open court according to the truth....” See TEX.R. CIV. P. 316. Though a fairly loose version of evidence is allowed, with cases relying on the judge's recollections and on the argument of counsel, nevertheless, that evidence must be sufficiently clear and convincing to allow the trial court to conclude that clerical error exists. In this case, the record now contains a transcription of a brief hearing held January 17, 2007. At the hearing, the trial court reviewed the court's files and examined the transcript of the September 2002 hearing. The trial court stated in its January 16, 2007, order that it decided to grant the judgment nunc pro tunc based on its review of the “Court's official file (including the official transcript of the proceedings occurring on 09/06/02 in open court)....” 9 The District argues that the trial court's determination is supported by the record because the earlier date was logically absurd. 10 It bases this conclusion on several *546 factors. One is the obvious fact that no party treated the motion for new trial as being untimely—even though, based on the stated date of signing, it clearly was. All parties simply continued filing pleadings as though the motion for new trial was timely. As the District points out, no party resisted the 2002 motion for new trial based on a lack of jurisdiction, and, before this Court reviewed the record and recognized the problem, this issue was never raised. Certainly, a party cannot confer or waive jurisdiction either by consent or agreement. Stine v. State, 908 S.W.2d 429 (Tex.1995). The mere fact that the parties behaved as though the trial court retained jurisdiction over the case does not confer jurisdiction to the court. But the behavior by both counsel and trial court on such an absolutely basic concept supports a conclusion that everyone involved knew the 2002 judgment was not actually signed on the earlier date. The District argues that the sole explanation for the behavior of all involved was clearly that the judgment was not signed until the later date. 11 Foolish or perfunctory behavior by counsel or court is a staple of appeals. Although we would prefer to think that such errors would not occur, they do. Counsel for the District has directed us to no specific portion of the reporter's record from the September 2, 2002, hearing to support the argument that the evidence clearly supports the court's decision. Given the brevity of the record, however, we have nonetheless reviewed the transcription of that hearing to see if it supports the court's ruling. It does. [26] [27] The September hearing commenced with only one attorney present, representing the Lynns. 12 The court acknowledged that the District and the Claxtons had sent in an agreed order granting the motion for summary judgment. The trial court then questioned the Lynns' counsel at length about any ability they might have to complain about the judgment in the absence of any affirmative cross-pleadings against either the Claxtons or the District. The Lynns' counsel repeatedly asked the court not to enter the order just because the two parties agreed to it. On page seven of the record, counsel stated, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) [A]s I understand it, Your Honor, we're a party until you sign an order granting a nonsuit. And if you've not signed that, we're a party. And being a party, we would like the opportunity to address the Court to tell the Court why it shouldn't enter this order.... (Emphasis added.) On page twelve of the record, counsel stated, “I would like for the Court to know that by the order that's submitted to you, if you sign it, you will be ordering....” (Emphasis added.) At the end of the hearing, the trial court stated that it would grant the nonsuit and then “will enter the agreed order between the two remaining parties.” That dialogue *547 seems to demonstrate that the judgment was indeed signed in September, not July. 13 In the January 16, 2007, nunc pro tunc hearing, the trial court reviewed the transcription of the prior hearing, heard argument by counsel, and reviewed a letter dated September 3, 2002, that appears to be a transmittal letter accompanying a delivery of the 2002 judgment to the trial court just before the September 6 hearing. The trial court did not state either in writing or orally that it was relying on its personal recollection to determine that an error existed, and the discussion between counsel and court at the hearing suggests to the contrary. In that situation, we will not conclusively presume that it was doing so, especially in light of the five-year delay between the judgment and the judgment nunc pro tunc. See Pruet, 715 S.W.2d 705; Thompson, 859 S.W.2d at 485. The same judge was involved, however, and he determined that the error existed. It is reasonable to assume he recalled the context of the September 2002 hearing, at least once his recollection was refreshed in 2006. The language used in the 2002 hearing is best understood as indicating that the proposed judgment had not been signed to that point. That conclusion is further supported by the transmittal letter reviewed by the court. There is factually and legally sufficient evidence to support the rendition of the judgment nunc pro tunc. Because the nunc pro tunc change in the recited judgment date was valid, the District's subsequent motion for new trial was timely. Therefore, the subsequent, 2006, judgment was effective and became the final judgment of the trial court. We grant the District's motion for rehearing and reinstate the appeal. Footnotes 1 An order nunc pro tunc, correcting only a true clerical error, may be granted by a trial court at any time, even after it has lost jurisdiction over the case. America's Favorite Chicken v. Galvan, 897 S.W.2d 874 (Tex.App.-San Antonio 1995, writ denied). 2 The new judgment, at its beginning, states that the motion for summary judgment came on for hearing September 6, 2002—a date contrary to the notation originally made on the trial court docket—and contains a corrected signature date of September 6, 2002. Except for those details, the nunc pro tunc judgment is a complete duplicate of the prior judgment, including the original typographical errors. It was filed with the district clerk January 16, 2007. 3 Dikeman v. Snell, 490 S.W.2d 183, 185–86 (Tex.1973). 4 See Andrews, 702 S.W.2d at 585; Delaup, 917 S.W.2d 411; Petroleum Corp. v. First Nat'l Bank, 622 S.W.2d 152 (Tex.App.-Fort Worth 1981, writ ref'd n.r.e.). 5 Typical clerical changes to judgments that have been upheld include corrections of the date of judgment, Nolan v. Bettis, 562 S.W.2d 520, 523 (Tex.Civ.App.-Austin 1978, no writ), correction of a party name, Carlyle Real Estate Ltd. Partnership–X v. Leibman, 782 S.W.2d 230, 233 (Tex.App.-Houston [1st Dist.] 1989, no writ), and correction of a numerical error, Escobar, 711 S.W.2d at 232. 6 “Dates contained in judgments have been held on many occasions to be the type of errors that are correctable by judgment nunc pro tunc.” Ortiz v. O.J. Beck & Sons, Inc., 611 S.W.2d 860, 863 (Tex.Civ.App.-Corpus Christi 1980, no writ); see Traylor Bros., Inc., 949 S.W.2d at 369. 7 The Claxtons assert that there were also judicial changes in the 2002 judgment. Certainly, a judgment nunc pro tunc may alter nothing other than clerical matters. But, even if the corrected 2002 judgment differs from the original one in judicial matters, any such differences are irrelevant at this stage. The 2002 judgment was entirely superseded by the 2006 judgment, if the 2006 judgment was effective to do so. The only currently relevant part of the 2002 judgment is the date it was signed. That date determines whether the 2006 judgment was effective. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537 (2006) 8 Davis v. Davis, 647 S.W.2d 781, 783 (Tex.App.-Austin 1983, no writ); Bockemehl v. Bockemehl, 604 S.W.2d 466, 469 (Tex.Civ.App.- Dallas 1980, no writ). 9 Both parties have attached copies of the fifteen-page transcription to their briefs, and it has now been provided to the Court as a supplemental record. 10 The District also posits a physical impossibility argument—that it was impossible for the July 12 date to be the correct one because the District would have been required to file its motion for new trial on a date before the September 6, 2002, hearing—the date on which the judgment was actually signed. This argument is circular. The “impossibility” is based on the assumption that the later date is correct, which is the issue the District is trying to prove by showing impossibility. 11 The alternative, according to the District's brief, was that this is the only rational explanation for what would otherwise be “outrageously irresponsible (if not downright dumb) behavior by both the Trial Court and the parties' counsel. .... in completely ignoring the procedural provisions of Rule 329b.” 12 The Lynns were defendants in the case, but all claims against them were disposed of by nonsuit, as reflected in the judgment. 13 A potential problem with this evidence lies in the fact that “entering” a judgment and “signing” a judgment are by no means synonymous concepts. We also recognize that the terms are unfortunately often loosely used by attorneys and judges. A judgment routinely goes through three stages: (1) rendition, (2) signing, and (3) entry. Gen. Elec. Capital Auto Fin. Leasing Servs., Inc. v. Stanfield, 71 S.W.3d 351, 354 (Tex.App.-Tyler 2001, pet. denied); In re Wilburn, 18 S.W.3d 837, 840 (Tex.App.-Tyler 2000, pet. denied); Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex.App.-Waco 1988, no writ). The judgment becomes effective once it is “rendered.” Stanfield, 71 S.W.3d at 354; Wilburn, 18 S.W.3d at 840. A judgment is “rendered” when the matter submitted to it for adjudication is officially announced either orally in open court or by memorandum filed with the clerk. Samples Exterminators v. Samples, 640 S.W.2d 873, 875 (Tex.1982); Wilburn, 18 S.W.3d at 840. In this case, we conclude that, although the language was inaccurately used, court and counsel were actually discussing “signing” rather than “entering” the judgment. So taken, the transcription supports the court's ultimate conclusion that it signed the judgment on the later date. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Cleere v. City of Mesquite, 594 S.W.2d 831 (1980) 594 S.W.2d 831 Court of Civil Appeals of Texas, Dallas. D. C. CLEERE, Appellant, v. CITY OF MESQUITE, Texas, Appellee. No. 20176. | Feb. 19, 1980. Owner appealed from an order of the 162nd District Court, Dallas County, Dee Brown Walker, J., which denied his petition for declaratory relief with respect to a 1974 order requiring him to remove automobile parts from his premises. The Court of Civil Appeals, Humphreys, J., held that agreed order, which required owner to remove automobile parts from his premises, was a valid permanent injunction notwithstanding facts that such order did not explicitly use words “restrain” or “enjoin” with respect to the activities prohibited and fact that reasons for injunction were not specified in the order; inasmuch as owner agreed to an injunction, he could not complain that he was not informed of the reasons. Affirmed. West Headnotes (2) [1] Injunction Real property in general Agreed order, which required owner to remove automobile parts from his premises, was a valid permanent injunction notwithstanding facts that such order did not explicitly use words “restrain” or “enjoin” with respect to the activities prohibited and fact that reasons for injunction were not specified in the order; inasmuch as owner agreed to an injunction, he could not complain that he was not informed of the reasons. Rules of Civil Procedure, rule 683. 1 Cases that cite this headnote [2] Injunction Form and requisites Purpose of requirement that every order granting an injunction set forth reasons for its issuance is to inform a violator of why he is enjoined. Rules of Civil Procedure, rule 683. 1 Cases that cite this headnote Attorneys and Law Firms *832 Robert C. Cox, William Chris Wolffarth, Erhard, Cox, Ruebel & Rector, Dallas, for appellant. Elland Archer, City Atty., Mesquite, for appellee. Before GUITTARD, C. J., and AKIN and HUMPHREYS, JJ. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Cleere v. City of Mesquite, 594 S.W.2d 831 (1980) Opinion HUMPHREYS, Justice. This is an appeal from an order denying declaratory relief to appellant, D. C. Cleere. Cleere petitioned the court to declare that a 1974 order requiring him to remove automobile parts from his premises is not an injunction and that it is null and void because it does not meet the requirements of Tex.R.Civ.P. 683. We affirm. The order here resulted from an action in 1974 by the City of Mesquite, to enjoin Cleere from operating an automobile repair garage, selling automobile parts, and operating a wrecking yard on his premises. The 1974 order was an agreed order, prohibiting appellant from storing at his residence automobiles and automobile parts. In 1979, the city filed a contempt proceeding against Cleere, alleging a violation of this order. Cleere counter-claimed for a declaration pursuant to Tex.Rev.Civ.Stat.Ann. art. 2524-1 (Vernon 1965) that the order was not a valid injunction. The court found that he was not in contempt, but that the agreed order was “in force and effect as a permanent injunction.” [1] Cleere argues that the court erred in refusing to review the 1974 order under the Declaratory Judgment Act, which allows an interested person to have his rights construed under a written contract, and that the court erred in finding the agreed order was a permanent injunction. We conclude that the court had no power to review its previous order. Any attack on the injunction in this proceeding is a collateral attack and cannot succeed unless the injunction is void. The court may determine, however, whether the order is a valid permanent injunction. The question then is whether the court's finding that this is a valid permanent injunction was error. The agreed order decrees as follows: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Defendant is to remove all junk automobile cars, transmissions and junk automobile parts from his premises; that the Defendant is not to allow said automobiles on his property for a period longer than 24 hours, nor is he to store for commercial purposes any automobile transmissions or other junk automobile parts; that if said parts or transmissions are stored for personal use, they must be stored in a building on Defendant's property. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there will be no work on automobiles on Defendant's premises located at 1123 Peachtree Road, Mesquite, Texas, except for work on the automobiles of Defendant's immediate family, no unloading of automobile parts and transmissions except for the personal use of the Defendant and his immediate family, and shall not allow impact wrenches or other noisy equipment to be used on his property after 10:00 o'clock p. m. Cleere argues that this order is not a valid injunction because it does not explicitly use the words “restrain” or “enjoin” with respect to the activities prohibited. We do not agree. Admittedly the restraining language *833 is unusual, but its intent to impose a permanent restraint is evident. [2] Cleere also complains that the order does not comply with Tex.R.Civ.P. 683. That rule requires every order granting an injunction to set forth the reasons for its issuance, be specific in terms and describe the acts sought to be restrained in detail. Cleere contends that this order sets forth no reasons for its issuance and is not specific in its terms. Although the reasons are not specified in the order, this defect does not invalidate the injunction under the circumstances shown here. The purpose of the requirement for reasons is to inform the violator of why he is enjoined. Board of Equalization of City of Plano v. Wells, 473 S.W.2d 88, 91 (Tex.Civ.App. Dallas 1971, no writ). When a party agrees to an injunction, he is in no position to complain that he was not informed of the reasons. Furthermore, we hold that the order is sufficiently definite in its terms to apprise Cleere of the acts he can and cannot undertake. The only indefiniteness suggested by appellant is that he cannot tell from the order what is commercial use and what is personal © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Cleere v. City of Mesquite, 594 S.W.2d 831 (1980) use. While there may be a fact question in the future as to whether a certain use was commercial or personal, these terms are not so vague as to render the order unenforceable. Affirmed. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 CMH Homes v. Perez, 340 S.W.3d 444 (2011) 54 Tex. Sup. Ct. J. 1098 340 S.W.3d 444 Supreme Court of Texas. CMH HOMES, et al., Petitioners, v. Adam PEREZ, Respondent. No. 10–0688. | Argued Feb. 3, 2011. | Decided May 27, 2011. Synopsis Background: Mobile home buyer brought action against seller, alleging violations of Texas Deceptive Trade Practices Act and fraud. The 229th Judicial District Court, Duval County, Alex W. Gabert, J., granted buyer's motion to compel arbitration and appointed arbitrator. Seller filed interlocutory appeal challenging the appointment, and requesting in the alternative that its appeal be treated as a mandamus petition. The San Antonio Court of Appeals, 328 S.W.3d 592, dismissed appeal for want of jurisdiction. Seller petitioned for review. Holdings: The Supreme Court, Wainwright, J., held that: [1] interlocutory appeal from an order appointing an arbitrator was not permitted; [2] order appointing an arbitrator was not an order directing arbitration to proceed; and [3] seller's interlocutory appeal from order appointing an arbitrator could be considered as a petition for writ of mandamus. Judgment of Court of Appeals reversed and remanded. West Headnotes (15) [1] Courts Appellate jurisdiction of Supreme Court in general Supreme Court has jurisdiction to determine whether the court of appeals correctly decided its jurisdiction. Cases that cite this headnote [2] Appeal and Error Cases Triable in Appellate Court Supreme Court reviews the court of appeals' determination of its jurisdiction de novo. Cases that cite this headnote [3] Appeal and Error Necessity of final determination Unless a statute authorizes an interlocutory appeal, appellate courts generally only have jurisdiction over final judgments. 25 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 CMH Homes v. Perez, 340 S.W.3d 444 (2011) 54 Tex. Sup. Ct. J. 1098 [4] Appeal and Error Interlocutory and Intermediate Decisions Courts strictly apply statutes granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory orders are not immediately appealable. 30 Cases that cite this headnote [5] Alternative Dispute Resolution Decisions reviewable; finality Interlocutory appeal from an order appointing an arbitrator was not permitted. 9 U.S.C.A. § 16; V.T.C.A., Civil Practice & Remedies Code § 51.016. 5 Cases that cite this headnote [6] Alternative Dispute Resolution Decisions reviewable; finality Order appointing an arbitrator was not an order “directing arbitration to proceed,” within meaning of section of the Federal Arbitration Act specifying the orders from which an appeal could not be taken, even though order was issued in response to motion requesting that trial court compel arbitration, where order did not explicitly grant the motion to compel and did not explicitly compel the parties to arbitrate their dispute, both parties agreed to arbitrate their dispute, the open question remaining was who would serve as the arbitrator, and the purpose of the order was to answer that question. 9 U.S.C.A. § 16(b)(2). 19 Cases that cite this headnote [7] Alternative Dispute Resolution Decisions reviewable; finality Order appointing an arbitrator remained interlocutory and could not be appealed under section of the Federal Arbitration Act authorizing review of a final decision with respect to an arbitration, where trial court did not enter a dismissal or otherwise dispose of all parties and claims. 9 U.S.C.A. § 16(a)(3). 5 Cases that cite this headnote [8] Alternative Dispute Resolution Decisions reviewable; finality Just as all interlocutory arbitration orders are not subject to appeal under the Texas Arbitration Act, the Legislature, in enacting statute permitting a party to appeal an interlocutory order under the same circumstances that an appeal from a federal district court's order would be permitted by section of the Federal Arbitration Act (FAA) governing appeals, did not intend to make all interlocutory orders under the FAA appealable, only those permitted by section of the FAA governing appeals. 9 U.S.C.A. §§ 1 et seq., 16; V.T.C.A., Civil Practice & Remedies Code §§ 171.098 et seq., 51.016. 23 Cases that cite this headnote [9] Mandamus Form, requisites, and sufficiency in general Seller's impermissible interlocutory appeal from order appointing an arbitrator would be considered as a petition for writ of mandamus, where seller invoked the court of appeals' appellate jurisdiction by specifically requesting that its appeal be treated as a mandamus petition; nothing in the procedures for interlocutory appeals and mandamus actions prevented the appeal from being treated as a petition for writ of mandamus, and judicial efficiency militated against requiring seller to file a separate original proceeding. 23 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 CMH Homes v. Perez, 340 S.W.3d 444 (2011) 54 Tex. Sup. Ct. J. 1098 [10] Mandamus Modification or vacation of judgment or order Mandamus Nature of acts to be commanded Mandamus Civil proceedings other than actions Mandamus is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal, as when a party is erroneously denied its contracted-for arbitration rights under the Federal Arbitration Act. 9 U.S.C.A. § 1 et seq.

¹⁰ Cases that cite this headnote [6] Injunction Preservation of status quo The purpose of a temporary injunction is to preserve the status quo of the subject matter of the suit, pending a final trial on the merits of the case. Cases that cite this headnote [7] Injunction Form and requisites There are two reasons for requiring a temporary injunction to include a trial date; one is to prevent the temporary injunction from effectively becoming permanent without a trial, and another is for the order to be complete on its face and not reference to the complaint or other document. Vernon's Ann.Texas Rules Civ.Proc., Rule 683. 5 Cases that cite this headnote [8] Injunction Necessity and waiver in general Injunction Form and requisites Temporary injunction issued by trial court was void, where it did not contain a trial setting date or provide for a bond as required by procedural rules. Vernon's Ann.Texas Rules Civ.Proc., Rules 683, 684. 8 Cases that cite this headnote [9] Injunction Illegality or invalidity of injunction Trial court abused its discretion by holding litigant in contempt for violating temporary injunction which was void due the failure to include in injunction order a trial setting date or provide for a bond. Vernon's Ann.Texas Rules Civ.Proc., Rules 683, 684.

¹¹ Cases that cite this headnote [18] Subrogation Agreements for subrogation The equitable made-whole doctrine is inapplicable when the parties' agreed contract provides a clear and specific right of subrogation. 2 Cases that cite this headnote Attorneys and Law Firms *643 Loren R. Smith, Kelly, Smith & Murrah, P.C., Thomas A. Laucius, Laucius & Associates, Houston, TX, for Petitioner. Thomas B. Cowart, Law Offices of Thomas B. Cowart, P.C., Adolfo Ruiz Rodriguez, Basheer Youssef Ghorayeb, Rodriguez Law Firm, P.C., Dallas, TX, Michael W. Eady, Thompson, Coe, Cousins & Irons, L.L.P., Austin, TX, for Respondents. Kevin J. Cook, Payne & Blanchard, Dallas, TX, E.L. Caraway III, Watson Caraway Harrington Nelson Midkiff & Luningham, Fort Worth, TX, for Other Interested Parties. Gary L. Wickert, Matthiesen, Wickert & Lehrer, S.C., Hartford, WI, Brent M. Rosenthal, Baron & Budd, P.C., Dallas, TX, for Amicus Curiae. Opinion *644 Justice WILLETT delivered the opinion of the Court. The issue in this insurance subrogation case is whether the equitable “made whole” doctrine—the rule that an insurer is not entitled to subrogation of medical benefits unless the insured has been “made whole”—trumps an insurer's contract-based subrogation right. After respondent Vanessa Cantu sued multiple parties for severe injuries she sustained in an auto accident, her medical insurer, petitioner Fortis Benefits, intervened, claiming a subrogation right under the policy. The various defendants settled with Cantu, and Fortis looked only to Cantu for its recovery. A divided court of appeals upheld a trial court finding that because Cantu's medical expenses exceeded the settlement amount plus the benefits Fortis had paid, Fortis's subrogation claim was barred by the equitable “made whole” doctrine. We hold that the “made whole” doctrine must yield to Fortis's right to contractual subrogation under the plain terms of the insurance policy. I. Background Cantu suffered severe injuries in a car wreck and later sued the driver of the vehicle in which she was riding, his employer, the vehicle seller, and the vehicle manufacturer (Ford). Fortis intervened and asserted contractual subrogation and reimbursement rights to recoup from Cantu's tort recovery the amount of medical benefits it had paid under the policy. At a pretrial conference, Fortis agreed with all parties on the record that Fortis was excused from participating in the pretrial and trial proceedings and that Fortis at the post-verdict phase would look only to Cantu to resolve its subrogation and reimbursement claims. Cantu settled her claims with the defendants before trial for $1.445 million. Cantu and Fortis disputed what portion of the settlement proceeds, if any, should go to Fortis, and Cantu moved for summary judgment, arguing she had not been “made whole” by the settlement. Cantu's past medical expenses totaled $378,500 (of which Fortis claimed to have paid $247,534.14), © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007) 50 Tex. Sup. Ct. J. 965 and her summary judgment evidence included two “life care plans” estimating her future medical expenses at roughly $1.7 million and $5.3 million. She argued that her past and future medical expenses, exclusive of other amounts like pain and suffering, exceeded the amount of the settlement plus what Fortis had already paid. Cantu argued that the “made whole” doctrine precluded Fortis's contractual claims of subrogation and reimbursement. The trial court granted summary judgment in favor of Cantu, and a divided court of appeals affirmed. 1 II. Subrogation and the “Made Whole” Doctrine This Court recognized the “made whole” doctrine twenty-seven years ago in Ortiz v. Great Southern Fire & Casualty Insurance Co. 2 The Ortiz family had a fire insurance policy from Great Southern on their home, but not the contents. 3 A fire caused damages of $4,000 to the home and $11,614 to personal property, and Great Southern paid $4,000 for home repairs. 4 The Ortizes then sued Stacy–Mason, Inc., alleging that one of its employees negligently started the fire. Great Southern intervened, claiming a right of equitable *645 subrogation. 5 After the Ortizes settled with Stacy–Mason for $10,000, the trial court awarded, and the court of appeals affirmed, $4,000 of that settlement to Great Southern. 6 We reversed, holding, “An insurer is not entitled to subrogation if the insured's loss is in excess of the amounts recovered from the insurer and the third party causing the loss.” 7 We reasoned that one justification for equitable subrogation is to prevent the insured from receiving a double recovery, first from the insurer, then from the third party. 8 We also recognized, however, that if the insured's total recovery is less than his or her losses, equity cuts the other way: “when ‘either the insurer or the insured must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume.’ ” 9 Because the settlement in Ortiz encompassed both covered and noncovered items, we remanded for a determination of how much of the $10,000 related to house damage. 10 [1] Ortiz would govern if Fortis were merely asserting a claim for equitable subrogation. But Fortis is not citing principles of equity to recover its money; its policy with Cantu conferred on Fortis two separate contractual rights of recovery, one styled “subrogation” and one styled “reimbursement.” 11 Fortis argues that these provisions authorize recovery from Cantu's $1.445 million settlement with the defendants, and that neither provision is displaced by the “made whole” doctrine. We agree. A. Equitable Subrogation v. Contractual Subrogation Our Ortiz decision addressed the “made whole” doctrine in the context of equitable subrogation, but it did not discuss how the doctrine applies, if at all, to contractual subrogation. Other courts, however, have discussed whether the doctrine applies in the face of a contract that grants the insurer greater subrogation rights. For example, in Oss v. United Services Automobile *646 Ass'n, 12 the Fifth Circuit, applying Texas law in a diversity case, was confronted with facts similar to those in this case. The insured was not made whole by the settlement following a car wreck, yet insurer USAA sought enforcement of its contractual subrogation rights under the policy. 13 Like Fortis, USAA urged the Fifth Circuit to reject the “made whole” doctrine by distinguishing Ortiz as involving equitable rather than contractual subrogation. 14 The Fifth Circuit, relying on the El Paso Court of Appeals' decision in Means v. United Fidelity Life Insurance Co., refused because it believed that, in Texas, “the same principles govern both equitable and contractual subrogation.” 15 In Means, the insureds had challenged the validity of United Fidelity's contractual subrogation right to foreclose on their 200– acre property. 16 The court noted, “Whether we have a purely equitable subrogation or, as here, a purely contractual one where both Mr. and Mrs. Means agreed to the subrogation, the principles are the same, and the rights of United Fidelity Life Insurance © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007) 50 Tex. Sup. Ct. J. 965 Company after the payment were superior to the homestead rights of Mr. and Mrs. Means.” 17 Read in context, the court's discussion in Means does little more than affirm a subrogee's basic rights, whether they arise via contract or equity. Moreover, Means nowhere addressed the “made whole” doctrine that we first articulated in Ortiz, nor could it have, since Ortiz was decided three years later. When the El Paso Court of Appeals declared in Means that “the principles are the same” in contractual and equitable subrogation, it did so against a legal landscape that did not yet include the “made whole” doctrine. 18 For this reason, Means is not particularly instructive, nor is Oss, which relies predominantly on Means. Other Texas courts of appeals have addressed the difference between equitable and contractual subrogation. For example, the Austin Court of Appeals in Lexington Insurance Co. v. Gray recognized the distinction between “legal” and “conventional” subrogation. 19 The former is governed by equity; the latter by contract. 20 The court (1) observed that Texas courts have given “substance to the distinction,” (2) noted the “unusually ‘hospitable’ treatment that the right of subrogation has historically received in Texas,” especially express subrogation agreements, which are given “considerable weight” and are governed by general contract law principles, 21 and (3) cited several cases holding that a subrogee invoking contractual subrogation can “recover without regard to the relative equities of the parties.” 22 Lexington did not specifically *647 involve the “made whole” doctrine we had adopted a decade earlier in Ortiz, but it suggested that this equitable defense would not apply in the face of an express agreement whereby the parties agree in advance that the matter will be governed by contract principles rather than equitable principles. Where the policy's terms govern subrogation, the court added, “there is no reason for the equitable principles usually found in subrogation cases to come into play.” 23 A few years later, however, in Esparza v. Scott & White Health Plan, 24 the Austin Court of Appeals backed away from this interpretation. The Esparzas settled for an amount that did not make them whole, and Scott and White sought subrogation under an express provision in the parties' insurance contract, citing Lexington as holding that the “made whole” doctrine should apply only to equitable subrogation and not to contractual subrogation. 25 The court of appeals disagreed, stating: The distinction we drew between legal and conventional subrogation in Lexington simply means that under conventional subrogation no balancing of equities is necessary to determine whether the subrogee has a right to recover at all. While an insurance contract providing expressly for subrogation may remove from the realm of equity the question of whether the insurer has a right to subrogation, it cannot answer the question of when the insurer is actually entitled to subrogation or how much it should receive.... ... To avoid injustice, the equities must still be balanced in deciding what amount, if any, the subrogee is entitled to receive in a given case. 26 The court adopted the reasoning from Oss that a boiler-plate subrogation provision does not automatically negate an insurance policy's fundamental purpose, which is to protect the insured by shifting the risk of loss to the insurer. 27 If anyone is to go unpaid, the court reasoned, it should be the insurance company. The court concluded that contracts “ ‘confirm, but [do] not expand, the equitable subrogation rights of insurers,’ ” and the equities must still be balanced to achieve justice. 28 [2] We do not disagree that equitable and contractual subrogation rest upon common principles, but contract rights generally arise from contract language; they do not derive their validity from principles of equity but directly from the parties' agreement. The policy declares the parties' rights and obligations, which are not generally supplanted by court-fashioned equitable rules that might apply, as a default gap-filler, in the absence of a valid contract. If subrogation arises independent of any contract, then an express subrogation agreement would be superfluous and serve only to acknowledge this preexisting right, a position we reject. 29 [3] Contractual subrogation clauses express the parties' intent that reimbursement should be controlled by agreed contract *648 terms rather than external rules imposed by the courts. The United States Supreme Court addressed this very point in a © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007) 50 Tex. Sup. Ct. J. 965 subrogation case decided shortly after we granted the instant case. In Sereboff v. Mid Atlantic Medical Services, Inc., 30 insurer Mid Atlantic was an ERISA plan fiduciary for the Sereboffs. When the Sereboffs were injured in an auto accident, Mid Atlantic paid the couple's expenses pursuant to the plan. 31 When the Sereboffs settled the tort claims that arose from the accident, Mid Atlantic filed suit under ERISA to collect the medical expenses it had paid. 32 Mid Atlantic sought reimbursement under an “Acts of Third Parties” provision in the plan. 33 The Sereboffs argued that the equitable defense of the “made whole” doctrine should apply, even though language in the plan document was to the contrary. 34 The Court disagreed, comparing an action under the “Acts of Third Parties” provision to an action to enforce an equitable lien established by agreement. 35 The Court refused to apply the “made whole” doctrine, deeming the Sereboffs' equitable defenses “beside the point” because Mid Atlantic's subrogation claims arose by written agreement. 36 This position was earlier adopted by the Fifth Circuit in another ERISA case, Walker v. Wal–Mart Stores, Inc. 37 That case, like today's case, concerned a subrogation clause that granted a right of recovery against “any and all” third-party settlements. Walker brought a malpractice action against her dentist, alleging he propped open her mouth excessively, resulting in three jaw surgeries and medical expenses of over $41,000. 38 Walker settled for $12,500, and the trial court awarded the insurer the entire settlement amount as first-money reimbursement for the medical benefits it paid. 39 The Fifth Circuit held that “the Plan's language is unambiguous.... We agree with the district court in holding that the ‘any and all’ language plainly means the first dollar of recovery (any) and 100% recovery (all) of the funds received by the plaintiff in the settlement, up to the full amount of the benefits paid.” 40 [4] [5] [6] [7] [8] The three varieties of subrogation—equitable, contractual, and statutory—represent three separate and distinct rights that, while related, are independent of each other. Independent, however, does not mean co-equal. We generally adhere to the maxim that “equity follows the law,” which requires equitable doctrines to conform to contractual and statutory mandates, not the other way around. Where a valid contract prescribes particular *649 remedies or imposes particular obligations, equity generally must yield unless the contract violates positive law or offends public policy. This Court has “long recognized a strong public policy in favor of preserving the freedom of contract.” 41 And in Texas Ass'n of Counties County Government Risk Management Pool v. Matagorda County, we emphasized that insurers are well equipped to evaluate and reduce risk by, for example, “drafting policies to specifically provide for reimbursement.” 42 Fortis did exactly that, drafting two separate recovery provisions that replaced equitable rights with specific contractual rights. Neither subrogation nor reimbursement clauses violate Texas public policy. 43 As we have stated, “ ‘the State's public policy is reflected in its statutes,’ ” 44 and Texas workers' compensation law specifically embraces an insurer's first-money right of subrogation, thus indicating no blanket legislative disfavor of such provisions. 45 It is indeed difficult to declare something contrary to public policy when state law, both statutory and regulatory, actually suggests approval. 46 In a subrogation case arising under the Labor Code, the Amarillo Court of Appeals distinguished statutory subrogation from equitable and contractual subrogation. 47 The court looked only at the statute's plain language in affirming the trial court's refusal to invoke its equitable powers to deny subrogation. 48 We agree with this modest, text-based approach. [9] Given this insurance policy's plain language, we are loathe to judicially rewrite the parties' contract by engrafting extra-contractual standards that neither the Legislature nor the Texas Department of Insurance has thus far decided to promulgate. As we have said before, balancing dueling policy concerns is generally for non-judicial bodies, and it remains the “better policy for the contracts of insurance to be changed by the public body charged with their supervision, the State Board of Insurance, or by the Legislature, rather than for this Court” to contravene the express language of insurance contracts with equitable arguments. 49 The *650 contrary, however—replacing equitable protections with specific contract language—is not unknown in Texas law. 50 Parties are thus free to negate the “made whole” doctrine contractually, and to do so before an event occurs that triggers medical benefits under the policy. 51 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007) 50 Tex. Sup. Ct. J. 965 [10] [11] [12] Leading insurance law treatises likewise recognize that specific policy terms can override equitable principles and that many jurisdictions, though not all, apply the “made whole” doctrine only in the absence of contrary reimbursement language in the contract. 52 We agree with those courts holding that contract-based subrogation rights should be governed by the parties' express agreement and not invalidated by equitable considerations that might control by default in the absence of an agreement. 53 B. Subrogation Under Cantu's Insurance Contract With Fortis [13] [14] We turn now to the specific language of the policy in issue, which defines the parties' rights and obligations. It contains a section called “Recovery,” which includes a “Subrogation Right” provision and a separate (and broader) “Right of Reimbursement” provision. The former establishes a right of subrogation: “Upon payment of benefits, We [Fortis] will be subrogated to all rights of recovery a Covered Person [Cantu] may have against any person or organization.” 54 The provision continues: “Such right extends to the proceeds of any settlement or judgment; but is limited to the amount of benefits We have paid.” 55 Fortis thus retained an unfettered right to recover the proceeds from *651 the settlement of the underlying suit, the only limitation being the amount of recovery—what Fortis had paid under the contract. Nowhere does this provision suggest that Cantu must first be “made whole” for Fortis to recover. This provision does not use the modifier “first money,” but its meaning is not imprecise or ambiguous. The contract's specific language controls Fortis's right to subrogation, and the equitable defense of the “made whole” doctrine must give way. Accordingly, we hold that Fortis is contractually entitled to recover from the $1.445 million settlement the total amount of benefits it paid to Cantu. 56 III. Fortis's Claims Against Ford [15] [16] [17] Fortis also asserts that the court of appeals erred in not considering the validity of a pretrial agreement regarding its claims against defendant Ford. At a pretrial conference convened under Texas Rule of Civil Procedure 11, Fortis agreed to divide the proceeding into two phases: first Cantu would litigate the case with the defendants completely independent from Fortis, and then Fortis would look only to Cantu to resolve its claim for subrogation. The Rule 11 agreement and stipulations in the record, which narrowed the issues presented to the trial court, make clear that Fortis has unequivocally relinquished any claims against Ford. Just as Cantu entered into and is bound by the specific language in the insurance agreement, Fortis entered into and is bound by the specific language in the Rule 11 agreement. Rule 11 aims to remove misunderstandings and controversies that accompany verbal assurances, and the written agreements “speak for themselves.” 57 As this is a valid pretrial agreement under Rule 11, the trial court had a duty to enforce its terms. 58 Hence, the trial court did not err in dismissing Fortis's claims against Ford, and the court of appeals did not err in affirming that portion of the judgment. IV. Conclusion [18] The equitable “made whole” doctrine is inapplicable when the parties' agreed contract provides a clear and specific right of subrogation. Accordingly, while we affirm that part of the court of appeals' judgment regarding respondent Ford, we reverse and remand to the trial court for further proceedings consistent with this decision. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007) 50 Tex. Sup. Ct. J. 965 Parallel Citations 50 Tex. Sup. Ct. J. 965 Footnotes 170 S.W.3d 755. 597 S.W.2d 342 (Tex.1980). Id. at 343. Id. Id. Id. Id. Id. Id. at 344 (quoting Garrity v. Rural Mut. Ins. Co., 77 Wis.2d 537, 253 N.W.2d 512, 514 (1977)). Id. The policy states: Subrogation Right. Upon payment of benefits, We will be subrogated to all rights of recovery a Covered Person may have against any person or organization. This includes but is not limited to recoveries against such third party, against any liability coverage for such third party or against automobile insurance in the event a claim is made under the uninsured or underinsured motorist coverages. Such right extends to the proceeds of any settlement or judgment; but is limited to the amount of benefits We have paid. You must 1) do nothing to prejudice any right of recovery; 2) execute and deliver any required instruments or papers; and 3) do whatever else is necessary to secure such rights. If We are precluded from exercising Our Subrogation Right, We may exercise Our Right of Reimbursement. Right of Reimbursement. If benefits are paid under this plan, and any Covered Person recovers against any person or organization by settlement, judgment or otherwise, We have a right to recover from that Covered Person an amount equal to the amount We have paid. This includes but is not limited to recoveries against such third party, against any liability coverage for such third party or against automobile insurance in the event a claim is made under the uninsured or underinsured motorist coverages. (emphases added). 807 F.2d 457 (5th Cir.1987). Id. at 458–59. Id. at 460. Id. (citing 550 S.W.2d 302, 309 (Tex.Civ.App.-El Paso 1977, writ ref'd n.r.e.)). 550 S.W.2d at 308. Id. at 309. Id. 775 S.W.2d 679, 683 (Tex.App.-Austin 1989, writ denied). Id. Id. at 683–84. Id. (citing Girard Fire & Marine Ins. Co. v. Farmer, 53 S.W.2d 1016 (Tex.Com.App.1932, judgm't adopted); Duval County Ranch Co. v. Alamo Lumber Co., 663 S.W.2d 627 (Tex.App.-Amarillo 1983, writ ref'd n.r.e.); Quincy Mut. Fire Ins. Co. v. Jones, 486 S.W.2d 126 (Tex.Civ.App.-Dallas 1972, no writ); F.H. Vahlsing, Inc. v. Hartford Fire Ins. Co., 108 S.W.2d 947 (Tex.Civ.App.-San Antonio 1937, writ dism'd w.o.j.)). 23 Id. at 684. 24 909 S.W.2d 548 (Tex.App.-Austin 1995, writ denied). 25 Id. at 551 (citing 775 S.W.2d 679). 26 Id. at 552–52 (emphasis in original). 27 Id. 28 Id. at 552 (quoting Oss, 807 F.2d at 460). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007) 50 Tex. Sup. Ct. J. 965 29 Even if the “Subrogation Right” provision merely confirmed the preexisting right of equitable subrogation and nothing more, the policy's separate and broader “Right of Reimbursement” provision affords Fortis an alternative basis to recover from Cantu the medical benefits it paid. 30 547 U.S. 356, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006). 31 Id. at 1872. 32 Id. at 1873. 33 Id. at 1872–73. 34 Id. at 1877. 35 Id. 36 Id. Cantu would have us distinguish Sereboff because it arises under the ERISA statute and “has no application to this non-ERISA case.” However, “ERISA neither requires a welfare plan to contain a subrogation clause nor does it bar such clauses or otherwise regulate their content.” Ryan v. Fed. Express Corp., 78 F.3d 123, 127 (3d Cir.1996). Accordingly, a contractual subrogation provision, whether in an ERISA plan or in a private insurance policy, must be enforced as written. See id. at 128. 37 159 F.3d 938 (5th Cir.1998) (per curiam). 38 Id. at 939. 39 Id. 40 Id. at 940. 41 Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 553 (Tex.2001) (citing Wood Motor Co. v. Nebel, 150 Tex. 86, 238 S.W.2d 181, 185 (1951)). As a rule, a court should not by judicial fiat insert non-existent language into statutes or into parties' agreed-to contracts, or delete existent language from them either. Our confined duty is to construe the contract as is, and holding that equitable considerations trump contrary contract terms would render contractual subrogation a nullity. 42 52 S.W.3d 128, 136 (Tex.2000). As we noted, “the presence of absence of a reimbursement clause in the insurance contract could affect the premium charged,” so such provisions cannot be deemed illusory. Id. at 131 n. 4. 43 See id.; Ortiz, 597 S.W.2d at 343. 44 Town of Flower Mound v. Stafford Estates Ltd. P'ship, 135 S.W.3d 620, 628 (Tex.2004) (quoting Texas Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 250 (Tex.2002)). 45 See TEX. LABOR CODE §§ 417.001–.004 (authorizing subrogation in Texas workers' compensation law). 46 See Lawrence, 44 S.W.3d at 553 (“Public policy, some courts have said, is a term of vague and uncertain meaning, which it pertains to the law-making power to define, and courts are apt to encroach upon the domain of that branch of the government if they characterize a transaction as invalid because it is contrary to public policy, unless the transaction contravenes some positive statute or some well-established rule of law.”). 47 Tex. Workers' Comp. Ins. Fund v. Knight, 61 S.W.3d 91, 93 (Tex.App.-Amarillo 2001, no pet.). 48 Id. 49 Members Mut. Ins. Co. v. Cutaia, 476 S.W.2d 278, 281 (Tex.1972). 50 See, e.g., Zapata v. Torres, 464 S.W.2d 926, 930 (Tex.Civ.App.-Dallas 1971, no writ) (stating it is “reasonable to suppose” that the parties' express agreement was intended to replace implied equitable rights) (citations omitted). 51 Of course, if the Legislature and/or TDI believes that the contract's terms, though clear, work an unfair result, they can take action to prescribe or proscribe whatever principles they believe strike the best balance. The Insurance Code requires insurers to submit their insurance forms to TDI for approval, TEX. INS.CODE § § 1701.051, 1701.054, and while TDI can disapprove forms it deems unjust, id. § 1701.055(a)(2), it did not do so here. 52 16 COUCH ON INSURANCE 3d §§ 223:134, 223:147; 22 HOLMES APPLEMAN ON INSURANCE 2d § 141.2[B][1]; 3 APPLEMAN INSURANCE LAW & PRACTICE § 1675. 53 Cantu attempts to avoid the policy's express language by arguing that insurance contracts “are contracts of adhesion in which the insured has little, if any, negotiating room,” and that contractual abrogation of the “made whole” doctrine is thus unconscionable and unenforceable. Even taking as true the contention that insurance contracts are contracts of adhesion that reflect unequal bargaining power, “adhesion contracts are not automatically unconscionable or void.” In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 574 (Tex.1999). Nor is it per se unconscionable that an insurer would seek to reduce its risk and boost its solvency by including a subrogation and/or reimbursement clause. In any event, Cantu has produced no evidence of duress or unconscionability. 54 Emphasis added. Although Cantu argues that this language is so open-ended it allows for subrogation of claims unrelated to the policy, we must construe this provision in relation to the entire instrument, Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983), to avoid an interpretation that renders the contract “unreasonable, inequitable, and oppressive,” Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987). This contract is a “Major Medical Policy” that “describes the benefits available to You and covered Family © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007) 50 Tex. Sup. Ct. J. 965 Members from Fortis Insurance Company.” The provision therefore gives Fortis a subrogation right only on recoveries for claims that relate to benefits available under the contract. 55 Emphasis added. 56 Because we enforce the contract's “all rights of recovery” subrogation provision, we need not reach the separate “Right of Reimbursement” provision, which by its terms only applies if Fortis is denied subrogation. Nor need we consider whether the trial court erred in computing past and future medical expenses in relation to Cantu's total damages. 57 Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex.1995) (citing Birdwell v. Cox, 18 Tex. 535, 537 (1857)). 58 See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex.1996) (orig. proceeding) (noting that trial courts cannot consider evidence outside the bounds of the Rule 11 agreement); Scott–Richter v. Taffarello, 186 S.W.3d 182, 189 (Tex.App.-Fort Worth 2006, pet. denied) (“A trial court has a ministerial duty to enforce a valid Rule 11 agreement.”). End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011) 374 S.W.3d 464 Court of Appeals of Texas, Waco. GRAY WIRELINE SERVICE, INC., Appellant v. Larry R. CAVANNA, David Gray, Steve D. Gray, Kenneth M. Nester, Sr., Ismael Alvarez, Extreme Wireline Trucks & Equipment, LLC, Andrew E. Hughes, Bruce R. Barnett, and CGN Leasing, LLC, Appellees. No. 10–11–00058–CV. | Oct. 12, 2011. Synopsis Background: Company brought action against former employees, equipment company, and leasing company alleging various causes of action based on violations of employment agreements. The 335th District Court, Burleson County, Terry Flenniken, J., granted motion compelling arbitration in part, granted a temporary injunction, and reformed several of the employment agreements. Company appealed. Holdings: The Court of Appeals, Tom Gray, C.J., held that: [1] trial court's reformation of the non-compete agreements was not within the exception to the arbitration clause; [2] reformation of non-compete agreements in employment contracts was an issue to be determined by the arbitrator; [3] litigation had to be stayed pending the outcome of the arbitration; and [4] temporary injunction order that did not set the cause for trial on the merits was void on its face. Reversed and remanded. West Headnotes (23) [1] Alternative Dispute Resolution Validity Alternative Dispute Resolution Disputes and Matters Arbitrable Under Agreement In evaluating a motion to compel arbitration, a court must first determine whether a valid arbitration agreement exists, and then whether the agreement encompasses the claims raised. Cases that cite this headnote [2] Alternative Dispute Resolution Scope and standards of review Whether a valid arbitration agreement exists is a legal question subject to de novo review. Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011) [3] Alternative Dispute Resolution Evidence The presumption favoring arbitration arises only after the party seeking to compel arbitration proves that a valid arbitration agreement exists. Cases that cite this headnote [4] Alternative Dispute Resolution Construction in favor of arbitration Courts must resolve any doubts about an arbitration agreement's scope in favor of arbitration. Cases that cite this headnote [5] Alternative Dispute Resolution Construction Arbitration agreements are interpreted under traditional contract principles. Cases that cite this headnote [6] Alternative Dispute Resolution Evidence If the trial court finds a valid arbitration agreement, the burden shifts to the party opposing arbitration to raise an affirmative defense to enforcing arbitration. 1 Cases that cite this headnote [7] Alternative Dispute Resolution Discretion Absent a defense to enforcing the arbitration agreement, the trial court has no discretion but to compel arbitration and stay its own proceedings. Cases that cite this headnote [8] Alternative Dispute Resolution Disputes and Matters Arbitrable Under Agreement To determine whether an arbitration agreement covers a party's claims, a court must focus on the complaint's factual allegations, not the legal causes of action asserted. Cases that cite this headnote [9] Alternative Dispute Resolution Liberal or strict construction Alternative Dispute Resolution Evidence Court construes arbitration clauses broadly, and when a contract contains an arbitration clause, there is a presumption of arbitrability. Cases that cite this headnote [10] Alternative Dispute Resolution Construction in favor of arbitration Any doubts as to arbitrability are to be resolved in favor of coverage. Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011) [11] Alternative Dispute Resolution Construction in favor of arbitration Court resolves any doubts about the scope of the arbitration agreement in favor of coverage. Cases that cite this headnote [12] Alternative Dispute Resolution Construction in favor of arbitration The policy in favor of enforcing arbitration agreements is so compelling that a court should not deny arbitration unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation covering the dispute at issue. Cases that cite this headnote [13] Alternative Dispute Resolution Disputes and Matters Arbitrable Under Agreement Generally, if the facts alleged touch matters that are covered by, have a significant relationship to, are inextricably enmeshed with, or are factually intertwined with the contract that contains the arbitration agreement, the claims are arbitrable. 1 Cases that cite this headnote [14] Alternative Dispute Resolution Disputes and Matters Arbitrable Under Agreement To come within the scope of the arbitration provision, a party's allegations need only be factually intertwined with arbitrable claims or otherwise touch upon the subject matter of the agreement containing the arbitration provision. 1 Cases that cite this headnote [15] Alternative Dispute Resolution Employment disputes Contracts In restraint of trade Reformation of Instruments Form of remedy Trial court's reformation of the non-compete agreements in employment agreements could only be construed as a permanent reformation, which was not within the exception to the arbitration clause in the employment agreements; arbitration clause in employment agreements clearly contemplated that only temporary relief could be sought in the trial court, and thus, any equitable relief to be granted by the trial court would have to be interim in nature only. 1 Cases that cite this headnote [16] Contracts In restraint of trade Judgment Contract cases in general Reformation of Instruments Form of remedy Reformation pursuant to statute regarding remedies in actions to enforce covenants not to compete is a remedy to be granted at a final hearing, whether on the merits or by summary judgment, not as interim relief. V.T.C.A., Bus. & C. § 15.51(c). 2 Cases that cite this headnote [17] Alternative Dispute Resolution Matters to Be Determined by Court © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011) Reformation of non-compete agreements in employment contracts was an issue to be determined by the arbitrator rather than the trial court; the motion to reform, which asked for a determination that the restrictions contained within the non-compete agreements were not reasonable either in scope or duration or alternatively that the former employees had fully complied with the non-compete agreements, necessarily touched matters that were covered by, had a significant relationship to, were inextricably enmeshed with, or were factually intertwined with the contract that contained the arbitration agreement. 1 Cases that cite this headnote [18] Alternative Dispute Resolution Particular cases Litigation between company and various defendants had to be stayed pending the outcome of the arbitration between company and former employees, where the central issue in the case was the purported violation of non-compete agreements by the employees. Cases that cite this headnote [19] Alternative Dispute Resolution Stay of Proceedings Pending Arbitration Even when a party has brought arbitrable claims against one party and claims not subject to arbitration against another party in the same lawsuit, courts should stay all litigation if the collateral litigation addresses the same issues as arbitration which threatens to render the arbitration moot. Cases that cite this headnote [20] Appeal and Error Reply briefs Injunction Form and requisites Temporary injunction order that did not set the cause for trial on the merits was void on its face, and thus, the issue was not waived by the failure to complain about the injunction order in the original appellant's brief. Vernon's Ann.Texas Rules Civ.Proc., Rule 683. 4 Cases that cite this headnote [21] Injunction Scope and duration of relief Injunction Form and requisites The requirements of rule regarding form and scope of temporary injunctions are mandatory and must be strictly followed. Vernon's Ann.Texas Rules Civ.Proc., Rule 683. 1 Cases that cite this headnote [22] Appeal and Error Defects, objections, and amendments Injunction Scope and duration of relief Injunction Form and requisites When a temporary injunction order does not meet the mandatory requirements of rule on form and scope of injunctions, it must be declared void and dissolved, regardless of whether the defect was raised or briefed on appeal. Vernon's Ann.Texas Rules Civ.Proc., Rule 683. 3 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011) [23] Motions Construction and operation of orders in general A void order has no force or effect and confers no right; it is a nullity. 2 Cases that cite this headnote Attorneys and Law Firms *466 Ryan P. Hartman, Fulbright & Jaworski LLP, Houston, Bill Youngkin, Law Offices of Bill Youngkin, Bryan, for appellant. J. Davis Watson, Watson Law Firm LLP, Bryan, Wayne T. Rife, Law Offices of Wayne T. Rife PC, College Station, Laura J. Upchurch, Moorman Tate Urquhart Haley Upchurch & Yates, LLP, Brenham, James M. Riley Jr., Coats/Rose, Houston, Jay B. Goss, Bruchez Goss Thornton Meronof & Hawthorne, Bryan, for appellees. Ismael Alvarez, Pro Se. Before Chief Justice GRAY, Justice DAVIS, and Justice SCOGGINS. OPINION TOM GRAY, Chief Justice. This is an interlocutory appeal from three orders that (1) reformed several employment agreements, (2) compelled arbitration in part and denied a stay of the balance of the litigation involving third parties during the pendency of the arbitration, and (3) granted a temporary injunction. See TEX. CIV. PRAC. & REMEDIES CODE ANN. § 51.016 (West 2008). Gray Wireline Service, Inc. complains that the trial court erred by reforming the employment agreements rather than sending those issues to be determined by the arbitrator in contravention of the employment agreement and by refusing to stay the pending litigation in the trial court. GWSI further complains that the trial court erred by granting a temporary injunction in favor of Steve Gray and CGN Leasing. Because *467 we find that the trial court erred by reforming the employment agreements but should have sent that issue to arbitration, and erred by denying the motion to stay the litigation, we reverse the judgments of the trial court and remand to that court for further proceedings. Additionally, because we find that the temporary injunction did not comply with the Rules of Civil Procedure, we reverse the order granting the temporary injunction and order that it be dissolved. Background Steve Gray formed GWSI, a cased-hole wireline company, which operated primarily in Texas. In 2006, the shareholders of GWSI agreed to sell a portion of their shares to Centre Partners, Inc. and by doing so Centre Partners, Inc. gained control of GWSI. The new owners entered into employment agreements with Larry Cavanna, David Gray, Steve Gray, and Kenneth M. Nester, Sr. 1 which each contained a non-compete clause that terminated at various times depending on the reasons for the individual's departure, but was generally two years in duration. Each of the four departed from GWSI at various times, with Nester being the last to leave, terminating his employment on August 15, 2009. GWSI originally filed suit in mid-October of 2009 against Larry Cavanna, David Gray, Steve Gray, Kenneth M. Nester, Sr., Ismael Alvarez, Extreme Wireline Trucks & Equipment, LLC, Andrew E. Hughes, Bruce R. Barnett, and CGN Leasing, LLC seeking a temporary restraining order and asserting various causes of action based on violations of the employment agreement, including tortious interference, breach of fiduciary duty, breach of contract, civil conspiracy, unjust enrichment, unfair competition, violation of Penal Code Chapter 33, conversion, and trespass against the various defendants. The trial court © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011) issued a temporary restraining order, which was subsequently extended by agreement of the parties so that they could conduct limited expedited discovery. Shortly after the issuance of the temporary restraining order, Steve Gray and CGN Leasing, LLC filed a demand for arbitration in accordance with Steve Gray's employment agreement, and included a cause of action for a declaratory judgment in the arbitration demand. GWSI ultimately withdrew its request for a temporary injunction the day before the scheduled hearing. Cavanna, David Gray, and Nester then filed a “Motion to Reform and Alternate Motion for Determination” seeking reformation of the non-compete clause pursuant to Section 15.51(c) of the Business and Commerce Code or alternatively a determination that they were in full compliance with the employment agreements. GWSI subsequently filed its own demand for arbitration as to Steve Gray, Cavanna, David Gray, and Nester with the American Arbitration Association as well as a motion to stay the litigation pending the arbitration with the trial court. After a hearing on the motions, the trial court denied the motion to compel arbitration relating to the motion to reform and by separate order granted the motion to reform and reformed the employment agreements of Cavanna, David Gray, and Nester. The trial court then granted the motion to compel arbitration but denied *468 the motion to stay the trial court's proceedings pending the arbitration as to all of the defendants except for Cavanna, David Gray, Nester, Steve Gray, and CGN Leasing. The trial court did stay the pending litigation against them until the completion of the arbitration. The Non–Compete Agreements Each of the employment agreements contained the following language which Cavanna, Gray, and Nester sought to modify in the motion to reform: Geographic Limitation. The geographic limitation for the Non–Compete Obligations is any state, province (or substantially equivalent designation of a geographic area within a foreign country), or Outer Continental Shelf region (A) in which the Company provided its products, services, or activities during the twenty-four (24) months prior to the date of termination of Executive's employment with the Company, (B) in which the Company had plans to provide or contemplated providing its products, services, or activities during the twenty-four (24) months prior to the date of termination of Executive's employment, or (C) in which a customer or client of the Company, with whom Executive had or made contact or had access to information and/or files about during Executive's employment with the Company or within the twelve (12) months prior to the date of termination of Executive's employment with the Company, is located. Acknowledgments. Executive acknowledges and agrees that: ... (g) the restricted period set forth is a material term of this Agreement and that the Company is entitled to Executive's compliance with these terms during that full period. Therefore, Executive agrees that the restricted period will be tolled during any period of non-compliance by Executive. If the Company must seek injunctive relief or judicial intervention to enforce this Agreement, the restricted time period set forth herein does not commence until Executive is judged by a court of competent jurisdiction to be in full compliance with this Agreement;.... The trial court reformed the first paragraph to include the language “as evidenced by existing memoranda, minutes, or other correspondence (including, without limitation, internal or external presentations)” in paragraph (B) of the geographic restriction section. The trial court also reformed the tolling paragraph to delete the last sentence and to add the following: “If the Company must seek injunctive relief or judicial intervention to enforce this Agreement, the restricted time period set forth herein does not commence until a court of competent jurisdiction deems it should commence.” Arbitration [1] [2] [3] [4] In evaluating a motion to compel arbitration, a court must first determine whether a valid arbitration agreement exists, and then whether the agreement encompasses the claims raised. Am. Std. v. Brownsville Indep. Sch. Dist. (In re D. Wilson Constr. Co.), 196 S.W.3d 774, 781 (Tex.2006); see In re Dillard Dep't Stores, Inc., 186 S.W.3d 514, 515 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011) (Tex.2006) (per curiam); LDF Constr., Inc. v. Bryan, 324 S.W.3d 137 (Tex.App.-Waco 2010, no pet.). Whether a valid arbitration agreement exists is a legal question subject to de novo review. Id. Although the Texas Supreme Court has repeatedly expressed a strong presumption favoring arbitration, the presumption arises only after the party seeking to compel arbitration proves that a valid arbitration agreement exists. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). Courts must resolve any *469 doubts about an arbitration agreement's scope in favor of arbitration. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex.2001). [5] [6] [7] Arbitration agreements are interpreted under traditional contract principles. J.M. Davidson, 128 S.W.3d at 227. If the trial court finds a valid agreement, the burden shifts to the party opposing arbitration to raise an affirmative defense to enforcing arbitration. Id. Absent a defense to enforcing the arbitration agreement, the trial court has no discretion but to compel arbitration and stay its own proceedings. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex.2002) (per curiam). [8] [9] [10] [11] [12] To determine whether an arbitration agreement covers a party's claims, a court must focus on the complaint's factual allegations, not the legal causes of action asserted. FirstMerit Bank, 52 S.W.3d at 754. See also Energy Transfer Fuel, LP v. Estate of Souter, No. 10–09–00361–CV, 2010 WL 1611082, at *2–3, 2010 Tex.App. LEXIS 2975 at *6– 7 (Tex.App.-Waco Apr. 21, 2010, no pet.) (mem. op.). We are to construe arbitration clauses broadly, and when a contract contains an arbitration clause, there is a presumption of arbitrability. See AT & T Tech., Inc. v. Communications Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986). Any doubts as to arbitrability are to be resolved in favor of coverage. FirstMerit Bank, 52 S.W.3d at 754. Likewise, we resolve any doubts about the scope of the arbitration agreement in favor of coverage. Id. In fact, the policy in favor of enforcing arbitration agreements is so compelling that a court should not deny arbitration unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation covering the dispute at issue. Prudential Sec., Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex.1995). [13] [14] Generally, if the facts alleged “touch matters” that are covered by, have a “significant relationship” to, are “inextricably enmeshed” with, or are “factually intertwined” with the contract that contains the arbitration agreement, the claims are arbitrable. Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 498 (Tex.App.-San Antonio 2000, orig. proceeding). In other words, to come within the scope of the arbitration provision, a party's allegations need only be factually intertwined with arbitrable claims or otherwise touch upon the subject matter of the agreement containing the arbitration provision. See Prudential, 909 S.W.2d at 900; Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex.1992). The Arbitration Clause The arbitration clause at issue in each of the employment agreements states: Arbitration. Any dispute or controversy between the Company and Executive, arising out of or relating to this Agreement, the breach of this Agreement, or otherwise, shall be settled by arbitration in Wilmington, Delaware administered by the American Arbitration Association in accordance with its Commercial Rules then in effect and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including, without limitation, the issuance of an injunction. However, either party may, without inconsistency with this arbitration provision, apply to any court having jurisdiction over such dispute or controversy and seek interim provisional, injunctive or other equitable relief until *470 the arbitration award is rendered or the controversy is otherwise resolved. Except as necessary in court proceedings to enforce this arbitration provision or an award rendered hereunder, or to obtain interim relief, neither a party nor an arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of the company and Executive. Each party shall bear its or his own costs and expenses in any arbitration hereunder and one-half of the arbitrator's fees and costs; provided, however, that the arbitrator shall have the discretion to award the prevailing party reimbursement of its or his reasonable attorney's fees and costs. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011) No party is contending that the arbitration agreement is not valid or that arbitration should not be ordered. Rather, it is which claims to be determined by the arbitrator that are at issue, specifically, the motion to reform. Therefore, the burden is on Cavanna, Gray, and Nester to establish that the motion to reform the non-compete agreements is not within the scope of the arbitration agreement. See J.M. Davidson, 128 S.W.3d at 227. GWSI complains that the reformation of the non-compete agreements by the trial court was not allowed within the limited categories of relief allowed by the arbitration clause, but that the issue of reformation should be determined by the arbitrator because reformation pursuant to Business and Commerce Code section 15.51(c) is an issue to be determined at a final hearing on the merits. Because of this, GWSI contends that pursuant to the arbitration clause, the trial court could not permanently and finally reform the agreements prior to a determination on the merits at a final hearing, which should have been before the arbitrator. [15] Cavanna, Gray, and Nester responded by contending both in the trial court and to this Court that the trial court's reformation of the employment agreements was allowed pursuant to the arbitration clause because it constitutes “other equitable relief” as allowed in the arbitration clause. Their position is that the term “interim” does not apply to the entire phrase “interim provisional, injunctive or other equitable relief.” We disagree. The arbitration clause clearly contemplates that only temporary relief may be sought in the trial court. In order for Cavanna, Gray, and Nester's interpretation to be correct, the phrase immediately following “interim provisional, injunctive or other equitable relief” which states “until the arbitration award is rendered or the controversy is otherwise resolved” would have to be ignored entirely. Any equitable relief to be granted by the trial court would have to be interim in nature only, and thus that relief would seemingly be subsumed in or otherwise resolved at the final hearing on the merits. The trial court's reformation of the non-compete agreements can only be construed as a permanent reformation, which was not within the exception to the arbitration clause in the employment agreements. [16] Additionally, we agree that reformation pursuant to section 15.51(c) of the Business and Commerce Code is a remedy to be granted at a final hearing, whether on the merits or by summary judgment, not as interim relief. See EMS USA, Inc. v. Shary, 309 S.W.3d 653, 657 (Tex.App.-Houston [14th Dist.] 2010, no pet.); Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 238–39 (Tex.App.-Houston [1st Dist.] 2003, no pet.). See also, e.g., Lockhart v. McCurley, No. 10–09–00240– CV, 2010 WL 966029, at *1–2, 2010 Tex.App. LEXIS 1909 at *5 (Tex.App.-Waco March 10, 2010, no pet.) (mem. *471 op.); Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 885 (Tex.App.-Dallas 2003, no pet.); W.R. Grace & Co.-Conn. v. Henson, No. 13–06–00668–CV, 2007 WL 2389547, at *4–5, 2007 Tex.App. LEXIS 6771 at *11–12 (Tex.App.-Corpus Christi 2007, no pet.) (mem. op.). Other Provisions in the Agreement [17] Having determined that the trial court's reformation of the non-compete agreements did not fit within the exceptions to the arbitration agreement, we must determine whether the reformation is an issue to be determined by the arbitrator or the trial court. Cavanna, Gray, and Nester contend that there are two provisions outside of the arbitration provisions in the employment agreements which establish that the trial court was the proper forum for the issue of the reformation of the non-compete agreements rather than to be determined through arbitration. The first is the reference to “a court of competent jurisdiction” within the tolling provision. The second is contained in the next paragraph, paragraph (h) in the acknowledgment section which states: (h) the covenants contained in Paragraphs 8 through 12 are reasonable with respect to their duration, geographic area and scope. If, at the time of enforcement of this Paragraph 11, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographic area legally permissible under such circumstances will be substituted for the period, scope or area stated herein. Cavanna, Gray, and Nester argue that these provisions establish a clear intent between the parties that even if the exception stated in the arbitration agreement itself does not allow for the reformation of the agreement pursuant to the Business and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011) Commerce Code as “other equitable relief,” the reformation dispute should be resolved only by the trial court because of the use of the term “court” rather than “arbitrator” or “arbitral forum” in these additional paragraphs. The motion to reform asked the trial court to determine that the restrictions contained within the non-compete agreements were not reasonable either in scope or duration or alternatively, for the trial court to determine that they had fully complied with the non-compete agreements. When we consider the factual allegations contained within the motion to reform, we find that these claims necessarily “touch matters” that are covered by, have a “significant relationship” to, are “inextricably enmeshed” with, or are “factually intertwined” with the contract that contains the arbitration agreement. See Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 498 (Tex.App.-San Antonio 2000, orig. proceeding). Thus, we find that Cavanna, Gray, and Nester have not established an affirmative or other defense to the arbitration clause sufficient to overcome the presumption in favor of arbitration, and therefore the trial court erred in ruling on the motion to reform. We sustain issue one. Because of our holding sustaining the first issue, we do not reach the second issue relating to the arbitrators determining arbitrability. Stay of Proceedings [18] In its third issue, GWSI complains that the trial court erred by denying its motion to stay the proceedings entirely pending the outcome of the arbitration. The trial court granted the motion to stay relating to Steve Gray, Cavanna, David Gray, Nester, and CGN Leasing but denied the motion as it relates to the other defendants. *472 [19] Federal law requires courts to stay litigation of claims that are subject to arbitration until arbitration is completed. 9 U.S.C.A. § 3 (West 2009); In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 195–96 (Tex.2007) (orig. proceeding). Even when a party has brought arbitrable claims against one party and claims not subject to arbitration against another party in the same lawsuit, courts should stay all litigation if the collateral litigation addresses the same issues as arbitration which threatens to render the arbitration moot. See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d at 195–96. None of the non-signatories have filed briefs in this Court. However, our review of the claims indicates that the central issue to all is the purported violation of the non-compete agreements. Therefore, the litigation should be stayed pending the outcome of the arbitration and the trial court erred to order otherwise. We sustain issue three. TEMPORARY INJUNCTION [20] GWSI indicated in its notice of appeal that it was appealing the trial court's order granting a temporary injunction against it and in favor of Steve Gray and CGN Leasing. Steve Gray and CGN Leasing contend that any complaint regarding the temporary injunction has been waived because no issue was raised complaining of the trial court's entry of the temporary injunction. GWSI, in its reply brief, acknowledged the failure to raise the issue but argues that the injunction order is void on its face; therefore, the issue is not waived by the failure to complain about the injunction order in the original appellant's brief. [21] Rule 683 of the Rules of Civil Procedure sets forth part of the requirements for a temporary injunction. See TEX.R. CIV. P. 683. Rule 683 requires that “[e]very order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought.” TEX.R. CIV. P. 683. The order of temporary injunction does not include an order setting the cause for trial on the merits as required by Rule 683. Id.; see also EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 52 (Tex.App.-San Antonio 2002, no pet.) (reason for requiring injunction order to include trial date is to prevent temporary injunction from effectively becoming permanent without trial). The requirements of Rule 683 are mandatory and must be strictly followed. Qwest Commc'ns. Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex.2000) (per curiam); InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986) (per curiam). [22] [23] When a temporary injunction order does not meet the mandatory requirements of Rule 683, it must be declared void and dissolved, regardless of whether the defect was raised or briefed on appeal. InterFirst, 715 S.W.2d at 641 (temporary injunction that does not set cause for trial on merits is void and must be dissolved); Bay Fin. Sav. Bank, FSB v. Brown, 142 S.W.3d 586, 591 (Tex.App.-Texarkana 2004, no pet.) (although error not raised on appeal, temporary injunction void because © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Gray Wireline Service, Inc. v. Cavanna, 374 S.W.3d 464 (2011) it did not include order setting cause for trial on merits); EOG Res., 75 S.W.3d at 53 (same). A void order has no force or effect and confers no right; it is a nullity. See In re Garza, 126 S.W.3d 268, 273 (Tex.App.-San Antonio 2003, orig. proceeding). Because the temporary injunction order does not set the cause for trial on the merits, it is void. We reverse the trial court's temporary injunction order and order that it be dissolved. InterFirst, 715 S.W.2d at 641 (Tex.1986). *473 Conclusion We find that the trial court erred by reforming the employment agreements and not determining that the issue of reformation should be determined by the arbitrators. We further find that the trial court erred by denying the motion to stay the litigation as to the non-signatories to the employment agreements until the completion of the arbitration. We order that the temporary injunction is void and order the trial court to dissolve it. We reverse and remand to the trial court for further proceedings. The stay of the trial court proceedings issued by this Court on March 11, 2011 is hereby lifted. Footnotes 1 David Gray and Steve Gray are both defendants in the trial court proceedings. On appeal, the issue relating to Steve Gray and CGN Leasing, LLC involves only the temporary injunction. The other issues relating to the reformation, the arbitration, and the stay of proceedings involves David Gray but not Steve Gray. Therefore, in this opinion we will refer to Steve Gray by his full name. References to “Gray” refer to David Gray only. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999) 6 S.W.3d 717 Court of Appeals of Texas, Corpus Christi. David HENKE, Individually and d/b/a Breslau Cattle Co., Appellant, v. PEOPLES STATE BANK OF HALLETTSVILLE, Texas, Appellee. No. 13–99–274–CV. | Nov. 10, 1999. | Rehearing Overruled Dec. 22, 1999. Debtor moved to dissolve temporary injunction pertaining to liquidation of collateral. The 25th District Court, Lavaca County, Dwight E. Peschel, J., denied motion. Debtor appealed. The Court of Appeals, Hinojosa, J., held that: (1) appellate jurisdiction existed; (2) debtor waived right to complain of any errors in orders comprising temporary injunction; (3) defects in injunction and modifying orders were not fundamental errors; and (4) debtor failed to prove changed circumstances. Affirmed. West Headnotes (18) [1] Appeal and Error Necessity of final determination Under Texas procedure, appeals are allowed only from final orders or judgments. Cases that cite this headnote [2] Appeal and Error Necessity of final determination Unless a statute specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction only over final judgments. Cases that cite this headnote [3] Appeal and Error Injunction Court of Appeals had jurisdiction to consider debtor's interlocutory appeal challenging denial of motion to dissolve temporary injunction pertaining to liquidation of collateral. V.T.C.A., Civil Practice & Remedies Code § 51.014(4) (1997). Cases that cite this headnote [4] Injunction Authority and discretion of court The determination of whether to dissolve a temporary injunction lies within the sound discretion of the trial court. 3 Cases that cite this headnote [5] Appeal and Error Continuing, vacating, or dissolving © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999) On appeal from denial of motion to dissolve temporary injunction, review is limited to the narrow question of whether the trial court abused its discretion by denying the motion to dissolve. 2 Cases that cite this headnote [6] Appeal and Error Burden of showing grounds for review Appellant challenging denial of motion to dissolve temporary injunction bore burden of establishing that trial court abused its discretion. 3 Cases that cite this headnote [7] Appeal and Error Injunction Debtor waived right to complain of any errors in orders comprising temporary injunction when he failed to appeal order granting temporary injunction and subsequent modifying orders. 5 Cases that cite this headnote [8] Appeal and Error On consent, offer, or admission The general rule is that a party may not appeal from or attack a judgment to which he has agreed, absent allegation and proof of fraud, collusion, or misrepresentation. 5 Cases that cite this headnote [9] Appeal and Error Judgment Appeal and Error Rulings and proceedings on motions Debtor waived any errors in temporary injunction and modifying orders, and waived right to appeal from such orders, when he agreed to orders and did not show fraud, collusion, or misrepresentation. 5 Cases that cite this headnote [10] Injunction Grounds in general A trial court may modify a temporary injunction because of changed circumstances. Cases that cite this headnote [11] Injunction Grounds in general Movant seeking modification of temporary injunction must prove that circumstances have changed. Cases that cite this headnote [12] Injunction Grounds in general Changed circumstances justifying modification of temporary injunction are conditions that altered the status quo existing after the temporary injunction was granted or that made the temporary injunction unnecessary or improper. 5 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999) [13] Injunction Grounds or cause in general The trial court has no duty, upon the filing of a motion to dissolve a temporary injunction, to reconsider the grant of the injunction if the motion does not allege fundamental error or changed conditions, and the trial court cannot be held to have abused its discretion by refusing to alter its prior decision if there is no new evidence. 6 Cases that cite this headnote [14] Injunction Terminating, Vacating, or Dissolving Injunction The purpose of a motion to dissolve a temporary injunction is to provide a means to show that changed circumstances or changes in the law require the modification or dissolution of the injunction; the purpose is not to give an unsuccessful party an opportunity to relitigate the propriety of the original grant. 1 Cases that cite this headnote [15] Injunction Particular cases Defects in temporary injunction and modifying orders, which failed to set forth date for trial, were not fundamental errors requiring trial court to reconsider grant of injunction when party that sought to dissolve injunction actively agreed to each order. Vernon's Ann.Texas Rules Civ.Proc., Rule 683. 5 Cases that cite this headnote [16] Injunction Scope of Relief in General Injunction Form and requisites Requirements of rule governing form and scope of injunctions and restraining orders are mandatory and must be strictly followed. Vernon's Ann.Texas Rules Civ.Proc., Rule 683. Cases that cite this headnote [17] Injunction Authority and discretion of court Injunction Grounds in general If failure to comply with rule governing temporary injunctions was fundamental, trial court had a duty to reconsider its grant of a temporary injunction and modifying orders. Vernon's Ann.Texas Rules Civ.Proc., Rule 683. 1 Cases that cite this headnote [18] Injunction Evidence and affidavits Debtor seeking to dissolve temporary injunction pertaining to liquidation of collateral did not prove requisite change in circumstances, even though he argued that collateral at issue had been liquidated and proceeds applied to debt owed to one creditor, inasmuch as debtor did not show that all creditors had been paid in full, and underlying orders were necessary to ensure proper disbursement of any remaining proceeds. Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999) Attorneys and Law Firms *719 Percy L.“ Wayne” Isgitt, Atty. at Law, Houston, for Appellant. D B Stone, Atty. at Law, Don D. Sunderland, Mullin, Hoard & Brown, Amarillo, David C. Junkin, Steven James Wingard, Scott, Douglas & McConnico, Austin, Marcus F. Schwartz, Schwartz & Schwartz, Attys. at Law, Hallettsville, Kaaran E. Thomas, Vinson & Elkins, Houston, for Appellee. Before Justices HINOJOSA, YAÑEZ, and RODRIGUEZ. OPINION Opinion by Justice HINOJOSA. This is an interlocutory appeal from the trial court's denial of a motion to dissolve a temporary injunction. In three issues, appellant, David Henke, contends the trial court erred in refusing to grant the motion to dissolve because: (1) the portions of the underlying orders which comprise the temporary injunction are subject to being declared void and dissolved because they fail to meet the mandatory requirements of Texas Rule of Civil Procedure 683 1 in that they: (a) do not specify a trial date, (b) do not set forth the reason for the issuance of the temporary injunction, (c) are not specific as to the terms of the temporary injunction, and (d) do not contain reasonable detail as to the act or acts sought to be restrained without reference to the complaint or other document; (2) while the parties agreed to a temporary injunction, the injunctive provisions as embodied in the orders constitute a permanent injunction in the absence of an order setting the case for trial; and (3) the basis for the temporary orders was to provide an orderly manner for the liquidation of collateral—because the collateral has been liquidated and the proceeds applied to the debt owed Peoples State Bank, the reasons for the issuance of the temporary injunction no longer exist. We affirm the trial court's order. The record reflects the trial court rendered: (1) a temporary restraining order, signed on August 8, 1997; (2) an agreed order, signed on August 22, 1997, granting a temporary injunction; (3) an agreed order, signed on September 5, 1997, modifying the temporary orders (the temporary restraining order of August 8 and the agreed temporary injunction of August 22); and (4) an agreed order, signed on *720 September 16, 1997, modifying the temporary restraining order (and all temporary injunction orders) and providing for the terms and conditions for the sale of cattle. Henke could not appeal the temporary restraining order; however, he had twenty days within which to perfect an appeal from the remaining temporary orders. TEX.R.APP. P. 42; TEX. CIV. PRAC. & REM.CODE ANN. § 51.014 (Vernon 1997). Henke did not appeal any of the temporary orders. On April 22, 1999, Henke filed a motion to dissolve the temporary injunction and the subsequent modifying orders. The trial court denied the motion on April 27, 1999 stating, “Henke has not timely appealed or otherwise challenged the Orders and ... he has agreed to the Orders.” Henke appeals from the trial court's order denying his motion to dissolve. A. APPELLATE JURISDICTION © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999) [1] [2] [3] Under Texas procedure, appeals are allowed only from final orders or judgments. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992); North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). Unless a statute specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction only over final judgments. Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.1985) (orig.proceeding); Aldridge, 400 S.W.2d at 895; City of Mission v. Ramirez, 865 S.W.2d 579, 581 (Tex.App.—Corpus Christi 1993, no writ). Section 51.014 of the Texas Civil Practice & Remedies Code specifically allows appeal of various interlocutory orders, including an order that “(4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction ... [.]” TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(4) (Vernon 1997). We conclude we have jurisdiction to consider this interlocutory appeal. B. MOTION TO DISSOLVE [4] [5] [6] The determination of whether to dissolve a temporary injunction lies within the sound discretion of the trial court. Cellular Marketing, Inc. v. Houston Cellular Telephone Co., 784 S.W.2d 734, 735 (Tex.App.—Houston [14th Dist.] 1990, no writ). On appeal, our review is limited to the narrow question of whether the trial court abused its discretion by denying the motion to dissolve. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993). Accordingly, Henke has the burden to establish that the trial court abused its discretion. Tober v. Turner of Texas, 668 S.W.2d 831, 834 (Tex.App.—Austin 1984, no writ). C. RULE 683 [7] Henke correctly argues that the orders to which he and Peoples State Bank agreed, and which the trial court signed, are technically subject to being declared void and dissolved because they fail to meet the requirements of Rule 683. However, because Henke failed to appeal the trial court's order granting the temporary injunction and the subsequent modifying orders, we hold Henke has waived his right to complain of any errors in those orders. [8] [9] Further, the general rule is that a party may not appeal from or attack a judgment to which he has agreed, absent allegation and proof of fraud, collusion, or misrepresentation. First American Title Ins. Co. v. Adams, 829 S.W.2d 356, 364 (Tex.App.—Corpus Christi 1992, writ denied) (citing Bexar County Criminal Dist. Attorney's Office v. Mayo, 773 S.W.2d 642, 644 (Tex.App.—San Antonio 1989, no writ) and Charalambous v. Jean Lafitte Corp., 652 S.W.2d 521, 525 (Tex.App.—El Paso 1983, writ ref'd n.r.e.)). We find no evidence in the record of fraud, collusion, or misrepresentation. Because he agreed to the orders, we hold Henke has waived any error and has waived his right to appeal. *721 C. CHANGED CIRCUMSTANCES AND FUNDAMENTAL ERROR [10] [11] [12] [13] [14] A trial court may modify a temporary injunction because of changed circumstances. Smith v. O'Neill, 813 S.W.2d 501, 502 (Tex.1991). The movant must prove that circumstances have changed. City of Seagoville v. Smith, 695 S.W.2d 288, 289 (Tex.App.—Dallas 1985, no writ). Changed circumstances are conditions that altered the status quo existing after the temporary injunction was granted or that made the temporary injunction unnecessary or improper. Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640, 641 (Tex.App.—Houston [14th Dist.] 1991, no writ). The trial court has no duty, upon the filing of a motion to dissolve, to reconsider the grant of the injunction if the motion does not allege fundamental error or changed conditions. Cellular Marketing, 784 S.W.2d at 735. The trial court cannot be held to have abused its discretion by refusing to alter its prior decision if there is no new evidence. Id. The purpose of a motion to dissolve is to provide a means to show that changed circumstances or changes in the law require the modification or dissolution of the injunction; the purpose is not to give an unsuccessful party an opportunity to relitigate the propriety of the original grant. Tober, 668 S.W.2d at 836. The Tober Court stated: © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999) From a practical standpoint, if a litigant could, by motion to dissolve, force reconsideration of the original grant, without a showing of changed conditions, then there is an incentive for him to do so at least once, or more often, in hope that he will be able to wear down the resistance of the original trial judge, or in hope that he will be able to secure a hearing before a different trial judge who may be more sympathetic. Such actions needlessly add to the judicial caseload, both at the trial and appellate level. Recognition of the principle that the trial court has no duty to reconsider the validity of the original grant of temporary injunction upon motion to dissolve enables the trial court to dispose of motions to dissolve solely upon the pleadings when the motion to dissolve, on its face, shows that the litigant offers no new evidence. Id. at 835. [15] At the hearing on the motion to dissolve, Henke argued the orders he had agreed to were “void.” He stated: Under the case law and under the Rules of Civil Procedure a temporary injunction must set forth a date for trial in order for it to be valid.... And also, if it does not contain a trial setting and if it does not contain findings as to the reason for it, it is void and may not be made valid by waiver. [16] [17] Initially, it appears the trial court's failure to comply with Rule 683 is fundamental error. The requirements of rule 683 are mandatory and must be strictly followed. InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986). If the error is fundamental, the trial court had a duty to reconsider the grant of the temporary injunction and the modifying orders. See Cellular Marketing, 784 S.W.2d at 735. However, because the orders were agreed, they are not subject to attack by Henke. See Alexander v. Alexander, 373 S.W.2d 800, 805 (Tex.Civ.App.—Corpus Christi 1963, no writ). Because Henke actively agreed to each order, we hold the deficiencies in the orders are not fundamental error. [18] Henke contends the temporary injunction should have been dissolved because of changed conditions. Henke argues the agreed order of September 16, 1997, provided for the liquidation of collateral (sale of cattle) and the application of the proceeds to the indebtedness of his creditors. Henke contends the collateral has been liquidated and the proceeds have been applied to the debt he owed Peoples State Bank. Thus, he argues, the reason for the temporary injunction no longer exists. *722 After reviewing the record, we hold Henke did not prove a change in the circumstances made the basis of the temporary injunction. We note that Henke's motion to dissolve alleges only the violation of Rule 683 and not any changed conditions. The record reflects that Henke only argued changed conditions at the hearing on the motion to dissolve. Henke argued: [T]he whole point of the order is now moot. Peoples Bank was paid in December of 1997. They continue to pursue Mr. Henke and raise their attorneys' fees up to a quarter of a million dollars level when they were paid within three months of filing this lawsuit. The purpose for the injunction doesn't exist anymore. All the money that is going to be collected has been collected months and months ago. Henke's argument is no evidence that circumstances had changed. The agreed order modifying temporary orders, signed on September 5, 1997, states that Henke was indebted to Peoples State Bank, First State Bank, Prairie Livestock, Friona Agricultural Credit Corporation, and several other entities. Henke made no effort to prove that all these entities had been paid in full. In addition, the order states: In the event disbursements to PSB [Peoples State Bank] for application to the Henke's debt result in payment in full of Henke's debt to PSB, then, all additional proceeds that are distributed to PSB under the provisions of this order are to be maintained by PSB in an interest-bearing escrow account and disbursed only upon further order of this Court. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717 (1999) Thus, even if Peoples State Bank was paid in full as alleged by Henke, the temporary injunction and the modifying orders are still necessary to ensure the proper disbursement of any remaining proceeds. We hold the trial court did not abuse its discretion by denying Henke's motion to dissolve. We overrule Henke's three issues. The trial court's order denying Henke's motion to dissolve is AFFIRMED. Footnotes 1 RULE 683. FORM AND SCOPE OF INJUNCTION OR RESTRAINING ORDER Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought. The appeal of a temporary injunction shall constitute no cause for delay of the trial. TEX.R. CIV. P. 683. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Hernandez v. Telles, 663 S.W.2d 91 (1983) 663 S.W.2d 91 Court of Appeals of Texas, El Paso. Miguel HERNANDEZ & Antonio Hernandez, d/b/a Bocaccio 2000, Appellants, v. Ramon TELLES, Appellee. No. 08–82–00320–CV. | Dec. 14, 1983. Buyers brought action against seller for breach of warranties and violations of the Deceptive Trade Practices-Consumer Protection Act, alleging they had been damaged by purchase of defective mechanical bucking bull. The 34th District Court, El Paso County, Jerry Woodard, J., entered take nothing judgment against buyers, and buyers appealed. The Court of Appeals, Ward, J., held that: (1) original contract of sale between buyers and seller was replaced by new agreement made by compromise and settlement; (2) evidence existed supporting trial court's submission to jury of issues regarding compromise and settlement; (3) sufficient evidence existed to support finding on issues regarding compromise and settlement; and (4) buyers' objection, made on appeal, as to late filing of seller's answer, was untimely and had been waived. Affirmed. West Headnotes (10) [1] Compromise and Settlement Unliquidated, disputed, or doubtful claims in general Disputed or unliquidated claim is basis for compromise. Cases that cite this headnote [2] Compromise and Settlement Nature and Requisites Law has always favored resolution of controversies through compromise and settlement rather than through litigation and it has always been policy of law to uphold and enforce such contracts if they are fairly made and are not in contravention of some law or public policy. 7 Cases that cite this headnote [3] Compromise and Settlement Subject-matter Even strong policy of statute to protect consumers against false, misleading and deceptive business practices, which is foundation of Deceptive Trade Practices Act, does not overrule stronger policy of law favoring settlements of disputes. V.T.C.A., Bus. & C. § 17.50. 5 Cases that cite this headnote [4] Compromise and Settlement Nature and Requisites Compromise and settlement agreement is subject to general principles of law of contracts. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Hernandez v. Telles, 663 S.W.2d 91 (1983) 4 Cases that cite this headnote [5] Compromise and Settlement Nature and Requisites Compromise and Settlement Unliquidated, disputed, or doubtful claims in general Enforceable agreement of compromise requires offer of compromise, meeting of minds of parties and unconditional acceptance within time and on terms offered; it is also essential that amount of claim be disputed. 2 Cases that cite this headnote [6] Compromise and Settlement Subject-matter Where buyers purchased allegedly defective bucking bull from seller, buyers and seller reached new agreement to rescind sale, seller agreeing to return balance paid on contract upon buyers' return of bull, and buyers never returned bull though seller was ready, willing and able to perform, original contract of sale was replaced by new agreement made by compromise and settlement. 1 Cases that cite this headnote [7] Compromise and Settlement Operation and Effect Settlement agreement could be asserted as a defense in action brought under the Deceptive Trade Practices Act, notwithstanding fact that compromise and settlement is not statutory defense under Act. V.T.C.A., Bus. & C. §§ 17.41 et seq., 17.50B(d). Cases that cite this headnote [8] Compromise and Settlement Weight and sufficiency Considering only evidence and inferences therefrom which supported jury's findings, evidence existed that buyers and seller of allegedly defective bucking bull reached compromise agreement. Cases that cite this headnote [9] Compromise and Settlement Weight and sufficiency Considering all evidence, sufficient evidence existed that buyers and seller of allegedly defective bucking bull reached compromise agreement. Cases that cite this headnote [10] Appeal and Error Amendments and supplemental pleadings Where no objection appeared in record to defendant's filing of pleading on defensive issues as trial amendment without leave of trial court, nor to evidence supporting pleading, plaintiff's objection made on appeal as to late filing of defendant's answer was untimely and had been waived. Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Hernandez v. Telles, 663 S.W.2d 91 (1983) Attorneys and Law Firms *92 Lawrence Douglas Durnford, El Paso, for appellants. Miguel A. Alvarez, Scott Segall, El Paso, for appellee. Before PRESLAR, C.J., and WARD and SCHULTE, JJ. OPINION WARD, Justice. The Plaintiffs Miguel and Antonio Hernandez filed this suit against the Defendant Ramon Telles under the provisions of the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Com.Code Ann. sec. 17.41, et seq. (Vernon Supp.1982), alleging they had been damaged by their purchase of a defective mechanical bucking bull. Trial was to a jury which answered the Plaintiffs' issues generally in favor of the Plaintiffs. However, the jury also answered issues which submitted the Defendant's theory that the dispute had been previously compromised and settled in favor of the Defendant. Based on the latter findings, a take nothing judgment was entered against the Plaintiffs who now bring this appeal. We affirm. On February 18, 1981, the parties entered into a written agreement by which the Defendant agreed to sell to the Plaintiffs the bucking mechanical bull for the total price of $5,250.00, the terms being the sum of $1,000.00 cash paid to the Defendant on the date of the contract, $1,500.00 to be paid on the date of delivery and the balance by a series of IOUs. The bull was delivered to the Plaintiffs in El Paso about the first of March and the $1,500.00 was paid to the Defendant. Plaintiffs then took the device to their place of entertainment in Juarez, Mexico, and it immediately started breaking down. This occurred on three or four occasions. According to the Defendant, one of the Plaintiffs then came to the Defendant in El Paso some time in March, and a new agreement was entered into whereby the parties agreed to rescind the sale. The sum of $1,000.00 in cash was immediately repaid to the Plaintiffs as well as $500.00 of the IOUs. Defendant agreed that when the Plaintiffs delivered the bull back to him in El Paso he would give the Plaintiffs the balance of their cash and notes that they had paid on the contract. The Plaintiffs thereafter never returned the bucking bull, although the defendant was ready, able and willing to return the balance of the purchase price upon the return of the bull. On June 26, a letter termed a Deceptive Trade Practices Act Notice was mailed to the Defendant by the Plaintiffs' attorney. By it, demands were made for the balance of the purchase price, the cost of certain repairs made to the machine, losses of business suffered by the Plaintiffs and attorney's fees. Thereafter the suit was filed and the trial resulted. At the trial, the jury returned issues in favor of the Plaintiffs regarding two Deceptive Trade Practices Acts and breaches of express and implied warranties. In addition, they found that the Plaintiffs had suffered $4,400.00 in actual damages and $4,700.00 in lost profits. No attack by the Defendant is made on this appeal as to these findings. The findings that are the subject of this appeal are those regarding Special Issue Nos. 27, 28 and 29. The jury determined by No. 27 that the Plaintiffs and Defendant *93 entered into an agreement for the return of the mechanical bull to El Paso and the refund of the purchase monies, by No. 28 that the Plaintiffs after that agreement refused to return the said mechanical bull, and by No. 29 that the Defendant stood ready, able and willing to refund said monies upon return of the mechanical bull. On the basis of these answers, the court entered the take nothing judgment. The Plaintiffs' first point of error alleges that they are entitled to judgment as a matter of law based upon the favorable jury findings on their cause of action and award of damages. Under the point, they further argue that as a matter of law Special Issue Nos. 27, 28 and 29 were either improperly submitted or were immaterial to the verdict as a matter of law. The Plaintiffs' position is that the statutory cause of action created by the Deceptive Trade Practices Act can only be defended against by the statutory defenses specifically enumerated in the Act. Section 17.50B(d) provides a defense to any cause of action under Section 17.50 if © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Hernandez v. Telles, 663 S.W.2d 91 (1983) the Defendant proves: (1) that he received statutory notice of the claim, (2) that within thirty days of the date of said notice he, (3) tendered to the consumer the amount of actual damages claimed and expenses reasonably incurred in asserting the claim. The Plaintiffs argue that there is no evidence to prove that the defendant ever complied with the Act. [1] [2] [3] [4] [5] [6] [7] Regardless of the statute, the issues in question submitted the Defendant's theory that there was a compromise and settlement of the cause of action between the parties in March, 1981. A disputed or unliquidated claim is the basis for a compromise. The law has always favored the resolution of controversies through compromise and settlement rather than through litigation and it has always been the policy of the law to uphold and enforce such contracts if they are fairly made and are not in contravention of some law or public policy. 15A Am.Jur.2d, Compromise and Settlement, secs. 2 and 5 (1976). We hold that even the strong policy of the statute to protect consumers against false, misleading and deceptive business practices, which is the foundation of the Deceptive Trade Practices Act does not overrule the stronger policy of the law favoring settlements of disputes. A compromise and settlement agreement is subject to the general principles of the law of contracts. An enforceable agreement of compromise requires an offer of compromise, a meeting of minds of the parties and an unconditional acceptance within the time and on the terms offered. It is essential that the amount of the claim be disputed. 12 Tex.Jur.3d, Compromise and Settlement, sec. 4 (1981). All of the recited elements were met according to the testimony of the Defendant, and the special issues in question together with any necessary implied findings by the court resolved the dispute in the Defendant's favor. The original contract of sale was replaced by the new agreement made by the compromise and settlement. It was the Plaintiffs who breached the new agreement and they should not be in a position to profit by their breach. The first point is overruled. [8] [9] [10] The Plaintiffs' second point of error is that the trial court erred in overruling their objections to the submission of Special Issue Nos. 27, 28 and 29, as they were not controlling issues on any theory of defense and had no effect upon the liability issues in the case. As previously discussed, we disagree with this contention. Also under this point, the Plaintiffs argue that there was no evidence or insufficient evidence to support the submission. We have considered only the evidence and inferences therefrom which support the jury's findings and the no evidence argument is overruled. Having considered all of the evidence, the factual insufficiency argument is likewise overruled. Also under the point, the Plaintiffs complain because the pleadings supporting these defensive issues were not filed within seven days of trial without leave of court. It appears this pleading was filed as a trial amendment and no objection appears in the record to the filing of this pleading or to the evidence supporting it. The objection now made on appeal as to the late filing of the answer is untimely and the objection has been waived. The second point of error is overruled. *94 The judgment of the trial court is affirmed. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re Corcoran, 343 S.W.3d 268 (2011) 343 S.W.3d 268 (Mem) Court of Appeals of Texas, Houston (14th Dist.). In re G. Christian CORCORAN and Peggy Corcoran, Relators. No. 14–10–01187–CV. | May 19, 2011. Original Proceeding Writ of Mandamus, 125th District Court Harris County, Texas, *269 Trial Court No. 2009–41594, Shearn Smith, Judge. Attorneys and Law Firms Marc J. Wojciechowski, Malcom Deon Dishongh, Spring, for Relators. Kimberly M. Spurlock, Humble, Jeffrey D. Roberts, Houston, for Real Party in Interest. Panel consists of Justices BOYCE, CHRISTOPHER, and JAMISON. SUBSTITUTE OPINION WILLIAM J. BOYCE, Justice. We grant relators' motion for rehearing, withdraw our opinion of March 31, 2011, and substitute this opinion on rehearing. In this original proceeding, G. Christian Corcoran and Peggy Corcoran, relators, seek a writ of mandamus ordering respondent, the Honorable Shearn Smith, sitting for the Honorable Kyle Carter in the 125th District Court of Harris County, Texas, to vacate his order signed August 3, 2009, granting an Agreed Mutual Temporary Injunction. Further, relators request we direct the Honorable Kyle Carter, presiding judge of the 125th District Court of Harris County, Texas, to vacate his order signed October 14, 2009, granting sanctions against relators. We conditionally grant the writ. Relators contend the order granting the Agreed Mutual Temporary Injunction is void as a result of the absence of a trial setting. We agree. “Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought.” Tex.R. Civ. P. 683. “This provision is mandatory; a failure to include a trial setting is grounds for voiding the injunction.” Kaufmann v. Morales, 93 S.W.3d 650, 656 (Tex.App.-Houston 14th Dist.2002, no pet.); see also In re Garza, 126 S.W.3d 268 (Tex.App.-San Antonio 2003, orig. proceeding). We therefore conditionally grant the petition for a writ of mandamus and direct the Honorable Shearn Smith, sitting for the Honorable Kyle Carter in the 125th District Court of Harris County, Texas, to vacate his order signed August 3, 2009, granting the Agreed Mutual Temporary Injunction. The writ will issue only if the Honorable Shearn Smith fails to act in accordance with this opinion. Relators also contend the Order Granting Plaintiff's Motion for Contempt, signed October 14, 2009, must be vacated. We agree. A trial court that holds a party in contempt for violating a void order necessarily abuses its discretion. See In re Garza, 126 S.W.3d at 272 (citing Ex parte Shaffer, 649 S.W.2d 300, 301–02 (Tex.1983)). Here, the trial court held relators in contempt for violating a void order. As such, the trial court abused its discretion, and relators are entitled to relief. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Corcoran, 343 S.W.3d 268 (2011) We therefore conditionally grant the petition for a writ of mandamus and direct the Honorable Kyle Carter to vacate his order signed October 14, 2009, granting sanctions. The writ will issue only if the Honorable Kyle Carter fails to act in accordance with this opinion. Because we have found the order void, it will not support the award of sanctions or attorney fees. See Ex parte Sealy, 870 S.W.2d 663, 667 (Tex.App.-Houston [1st Dist.] 1994, orig. proceeding); Keene Corp. v. Gardner, 837 S.W.2d 224, 232 (Tex.App.- Dallas 1992, writ denied). We therefore order the Joneses and their attorney to refund to the Corcorans any monies they paid under the trial court's void order. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re Garza, 126 S.W.3d 268 (2003) 126 S.W.3d 268 Court of Appeals of Texas, San Antonio. In re Andrea GARZA, Individually and as Independent Executrix of the Estate of Alfred S. Garza, deceased. No. 04–03–00478–CV. | Nov. 12, 2003. Litigant sought writ of mandamus ordering the 81st Judicial District Court, Atascosa County, Donna S. Rayes, J., to vacate contempt judgment. The Court of Appeals, Karen Angelini, J., held that: (1) temporary injunction which did not include a trial setting date or provide for a bond was void, and (2) trial court abused its discretion in holding litigant in contempt for violating void injunction. Writ conditionally granted. West Headnotes (9) [1] Mandamus Remedy at Law Mandamus Nature of acts to be commanded Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. 2 Cases that cite this headnote [2] Habeas Corpus Contempt Mandamus Existence and Adequacy of Other Remedy in General Contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus, and the only possible relief is a writ of mandamus. 3 Cases that cite this headnote [3] Appeal and Error Consent to judgment or order Generally, a party may not appeal from or attack a judgment to which he has agreed, absent allegation and proof of fraud, collusion, or misrepresentation; the rationale for this rule is that a party should not be allowed, but rather be estopped, to complain on appeal of an action or ruling which he invited, agreed to, or induced. Cases that cite this headnote [4] Motions Construction and operation of orders in general A void order has no force or effect and confers no rights; it is a mere nullity. 9 Cases that cite this headnote [5] Contempt Validity of mandate, order, or judgment © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Garza, 126 S.W.3d 268 (2003) A party who agrees to a void order has agreed to nothing, and thus, a trial court that holds a party in contempt for violating a void order necessarily abuses its discretion.

¹² Cases that cite this headnote [2] Subrogation Nature and theory of right Subrogation Agreements for subrogation Contractual subrogation rights generally arise from contract language; they do not derive their validity from principles of equity. 5 Cases that cite this headnote [3] Subrogation Agreements for subrogation Contractual subrogation clauses express the parties' intent that reimbursement should be controlled by agreed contract terms rather than external rules imposed by the courts. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007) 50 Tex. Sup. Ct. J. 965 3 Cases that cite this headnote [4] Subrogation Nature and theory of right Subrogation Agreements for subrogation The three varieties of subrogation—equitable, contractual, and statutory—represent three separate and distinct rights that, while related, are independent of each other. 5 Cases that cite this headnote [5] Equity Equity follows the law Courts generally adhere to the maxim that equity follows the law, and this requires equitable doctrines to conform to contractual and statutory mandates, not the other way around. 1 Cases that cite this headnote [6] Contracts Contravention of law in general Contracts Public Policy in General Where a valid contract prescribes particular remedies or imposes particular obligations, equity generally must yield unless the contract violates positive law or offends public policy. 5 Cases that cite this headnote [7] Payment Nature and grounds of right Subrogation Agreements for subrogation Neither subrogation nor reimbursement clauses in contracts violate public policy. 3 Cases that cite this headnote [8] Statutes Nature and Definition of Legislative Acts State's public policy is reflected in its statutes. 2 Cases that cite this headnote [9] Insurance Adequate compensation of insured; “made whole” doctrine Parties are free to negate the made-whole doctrine contractually and to do so before an event occurs that triggers medical benefits under the policy. 3 Cases that cite this headnote [10] Subrogation Agreements for subrogation Contract-based subrogation rights should be governed by the parties' express agreement and not invalidated by equitable considerations that might control by default in the absence of an agreement. 5 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007) 50 Tex. Sup. Ct. J. 965 [11] Insurance Validity and Enforceability Insurance Public policy Adhesion contracts such as insurance policies are not automatically unconscionable or void. 1 Cases that cite this headnote [12] Insurance Reimbursement of Payments Insurance Subrogation Against Third Parties; Right to Proceeds of Action or Settlement It is not per se unconscionable that an insurer would seek to reduce its risk and boost its solvency by including a subrogation and/or reimbursement clause. 1 Cases that cite this headnote [13] Insurance Adequate compensation of insured; “made whole” doctrine Insurance Medical insurance Subrogation clause entitled health insurer to recover from insured's settlement of tort claim, even if the insured was not made whole and even though the clause did not refer to “first money”; the policy entitled insurer to the proceeds of any settlement or judgment limited to the amount of benefits paid. 2 Cases that cite this headnote [14] Insurance Medical insurance Subrogation clause entitling health insurer to proceeds of any settlement or judgment limited to the amount of benefits paid gave a subrogation right only on recoveries for claims that related to benefits available under the contract; the clause did not allow subrogation of claims unrelated to the policy. 2 Cases that cite this headnote [15] Insurance Waiver or loss of subrogation rights Health insurer relinquished any subrogation claim against automobile manufacturer by entering written pretrial agreement and stipulations that insured would pursue case against manufacturer and other defendants independently of insurer and that insurer would then look only to insured. Vernon's Ann.Texas Rules Civ.Proc., Rule 11. Cases that cite this headnote [16] Stipulations Necessity for writing in general Rule making pretrial agreement between attorneys or parties enforceable only if in writing aims to remove misunderstandings and controversies that accompany verbal assurances, and the written agreements speak for themselves. Vernon's Ann.Texas Rules Civ.Proc., Rule 11. 2 Cases that cite this headnote [17] Stipulations Use and enforcement in general Trial court has duty to enforce terms of valid pretrial agreement. Vernon's Ann.Texas Rules Civ.Proc., Rule 11. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Fortis Benefits v. Cantu, 234 S.W.3d 642 (2007) 50 Tex. Sup. Ct. J. 965

¹³ Cases that cite this headnote *269 Original Mandamus Proceeding. 1 Attorneys and Law Firms W. Wendall Hall, Rosemarie Kanusky, Fulbright & Jaworski L.L.P., Terrence J. Martin, Martin, Friedland & Strolle, P.C., San Antonio, for Relator. Ellen B. Mitchell, Cox & Smith Incorporated, Douglas W. Sanders, Jeffrey T. Cullinane, Paul D. Barkhurst, Oppenheimer, Blend, Harrison & Tate, Inc., San Antonio, for Real Party in Interest. Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re Garza, 126 S.W.3d 268 (2003) OPINION Opinion by KAREN ANGELINI, Justice. Relator Andrea Garza seeks a writ of mandamus ordering respondent, the Honorable Donna S. Rayes, to vacate the May 28, 2003 contempt judgment. Because we conclude that Garza is entitled to the relief sought, we conditionally grant the writ. BACKGROUND This mandamus proceeding arises out of a dispute over a family business. In October 1995, Real Party in Interest Jaime Trevino and his cousin, Alfred G. Garza, entered into a partnership agreement to operate a business called Lobo Security. According to Trevino, however, his uncle, Alfred S. Garza, was his true partner. For personal financial reasons, Alfred S. Garza had requested that the partnership agreement name his son, Alfred G. Garza, as Trevino's partner. During their partnership, Trevino claims that Alfred S. Garza diverted partnership funds for his own benefit and the benefit of his immediate family members. On March 1, 2001, Alfred S. Garza died. On July 27, 2001, Trevino sued Alfred S. Garza's estate for fraud, breach of fiduciary duty, and breach of contract. Trevino also sued his aunt, Relator Andrea Garza, Alfred G. Garza, his partner under the partnership agreement, and two of his other cousins for fraud, conversion, civil conspiracy, and aiding and abetting Alfred S. Garza's breach of fiduciary duty. Additionally, Trevino sought a declaratory judgment regarding the characterization of the partnership's property. In response, Alfred G. Garza filed a counterclaim for breach of contract, breach of fiduciary duty, breach of the duty of good faith and fair dealing, and conversion. Alfred G. Garza also sought declaratory relief. On August 8, 2001, the trial court entered a temporary injunction, preventing the defendants (“the Garzas”) from depleting their assets during litigation. The Garzas were enjoined from “[d]estroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties.” And, they were enjoined from “[s]elling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of [Trevino] or [the Garzas], whether personalty or realty, and whether separate or community, except as specifically authorized” by the trial court. The temporary injunction did permit the Garzas to incur indebtedness to pay legal expenses. It did *270 not, however, contain a trial setting date or provide for a bond. A year later, the Garzas moved to dissolve the temporary injunction. Trevino then filed his first motion for contempt, which was denied by the trial court. On April 17, 2003, Trevino filed his second motion for contempt, arguing that Andrea Garza had violated the temporary injunction by borrowing $112,000 against her homestead to pay for her legal fees and costs. According to Trevino, the temporary injunction's prohibition against encumbrances trumped the provision allowing Garza to fund her defense. After holding an evidentiary hearing, the trial court signed a “Judgment of Contempt” on May 28, 2003, ordering Garza, on or before July 1, 2003, to effectuate a release of lien and pay Trevino's attorney $3,500 and costs of the proceeding. On June 26, 2003, Garza filed this mandamus proceeding, seeking relief from the trial court's contempt judgment. 2 MANDAMUS [1] [2] Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding); In re Dilley Indep. Sch. Dist., 23 S.W.3d 189, 191 (Tex.App.-San Antonio 2000, orig. proceeding). Contempt orders that do not involve confinement © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re Garza, 126 S.W.3d 268 (2003) cannot be reviewed by writ of habeas corpus, and the only possible relief is a writ of mandamus. In re Long, 984 S.W.2d 623, 625 (Tex.1999) (orig.proceeding); Rosser v. Squier, 902 S.W.2d 962, 962 (Tex.1995) (orig.proceeding). WAIVER? According to Garza, because the temporary injunction failed to (1) set a trial setting pursuant to Texas Rule of Civil Procedure 683 and (2) set bond pursuant to Texas Rule of Civil Procedure 684, the temporary injunction is void. Thus, she argues that the trial court abused its discretion in holding her in contempt for violating a void order. See Ex parte Shaffer, 649 S.W.2d 300, 301–02 (Tex.1983) (holding that trial court abuses its discretion by holding party in contempt for violating void order). In response, Trevino argues that Garza has waived her complaint by agreeing to the terms of the temporary injunction. The temporary injunction states that “[t]he parties have agreed to the terms of this order as evidenced by the signatures below.” Although counsel for the Garzas signed the temporary injunction, his signature was prefaced by the phrase, “Approved as to Form Only.” However, in “Defendants' Motion to Dissolve or Modify Temporary Restraining Order,” counsel for the Garzas admits that at the time the temporary injunction was entered, the Garzas had agreed to its terms. The record, therefore, shows that the Garzas did, in fact, agree to the terms of the temporary injunction. [3] According to Trevino, because the Garzas agreed to the terms of the temporary injunction, they are barred from complaining of any error now. Trevino emphasizes that generally, a party may not appeal from or attack a judgment to which he has agreed, absent allegation and proof of fraud, collusion, or misrepresentation. Henke v. Peoples State Bank, 6 S.W.3d 717, 720 (Tex.App.- Corpus Christi 1999, pet. dism'd w.o.j.). “The rationale for this rule is that a party should not be allowed, but rather be estopped, to complain on *271 appeal of an action or ruling which he invited, agreed to, or induced.” Ayala v. Minniti, 714 S.W.2d 452, 456 (Tex.App.-Houston 1986, no writ). By consenting to the action of the court, a party waives all errors committed or contained in the judgment, except want of jurisdiction. Id. Specifically, Trevino relies on Henke v. Peoples State Bank, 6 S.W.3d 717 (Tex.App.-Corpus Christi 1999, pet. dism'd w.o.j.), a case with similar facts to those presented here. In Henke, the appellant filed an interlocutory appeal of the trial court's denial of his motion to dissolve a temporary injunction, arguing that the temporary injunction was void because it did not set a trial date. Id. at 719. As here, the appellant had agreed to the temporary injunction at the time it was entered. Relying on the general rule that a party may not appeal or attack an agreed judgment, the Thirteenth Court of Appeals held that by agreeing to the temporary injunction, the appellant had waived any error and had waived his right to appeal. Id. at 720. [4] [5] The Thirteenth Court of Appeals, however, failed to discuss if a party could agree to a void order. Garza argues that she has not waived her rights, because the temporary injunction is void. We agree that if the temporary injunction is void, Garza has not waived her rights to attack the void injunction. A void order has no force or effect and confers no rights; it is a mere nullity. Slaughter v. Qualls, 139 Tex. 340, 345, 162 S.W.2d 671, 674 (1942). Thus, a party who agrees to a void order has agreed to nothing. And, a trial court that holds a party in contempt for violating a void order necessarily abuses its discretion. Ex parte Shaffer, 649 S.W.2d at 301–02. In response, Trevino contends that the temporary injunction is voidable, not void. We must, therefore, determine whether the temporary injunction is void or voidable. VOID OR VOIDABLE? [6] [7] Texas Rule of Civil Procedure 683 provides that “[e]very order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought.” TEX.R. CIV. P. 683. The Texas Supreme Court has stated that the requirements of rule 683 are mandatory, and “an order granting a temporary injunction that does not meet them is subject to being declared void and dissolved.” Qwest Comm. Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex.2000) (per curiam); see also InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986) (per © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re Garza, 126 S.W.3d 268 (2003) curiam). Thus, we have held that failure to meet the requirements of rule 683 renders the injunction order “fatally defective and void, whether specifically raised by point of error or not.” 3 EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 53 (Tex.App.-San Antonio 2002, no pet.) (quoting Hopper v. Safeguard Bus. Sys., Inc., 787 S.W.2d 624, 626 (Tex.App.-San Antonio 1990, no writ)); accord Kaufmann v. Morales, 93 S.W.3d 650, 656–57 (Tex.App.-Houston [14th Dist.] 2002, no pet.); *272 Permian Chem. Co. v. State, 746 S.W.2d 873, 874 (Tex.App.-El Paso 1988, writ dism'd); TY Equity Group, Inc. v. Cmty. Crossing, Ltd., No. 05–02–00591–CV, 2002 WL 31357002, at *1 (Tex.App.-Dallas Oct.21, 2002, no pet.) (not designated for publication). Despite all the above-cited case law, Trevino argues that the temporary injunction is voidable because a judgment that is contrary to statute, constitutional provision, or procedural rule is merely voidable. Unlike a void judgment that is subject to collateral attack, a voidable judgment has effect until challenged. Thus, a voidable judgment may become valid by failure to timely challenge it by direct appeal. Because Garza did not challenge the temporary injunction by interlocutory appeal, Trevino contends that the temporary injunction has now become valid. In support of his argument that the temporary injunction is merely voidable, Trevino cites Reiss v. Reiss, 118 S.W.3d 439 (Tex., 2003). In Reiss, the supreme court interpreted a 1980 divorce decree that divided retirement benefits stemming from one spouse's employment both during and after the marriage. Id. at 440. The trial court held that the language in the divorce decree included retirement benefits accrued after the marriage. Id. The former husband appealed, arguing that the divorce decree is a void judgment because the trial court that entered it did not have jurisdiction to divest him of his separate property, i.e. retirement benefits accrued after the divorce. Id. at 442. Thus, the former husband contended that as a void judgment, the divorce decree was subject to attack at any time. Id. The supreme court disagreed. Id. The supreme court noted that in general, “as long as the court entering a judgment has jurisdiction of the parties and the subject matter and does not act outside its capacity as a court, the judgment is not void.” Id. Thus, according to the supreme court, other than lack of jurisdiction, errors “such as a court's action contrary to a statute or statutory equivalent, merely render the judgment voidable so that it may be corrected through the ordinary appellate process or other proper proceedings.” Id. (internal quotations omitted). Thus, Trevino argues that because Texas Rule of Civil Procedure 683 was violated in this case, the temporary injunction is voidable, not void, according to Reiss. For support, Reiss cites Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex.2000) and Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990) (per curiam). Dubai and Mapco, however, were decided before Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334 (Tex.2000) (per curiam). In Qwest, the supreme court reiterated the following: The Texas Rules of Civil Procedure require that an order granting a temporary injunction set the cause for trial on the merits and fix the amount of security to be given by the applicant. See TEX.R. CIV. P. 683, 684. These procedural requirements are mandatory, and an order granting a temporary injunction that does not meet them is subject to being declared void and dissolved. See InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986) (stating that requirements of rule 683 are mandatory and must be strictly followed). In InterFirst Bank, however, the order failed to set the case for trial on the merits. Id. at 641. Yet rather than dismissing the appeal for want of jurisdiction, we declared the temporary injunction void and ordered it dissolved. See id. We have also held that a temporary injunction was void when there was no bond. See *273 Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956) (holding that bond provisions of rule 684 are mandatory). Here, these procedural requirements may render the trial court's order void but they do not change the order's character and function defining its classification. Qwest, 24 S.W.3d at 337 (emphasis added). Qwest, thus, clearly states that unless a temporary injunction complies with both rules 683 and 684, it is void. Qwest was decided after Dubai, the case relied on by the supreme court in Reiss. Thus, we must assume that if the supreme court believed the principles it stated in Dubai applied to temporary injunctions, it would have so stated in Qwest. Moreover, Reiss does not discuss temporary injunctions in any manner. We, therefore, must follow Qwest's holding. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 In re Garza, 126 S.W.3d 268 (2003) [8] Additionally, Trevino argues that the supreme court cases discussing temporary injunctions state that a temporary injunction failing to comply with rules 683 and 684 is “subject to being declared void and dissolved.” InterFirst Bank, 715 S.W.2d at 641. According to Trevino, “subject to being declared void” means that the order is voidable, not void. However, the Qwest court made clear that a temporary injunction failing to comply with rules 683 and 684 is void. See Qwest, 24 S.W.3d at 337 (“[W]e declared the temporary injunction void and ordered it dissolved. We have also held that a temporary injunction was void when there was no bond.”). If the supreme court had meant that such a temporary injunction was voidable, we feel certain it would have used the word “voidable.” Instead, the court has repeatedly used the word “void.” See Qwest, 24 S.W.3d at 337; InterFirst Bank, 715 S.W.2d at 641. We, therefore, hold that because the temporary injunction here failed to comply with rules 683 and 684, it is void. 4 CONTEMPT JUDGMENT [9] A trial court that holds a party in contempt for violating a void order necessarily abuses its discretion. Ex parte Shaffer, 649 S.W.2d 300, 301–02 (Tex.1983). Here, the trial court held Garza in contempt for violating a void order. As such, the trial court abused its discretion, and Garza is entitled to the relief sought. CONCLUSION Because the trial court abused its discretion, we conditionally grant Garza's petition for writ of mandamus. TEX.R.APP. P. 52.8(c). Only if the Honorable Donna S. Rayes fails to vacate the “Judgment of Contempt” signed on May 28, 2003, will we issue the writ. Footnotes 1 This proceeding arises out of Cause No. 01–07–0443–CVA, styled Jaime J. Trevino v. Andrea Garza, Annette Carrasco, Amanda Garcia, and Alfred G. Garza, pending in the 81st Judicial District Court, Atascosa County, Texas, the Honorable Donna S. Rayes presiding. 2 Garza also filed a motion to stay the contempt judgment. We granted the motion and stayed the contempt judgment pending final disposition of this petition. 3 The purpose of a temporary injunction is to preserve the status quo of the subject matter of the suit, pending a final trial on the merits of the case. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). There are at least two reasons for requiring a temporary injunction to include a trial date. One is to prevent the temporary injunction from effectively becoming permanent without a trial. EOG Res., 75 S.W.3d at 53; see also Kaufmann, 93 S.W.3d at 657. The second is for the order to be complete on its face and not “reference to the complaint or other document.” Kaufmann, 93 S.W.3d at 657 (quoting rule 683). “It is important for trial judges or parties to read the original order and have before them all information relevant to the injunction.” Id. 4 Because we have determined that the temporary injunction is void, we need not reach the relator's other issues. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) 2008 WL 3970865 Only the Westlaw citation is currently available. SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. MEMORANDUM OPINION Court of Appeals of Texas, Corpus Christi-Edinburg. In re GRAYBAR ELECTRIC COMPANY, INC. Graybar Electric Company, Inc., Appellant, v. Alvaro Gonzalez, et al., Appellees. In re Graybar Electric Company, Inc., Mira Enterprises, Inc., and Mark Stallings, Inc. Graybar Electric Company, Inc., Appellant, v. Laredo Hix, L.P. and Alvaro Gonzalez, Appellees. Nos. 13-08-00073-CV, 13-08-00294-CV, 13-08-00333-CV, 13-08-00341-CV. | Aug. 26, 2008. West KeySummary 1 Courts Injunction or Prohibition Against Proceedings Trial court was not required to dissolve an anti-suit injunction so the party bound by the injunction could bring suit in another county. The party that sought to dissolve the injunction was seeking to enforce a mechanics' lien in a different county. The purpose of the injunction was to prevent this from happening until after a trial on the merits was held. The party that sought dissolution was not stripped of their rights to foreclose on their lien. 5 Cases that cite this headnote On Petition for Writ of Mandamus. On appeal from the 93rd District Court of Hidalgo County, Texas, Rodolfo Delgado, J. Attorneys and Law Firms Ben Louis Aderholt, Looper, Reed & McGraw, Joe Virene, Houston, Mike Mills, Atlas & Hall, McAllen, Adriana H. Cardenas, McAllen, John T. Dailey, San Antonio, TX, for Appellants Relators. Raymond L. Thomas, David H. Jones, Tracy A. Spillman, Kittleman, Thomas & Gonzales, L.L.P., Rebecca Vela, Kittleman, Thomas Ramirez & Gonzales, McAllen, for Real Parties in Interest. Before Justices RODRIGUEZ, GARZA, and VELA. MEMORANDUM OPINION © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) Memorandum Opinion by Justice GARZA. *1 Appellant/relator, Graybar Electric Company (“Graybar”), alleges that the trial court abused its discretion in denying its motion to partially dissolve or modify an injunction granted in favor of appellees/real parties in interest, Alvaro Gonzalez and Laredo Hix, L.P. (“Laredo Hix”). By two issues in its first interlocutory appeal, cause number 13-08-00294-CV, 1 Graybar contends that the trial court abused its discretion in denying its motion because: (1) the trial court did not have jurisdiction under the Texas Property Code, see TEX. PROP.CODE ANN. § 53.157(2) (Vernon 2007); and (2) the trial court did not have subject matter jurisdiction to issue a temporary injunction pursuant to section 65.023 of the civil practice and remedies code. See TEX. CIV. PRAC. & REM.CODE ANN. § 65.023 (Vernon 1997). 2 In addition, Graybar petitions this Court for a writ of mandamus, in cause number 13-08-00073-CV, directing the Hidalgo County district court to set aside its order denying Graybar's motion to abate, by which the court effectively asserts dominant jurisdiction. By six issues, reorganized as four, Graybar alleges in its second interlocutory appeal, cause number 13-08-00341-CV, that the trial court abused its discretion in granting Laredo Hix's motion to extend the original temporary injunction. 3 Graybar, MIRA Enterprises, Inc. (“MIRA”), and Mark Stallings Electric, Inc. (“Stallings”) also petition this Court for a writ of mandamus, in cause number 13-08-00333-CV, directing the Hidalgo County district court to transfer the entire case to Webb County. We affirm the trial court's judgment in cause number 13-08-00294-CV; we deny Graybar's petition for writ of mandamus in cause number 13-08-00073-CV; we dismiss Graybar's appeal in cause number 13-08-00341-CV; and we deny Graybar's second petition for writ of mandamus in cause number 13-08-00333-CV. I. FACTUAL AND PROCEDURAL BACKGROUND This case centers on the management and construction of a Holiday Inn Express & Suites Hotel in Laredo, Texas. On January 18, 2007, HMC Hospitality Operating Company (“HMC”) filed suit against Gonzalez in Collin County, asserting claims for breach of contract, declaratory judgment, quantum meruit, and attorney's fees with respect to alleged breaches of various hotel management agreements between HMC and Gonzalez pertaining to the Laredo Holiday Inn. The district court in Collin County transferred the case to Hidalgo County on April 4, 2007, in response to a motion to transfer venue filed by Gonzalez. On May 23, 2007, Graybar 4 perfected a mechanic's lien against the Laredo Holiday Inn and its owner, Laredo Hix, by filing its lien in the public records of Webb County. Graybar sought repayment for materials provided in the construction of the Laredo Holiday Inn in the amount of $37,788.55. On June 22, 2007, Gonzalez filed an amended answer and counterclaim in the Hidalgo County district court denying the allegations made by HMC, asserting various affirmative defenses, and stating a counterclaim for fraud. Subsequently, Gonzalez filed an application for a temporary restraining order and motions for temporary and permanent injunctive relief in the Hidalgo County district court, seeking to enjoin HMC from communicating with or litigating against Gonzalez. *2 On July 20, 2007, The Gonzalez-DLS Family Limited Partnership and Brownsville SB, L.P. filed an original petition in intervention in the Hidalgo County suit against HMC seeking declaratory relief, damages for breach of contract and fraud, exemplary damages, and attorney's fees pertaining to alleged material misrepresentations made by HMC to induce Gonzalez to enter into various hotel management agreements for four separate hotels in Pharr, McAllen, Brownsville, and Laredo. In addition, Ascension Hospitality Management, L.L.C. filed a petition in intervention to join in Hidalgo County suit. Furthermore, all parties joined in Gonzalez's application for temporary injunction. On August 6, 2007, the Hidalgo County district court granted Gonzalez's application for temporary injunction. In its order, the court restrained HMC “from continuing to harass, threaten or communicate with the Gonzalez Group and the Gonzalez Group's employees, agents, or representatives....” The court also restrained HMC “from filing, initiating, serving any process and from © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) continuing any litigation against the Gonzalez Group and the Gonzalez Group's employees, agents[,] and representatives....” On August 23, 2007, HMC filed notice of its accelerated interlocutory appeal which was assigned cause number 13-07-00518-CV. 5 On September 24, 2007, Graybar filed an original petition in Webb County against Stallings, MIRA, and Laredo Hix seeking to foreclose on the lien it filed on May 23, 2007, asserting that the defendants had failed to timely pay balances due for materials furnished for the construction of the Laredo Holiday Inn. 6 In its petition, Graybar contended that it was owed $37,788.55 for materials provided. On October 9, 2007, Laredo Hix filed an original petition in intervention with the Hidalgo County district court. In its petition, Laredo Hix named sixteen parties as counter-defendants. Among the many counter-defendants were HMC, MIRA, Graybar, and Stallings. Laredo Hix claimed that HMC was in breach of contract, was negligent, and had breached a fiduciary duty owed to it. Additionally, Laredo Hix contended that Graybar, MIRA, and Stallings were in breach of contract and had negligently carried out their duties in the construction of the Laredo Holiday Inn. Laredo Hix also filed an application for a temporary restraining order and requests for temporary and permanent injunctions to prevent Graybar from pursuing its suit in Webb County until the Hidalgo County suit was resolved. Also on October 9, 2007, Gonzalez filed a supplemental counterclaim, an application for temporary restraining order, and requests for temporary and permanent injunctions against Graybar which were virtually identical to those filed by Laredo Hix. 7 On November 2, 2007, the Hidalgo County district court granted the requests for temporary injunction made by Gonzalez and Laredo Hix. The court specifically restrained Graybar from (1) “continuing to harass, threaten or communicate with Laredo Hix, L.P. and/or Alvaro Gonzalez, and their employees, agents, or representatives,” and (2) “filing, initiating, serving any process, and from continuing any litigation either criminal or civil against Laredo Hix, L.P., and/or Alvaro Gonzalez, and their employees, agents and representatives, except in this Court.” The temporary injunction, which was in part an anti-suit injunction, was to last until May 12, 2008, when the matter was set for trial. *3 On November 8, 2007, Graybar filed a motion to partially dissolve or modify the November 2, 2007 injunction and a verified plea in abatement with the Hidalgo County district court. In support of its motion, Graybar attached a copy of its original petition in Webb County against Stallings, MIRA, and Laredo Hix. 8 On January 2, 2008, after a hearing, the Hidalgo County district court denied Graybar's motion and plea in abatement. Graybar perfected its appeal. 9 Graybar also filed a petition for writ of mandamus on February 4, 2008, claiming that the trial court abused its discretion in denying its plea in abatement because the Webb County district court has dominant jurisdiction over all claims. At a hearing on May 12, 2008, the Hidalgo County district court denied motions to transfer venue filed by Graybar and other interested parties-namely, Harden Plumbing Company, Inc., Pete Gallegos Paving, Inc., Stallings, and MIRA-and addressed a motion to compel. However, the court did not commence a trial on the merits at this time. Nevertheless, the November 2, 2007 temporary injunction expired. On May 20, 2008, Gonzalez and Laredo Hix filed an emergency motion to extend the November 2, 2007 temporary injunction until November 10, 2008, when the matter was scheduled for a trial on the merits in Hidalgo County. The Hidalgo County district court granted the extension, noting that “[a]ll findings set forth in this Court's Temporary Injunction Order dated November 2, 2007 are incorporated by reference as if set forth fully herein.” No other changes were made to the temporary injunction. Graybar, MIRA, and Stallings filed a joint petition for writ of mandamus in cause number 13-08-00333-CV on May 27, 2008, asserting that the venue provisions of the civil practice and remedies code mandate venue in Webb County. See id. §§ 15.011, 15.012 (Vernon 2002). In conjunction with its motion for leave of court, which we granted earlier, Graybar filed its notice of appeal in cause number 13-08-00341-CV on June 12, 2008. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) II. CAUSE NUMBER 13-08-00294-CV A. Appellate Jurisdiction Section 51.014(a)(4) of the civil practice and remedies code provides this Court with interlocutory appellate jurisdiction if the district court “grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction....” Id. § 51.014(a)(4) (Vernon 2008). Here, the trial court denied Graybar's motion to dissolve or modify an injunction. Therefore, we have jurisdiction over Graybar's interlocutory appeal. See id. B. Standard of Review Whether to dissolve a temporary injunction is a matter lying within the trial court's discretion. Cellular Mktg., Inc. v. Houston Cellular Tel. Co., 784 S.W.2d 734, 735 (Tex.App.-Houston [14th Dist.] 1990, no writ); Tober v. Turner of Tex., Inc., 668 S.W.2d 831, 834 (Tex.App.-Austin 1984, no writ). On appeal, our review is limited to the question of whether the trial court abused its discretion in denying Graybar's motion to dissolve. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993). A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding). *4 The trial court may modify a temporary injunction because of fundamental error or changed circumstances, but it has no duty to reconsider the grant of a temporary injunction if the movant fails to present new evidence showing fundamental error or changed circumstances. Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 580 (Tex.App.-Austin 2000, no pet.) (citing Henke v. Peoples State Bank, 6 S.W.3d 717, 721 (Tex.App.-Corpus Christi 1999, pet. dism'd w.o.j.)). Fundamental error exists when “the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas.” Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982). On the other hand, changed circumstances “are conditions that altered the status quo existing after the temporary injunction was granted or that made the temporary injunction unnecessary or improper.” Henke, 6 S.W.3d at 721. C. Discussion 1. Graybar's Mechanic's Lien in Webb County In its first issue, Graybar asserts that the Hidalgo County district court did not have jurisdiction over its Webb County claims pursuant to section 53.157 of the Texas Property Code. See TEX. PROP.CODE ANN. § 53.157(2). Specifically, Graybar contends that Webb County is the only county in which its foreclosure suit can be brought and maintained because that is where the property is located. On the other hand, Gonzalez and Laredo Hix argue that section 53.157 of the property code relates to venue of a mechanic's lien foreclosure suit and not to subject matter jurisdiction. They further argue that the injunction issued by the Hidalgo County district court does not require that Graybar pursue its mechanic's lien foreclosure suit in Hidalgo County. Section 53.157 of the property code provides, in relevant part: “A mechanic's lien or affidavit claiming a mechanic's lien filed under Section 53.052 may be discharged of record by ... failing to institute suit to foreclose the lien in the county in which the property is located....” Id. § 53.157(2) (emphasis added). 10 Moreover, section 53.154 states that “[a] mechanic's lien may be foreclosed only on judgment of a court of competent jurisdiction foreclosing the lien and ordering the sale of the property subject to the lien.” Id. § 53.154 (Vernon 2007). It is undisputed that Graybar perfected its mechanic's lien by filing an affidavit in the Webb County public records. The thrust of Graybar's argument pertaining to its mechanic's lien is that the Hidalgo County district court's issuance of the anti-suit injunction essentially forbids Graybar from foreclosing on its lien because the property code prevents it from instituting a foreclosure suit in Hidalgo County. We disagree. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) The part of the Hidalgo County district court's November 2, 2007 temporary injunction, which is, in effect, an anti-suit injunction, provides, in relevant part: *5 IT IS FURTHER ORDERED, that Counter-Defendants JUAN A. CASTILLO, GRAYBAR ELECTRIC COMPANY, INC., GILBERT J. GUERRERO D/B/A RIO DELTA ENGINEERING, PETE GALLEGOS PAVING, INC., SOLORIO & ASSOCIATES, MARK STALLINGS ELECTRIC, INC., and their agents, representatives, attorneys and those acting in concert therewith, are hereby immediately restrained from filing, initiating, serving any process, and from continuing any litigation either criminal or civil against the Laredo HIX, LP and/or Alvaro Gonzalez, and their employees, agents and representatives, except in this Court. IT IS FURTHER ORDERED that this Temporary Injunction shall be valid for the remainder of this litigation until a final trial on the merits shall take place at 9 a.m., May 12, 2008. We do not find and Graybar has not directed us to, anything in the record demonstrating that the Hidalgo County district court affirmatively asserted jurisdiction over Graybar's suit pertaining to its mechanic's lien. The effect of the anti-suit injunction was merely to abate Graybar's foreclosure suit until a trial on the merits occurred in the Hidalgo County lawsuit. 11 See Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex.1996). We disagree with Graybar's contention that it has been “stripped of its right to bring suit to foreclose its lien.” Graybar has commenced its foreclosure suit in Webb County, and based on the record before us, there is nothing preventing Graybar from prosecuting its foreclosure suit after the Hidalgo County suit is resolved. Graybar has not provided any citations to authority supporting its argument that the resolution of the Hidalgo County lawsuit would eliminate its ability to ultimately foreclose on its mechanic's lien or that the court's injunction required Graybar to foreclose on its mechanic's lien in Hidalgo County. See TEX.R.APP. P. 38.1(h). Moreover, Graybar has not raised any issues pertaining to changed circumstances. See Universal Health Servs., Inc., 24 S.W.3d at 580; Henke, 6 S.W.3d at 721. Therefore, we do not find any fundamental error in the Hidalgo County district court's actions necessitating a modification or dissolution of the temporary injunction issued. Accordingly, we overrule Graybar's first issue. 2. Section 65.023 of the Texas Civil Practice and Remedies Code By its second issue, Graybar asserts that the trial court did not have subject matter jurisdiction to issue the anti-suit injunction pursuant to section 65.023 of the civil practice and remedies code. See TEX. CIV. PRAC. & REM.CODE ANN. § 65.023. Specifically, Graybar argues that section 65.023 requires that any injunction must be filed in Webb County. See id. Conversely, Gonzalez and Laredo Hix contend that section 65.023 of the civil practice and remedies code is not applicable because the Hidalgo County lawsuit is not purely injunctive in nature. See id. The principle of comity requires that courts exercise the power to enjoin foreign suits “sparingly, and only in very special circumstances.” Harper, 925 S.W.2d at 651. An anti-suit injunction may be justified when the injunction will prevent a multiplicity of suits or will protect a party from vexatious or harassing litigation. Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex.1986); see Gannon, 706 S.W.2d at 307; see also Harper, 925 S.W.2d at 651 (holding that an anti-suit injunction is appropriate: (1) to address a threat to the court's jurisdiction; (2) to prevent the evasion of important public policy; (3) to prevent a multiplicity of suits; or (4) to protect a party from vexatious or harassing litigation). The issuance of an anti-suit injunction is within the sound discretion of the trial court. London Mkt. Insurers v. Am. Home Assurance Co., 95 S.W.3d 702, 705-06 (Tex.App.-Corpus Christi 2003, no pet.). *6 Graybar's second issue hinges upon the interpretation of section 65.023 of the civil practice and remedies code. See TEX. CIV. PRAC. & REM.CODE ANN. § 65.023. Specifically, section 65.023, entitled “Place for Trial,” provides: (a) Except as provided by Subsection (b), a writ of injunction against a party who is a resident of this state shall be tried in a district or county court in the county in which the party is domiciled. If the writ is granted against more than one party, it may be tried in the proper court of the county in which either party is domiciled. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) (b) A writ of injunction granted to stay proceedings in a suit or execution on a judgment must be tried in the court in which the suit is pending or the judgment was rendered. Id. Graybar contends that the Hidalgo County district court was powerless to enjoin the Webb County suit because section 65.023 mandates that a writ of injunction had to be filed in Webb County. See id. We disagree. The Texas Supreme Court, in In re Continental Airlines, interpreted section 65.023 of the civil practice and remedies code, the injunction venue statute. 988 S.W.2d 733 (Tex.1998) (orig.proceeding); see TEX. CIV. PRAC. & REM.CODE ANN. § 65 .023. The supreme court noted that “the injunction venue statute applies only to suits in which the relief sought is purely or primarily injunctive.” In re Continental Airlines, 988 S.W.2d at 736 (emphasis added) (citing Ex parte Coffee, 160 Tex. 224, 328 S.W.2d 283, 287 (Tex.1959) (holding that the statute now codified as section 65.023 of the civil practice and remedies code “only applies to and governs the issuance and return of writs and trial in cases in which the relief sought is purely or primarily injunctive.”)); see also In re Daniel, No. 12-06-00232-CV, 2006 Tex.App. LEXIS 7207, at *7, 2006 WL 2361350 (Tex.App.- Tyler Aug. 16, 2006, orig. proceeding) (suggesting that if the petition includes both a plea for declaratory judgment and an injunction without any additional causes of action, then the primary purpose of the suit is injunctive in nature). Furthermore, this Court has held in similar circumstances that when “[t]he injunction granted by the court below was ancillary in nature,” former article 4656 does not apply. 12 Ray v. Paulus, 489 S.W.2d 446, 449-50 (Tex.Civ.App.-Corpus Christi 1972, no writ). This case is not purely injunctive in nature. In fact, the Hidalgo County district court merely issued the injunction as a means to prevent a multiplicity of suits and vexatious or harassing litigation. See id. at 450; see also Harper, 925 S.W.2d at 651. In applying Graybar's logic, no trial court would be able to obtain subject matter jurisdiction to enjoin another court from litigating a matter unless the enjoined court agreed to be enjoined. This contention is not supported by case law on anti-suit injunctions. See Harper, 925 S.W.2d at 651; Christensen, 719 S.W.2d at 163; Gannon, 706 S.W.2d at 305. *7 In support of its contention that section 65.023 prevented the Hidalgo County district court from enjoining the Webb County lawsuit, Graybar relies heavily on this Court's holding in Butron v. Cantu, 960 S.W.2d 91, 94-95 (Tex.App.-Corpus Christi 1997, no writ). However, we find the Butron decision to be factually distinguishable from this case. In Butron, a district court in Cameron County rendered a judgment against an attorney for legal malpractice. Id. at 93. In response to this judgment, the attorney filed an action in Hidalgo County to declare the Cameron County judgment void and later sought a temporary injunction to prevent collection on a supersedeas bond posted with the Cameron County district court. Id. The Hidalgo County district court subsequently issued a temporary injunction prohibiting the collection of the supersedeas bond. Id. The issue on appeal was the propriety of the Hidalgo County district court's grant of the attorney's request for temporary injunction. Id. at 94. This Court held that, since the Cameron County district court had rendered the judgment, only that court could enjoin collection on the supersedeas bond. Id. at 95. There, injunctive relief was the primary relief sought by the attorney in Hidalgo County to “prevent [appellant] from executing on that [Cameron County] judgment.” Id. Moreover, this Court specifically noted that “[s]ection 65.023 is intended to ensure that comity prevails among the various Texas trial courts because ‘orderly procedure and proper respect for the courts will require that ... attacks upon their judgments should be made in the court rendering such judgment, rather than in other courts indiscriminately.’ ” Id. at 94 (quoting McVeigh v. Lerner, 849 S.W.2d 911, 914 (Tex.App.-Houston [1st Dist.] 1993, writ denied)). We first note that Graybar has not secured a final judgment on its foreclosure suit in Webb County. Here, unlike Butron, the temporary injunction sought by Gonzalez and Laredo Hix in Hidalgo County was not pursued for the purpose of preventing Graybar from collecting on a final judgment. 13 However, most importantly, the relief sought in the case at bar is not primarily injunctive in nature. The temporary injunction in the present case is merely ancillary to the primary relief sought-damages associated with various causes of action, including breach of contract and breach of fiduciary duty, pertaining to the management © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) and construction of the Laredo Holiday Inn. See Karagounis v. Bexar County Hosp. Dist., 70 S.W.3d 145, 146-47 (Tex.App.- San Antonio 2001, pet. denied) (holding that because the true nature of the relief being sought was not purely injunctive but for specific performance of a contract, section 65.023 of the civil practice and remedies code did not apply). We believe this case is akin to Ray. See 489 S.W.2d at 449-50. Contrary to Graybar's assertions, Texas courts have routinely authorized the issuance of anti-suit injunctions to prevent a multiplicity of suits and to prevent vexatious or harassing litigation. See Harper, 925 S.W.2d at 651; Christensen, 719 S.W.2d at 163; Gannon, 706 S.W.2d at 305. *8 We therefore do not find any fundamental error in the Hidalgo County district court's issuance of the temporary injunction to maintain the status quo. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002) (stating that the purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending a trial on the merits); see also Harper, 925 S.W.2d at 651; Christensen, 719 S.W.2d at 163; Gannon, 706 S.W.2d at 305. Accordingly, we conclude that the trial court did not abuse its discretion in issuing the anti-suit injunction and denying Graybar's motion. We overrule Graybar's second issue, and we affirm the judgment of the trial court. III. CAUSE NUMBER 13-08-00073-CV In its first petition for writ of mandamus, Graybar argues that the Hidalgo County district court abused its discretion in denying its verified plea in abatement because the Webb County district court has dominant jurisdiction. Graybar also claims that Gonzalez and Laredo Hix engaged in impermissible “forum shopping.” Gonzalez and Laredo Hix argue that: (1) Hidalgo County has dominant jurisdiction over the Webb County lawsuit because suit was commenced there first and the claims are interrelated; (2) the Webb County lawsuit has not commenced because Laredo Hix has yet to be served; and (3) Graybar has not introduced any evidence to support an abatement of the Hidalgo County lawsuit. 14 A. Standard of Review Mandamus relief is available only to correct a “clear abuse of discretion” when there is no adequate remedy by appeal. Walker, 827 S.W.2d at 839. Mandamus is appropriate to resolve disputes over dominant jurisdiction. Perry v. Del Rio, 66 S.W.3d 239, 258 (Tex.2001) (orig.proceeding) (citing Curtis v. Gibbs, 511 S.W.2d 263, 268 (Tex.1974)). Moreover, mandamus relief may be granted when one court actively interferes with the jurisdiction of another court. See In re Reliant Energy, Inc., 159 S.W.3d 624, 626 (Tex.2005) (orig.proceeding). The party bringing a plea in abatement must show: (1) the other suit (here, the Webb County lawsuit) commenced first; (2) the suit is still pending; (3) the same parties are involved; and (4) the controversies are the same. S. County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 468 (Tex.App.-Corpus Christi 2000, no pet.) (op. on reh'g). The movant has the burden of proof to establish the allegations in his motion to abate. Flowers v. Steelcraft Corp., 406 S.W.2d 199, 199 (Tex.1966); S. County Mut. Ins. Co., 19 S.W.3d at 469. We review the trial court's action in granting or denying a plea in abatement using an abuse of discretion standard. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988); Davis v. Guerrero, 64 S.W.3d 685, 691 (Tex.App.-Austin 2002, no pet.); S. County Mut. Ins. Co., 19 S.W.3d at 468. The trial court abuses its discretion when it acts in an unreasonable and arbitrary manner, or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). B. The Doctrine of Dominant Jurisdiction & Venue *9 The dominant jurisdiction doctrine applies when venue is proper in two or more Texas counties or courts. Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex.2005) (noting that the concept of dominant jurisdiction is not applicable in cases where venue is not proper in more than one Texas county); Wyatt, 760 S.W.2d at 248. Dominant jurisdiction recognizes © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) “the plaintiff's privilege to choose the forum” and accepts that choice as correct, provided “the forum is a proper one.” Gonzalez, 159 S.W.3d at 622; Wyatt, 760 S.W.2d at 248; see Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1070 (Tex.1926) (orig.proceeding), disapproved on other grounds by Walker, 827 S.W.2d at 843. “The long-standing common law rule in Texas is that the first court to acquire jurisdiction over the subject matter and the parties of a controversy has dominant jurisdiction over all other courts.” San Miguel v. Bellows, 35 S.W.3d 702, 704 (Tex.App.- Corpus Christi 2000, pet. denied) (citing Cleveland, 285 S.W. at 1070); see Curtis, 511 S.W.2d at 267. “Where jurisdiction of a district court has attached, it has the power to permit pleadings to be amended, new parties to be made, to determine all essential questions, and to do anything with reference thereto authorized by law.” San Miguel, 35 S.W.3d at 704 (citing Cleveland, 286 S.W. at 1069). Dominant jurisdiction excludes other courts from exercising jurisdiction over the same case. Curtis, 511 S.W.2d at 267; San Miguel, 35 S.W.3d at 704. Dominant jurisdiction requires “an inherent interrelation of the subject matter” in the two suits before a plea in abatement must be granted in the second action. Wyatt, 760 S.W.2d at 248. It is not required that the exact issues and all the parties be included in the first action before the second action is filed, provided that the claim in the first suit may be amended to bring in all necessary and proper parties and issues. Id. at 247. In determining whether an inherent interrelationship exists, courts should be guided by the rule governing persons to be joined if feasible and the compulsory counterclaim rule. Id. C. Discussion It is undisputed that the Hidalgo County district court has general subject matter jurisdiction over all claims involved. See TEX. CONST. art. V, § 8 (providing that the district court has exclusive, original jurisdiction of “all actions, proceedings, and remedies,” except when the constitution or other law confers jurisdiction on some other court); TEX. GOV'T CODE ANN . § 24.007 (Vernon 2000) (“The district court has the jurisdiction provided by Article V, Section 8 of the Texas Constitution.”); see also Gordon v. Jones, 196 S.W.3d 376, 381-82 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Moreover, Graybar acknowledges in its plea in abatement that the “Webb County Lawsuit is clearly inherently interrelated with the Hidalgo County Lawsuit.... Both have the same subject matter-the HOLIDAY INN-LAREDO.” See Wyatt, 760 S.W.2d at 248. Therefore, the only issue before us is which suit was filed first. *10 HMC filed its original petition with the Collin County district court on January 18, 2007, asserting various causes of action pertaining to an alleged breach of several hotel management agreements regarding the Laredo Holiday Inn. The lawsuit was transferred to Hidalgo County on May 21, 2007. It was not until September 24, 2007, that Graybar filed its suit in Webb County to foreclose upon its mechanic's lien. Clearly, the Hidalgo County lawsuit was filed first. When suit is proper in more than one county, the court in which the suit is first filed acquires dominant jurisdiction. Wyatt, 760 S.W.2d at 248. As long as the forum is proper, it is the plaintiff's privilege to choose the forum. Id. “Defendants are not at liberty to decline to do battle in the forum chosen by the plaintiff.” Id. Therefore, because the parties agree that the claims are interrelated and because the Hidalgo County lawsuit was filed first, we conclude that the Hidalgo County district court has dominant jurisdiction over the Webb County suit. 15 Graybar, however, relies heavily on this Court's holding in San Miguel to support its contention that Webb County has dominant jurisdiction over the involved claims. 35 S.W.3d at 703-05. In that case, San Miguel obtained a judgment against R.D. Bellows Law Office (“Bellows”) for damages of $513,000 in a Harris County district court. Id. at 703. After the judgment had become final, San Miguel filed an application for ancillary relief in the Harris County district court seeking a turnover order and joining Bellows's wife, Suzette, and the Bellows Law Firm, P.L.L.C. Id. Subsequently, Suzette and the P.L.L.C. obtained an ex parte temporary restraining order in Live Oak County to prevent San Miguel from proceeding with her collection efforts in Harris County. Id. at 704. Suzette and the P.L.L.C. also filed an application for temporary injunction and a petition for declaratory judgment. Id. This Court concluded that the Live Oak trial court abused its discretion in issuing a temporary injunction enjoining San Miguel from pursuing her collection efforts against Bellows in the Harris County trial court. Id. at 703, 705. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) We find this case to be factually distinguishable. Unlike San Miguel, Graybar has not secured a final judgment in Webb County. Further, the purpose of the Hidalgo County district court's issuance of the temporary injunction and its denial of Graybar's plea in abatement was not to prevent Graybar from enforcing a final judgment. Additionally, as previously discussed, the claims involved are inherently interrelated and the Hidalgo County lawsuit was filed first; therefore, Hidalgo County has dominant jurisdiction over the claims involved. Finally, the claims asserted by Suzette and the P.L.L.C. were merely injunctive in nature whereas the claims asserted by Gonzalez and Laredo Hix in the Hidalgo County district court are not. See In re Continental Airlines, 988 S.W.2d at 736; see also In re Daniel, 2006 Tex.App. LEXIS 7207, at *7, 2006 WL 2361350 (suggesting that if the petition includes both a plea for declaratory judgment and an injunction without any additional causes of action, then the primary purpose of the suit is injunctive in nature). *11 Graybar further argues that Gonzalez and Laredo Hix are engaging in impermissible “forum shopping.” See Reliant Energy, Inc., 102 S.W.3d at 875 (“Forum shopping is against public policy....”). Graybar has not cited to any authority stating that the Hidalgo County district court was required to abate the Hidalgo County lawsuit for impermissible “forum shopping.” In any event, our review of the record does not yield a finding that Gonzalez and Laredo Hix engaged in impermissible “forum shopping.” Gonzalez and Laredo Hix joined Graybar and several other counter-defendants in the underlying Hidalgo County lawsuit because, as Graybar admits, these claims are interrelated. In concluding that the Hidalgo County district court has dominant jurisdiction, we do not find that Graybar's Webb County foreclosure lawsuit is extinguished; instead, it is merely abated pending the resolution of the Hidalgo County lawsuit. Therefore, based on the foregoing, we conclude that the Hidalgo County trial court did not abuse its discretion in denying Graybar's motion to abate. Accordingly, we deny Graybar's petition for writ of mandamus. IV. CAUSE NUMBER 13-08-00341-CV In its second interlocutory appeal, Graybar asserts that the trial court erred in granting the motion to extend the November 2, 2007 temporary injunction filed by Gonzalez and Laredo Hix. Specifically, Graybar contends that the temporary injunction should be dissolved because: (1) it does not state the court's reason for issuing the injunction; (2) it does not describe the acts sought to be restrained; (3) the trial court did not give Graybar an opportunity to be heard, in violation of the Due Process Clause of the United States Constitution, see U.S. CONST. amend. XIV; and (4) the trial court did not have subject matter jurisdiction to issue the order and Webb County has dominant jurisdiction over the remaining claims. Gonzalez and Laredo Hix argue that: (1) this Court does not have jurisdiction over this appeal; (2) Graybar's alleged procedural violations do not apply to extensions of temporary injunctions; (3) Graybar has already raised the issues of subject matter jurisdiction and dominant jurisdiction in cause number 13-08-00294-CV, its first interlocutory appeal; and (4) Graybar received “all the process to which it was due.” A. Applicable Law An appellate court lacks jurisdiction to review an interlocutory order unless a statute specifically authorizes such an appeal. Qwest Commc'ns Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex.2000). Section 51.014 of the civil practice and remedies code provides that a party may appeal from an interlocutory order of the trial court that “grants or refuses a temporary injunction.” TEX. CIV. PRAC. & REM.CODE ANN. § 51.014. Texas courts, however, have construed this provision to allow interlocutory review of an amended order making a substantive modification to a temporary injunction. See Currie v. Int'l Telecharge, Inc., 722 S.W.2d 471, 472 (Tex.App.-Dallas 1986, no writ) (deciding that a temporary injunction was modified by restricting the area affected by a non-competition provision); Toby Martin Oilfield Trucking, Inc. v. Martin, 640 S.W.2d 352, 355 (Tex.App.- Houston [1st Dist.] 1982, no writ) (finding that temporary injunction was modified by increasing the amount of the bond); see also City of Lancaster v. Tex. Motor Transp. Ass'n, Inc., No. 05-05-00169-CV, 2005 Tex.App. LEXIS 7744, at *3, 2005 WL © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) 2303415 (Tex.App.-Dallas Sept. 22, 2005, no pet.) (mem.op .) (concluding that the appellate court did not have jurisdiction to review a temporary injunction where the sole modification was to extend the date until a trial on the merits could be conducted); cf. Ludewig v. Houston Pipeline Co., 737 S.W.2d 15, 16 (Tex.App.-Corpus Christi 1987, no writ) (holding that the trial court's order amending a temporary injunction to include a new trial date is not an appealable order). We must determine whether the extension of the temporary injunction in this case amounted to a substantive modification. B. Discussion *12 The trial court's order extending the November 2, 2007 temporary injunction specifically incorporated by reference the substantive findings contained in the original November 2, 2007 temporary injunction. The lone change in the trial court's order was to extend the duration of the injunction until the new trial setting of November 10, 2008. See City of Lancaster, 2005 Tex.App. LEXIS 7744, at *3, 2005 WL 2303415. As in City of Lancaster, no substantive changes were made to the November 2, 2007 temporary injunction. See id. Graybar relies heavily on the decisions in EMC Mortgage Corp. v. Jones, No. 05-06-00419-CV, 2008 Tex.App. LEXIS 3270, at *5, 2008 WL 1960812 (Tex.App.-Dallas May 7, 2008, no pet.) (op. on reh'g); Webb v. Hartman Newspapers, Inc., 793 S.W.2d 302, 303 (Tex.App.-Houston [14 th Dist.] 1990, no writ), and Herider Farm Processing, Inc. v. City of Nacogdoches, 573 S.W.2d 297, 298-99 (Tex.Civ.App.-Tyler 1978, writ ref'd n.r.e.) for the proposition that an extension is appealable because it is itself a temporary injunction. We disagree. The EMC Mortgage Corp. case involved the trial court's extension of an underlying temporary injunction after a final judgment had been secured. 2008 Tex.App. LEXIS 3270, 2008 WL 1960812 at ----9-10. The Dallas Court of Appeals concluded that once a final judgment was secured, under the circumstances involved, the underlying temporary injunction terminated; therefore, the extension of the underlying temporary injunction constituted a new temporary injunction. Id. at *14. In this case, we do not have a final judgment; instead, Graybar challenges the temporary injunction on interlocutory appeal, for which our jurisdiction is limited. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(4). Therefore, EMC Mortgage Corp. is not applicable. In Webb, appellant Willis Webb appealed the trial court's extension of a temporary injunction ordering him to comply with provisions on a covenant not to compete with his former employer. 793 S.W.2d at 303. The Fourteenth Court of Appeals reviewed the mertis of the temporary injunction without any discussion as to whether the trial court's extension of the temporary injunction's duration constituted a substantive modification. Id. at 305. Here, we have a unique situation in that we have reviewed the merits of the temporary injunction in cause number 13-08-00294-CV, Graybar's first interlocutory appeal. The only matter for review in this cause is the extension. Therefore, we find City of Lancaster to be more on point in this cause, and we decline to follow Webb. Finally, in Herider Farm Processing, appellant appealed the trial court's issuance of a temporary injunction enjoining the City of Nacogdoches from terminating water and sewer services for a period of fifteen days. 573 S.W.2d at 297. After a hearing on the temporary injunction, the trial court concluded that appellant was entitled to injunctive relief and granted appellant's motion for a temporary injunction for a period of fifteen days from the date of the hearing. Id. at 298. Appellant subsequently filed a motion for extension of the temporary injunction “until such time as the principal suit herein may be tried to a conclusion.” Id. The trial court denied appellant's motion. Id. On appeal of the temporary injunction, the court of appeals noted that the crux of the disagreement between appellant and appellee pertained to the length of time for which the trial court granted or should have granted the injunction. Id. The court of appeals concluded that the trial court had abused its discretion in granting the injunction for only a fifteen day period, reasoning that fifteen days is insufficient to preserve the status quo. Id. at 299. *13 The Herider Farm Processing case is not directly analogous to the instant case. Although it was argued that the trial court had abused its discretion in denying its motion to extend the temporary injunction, the court of appeals did not analyze the denial of the motion to extend the temporary injunction. Id. at 298. Instead, the court analyzed the original temporary injunction that the trial court had granted. Id. at 298-99. In doing so, the court concluded that the duration of the original temporary injunction was insufficient to maintain the status quo of the underlying suit, especially in light of the trial court's conclusion © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) that appellant had proven its rights to permanent injunctive relief. Id. at 299. Therefore, the court modified the duration of the original temporary injunction to last until a trial on the merits. Id. Considering the court did not address appellant's motion to extend the temporary injunction and instead addressed the trial court's grant of the original temporary injunction, we do not find this case to be persuasive in this matter. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(4) (providing for an interlocutory appeal premised on a grant or refusal to issue a temporary injunction). Graybar further argues that the holdings in Sweet v. Inkjet International, Ltd., No. 05-03-00233-CV, 2003 Tex.App. LEXIS 8539, 2003 WL 22254695 at ----6-8 (Tex.App.-Dallas Oct.2, 2003, no pet.) (mem.op.) (concluding that the trial court's amended temporary injunction clarifying the term “contacting” constituted a second temporary injunction and, therefore, did not interfere with the appellate court's jurisdiction), Ahmed v. Shimi Ventures, 99 S.W.3d 682, 688-89 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (holding that an order modifying a temporary injunction, including adding a provision applicable to insurers, reducing bond, and changing some compliance dates, but not incorporating the original temporary injunction by reference was a complete temporary injunction in itself), and Martin, 640 S.W.2d at 355 (involving a modified temporary injunction increasing the bond amount in the original temporary injunction from $2,000 to $100,000) support its contention that in changing the date of the temporary injunction, the Hidalgo County district court made a substantive modification to the November 2, 2007 temporary injunction. We disagree. None of the cases cited by Graybar address a situation where a trial court has extended a temporary injunction. Furthermore, none of the cases cited by Graybar stand for the proposition that a mere changing of the date on the temporary injunction to effectuate an extension constitutes a substantive modification. Thus, the cases relied upon by Graybar are not persuasive in this matter. Based on the foregoing, we conclude that the order falls outside the ambit of section 51.014(a)(4) of the civil practice and remedies code, and that we do not have jurisdiction to review it. See id.; see also TEX. CIV. PRAC. & REM.CODE § 51.014(a) (4). On June 10, 2008, Gonzalez and Laredo Hix moved to dismiss this appeal. Accordingly, we grant the motion to dismiss filed by Gonzalez and Laredo Hix, and we dismiss this interlocutory appeal. 16 V. CAUSE NUMBER 13-08-00333-CV *14 In a second petition for writ of mandamus, Graybar, MIRA, and Stallings assert that the trial court abused its discretion in denying their motions to transfer venue. Specifically, they argue that sections 15.011 and 15.012 of the civil practice and remedies code are mandatory venue provisions which necessitate trying the entire case in Webb County. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 15.011, 15.012 (Vernon 2002). Gonzalez and Laredo Hix counter by arguing that: (1) the mandatory venue provisions noted by Graybar do not apply because venue in this case is governed by section 15.062 of the civil practice and remedies code, see TEX. CIV. PRAC. & REM.CODE ANN. § 15.062 (Vernon 2002); (2) Graybar and MIRA are barred from obtaining a writ of mandamus because of waiver; and (3) section 15.011 does not apply because the underlying suit does not involve the recovery of property or quieting title, see id. § 15.011. A. Standard of Review As previously stated, the general rule is that mandamus relief is available only to correct a “clear abuse of discretion” when there is no adequate remedy by appeal. Walker, 827 S.W.2d at 839. However, section 15.0642 of the civil practice and remedies code provides that “[a] party may apply for a writ of mandamus with an appellate court to enforce the mandatory venue provisions of this chapter.” TEX. CIV. PRAC. & REM.CODE ANN. § 15.0642 (Vernon 2002); see id. § 15.064 (Vernon 2002) (“No interlocutory appeal shall lie from the determination [of a motion to transfer venue].”). The Texas Supreme Court has held that parties bringing a mandamus under section 15.0642 to enforce the mandatory venue provisions of the civil practice and remedies code need not demonstrate that they lack an adequate remedy by appeal. In re Mo. Pac. R.R., 998 S.W.2d 212, 215 (Tex.1999) (orig.proceeding) (citing In re Continental Airlines, 988 S.W.2d at 735). Instead, the supreme court concluded that © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) a party need only demonstrate that the trial court abused its discretion. Id. at 216. Therefore, Graybar has properly raised this issue in its second petition for writ of mandamus. B. Discussion Rule 86 of the Texas Rules of Civil Procedure provides that “[a]n objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion....” TEX.R. CIV. P. 86(1). 1. Graybar Graybar was first joined as a party to this matter when Laredo Hix filed its original petition in intervention and Gonzalez filed his supplemental counterclaim on October 9, 2007. Graybar filed its motion to partially dissolve or modify the November 2, 2007 temporary injunction entered by the Hidalgo County trial court and its verified plea in abatement. Subsequently, on November 20, 2007, Graybar filed its motion to transfer venue and original answer subject thereto, contending that section 15.011 of the civil practice and remedies code mandated venue in Webb County. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.011. On March 19, 2008, Graybar filed a supplement to its November 20, 2007 motion to transfer venue, asserting that section 15.012 of the civil practice and remedies code also mandated venue in Webb County. See id. § 15.012; cf. In re Pepsico, Inc., 87 S.W.3d 787, 794 (Tex.App.-Texarkana 2002, orig. proceeding) (“[A]n original timely motion to transfer venue may be amended to cure defects in the original motion if the amended motion is filed before the trial court rules on the original motion, and that the properly filed amended motion relates back to and supersedes the original motion to transfer venue.”). Because Graybar filed its motion to dissolve or modify the temporary injunction and verified plea in abatement prior to its motion to transfer venue, we conclude that Graybar has waived this contention. See TEX.R. CIV. P. 86(1). Therefore, Graybar is not entitled to mandamus relief. 2. MIRA *15 In its motion to transfer venue filed on November 1, 2007, MIRA contended that Eastland County was the proper venue for this matter. At no point did MIRA allege that Webb County was the proper venue. Furthermore, MIRA did not make reference to either sections 15.011 or 15.012 of the civil practice and remedies code in arguing that venue was not proper in Hidalgo County. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 15.011, 15.012. Because this petition for writ of mandamus specifically alleges that sections 15.011 and 15.012 mandate venue in Webb County and because MIRA did not plead those provisions in its motion to transfer venue and did not assert that venue should be in Webb County, we conclude that MIRA has waived its venue contention. See TEX R. CIV. P. 86(3)(b) (providing that a motion to transfer venue must “state that the action should be transferred to another specified county of proper venue because.... Mandatory venue of the action in another county is prescribed by one or more specific statutory provisions which shall be clearly designated or indicated ”) (emphasis added); Wilson v. Tex. Parks & Wildlife Dep't., 886 S.W.2d 259, 260-61 (Tex.1994). Therefore, MIRA is not entitled to mandamus relief. 3. Stallings Stallings filed its original motion to transfer venue on November 1, 2007, asserting that section 15.011 mandated venue in Webb County . 17 See TEX. CIV. PRAC. & REM.CODE ANN. § 15.011. Stallings filed a first amended motion on November 1, 2007, and a second amended motion on November 15, 2007. 18 See In re Pepsico, Inc., 87 S.W.3d at 794. In its first amended motion to transfer venue, Stallings specifically denied Laredo Hix's and Gonzalez's venue facts suggesting that venue was proper in Hidalgo County, and it contended that section 15.012 also mandated venue in Webb County. See id. § 15.012. Stallings filed a motion requesting a hearing on its motion to transfer venue on November 1, 2007. See TEX.R. CIV. P. 87(1) (providing, among other things, that “[t]he movant has the duty to request a setting on the motion to transfer”). The Hidalgo County trial court denied all pending motions to transfer venue after a hearing on May 12, 2008. 19 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) Stallings argues that sections 15.011 and 15.012 mandate venue in Webb County. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 15.011, 15.012. We disagree. Section 15.011 of the civil practice and remedies code provides that: Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, for recovery of damages to real property, or to quiet title to real property shall be brought in the county in which all or a party of the property is located. Id. § 15.011. 20 Additionally, section 15.012 of the civil practice and remedies code provides that “[a]ctions to stay proceedings in a suit shall be brought in the county in which the suit is pending.” Id. § 15.012. *16 We are, however, persuaded by the reasoning in Allison v. Fire Insurance Exchange, 98 S.W.3d 227, 241-44 (Tex.App.- Austin 2002, pet. granted, judgm't vacated w.r.m.). In Allison, the Austin Court of Appeals analyzed the applicability of section 15.011 of the civil practice and remedies code in a case involving actions for negligence, negligence per se, breach of contract, deceptive trade practices, and breach of good faith and fair dealing in insurance claims handling pertaining to water damage and mold contamination of an entire house. Id.; see also TEX. CIV. PRAC. & REM.CODE ANN. § 15.011. The Allison court stated the following: When considering venue, we note that the legislature's use of the word “shall” in a statute generally indicates the mandatory character of the provision. Because of the mandatory nature of section 15.011, we will strictly construe it and will not hold that it applies unless [appellant's] suit falls clearly within one of the categories in the section. Allison, 98 S.W.3d at 241 (internal citations omitted). Here, Stallings argues that the phrase “recovery of damages of real property” encompasses the claims made by Laredo Hix and Gonzales; therefore, venue is mandatory in Webb County. As the Allison court properly noted, “[i]f we were to look at the words ‘recovery of damages to real property’ in isolation, we would concede that the phrase may be sufficiently broad to encompass the expansive reading urged by [appellee]. But we do not construe statutory phrases in isolation; we read statutes as a whole.” Id . at 243. Furthermore, we must look to the “true” nature of the action to determine whether section 15.011 applies. Id. (citing Renwar Oil Corp. v. Lancaster, 154 Tex. 311, 313, 276 S.W.2d 774, 775 (1955); Yzaguirre v. KCS Res., Inc., 53 S.W.3d 368, 371 (Tex.2001)). Before the addition of the phrase “recovery of damages to real property,” the venue provision applied only when the suit directly involved a question of title to land. See, e.g., Yzaguirre, 53 S.W.3d at 371 (mandatory venue provision does not apply because suit does not involve recovery of real property or quieting title); Maranatha Temple, Inc. v. Enterprise Prods. Co., 833 S.W.2d 736, 738 (Tex.App.-Houston [1st Dist.] 1992, writ denied); Scarth v. First Bank & Trust Co., 711 S.W.2d 140, 141-42 (Tex.App.-Amarillo 1986, no writ). We have been cited to no authority that supports expanding the scope of the provision beyond questions relating to the recovery of real property or affecting title to “land.” Except to make it explicit that the provision in question allows for the recovery of damages in such a suit relating to land, there is no indication that the legislature sought to broaden the provision with the addition of the phrase. That the phrase “for recovery of damages to real property” was sandwiched between “to remove encumbrances from the title” and “to quiet title” further bolsters our reading. Reading the relevant phrase in its entire context, then gives support for the more narrow interpretation. See 1 Scott Brister, et al., Texas Pretrial Practice § 9.34 (2000). *17 Were we to interpret the provision to allow for mandatory venue in all instances in which any damages are sought relating to a dwelling, no matter the nature of the action, we believe we would be extending beyond permissible bounds the statute's language.... The phrase must be understood against the background of what the legislature was attempting to accomplish in restoring a damage provision to the section, thereby completing the availability of an array of remedies to actions involving “land.” © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) Id. Here, Laredo Hix and Gonzalez brought actions against Stallings for breach of contract and negligence in carrying out its duties in the construction of the Laredo Holiday Inn. Stallings has not cited to any authority expanding the scope of section 15.011 beyond questions relating to the recovery of real property or affecting title to “land.” See Trafalgar House Oil & Gas Inc. v. De Hinojosa, 773 S.W.2d 797, 798 (Tex.App.-San Antonio 1989, no writ) (construing the identical statutory predecessor to section 15.011 and concluding that “[i]t is not enough that the suit merely involves land; it must be a suit for the recovery of land or damages thereto, or to quiet the title to land, or to prevent or stay waste on land.”) (quoting Canales v. Estate of Canales, 683 S.W.2d 77, 81 (Tex.App.-San Antonio 1984, no writ)). Because Laredo Hix's and Gonzalez's claims do not involve recovering real property or quieting title or seeking damages for such loss, section 15.011 does not apply. See Allison, 98 S.W.3d at 244. Moreover, section 15.012 does not apply because we have previously concluded that the Hidalgo County district court has dominant jurisdiction over this matter and that the court was authorized to issue an anti-suit injunction with respect to the pending Webb County claims in cause numbers 13-08-00294-CV and 13-08-00073-CV. See Fleming v. Ahumada, 193 S.W.3d 704, 711-12 (Tex.App.-Corpus Christi 2006, no pet.). Given that sections 15.011 and 15.012 do not apply in this case, we conclude that the trial court did not abuse its discretion in denying Stallings's motion to transfer venue. Accordingly, we deny Stallings's petition for writ of mandamus. VI. CONCLUSION Accordingly, we affirm the trial court's judgment in cause number 13-08-00294-CV, deny Graybar's petition for writ of mandamus in cause number 13-08-00073-CV, dismiss Graybar's appeal in cause number 13-08-00341-CV, and deny Graybar's second petition for writ of mandamus in cause number 13-08-00333-CV. Footnotes 1 This interlocutory appeal is accelerated. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(4) (Vernon 2008); TEX.R.APP. P. 28.1. 2 On appeal, Graybar raises a third issue pertaining to dominant jurisdiction. However, Graybar raised its dominant jurisdiction issue with the Hidalgo County district court in its plea in abatement. In its first petition for writ of mandamus, Graybar takes issue with the propriety of the Hidalgo County district court's denial of its plea in abatement. Therefore, we will address Graybar's dominant jurisdiction issue in our analysis of its entitlement to a writ of mandamus in cause number 13-08-00073-CV. 3 On June 12, 2008, Graybar filed a motion for leave with this Court to re-file its notice of appeal in cause number 13-08-00294-CV and to file its notice of appeal in cause number 13-08-00341-CV. In conjunction with issuing this memorandum opinion, we GRANT Graybar's motion for leave. 4 Graybar was the supplier of electrical materials to the construction project. 5 On February 26, 2008, HMC Hospitality Operating Company (“HMC”) filed an unopposed motion to dismiss its appeal against Gonzalez. In this motion, HMC notified this Court that the parties in the original appeal had successfully mediated their claims and that it sought to dismiss its appeal and that each party would pay its own costs. This Court subsequently granted HMC's motion to dismiss in cause number 13-07-00518-CV on May 13, 2008. 6 The record reflects that MIRA was the general contractor and Stallings was an electrical subcontractor. 7 The record contains an affidavit executed by Gonzalez stating that he is the president of Laredo Hix. 8 On appeal, Laredo Hix contends that it was never served with notice of the Webb County suit filed by Graybar; therefore, it argues, the suit cannot be considered to have commenced against it. 9 On January 18, 2008, Graybar filed notice of its accelerated interlocutory appeal of the trial court's January 2, 2008 order, in cause number 13-07-00518-CV, essentially joining in HMC's original interlocutory appeal. Realizing its error, Graybar filed an emergency expedited motion for severance on January 25, 2008. In this motion, Graybar moved this Court to sever its appeal from cause number © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) 13-07-00518-CV and to docket its appeal under a distinct cause number. This Court granted Graybar's motion for severance and assigned its interlocutory appeal a new cause number-13-08-00294-CV. 10 Section 53.157 of the property code allows for the discharge of Graybar's mechanic's lien by five other methods besides failure to institute a foreclosure suit in the county in which the property is located. See TEX. PROP.CODE ANN. § 53.157 (Vernon 2007). In any event, Graybar has already filed suit to foreclose its mechanic's lien in Webb County. See id. § 53.158 (Vernon 2007) (providing that “suit must be brought to foreclose the lien within two years after the last day a claimant may file the lien affidavit under Section 53.052 or within one year after completion, termination, or abandonment of the work under the original contract under which the lien is claimed, whichever is later”); id. § 53 .052 (Vernon 2007) (providing that “the person claiming the lien must file an affidavit with the county clerk of the county in which the property is located ... not later than the 15th day of the fourth calendar month after the day on which the indebtedness accrues”). 11 Gonzalez and Laredo Hix concede this fact on appeal. 12 Section 65.023 of the Texas Civil Practice and Remedies Code is the successor to both former article 4656 of the Texas Revised Civil Statutes and article 4653 of the “Revised Civil Statutes of Texas 1911.” Hughes v. Morgan, 816 S.W.2d 557, 559 (Tex.App.- Fort Worth 1991, writ denied); see TEX. CIV. PRAC. & REM.CODE ANN. § 65.023 (Vernon 2008). 13 Graybar also relies on Gardner v. Stewart, 223 S.W.3d 436, 437 (Tex.App.-Dallas 2006, pet. denied) and McVeigh v. Lerner, 849 S.W.2d 911, 914 (Tex.App.-Houston [1st Dist.] 1993, writ denied) for the contention that section 65.023 prevented the Hidalgo County district court from issuing the temporary injunction. Specifically, Graybar argues that section 65.023 requires a party seeking to enjoin pending litigation “must do so where the litigation is pending.” However, like Butron v. Cantu, 960 S.W.2d 91, 94 (Tex.App.- Corpus Christi 1997, no writ), the Gardner and McVeigh courts concluded that attacks on a judgment must be made in the court that rendered the judgment and that a party cannot seek to enjoin a party from enforcing a judgment issued in another district court. See Gardner, 223 S.W.3d at 437; McVeigh, 849 S.W.2d at 914. As we have previously noted, Graybar has not secured a judgment in the Webb County lawsuit. Therefore, we do not find the Gardner or McVeigh cases to be persuasive in this matter. 14 Gonzalez and Laredo Hix also assert that Graybar is not entitled to a writ of mandamus because it already has an adequate remedy at law-its interlocutory appeal. As previously noted, Graybar took issue with the Hidalgo County district court's denial of its plea in abatement in its petition for writ of mandamus, not in its interlocutory appeal. Moreover, section 51.014 of the civil practice and remedies code does not grant this Court interlocutory appellate jurisdiction over a denial of a plea in abatement. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014. Appeal is ordinarily an adequate remedy to review incidental rulings such as pleas in abatement. See Wyatt v. Shaw Plumbing Co. ., 760 S.W.2d 245, 248 (Tex.1988); see also In re Ayala, No. 13-07-140-CV, 2007 Tex.App. LEXIS 3319, at *6, 2007 WL 1238572 (Tex.App.-Corpus Christi Apr.27, 2007, orig. proceeding). However, the Texas Supreme Court has held that mandamus is appropriate to resolve disputes over dominant jurisdiction. See Perry v. Del Rio, 66 S.W.3d 239, 258 (Tex.2001) (orig.proceeding) (citing Curtis v. Gibbs, 511 S.W.2d 263, 268 (Tex.1974)). In addition, the supreme court, in Abor v. Black, denied mandamus relief requesting a court to abate a case in deference to another court's dominant jurisdiction absent “any order [of the former court] which actively interferes with the exercise of jurisdiction” by the court with dominant jurisdiction. 695 S.W.2d 564, 567 (Tex.1985). The supreme court has not resolved these tests into one uniform test governing mandamus relief pertaining to dominant jurisdiction issues. Here, the Webb County district court set a hearing for December 6, 2007, to resolve an emergency plea in abatement and a motion filed by Stallings to dissolve or modify the November 2, 2007 temporary injunction. Clearly, the setting of the December 6, 2007 hearing date by the Webb County district court interferes with the exercise of jurisdiction by the Hidalgo County district court. Under either test, Graybar does not have an adequate remedy by appeal and, therefore, it properly raised this issue in its petition for writ of mandamus. See Perry, 66 S.W.3d at 258; Abor, 695 S.W.2d at 567. 15 Though Graybar did, in fact, institute its Webb County suit before Laredo Hix's plea in intervention, we must refer to the original Hidalgo County suit filed on January 18, 2007. See Wyatt, 760 S.W.2d at 247. This is so because Laredo Hix, through its plea in intervention, effectively amended the Hidalgo County suit to join all necessary parties, and Graybar did not challenge the joinder in the trial court. See id.; see also TEX.R. CIV. P. 39 (providing that a person subject to service of process shall be joined as a party if (1) in his absence complete relief cannot be accorded to those already made parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in its absence may “(i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest”); R. 40 (providing that defendants may be joined in one action if the assertions against them arise “out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action.”). 16 Given our disposition, we need not address Graybar's remaining issues in cause number 13-08-00341-CV. See TEX.R.APP. P. 47.1. 17 The November 1, 2007 motion to transfer venue was the first pleading filed by Stallings in the trial court; therefore, we do not have for review any issues pertaining to the due order of pleading rule with respect to Stallings. See TEX.R. CIV. P. 86(1). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 In re Graybar Elec. Co., Inc., Not Reported in S.W.3d (2008) 18 In its second amended motion to transfer venue, Stallings made a convenience argument which was not briefed on appeal. 19 The Hidalgo County trial court's order denying the motions to transfer venue includes a handwritten message stating that the hearing on the motions was held on February 12, 2008. However, the order denying the motions was signed and the reporter's record reflects that the hearing was conducted on May 12, 2008. 20 Section 15.011 of the civil practice and remedies code is a mandatory venue provision. See In re Applied Chem. Magnesias Corp. ., 206 S.W.3d 114, 119 (Tex.2006) (orig.proceeding); see also TEX.R. CIV. P. 87(2). End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 In re Khan, Not Reported in S.W.3d (2014) 2014 WL 199024 Only the Westlaw citation is currently available. SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. MEMORANDUM OPINION Court of Appeals of Texas, Beaumont. In re Mujtaba Ali KHAN. No. 09–14–00028–CV. | Jan. 16, 2014. Original Proceeding. Attorneys and Law Firms Jamal A. Asafi, Asafi Law Firm, Houston, TX, Gary Michael Block, Humble, TX, for relator. Margaret T. Brenner, Mark A. Font, Schirrmeister Diaz-Arrastia Brem, LLP, Houston, TX, for real parties in interest. Before McKEITHEN, C.J., HORTON and JOHNSON, JJ. MEMORANDUM OPINION PER CURIAM. *1 In this original mandamus proceeding Mujtaba Ali Khan (“Khan”) contends that the trial court abused its discretion in ordering a show cause hearing for alleged violations of two temporary injunction orders (“the temporary injunction orders”). See Xenon Anesthesia of Tex. P.L.L.C. v. Xenon Health L.L.C., No. 09–12–00553–CV, 2013 WL 1279408, at *4 (Tex.App.- Beaumont Mar.28, 2013, no pet.) (mem.op.). Khan argues the temporary injunction orders are void because the trial court granted Khan's motion for continuance and re-set the trial date to a later date than the trial dates contained in the temporary injunction orders. The trial court reset the trial date for February 10, 2014. Khan asks this Court to issue a temporary stay of the trial court proceedings and to issue a writ of mandamus directing the trial court (1) to vacate its order setting the show cause hearing, and (2) to dissolve the temporary injunctions. See Tex.R.App. P. 52.8(c); see also Tex.R.App. P. 52.10(b). After reviewing the petition for writ of mandamus and the mandamus record, we conclude that the relator has not established an abuse of discretion by the trial court. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.2004) (orig.proceeding); In re CI Host, Inc., 92 S.W.3d 514, 516 (Tex.2002) (orig.proceeding). We deny the petition for writ of mandamus and motion for temporary relief. See Tex.R.App. P. 52.8(a). PETITION DENIED. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Krueger, Not Reported in S.W.3d (2013) 2013 WL 2157765 Only the Westlaw citation is currently available. SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. MEMORANDUM OPINION Court of Appeals of Texas, Austin. In re Jeffrey (Tre) KRUEGER. No. 03–12–00838–CV. | May 16, 2013. Original Proceeding from Travis County. Attorneys and Law Firms Mark A. Cohen, Law Office of Mark Cohen, Austin, TX, for real party in interest. D. Todd Smith, Smith Law Group, P.C., Austin, TX, for relator. Before Justices PURYEAR, PEMBERTON and ROSE. MEMORANDUM OPINION BOB PEMBERTON, Justice. *1 Relator Jeffrey (Tre) Krueger was found in contempt of court for violating a temporary injunction and was committed to jail for 125 days. During his confinement, Krueger filed a petition for writ of habeas corpus and an emergency motion to set bond pending this Court's determination of the merits of the petition. We granted the emergency motion, ordered Krueger released upon the posting of bond, and requested a response from the real parties in interest, Michael Torres and Cru Energy, Inc. (Cru Energy). A response was subsequently filed. Having considered the petition and response, we conclude that Krueger is entitled to relief. Accordingly, we will grant the petition for writ of habeas corpus. BACKGROUND Krueger and Torres are opposing parties in ongoing litigation involving Cru Energy, a company that they co-founded. In the underlying suit, Krueger sued Torres for breach of fiduciary duty, fraud, conversion, and other theories of recovery. Torres filed an answer and counterclaim in which he made similar allegations against Krueger. During the course of the litigation, Torres sought and obtained a temporary restraining order and two temporary injunctions against Krueger. The temporary restraining order, which was entered on June 14, 2011, and extended by agreement on July 27, 2011, prohibited Krueger from, among other things, “making or initiating any withdrawals or transfers from the Wells Fargo Account (as defined in Plaintiffs' Original Petition), excluding transfers to be made in the ordinary course of business of Cru Energy.” 1 The first temporary injunction, which was entered on July 5, 2011, and replaced the temporary restraining order, prohibited Krueger from: (1) scheduling or providing notice of or conducting a shareholder's meeting; © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Krueger, Not Reported in S.W.3d (2013) (2) making or initiating any withdrawals or transfers from any of Cru Energy, Inc. bank accounts, including, but not limited to, the Wells Fargo Account as defined in Plaintiffs' Original Petition; (3) disposing of, selling or encumbering the shares or any assets of Cru Energy, Inc. to which Jeffrey Krueger claims ownership; (4) removing, destroying, or otherwise making unavailable any written information or documents related to the activities of any of Cru Energy, Inc.'s employees, agents, contractors, prospective or actual investors, customers or governmental agencies and its employees, or any other person who may be directly or indirectly involved with the affairs or business of Cru Energy, Inc.; (5) contacting any of Cru Energy Inc.'s investors or potential investors, or any other persons doing business with or potentially a participant in the business of Cru Energy, Inc., except as specifically authorized by Michael Torres. The second temporary injunction, which was entered on July 15, 2011 and purports to supplement the first temporary injunction, further ordered Krueger to “[r]eturn $80,000 to the Cru Energy bank account number 7038038340 to said account no later than July 18, 2011,” to “[r]efrain and desist from denying or restricting Michael Torres' access to all money in Cru Energy, Inc.'s bank account number 7038038340 or any other account in the name of Cru Energy, Inc. at Wells Fargo Bank for usual and customary purposes of Cru Energy, Inc.,” and to “[r]efrain and desist from denying or restricting Michael Torrres' access to or control over the Cru Energy, Inc. Website registered in the company's name....” *2 On January 18, 2012, Krueger filed for Chapter 7 Bankruptcy in the United States Bankruptcy Court for the Northern District of Texas. Subsequently, Cru Energy filed a motion for relief from the automatic stay, and the bankruptcy court modified the stay to allow Cru Energy to pursue criminal contempt charges against Krueger relating to his obligations under the temporary orders. On September 6, 2012, following a hearing, Krueger was held in contempt for violating the temporary restraining order by making three cash withdrawals on June 17, 2011, totaling $3,091.21, from the Wells Fargo Account referenced in the order. Krueger was subsequently committed to the Travis County Jail for three consecutive days. In November 2012, Cru Energy pursued additional contempt charges against Krueger relating to alleged violations of the first temporary injunction. Cru Energy alleged that Krueger had violated the injunction by failing to cease and desist from either directly or indirectly “making or initiating any withdrawals or transfers from any of Cru Energy, Inc. bank accounts, including, but not limited to, the Wells Fargo Account as defined in Plaintiffs' Original Petition.” Specifically, according to Cru Energy, Krueger admitted that he had “held $80,000 in trust for Cru Energy, Inc.” and that he had “withdrew and transferred all of that money in separate violations of the Temporary Injunction.” Cru Energy also alleged that Krueger had further violated the injunction by failing to cease and desist from either directly or indirectly “contacting any of Cru Energy Inc.'s investors or potential investors, or any other persons doing business with or potentially a participant in the business of Cru Energy, Inc., except as specifically authorized by Michael Torres.” According to Cru Energy, Krueger had contacted “multiple investors, vendors, and potential contractors and employees of Cru Energy.” These alleged contacts “includ[ed] but [were] not limited to”: (1) sending an email to several investors and potential contractors and employees of Cru Energy; (2) contacting and ultimately contracting with DSL, a vendor of Cru Energy; (3) contacting on multiple occasions Pablo Cortez and Robert Cook, both of whom were employees of Cru Energy; (4) contacting an employee of Seva Energie, a vendor of Cru Energy; and (5) sending an email to Dr. Patrick Hayes, “an investor and potential vendor or customer” of Cru Energy. A hearing was held on the allegations. At the hearing, the district court admitted into evidence the transcript of the September contempt hearing (but not the documentary evidence from that hearing) and took “judicial notice of its court file.” 2 The district court proceeded to consider additional evidence regarding the allegations, including the testimony of Krueger and former Cru Energy employees Cook and Cortez. Documentary evidence was also admitted relating to Krueger's allegedly improper contacts, including copies of email messages and phone logs. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re Krueger, Not Reported in S.W.3d (2013) *3 At the conclusion of the hearing, the district court found that Krueger had violated the temporary injunction as alleged. Specifically, the district court found that Krueger had made 23 separate withdrawals and transfers from a Cru Energy bank account (the account was not specifically identified in the contempt order, other than as “the bank account holding Cru Energy, Inc. funds”), in the aggregate amount of approximately $80,000. The district court further found that Krueger had also violated the injunction by sending an email to several investors and employees of Cru Energy, sending an email to a vendor of Cru Energy, and sending emails to Pablo Cortez, an employee of Cru Energy. For each violation, the district court committed Krueger to jail for five consecutive days, for a total term of confinement of 125 days. Krueger was immediately taken into custody and confined to the Travis County jail. 3 This habeas-corpus proceeding followed. STANDARD AND SCOPE OF REVIEW Contempt is “broadly defined” as “disobedience to or disrespect of a court by acting in opposition to its authority.” In re Reece, 341 S.W.3d 360, 364 (Tex.2011) (orig.proceeding) (citing Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995) (orig.proceeding)). “[C]ontempt is a broad and inherent power of a court.” Id. (citing Ex parte Browne, 543 S.W.2d 82, 86 (Tex.1976) (orig.proceeding)). However, [D]espite the breadth of a court's contempt power, we have warned it is a tool that should be exercised with caution. As the Court of Criminal Appeals has explained, “[c]ontempt is strong medicine”—the alleged contemnor's very liberty is often at stake—and so it should be used “only as a last resort.” Id. (internal citations omitted). An order finding a party in contempt is not an appealable order. See Norman v. Norman, 692 S.W.2d 655, 655 (Tex.1985). Therefore, the only remedies available to the contemnor are obtaining a writ of mandamus if the contemnor is not confined, or a writ of habeas corpus if, as here, the contemnor is subject to confinement. See In re Long, 984 S.W.2d 623, 625 (Tex.1999); Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967). “The remedy [of habeas corpus] is in the nature of a collateral attack and its purpose is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully imprisoned.” Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). In a habeas-corpus proceeding, the order or judgment challenged is presumed to be valid until the relator has discharged his burden of showing otherwise. Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding) (citing Johnson v. Zerbst, 304 U.S. 458, 468–69 (1938)). For the relator to be entitled to release from custody, “the trial court's order of commitment must be void, either because it was beyond the power of the court or because it deprived the relator of his liberty without due process of law.” Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980). *4 The amount of due process afforded to the contemnor depends on the type of contempt being charged. “Contempt may occur in the presence of a court (direct contempt), or outside the court's presence (constructive contempt).” Reece, 341 S.W.3d at 365 (citing Gordon, 584 S.W.2d at 688). Because constructive contempt occurs outside the court's presence, more procedural safeguards are afforded to constructive contemnors, including notice, a hearing, and the opportunity to obtain an attorney. See Ex parte Krupps, 712 S.W.2d 144, 147 (Tex.Crim.App.1986); Ex parte Werblud, 536 S.W.2d 542, 546 (Tex.1976) (orig.proceeding). It is undisputed that the contempt alleged in this case, the violation of a written court order that occurred outside the court's presence, is constructive contempt. See Chambers, 898 S.W.2d at 259. “Contempt is further classified into either civil or criminal contempt.” Reece, 341 S.W.3d at 365. “Civil contempt in Texas is the process by which a court exerts its judicial authority to compel obedience to some order of the court.” Ex parte Padron, 565 S.W.2d 921, 924 (Tex.1978) (orig.proceeding). Once the contemnor obeys the court order, the contemnor is released from his confinement. See Werblud, 536 S.W.2d 545. In other words, “the civil contemnor ‘carries the keys of his prison in his own pocket.’ “ Id. (quoting Shillitani v. United States, 384 U .S. 364, 368 (1966)). “Criminal contempt[,] on the other hand[,] is © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re Krueger, Not Reported in S.W.3d (2013) punitive in nature.” Id. “The sentence is not conditioned upon some promise of future performance because the contemnor is being punished for some completed act which affronted the dignity and authority of the court.” Id. Here, it is undisputed that Krueger was subject to criminal contempt, confined as punishment for his completed act of allegedly violating a court order and without the ability to obtain his release through compliance. See Reece, 341 S.W.3d at 365. “Many constitutional rights are accorded criminal contemnors.” Werblud, 536 S.W.2d at 547. This is because “criminal contempt is a crime in every fundamental respect,” Bloom v. Illinois, 391 U.S. 194, 201 (1968), and constitutional protections are required to ensure that the power to hold a person in contempt is not abused. See id. These rights include “full and complete notification” of the charges and a “reasonable opportunity to meet the charges by way of defense or explanation,” Gordon, 584 S.W.2d at 688, the right to assistance of counsel if requested, Ex parte Hiester, 572 S.W.2d 300, 302 (Tex.1978), the privilege against self-incrimination, Werblud, 536 S.W.2d at 547–48, and the right to a jury trial if the proposed punishment exceeds six months' imprisonment. Taylor v. Hayes, 418 U.S. 488, 495 (1974); Werblud, 536 S.W.2d at 547. Because “contempt proceedings are quasi-criminal in nature,” the procedures followed in contempt cases “should conform as nearly as practicable to those in criminal cases.” Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex .1986) (orig.proceeding); Ex parte Johnson, 654 S.W.2d 415, 420 (Tex.1983) (orig.proceeding); In re Houston, 92 S.W.3d 870, 877 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding). *5 A criminal contempt conviction for disobedience to a court order requires proof beyond a reasonable doubt of: (1) a reasonably specific order; (2) a violation of the order; and (3) the willful intent to violate the order. Chambers, 898 S.W.2d at 259. “In reviewing the record, we are without jurisdiction to weigh the proof and determine whether it preponderates for or against the relator; rather, we determine only if the judgment is void because, for example, the relator has been confined without a hearing or with no evidence of contempt to support his confinement.” Id. at 259–60. A reviewing court will issue a writ of habeas corpus and release the contemnor if either the contempt order or the order underlying the contempt is void, because “one may not be held guilty of contempt for refusing to obey a void order.” Ex parte Shaffer, 649 S.W.2d 300, 301–02 (Tex.1983). ANALYSIS Krueger contends that the contempt order is void for five reasons: (1) the temporary injunction underlying the contempt order is void for failing to comply with the requirements of Texas Rule of Civil Procedure 683; (2) the temporary injunction is not sufficiently specific; (3) the show-cause order informing Krueger of the contempt charges failed to notify him that criminal confinement and a criminal penalty would be sought as punishment; (4) there was no evidence supporting the district court's findings that Krueger violated the injunction by making withdrawals or transfers from Cru Energy bank accounts; and (5) there was no evidence supporting the district court's findings that Krueger violated the injunction by making contact with the individuals he was prohibited from contacting. We agree with Krueger that the temporary injunction he was alleged to have violated is void for failure to comply with the requirements of Rule 683. “The law demands clear and complete orders granting injunctions.” Webb v. Glenbrook Owners Ass'n, 298 S.W.3d 374, 384 (Tex.App.-Dallas 2009, no pet.) (citing Tex.R. Civ. P. 683). Rule 683 provides in pertinent part that “[e]very order granting an injunction ... shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained. Tex.R. Civ. P. 683. “The requirements of Rule 683 are mandatory and must be strictly followed.” Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986) (per curiam). “When a temporary injunction order does not adhere to the requirements of Rule 683 the injunction order is subject to being declared void and dissolved.” Id.; see Qwest Commc'ns. Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex.2000) (per curiam). “ ‘[T]he obvious purpose of [Rule 683] is to adequately inform a party of what he is enjoined from doing and the reason why he is so enjoined.’ “ El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 744 (Tex.App.-Dallas 2011, no pet.) (quoting Schulz v. Schulz, 478 S.W.2d 239, 244–45 (Tex.Civ.App.-Dallas 1972, no writ)) (alteration in original). Therefore, “an injunction decree must be as definite, clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re Krueger, Not Reported in S.W.3d (2013) from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing.” Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871, 875 (Tex.1948). Stated another way, “[t]he injunction must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him .” Drew v. Unauthorized Practice of Law Comm., 970 S.W.2d 152, 156 (Tex.App.-Austin 1998, pet. denied) (citing Slavin, 412 S.W .2d at 44). “Interpretation of the provisions of the court order in question should not rest upon implication or conjecture.” Id. *6 “On the other hand, a court order need not be ‘full of superfluous terms and specifications adequate to counter any flight of fancy a contemnor may imagine in order to declare it vague.’ “ Id. (quoting Ex parte McManus, 589 S.W.2d 790, 793 (Tex.Civ.App.-Dallas 1979, no writ)). Rather, “the injunction must be in broad enough terms to prevent repetition of the evil sought to be stopped, whether the repetition be in form identical to that employed prior to the injunction or (what is far more likely) in somewhat different form calculated to circumvent the injunction as written.” San Antonio Bar Ass'n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 702 (Tex.1956). But an injunction “must not be so broad as to enjoin a defendant from activities which are a lawful and proper exercise of his rights.” Hitt v. Mabry, 687 S.W.2d 791, 795 (Tex.App.- San Antonio 1985, no writ) (citing Villalobos, 208 S.W.2d at 875). The temporary-injunction provisions at issue in this case prohibited Krueger from: (1) “making or initiating any withdrawals or transfers from any of Cru Energy, Inc. bank accounts, including, but not limited to, the Wells Fargo Account as defined in Plaintiff's Original Petition”; and (2) “contacting any of Cru Energy Inc.'s investors or potential investors, or any other persons doing business with or potentially a participant in the business of Cru Energy, Inc., except as specifically authorized by Michael Torres.” We conclude that neither provision complies with Rule 683. We first address the prohibition against withdrawals or transfers from “any of Cru Energy, Inc. bank accounts, including, but not limited to, the Wells Fargo Account as defined in Plaintiff's Original Petition.” This prohibition violates Rule 683 in two ways. First, rather than describing in reasonable detail the Wells Fargo Account, the injunction describes the account solely by reference to a separate document, the petition, that contains identifying information regarding the account in question. Thus, the petition—not the injunction—provides the means of describing the act or acts sought to be restrained. This is a violation of Rule 683's requirement that the injunction “describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained.” See Tex.R. Civ. P. 683 (emphasis added). In its brief, Cru Energy acknowledges that “[a]t best, if transfer from that [Wells Fargo] account had formed the basis of the contempt finding, it may have been subject to habeas corpus for that portion of the judgment.” However, Cru Energy contends that the reference in the injunction to the Wells Fargo Account was “merely an example” of an account that Krueger was prohibited from accessing, and it “was irrelevant to the [contempt order] because it was not the account Relator transferred the money from and for which he was held in contempt.” 4 In other words, according to Cru Energy, the only possible problem with the injunction is the reference to the Wells Fargo Account, which Krueger was not alleged to have accessed. Therefore, in Cru Energy's view, if that portion of the injunction is found to be void, it does not affect the validity of the contempt order. *7 However, Cru Energy's argument overlooks the second way in which the prohibition violates Rule 683. In addition to impermissibly describing the Wells Fargo Account by reference to another document, the entire prohibition on withdrawals and transfers fails to describe in reasonable detail the other accounts that Krueger is enjoined from accessing. The injunction prohibits Krueger from making withdrawals or transfers from “any” Cru Energy bank accounts, “including but not limited to” the Wells Fargo Account. But the injunction does not describe in reasonable detail those other accounts. There are no account numbers listed in the injunction, no identification of the banks in which the accounts exist, and no information describing the history or current status of the accounts. Thus, even if we were to disregard the portion of the injunction that referenced the Wells Fargo Account, the injunction still violates Rule 683's requirements that the injunction “shall be specific in terms” and “shall describe in reasonable detail ... the act or acts sought to be restrained.” See Tex.R. Civ. P. 683. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 In re Krueger, Not Reported in S.W.3d (2013) Cru Energy argues that the injunction “is in the most detail possible since Mr. Krueger would have to have known an account which fit that description in the injunction in order to be entitled to transfer money out of it” and that “Krueger himself established the Cru account he took the funds out of after he acquired knowledge of the July 5, 2011 injunction.” However, Rule 683 requires that the injunction be as “definite, clear and precise as possible ... without calling on [the enjoined party] for inferences or conclusions about which persons might well differ and without leaving anything for further hearing.” Villalobos, 208 S.W.2d at 875. The injunction here, by not specifically identifying the off-limit accounts, required Krueger to make “inferences or conclusions about which persons might well differ” regarding the accounts he was prohibited from accessing and, consequently, “left for further hearing” the issue of whether withdrawals and transfers from certain accounts violated the injunction. 5 Thus, the injunction failed to comply with the specificity requirements of Rule 683. See Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 222–23 (Tex.App.-Dallas 2005, no pet.) (holding that lack of specificity in injunction was not cured by any knowledge that enjoined party may have had). We also disagree with Cru Energy's contention that the injunction was in “the most detail possible.” The second temporary injunction, which Krueger was not alleged to have violated, specifically ordered Krueger to “[r]eturn $80,000 to the Cru Energy bank account number 7038038340 to said account no later than July 18, 2011,” and to “[r]efrain and desist from denying or restricting Michael Torres' access to all money in Cru Energy, Inc.'s bank account number 7038038340 or any other account in the name of Cru Energy, Inc. at Wells Fargo Bank for usual and customary purposes of Cru Energy, Inc.” Thus, the second injunction specifically identified the relevant bank accounts, leaving no doubt as to how Krueger was to comply with the injunction. The first injunction, on the other hand, contained no such specificity. To comply with Rule 683, the first injunction merely needed to “describe in reasonable detail” the bank accounts that Krueger was prohibited from accessing. See Tex.R. Civ P. 683. This was not an impracticable requirement—providing the specific bank account names and numbers would have sufficed. By not providing that or similar information identifying the specific accounts that Krueger was enjoined from accessing, the injunction failed to comply with Rule 683. *8 We next address the prohibition against Krueger “contacting any of Cru Energy, Inc.'s investors or potential investors, or any other persons doing business with or potentially a participant in the business of Cru Energy, Inc., except as specifically authorized by Michael Torres.” This portion of the injunction violates Rule 683 by failing to describe in reasonable detail the individuals or organizations that Krueger was prohibited from contacting. Specifically, the injunction fails to name or otherwise identify those who are considered “investors or potential investors” of Cru Energy, and those who are “persons doing business with or potentially a participant in the business of” Cru Energy. Cru Energy argues that because of Krueger's role in running the company, he is “in a position to know who were investors and persons doing business with Cru [Energy].” Even assuming that this is true, 6 an injunction must be as “definite, clear and precise as possible ... without calling on [the enjoined party] for inferences or conclusions about which persons might well differ and without leaving anything for further hearing.” Villalobos, 208 S.W.2d at 875. The above prohibition fails to inform Krueger of who he is enjoined from contacting, and it requires him to infer the identity of those individuals based on his then- existing knowledge of the company's operations. This is similar to the injunction in Computek, 156 S.W.3d at 221–23, that was held to violate Rule 683. In that case, OEM Supplies (OEM) and the owner of Computek, Michael Williams, were opposing parties in litigation involving Computek's alleged use of trade secrets to form a competing company in violation of a covenant not to compete. Id. at 219–20. Computek had been permanently enjoined “from doing business, or authorizing anyone else to do business, with any OEM client not listed on Attachment A or that was a new account set up while Williams worked for OEM.” Id. at 221. Although Attachment A listed some clients whom Computek could contact, the injunction did not name or otherwise identify the clients whom Computek could not contact. Id. Computek contended that due to this lack of specificity, it could not know whether contacting certain clients violated the injunction. Id. at 221–22. The appeals court agreed, explaining its reasoning as follows: [T]hese paragraphs [of the injunction] enjoin Computek from taking specific actions involving specific OEM clients who are not identified or listed in the permanent injunction, and from using or disclosing information and files that are not specifically © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 In re Krueger, Not Reported in S.W.3d (2013) identified in the permanent injunction. Because these OEM clients are not specifically named, we agree with Computek that it must ask every non-ABBA contact it makes whether it was an OEM client during the relevant times, and that question may be construed as “canvassing” or “soliciting,” and thus a violation of the permanent injunction. We agree with Computek that the permanent injunction lacks specificity in this regard. *9 Id. at 222. In response to OEM's argument that Computek “ha[d] the information as to the clients it may not contact ‘as demonstrated by their repeated contacts of those clients,’ “ the appeals court observed, [E]ven if the trial court had expressly found Computek had such information, rule 683 provides that the order granting an injunction “shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or any other document, the act or acts sought to be restrained.” Thus, the injunction itself must provide the specific information as to the off-limits clients, without inferences or conclusions, or, in this case, implied references to other records Computek might have. Thus, we cannot agree with OEM that the lack of specificity as to OEM clients is cured by any knowledge Computek may have outside the permanent injunction. Id. at 222–23. Similarly, in this case, the injunction does not identify the individuals who Krueger is prohibited from contacting, and it requires Krueger to make inferences or conclusions concerning whom those individuals are. In fact, this injunction is even more vague than the injunction at issue in Computek, which at least provided a list of specific clients who Computek could contact. See id. at 221. Krueger was not specifically informed of either whom he was allowed to contact or whom he was enjoined from contacting. For the above reasons, we conclude that the first temporary injunction violates the specificity requirements of Rule 683 and is, accordingly, void. 7 Consequently, the order finding Krueger in contempt for allegedly violating that injunction is also void. See Shaffer, 649 S.W.2d at 301–02; In re Garza, 126 S.W.3d 268, 273 (Tex.App.-San Antonio 2003, orig. proceeding). It is therefore unnecessary for us to address the other reasons why, in Krueger's view, the contempt order is void. See Gordon, 584 S.W .2d at 689–90; Garza, 126 S.W.3d at 273 n. 4. We grant Krueger's petition for writ of habeas corpus, vacate the district court's contempt order, and order Krueger discharged from custody and released from the bond set by this Court on December 31, 2012. Footnotes 1 The “Wells Fargo Account” is described in Krueger's petition as follows: The Board authorized a checking/banking account for CRU Energy with Wells Fargo Bank (the “Wells Fargo Account”). The Board resolution authorizing the Wells Fargo Account provides that Mr. Krueger and Mr. Torres would both be authorized signatories on the Wells Fargo Account. Although no identifying account number was provided in the petition, the “Wells Fargo Account” was referenced multiple times in the petition and formed the basis for Krueger's conversion theory against Torres. Krueger pled, On or about October 1, 2010, Mr. Krueger attempted to electronically access the Wells Fargo Account. Mr. Krueger was able to view the Wells Fargo Account, but was unable to conduct any transactions in it. When Mr. Krueger asked Mr. Torres about his inability to access the Wells Fargo Account, he informed Mr. Krueger that he had Mr. Krueger's signature authority on the Wells Fargo Account revoked. Mr. Torres said that he believed having too many persons with access to the Wells Fargo Account was not consistent with how he wanted to handle CRU Energy's accounting functions. 2 The record reflects that most of the evidence concerning the alleged withdrawals and transfers was admitted during the September hearing. 3 Krueger was confined from December 19, 2012, when he was taken into custody, through December 31, 2012, when this Court ordered him released upon the posting of bond. 4 We note that the contempt order did not specifically identify the account from which Krueger had transferred money in violation of the injunction, other than as “the bank account holding Cru Energy, Inc. funds.” The record reflects that there was more than one such account. 5 The record of the September 6 contempt hearing reflects this problem. At the hearing, Krueger testified that at one point he withdrew $160,000 from a Cru Energy bank account and transferred the funds into his personal account, which, Krueger claimed, was “linked” to a Cru Energy bank account. He later withdrew $56,000 of those funds from his personal account and transferred the funds into another account that, according to Krueger, was an “operating Cru Energy account” that he had opened at Bank of America © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 In re Krueger, Not Reported in S.W.3d (2013) without authorization from Michael Torres. At another point in his testimony, Krueger admitted to withdrawing $80,000 from “a Cru Energy bank account,” but claimed that the trial court “didn't specifically say that I wouldn't have access to that account.” Without specificity in the injunction, questions remain as to which particular accounts qualify as “Cru Energy, Inc. bank accounts” for purposes of the injunction. For example, was Krueger's personal account considered a “Cru Energy, Inc. bank account” at the time it contained $160,000 of Cru Energy funds? Similarly, was the Bank of America account, which Krueger testified he had opened without authorization from Torres, actually a “Cru Energy, Inc. bank account” or, due to the lack of authorization, was it another one of Krueger's personal accounts? Such questions can be answered only by drawing inferences and conclusions based on information not contained within the injunction. 6 There is some authority for the proposition that, at least in the context of covenants not to compete, injunctions generally restraining solicitation of customers and not specifically listing the individual customers are not impermissibly vague. See Safeguard Bus. Sys., Inc. v. Schaffer, 822 S.W.2d 640, 644–45 (Tex.App.-Dallas 1991, no writ). This is because, in that context, it is not “unreasonable to assume that he who is sought to be enjoined is sufficiently familiar with the employer's business and its customers to avoid violating the injunction.” Id. This case presents a different situation. First, Krueger is prohibited from contacting not merely current investors and persons currently doing business with Cru Energy, but also “potential” investors and “potential” participants in the business. Additionally, despite whatever role Krueger may have had in Cru Energy in the past, the record reflects that during the ongoing litigation, Michael Torres has been making business decisions for the company, and there is no indication in the record that Torres has notified Krueger of whom Torres might be soliciting to become an “investor or potential investor in” Cru Energy, or of whom Torres might be considering to become “a person doing business with or potentially a participant in the business of” Cru Energy. Thus, it would not be reasonable on the facts of this case to assume that Krueger is sufficiently familiar with Cru Energy's investors, potential investors, and “any other persons doing business with or potentially a participant in the business of” Cru Energy, to avoid violating the injunction. 7 In its brief, Cru Energy asserts that if there is a lack of specificity in the injunction, the defect would render the injunction merely voidable (and therefore subject to attack only on direct appeal) as opposed to void. We disagree. The Texas Supreme Court has repeatedly stated that an injunction that fails to strictly comply with the requirements of Rule 683 and other rules of civil procedure is subject to being declared void. See, e.g., In re Office of Attorney Gen., 257 S.W.3d 695, 697–98 (Tex.2008) (per curiam); Qwest Commc'ns Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex.2000) (per curiam); Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986) (per curiam); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (Tex.1956); see also In re Garza, 126 S.W.3d 268, 271–73 (Tex.App.-San Antonio 2003, orig. proceeding) (rejecting contention that injunction which failed to comply with procedural requirements was merely voidable and observing that “[i]f the supreme court had meant that such a temporary injunction was voidable, we feel certain it would have used the word ‘voidable.’ Instead, the court has repeatedly used the word ‘void’ ”). End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 In re U.S. Silica Co., 157 S.W.3d 434 (2005) 48 Tex. Sup. Ct. J. 411 157 S.W.3d 434 Supreme Court of Texas. In re U.S. SILICA CO. et al. In re Badger Mining Corp. In re Norton Co., et al. In re Norton Co. (n/k/a/ Saint Gordon Abrasives) Siebe North Inc. and Textron Inc. In re Bacou–Dalloz Safety, Inc. Nos. 04–0270, 04-0271, 04-0297, 04-0308, 04-0309. | Feb. 11, 2005. Synopsis Background: Ten silicosis cases involving hundreds of plaintiffs were filed in Cameron County and randomly assigned to six different courts. The first case was assigned to the 197th District Court, Migdalia Lopez, J., but the plaintiffs successfully moved to transfer and consolidate all cases to the 404th District Court, Abel Limas, J., and some defendants thereafter successfully move to transfer and consolidate all cases in the 197th District Court. The 103rd District Court, Menton Murray, Jr., J., transferred to the 197th District Court. The 138th District Court, Robert Garza, J., entered an anti-transfer order. The 357th District Court, Leonel Alejandro, J., recused and transferred to the 107th District Court, Benjamin Euresti, J., which took no further action. The 404th District Court, Abel Limas, J., rescinded its consolidation order and blocked any transfer of the case originally filed in that court. Cross-petitions for writs of mandamus were filed. The Corpus Christi-Edinburg Court of Appeals, 129 S.W.3d 810, denied the cross-petitions. A defendant petitioned for writ of mandamus. Holdings: The Supreme Court held that: [1] local administrative judges could not enforce or overrule competing orders of coordinate courts transferring cases, and [2] under local court rules, only the court in which the first related case was filed could unilaterally transfer cases. Writ conditionally granted. West Headnotes (4) [1] Courts Designation or assignment of judges Government Code provision assigning to local administrative judges the duty to implement and execute local rules of administration, including assignment, docketing, transfer, and hearing of cases, does not give local administrative judges the authority to enforce or overrule competing orders of coordinate courts transferring cases; such enforcement or overruling is the duty of a higher court. V.T.C.A., Government Code § 74.092(1). 1 Cases that cite this headnote [2] Courts Courts from and to which transfer may be made Under local court rules for Cameron County, only the court in which the first of two or more related cases was filed may unilaterally transfer cases, with such transfers moving the cases to the court of first filing. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re U.S. Silica Co., 157 S.W.3d 434 (2005) 48 Tex. Sup. Ct. J. 411 1 Cases that cite this headnote [3] Mandamus Entertaining and proceeding with cause Mandamus relief is appropriate to resolve conflicting orders from two or more courts asserting jurisdiction over the same case. 9 Cases that cite this headnote [4] Judges Exercise of powers in different courts Trial courts have broad discretion to exchange benches and enter orders on other cases in the same county, even without a formal order or transfer. Vernon's Ann.Texas Const. Art. 5, § 11; V.T.C.A., Government Code § 74.094(a); Vernon's Ann.Texas Rules Civ.Proc., Rule 330(h). 3 Cases that cite this headnote Attorneys and Law Firms *435 Henry S. Platts, David E. Sharp, Beirne Maynard & Parsons, L.L.P., Chester J. Makowski, Keith N. Uhles, Royston Rayzor Vickery & Williams, L.L.P., Houston, and David C. Garza, Garza & Garza, L.L.P., Brownsville, for Relator. Cynthia Hardy Smith, Adam Tyler Fox, Cynthia Hardy Smith, Angela Clanton, Strasburger & Price, L.L.P., and William C. Dowdy III, Dallas, Hubert Oxford III, Benckenstein & Oxford, L.L.P., Beaumont, Kenneth E. McKay, Locke, Lidell & Sapp, L.L.P., Eva D. Geer, Mayer Knight & Williams, LLP, Gregory Michael Sullivan, John Duff Cleland, Jeffery Keith Gordon, Andrews & Kurth, L.L.P., Houston, Chris C. Pappas, Alan H. Marks, Amy Dunn Taylor, James Vincent Hewitt, Godwin Gruber, LLP, George J. Kacal, *436 Kacal Adams & Law, P.C., Jeffrey Boyd Lucas, Dunn Kacal Adams Pappas & Law, Houston, Thomas B. Taylor, Taylor & Warren, L.L.P., and Jack B. Manning, Douglas T. Gosda, and William J. Cozort Jr., Manning Gosda & Arredondo, LLP, Houston, and Jeffrey D. Roerig, Roerig Oliveira & Fisher, Brownsville, W. Bruce Williams, Cotton Bledsoe Tighe & Dawson, P.C., Midland, Lynne Miller Ford, Phillips & Akers, Houston, Paul J. Holmes, Paul J. Holmes, P.C., Beaumont, Pamela Jean Neale Williams, Irving, William B. Coffey Jr., Adams & Coffey, P.C., Beaumont, Shawn Robert Redman, Mark C. Clemer, Brown Sims, P.C., Houston, Edward J. Hennessy, Hennessy Gardner & Barth, Houston, Willard M. Tinsley, Funderburk & Funderburk, LLP, Houston, and Rex N. Leach, Atlas & Hall, McAllen, David Brill, Brill & Associates, P.C., Curt Webb, Beck Redden & Secrest, L.L.P., Houston, and Norton A. Colvin Jr., Robert Patrick Rodriguez, Teri L. Danish, Rodriguez, Colvin & Chaney & Saenz, LLP, Brownsville, Dale Marett Holidy, Houston, Boyd Wells, Wells Peyton Beard Greenberg Hunt, L.L.P., Beaumont, Sharla J. Frost, James H. Powers, Karen M. Alvarado, Powers & Frost, L.L.P., Houston, Terence M. Murphy, and Charles Christopher Groves, Jones Day, Dallas, Richard P. Hogan Jr., and Jennifer Bruch Hogan, Hogan & Hogan, L.L.P., Houston, Jerry C. Parker, Sammons & Parker, P.C., Tyler, Kent M. Adams, Adams & Coffey, P.C., and Ellen G. Reynard, Adams Coffee & Duesler, Beaumont, Ewing Edben Sikes III, Royston, Rayzor, Vickery & Williams, L.L.P., Brownsville, Andrew S. Oretsky, Davis Oretsky & Guilfoyle, Houston, Thomas B. Taylor, Taylor & Warren, L.L.P., Houston, David Craig Landin, Lori Elliott Jarvis, Paul Oliver Wickes, and Clinton David Howie, Hunton & Williams, LLP, Richmond, VA, Hubert A. Crouch III, Crouch & Ramey, L.L.P., Dallas, Ryan A. Beason, Beason Willingham, LLP, Houston, Dulcie Green Wink, Haynes & Boone, LLP, Houston, John R. Robinson, Johnson & Sylvan, P.C., Dallas, Michael Scott Pyle, John Philip Parsons, Forman, Perry, Watkins, Krutz & Tardy, L.L.P., Dallas, Thomas W. Tardy III, Jackson, MS, Anthony E. Pletcher, Huseman & Pletcher, Corpus Christi, Erin Patterson, Adams & Reese, L.L.P., Houston, R. Stephen Ferrell, Giessel Barker & Lyman, P.C., Houston, Deborah A. Newman and Roger Henry Nebel, Forman, Perry, Watkins, Krutz & Tardy, LLP, Houston, Clinton Eugene Phillips, Johnson Ferguson Pipkin & Phillips, Houston, Charles A. Green and Timothy Dewayne Ammons, Cowles & Thompson, P.C., Dallas, Robert G. Newman, Fulbright & Jaworski L.L.P., San Antonio, Patrick © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re U.S. Silica Co., 157 S.W.3d 434 (2005) 48 Tex. Sup. Ct. J. 411 M. Martinez, Hermansen McKibben Woosley & Villarreal, L.L.P., Corpus Christi, Jeff Shaver, Sammons & Parker, Houston, Jeffrey D. Roberts, Roberts Markel, Guerry, P.C., Houston, Frank N. Luccia, and Cathryn Ann Adams, Luccia & Evans, L.L.P., Houston, Robert E. Thackston and Stephanie L. Spardone, Hawkins, Parnell & Thackston, L.L.P., Dallas, Barbara Jane Barron, Mehaffy & Weber, Beaumont, Richard Reyna, Brock & Person, P.C., San Antonio, Robert J. Rose, Timaeus & Rose, L.L.P., Beaumont, Carl Dawson, Ryan & Dawson, Houston, Juan A. Magallanes, Gilberto Hinojosa, Magallanas & Hinojosa, P.C., and Armando Roberto Villalobos, Brownsville, Alan G. Sampson, Benckenstein & Oxford, Beaumont, Clarence Thomas Valentine Jr., James Odis Blackwell III, Daw & Ray, P.C., Houston, and Michael Ray Walzel, Stevens, Baldo & Freeman, Beaumont, Cortlan Howard Maddux, Houston, Gerry Lowery, Robert G. Newman, Fulbright & Jaworski L.L.P., San Antonio, Joe Michael Dodson, Dodson Law Offices, P.C., Beaumont, Harold Hudson Henley and Geoffrey Justin Henley, Henley & Henley, P.C., Dallas, Steve A. Bryant, *437 Steve A. Bryant & Associates, P.C., Houston, for Real Parties. Opinion PER CURIAM. Ten silicosis cases involving hundreds of plaintiffs were filed in Cameron County and randomly assigned to six different courts. At the behest of different parties, three judges issued conflicting orders asserting jurisdiction over cases in their own courts or others. Because the Cameron County local rules permit a unilateral transfer only by the court where the first case was filed, we conditionally grant a writ of mandamus directing the others to vacate orders forbidding that transfer. On May 30, 2003, a single attorney filed ten silicosis lawsuits in Cameron County. The allegations in each were identical, as were the 82 defendants. Only the plaintiffs varied—each suit included about 70, for a total of almost 700. The cases were randomly assigned among the six district courts in Cameron County. Though all were file-stamped with the same time, consecutive cause numbers indicate the first case filed was assigned to the 197th District Court (Judge Migdalia Lopez presiding). Thereafter ensued a scramble for possession. First on the field were the plaintiffs, who kicked things off by moving to transfer and consolidate all ten cases in the 404th District Court (Judge Abel Limas presiding). That motion was granted on January 6th. Close behind came some of the defendants, who countered by moving to consolidate all ten cases in the 197th District Court, where the first case was filed. That motion, too, was granted on January 7th. The reaction of the remaining courts varied. The 103rd District Court (Judge Menton Murray, Jr. presiding) took the second option, lateraling cases to the 197th District Court. The 138th District Court (Judge Robert Garza presiding) blocked, entering an anti-transfer order because no one had requested his consent. The 357th District Court (Judge Leonel Alejandro presiding) punted, signing a recusal order and transferring cases to the local administrative judge. That court, the 107th District Court (Judge Benjamin Euresti presiding), remained on the sidelines, taking neither offensive nor defensive action in the proceedings. At this point, some of the contestants reversed field. Judge Limas rescinded his original consolidation order, but also signed an order blocking any transfer of the case originally filed in his court. Eventually, the plaintiffs followed suit, seeking to return all cases to the courts where originally filed, except for those transferred by recusal from the 357th. [1] Unable to determine the winner of these jurisdictional contests, the relators sought mandamus relief from the Thirteenth Court of Appeals. That court declined to referee, holding the proper umpire was the local administrative judge. 129 S.W.3d 810, 814. The court of appeals relied on a provision of the Texas Government Code that assigns to local administrative judges the statutory duty (among others) to “implement and execute the local rules of administration, including the assignment, docketing, transfer, and hearing of cases.” Tex. Gov't Code § 74.092(1). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re U.S. Silica Co., 157 S.W.3d 434 (2005) 48 Tex. Sup. Ct. J. 411 We disagree that this statute gives local administrative judges authority to review and reverse conflicting rulings of coordinate courts like those issued here. While the local administrative judge may transfer cases pursuant to local rules, enforcing or overruling competing orders is the duty of a higher court. *438 [2] In this case, the Cameron County rules allow transfer of related cases to the court in which filing was first made without the consent of any other judge: Whenever any pending case is so related to another case previously filed in or disposed of by another District Court of Cameron County that a transfer of the later case to such other court would facilitate orderly and efficient disposition of the litigation, the Judge of the court in which the earlier case is or was pending may, on notice and hearing, transfer the later case to such court. Cameron County Civ.Ct. R. 1.1(f)(2). The local rules permit the first-filed case to be transferred to a court with a later-filed case, but only with the first judge's consent: In the event that an assigned case is subject to the provisions of paragraphs 1.1(f)(2) and (3) and the earlier case is still pending, the judge of the court wherein the later case is pending may on notice and hearing order the earlier case transferred to the later court provided that the judge of the court wherein the earlier case is assigned consents. Id. at 1.1(f)(5). Under these rules, only the 197th court could transfer cases unilaterally. As the relators challenge only the conflicting transfer orders, the propriety of consolidating such a large number of claims is not before us. See In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 207–10 (Tex.2004) (holding consolidation was abuse of discretion based on “Maryland factors”); see also In re Bennett, 960 S.W.2d 35, 40 (Tex.1997) (holding that a scheme designed to subvert random case assignment “breeds disrespect for and threatens the integrity of our judicial system.”). While we have encouraged consolidation for pretrial purposes (most recently pursuant to legislative mandate), we have avoided placing such decisions in the hands of one of the players. See generally Tex. Gov't Code § 74.161–63; Tex.R. Jud. Admin. 11.4(h) (appointment by regional administrative judge), 13.3 (appointment by multidistrict litigation panel). Local consolidation rules have made similar arrangements to avoid the awkward problem of one court taking a case from another. See, e.g., CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996) (noting adoption by Harris County courts of rules for and appointment of presiding judge in asbestos cases). But the only issue before us is which court, if any, could unilaterally transfer to itself related Cameron County cases. Accordingly, we do not address whether the transfers here would (as the local rules also require) “facilitate orderly and efficient disposition of the litigation.” Cameron County Civ.Ct. R. 1.1(f)(2). [3] We have long held that mandamus relief is appropriate to resolve conflicting orders from two or more courts asserting jurisdiction over the same case. See Bigham v. Dempster, 901 S.W.2d 424, 428 (Tex.1995) (granting mandamus relief from “conflicting orders issued from different district courts”); see also Abor v. Black, 695 S.W.2d 564, 567 (Tex.1985); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974). Accordingly, mandamus is appropriate here. The relators also challenge certain interim orders signed by the 404th and 138th District Courts that set trial dates, ordered mediation, and set aside a number of default judgments. Relators argue that any orders signed after the consolidation in the 197th District Court are void. We disagree that all orders signed by a transferring court after transfer are void; many are not. See, e.g., *439 Tex. Fam.Code § 155.005(a) (providing transferring court retains jurisdiction to render temporary orders); Tex.R. Jud. Admin. 13.5(b) (providing transferring court in multidistrict litigation may make further orders on certain conditions); In re Bennett, 960 S.W.2d 35, 40 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re U.S. Silica Co., 157 S.W.3d 434 (2005) 48 Tex. Sup. Ct. J. 411 (Tex.1997) (holding trial court retained power to sanction litigant after removal to federal court). This is especially true here because the transfers involved district courts in a single county. [4] Trial courts have broad discretion to exchange benches and enter orders on other cases in the same county, even without a formal order or transfer. Tex. Const. art. V, § 11 (“[T]he District Judges may exchange districts, or hold courts for each other when they may deem it expedient”); Tex. Gov't Code § 74.094(a); Tex.R. Civ. P. 330(h) (providing that in multi-court counties “any judge may hear and determine motions, ... and all preliminary matters, questions and proceedings and may enter judgment or order thereon in the court in which the case is pending without having the case transferred to the court of the judge acting”); In re Houston Lighting & Power Co., 976 S.W.2d 671, 673 (Tex.1998). Given the broad powers district courts have to act for one another, we do not agree that these orders were entered without jurisdiction. We need not decide whether some post-transfer orders in cases transferred intra-county may qualify among the “rare circumstances” that render an order void rather than merely voidable. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990). Here, the relators do not argue that the 197th District Court would be hampered by or unable to rescind any of the orders. Thus, we decline to grant mandamus relief ordering that they be vacated. See Abor, 695 S.W.2d at 567 (declining to grant mandamus relief when courts were not actively interfering with each other). Accordingly, pursuant to Texas Rule of Appellate Procedure 52.8 and without hearing oral argument, we direct the 138th and 404th District Courts to vacate their orders of January 13, 2004, so that the 197th District Court may conduct further proceedings consistent with this opinion. We are confident that the trial courts will promptly comply, and our writ will issue only if they do not. Parallel Citations 48 Tex. Sup. Ct. J. 411 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 InterFirst Bank San Felipe, N.A. v. Paz Const. Co., 715 S.W.2d 640 (1986) 715 S.W.2d 640 Supreme Court of Texas. INTERFIRST BANK SAN FELIPE, N.A. Petitioner, v. PAZ CONSTRUCTION COMPANY, et al., Respondents. No. C–5393. | Sept. 10, 1986. Debtor sought temporary injunction enjoining bank from foreclosing deed of trust lien which secured payment of promissory note. The 334th District Court, Harris County, Marsha Anthony, J., granted temporary injunction and bank appealed. The Houston Court of Appeals, Fourteenth Supreme Judicial District, Paul C. Murphy, J., affirmed and bank brought error. The Supreme Court held that failure of order granting temporary injunction to include order setting matter for trial on merits in violation of rule required temporary injunction to be declared void. Judgment of Court of Appeals reversed. West Headnotes (2) [1] Injunction Form and requisites Rule which provides that every order granting temporary injunction must include order setting cause for trial on merits with respect to ultimate relief sought is mandatory and must be strictly followed; when temporary injunction order does not adhere to requirements, injunction order is subject to being declared void and dissolved. Vernon's Ann.Texas Rules Civ.Proc., Rule 683. 136 Cases that cite this headnote [2] Mortgages Restraining exercise of power Temporary injunction order which enjoined bank from foreclosing deed of trust lien securing payment of promissory note but which did not include order setting cause for trial on merits as required by rule was void and would be dissolved, without hearing oral argument. Vernon's Ann.Texas Rules Civ.Proc., Rule 683; Rules App.Proc., Rule 133(b). 93 Cases that cite this headnote Attorneys and Law Firms *640 Jerry L. Schutza, Alexrod, Smith, Komiss & Kirshbaum, Houston, for petitioner. W. Briscoe Swan and Leon J. Hursch, Houston, for respondents. Opinion PER CURIAM. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 InterFirst Bank San Felipe, N.A. v. Paz Const. Co., 715 S.W.2d 640 (1986) This is an appeal from an order granting a temporary injunction enjoining InterFirst Bank San Felipe from foreclosing a deed of trust lien securing payment of a promissory note. On appeal, InterFirst complained that the trial court's injunction order is void because it does not include an order setting the cause for trial on the merits. Finding no abuse of discretion in the trial court's decision to grant the temporary injunction, the court of appeals affirmed the trial court's judgment. The court of appeals concluded the trial court's failure to include an order setting the matter for trial on the merits did not mandate a dissolution of the injunction. Rule 683 provides in pertinent part as follows: *641 Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought. [1] [2] The requirements of Rule 683 are mandatory and must be strictly followed. When a temporary injunction order does not adhere to the requirements of Rule 683 the injunction order is subject to being declared void and dissolved. E.g., Northcutt v. Warren, 326 S.W.2d 10, 10 (Tex.Civ.App.—Texarkana 1959, writ ref'd n.r.e.); University Interscholastic League v. Torres, 616 S.W.2d 355, 357–58 (Tex.Civ.App—San Antonio 1981, no writ); Smith v. Hamby, 609 S.W.2d 866, 868 (Tex.Civ.App. —Fort Worth 1980, no writ). Because the court of appeals' decision conflicts with the requirements of Rule 683, we grant the application for writ of error. Pursuant to Rule 133(b), Tex.R.App.P., without hearing oral argument, we reverse the judgment of the court of appeals, declare the temporary injunction void and order that it be dissolved. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (2000) 43 Tex. Sup. Ct. J. 1002 24 S.W.3d 357 Supreme Court of Texas. K–MART CORPORATION, Petitioner, v. Lisa HONEYCUTT and Michael Honeycutt, Respondents. No. 99–1112. | June 29, 2000. Invitee brought negligence action against store for personal injuries she allegedly sustained when struck by shopping carts as store employee pushed them into cart corral. The 319th District Court of Nueces County, Max Bennett, J., entered take-nothing judgment against invitee. Invitee appealed. On motion for reconsideration, the Corpus Christi Court of Appeals reversed and remanded, 1 S.W.3d 239. On petition for review, the Supreme Court held that testimony by invitee's human factors and safety expert would not have assisted trier-of-fact to understand evidence or to determine fact issue. Court of Appeals' judgment reversed and rendered. West Headnotes (11) [1] Appeal and Error Rulings on admissibility of evidence in general The Supreme Court reviews a trial court's exclusion of expert testimony for abuse of discretion. Rules of Evid., Rule 702. 35 Cases that cite this headnote [2] Evidence Determination of question of competency A trial court abuses its discretion in excluding expert testimony when its ruling is arbitrary, unreasonable or without reference to any guiding rules or legal principles. Rules of Evid., Rule 702. 104 Cases that cite this headnote [3] Appeal and Error Reasons for Decision Where the trial court does not specify the ground on which it excluded expert testimony, the Supreme Court will affirm the trial court's ruling if any ground is meritorious. Rules of Evid., Rule 702.

¹⁵ Cases that cite this headnote [4] Counties Notice, Demand, or Presentation of Claim Provision in statute governing local government providing that, upon motion by the defendant, an action against a county or county official must be dismissed if plaintiff failed to provide written notice via mail to the county judge or district attorney, was not a jurisdictional requirement. V.T.C.A., Local Government Code § 89.0041. 4 Cases that cite this headnote [5] Counties Service or presentation; timeliness Statute requiring that a plaintiff filing suit against a county or county official must provide notice of suit via mail to county judge or district attorney was satisfied by hand-delivery of notice, rather than delivery by mail, in wrongful termination action brought by former chief deputy constable against county and other constable. V.T.C.A., Local Government Code § 89.0041. 5 Cases that cite this headnote Attorneys and Law Firms *920 Laurence W. Watts, Watts & Associates, P.C., Missouri City, TX, Brandon David Mosley, Cowan & Lemmon, LLP, Houston, TX, for Larry Roccaforte. Thomas F. Rugg, District Attorney's Office, First Assistant—Civil Div., Steven L. Wiggins, Jefferson County District Attorney Office, Thomas E. Maness, Criminal District Attorney, Beaumont, TX, for Jefferson County. Todd K. Sellars, Dallas County Assistant Attorney, Dallas, TX, for Amicus Curiae Dallas County, Texas. Opinion Chief Justice JEFFERSON delivered the opinion of the Court, joined by Justice HECHT, Justice WAINWRIGHT, Justice MEDINA, Justice GREEN, Justice JOHNSON, Justice GUZMAN, and Justice LEHRMANN, and joined by Justice WILLETT as to parts I through III. The Local Government Code requires a person suing a county to give the county judge and the county or district attorney notice of the claim. TEX. LOC. GOV'T CODEE § 89.0041. The plaintiff provided that notice here, but did so by personal service of process, rather than registered or certified mail as the statute contemplates. We conclude that when the requisite county officials © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 receive timely notice enabling them to answer and defend the claim, the case should not be dismissed. Because the court of appeals concluded otherwise, we reverse its judgment and remand the case to the trial court for further proceedings. I. Background Former Chief Deputy Constable Larry Roccaforte sued Jefferson County and Constable Jeff Greenway, alleging that his wrongful termination deprived him of rights guaranteed by the Texas Constitution. Roccaforte personally served County Judge Carl Griffith with the suit, and fifteen days later, the County (represented by the district attorney) and Constable Greenway answered, denying liability. The County propounded written discovery requests, deposed Roccaforte, and presented County officials for depositions. The County also filed a plea to the jurisdiction, asserting that Roccaforte did not give requisite notice of the suit. See TEX. LOC. GOV'T CODEE § 89.0041. Roccaforte disagreed, arguing that the statute applied only to contract claims. Alternatively, he argued that 42 U.S.C. § 1983 preempted the notice requirements and that he substantially complied with them in any event. Although the trial court indicated that it would sustain the County's plea and sever those claims from the underlying case, it did not immediately sign an order doing so. In the meantime, Roccaforte tried his claims against Greenway. A jury returned a verdict in Roccaforte's favor. Afterwards, the trial court signed an order granting the County's jurisdictional plea. The order did not sever the claims from the underlying case. Roccaforte then pursued this interlocutory appeal. His notice of appeal stated that “[p]ursuant to Civ. P. Rem.Code § 51.014(b), all proceedings are *921 stayed in the trial court pending resolution of the appeal.” But the proceedings were not stayed. In the underlying case, Greenway moved for judgment notwithstanding the verdict, which the trial court granted as to Roccaforte's property interest and First Amendment retaliation claims but denied as to Roccaforte's claimed violation of his liberty interest. Roccaforte moved for entry of judgment. Notwithstanding the statutory stay referenced in Roccaforte's notice of appeal, the trial court rendered judgment for Roccaforte and awarded damages, attorney's fees, and costs. The judgment was titled “FINAL JUDGMENT”; it “denie[d] all relief no [sic] granted in this judgment”; and it stated “[t]his is a FINAL JUDGMENT.” The County was included in the case caption. No one objected to the continuation of trial court proceedings despite the statutory stay. Greenway appealed, and Roccaforte cross-appealed, raising as his only issues complaints regarding the trial court's JNOV on his claims against Greenway. The court of appeals affirmed in part and reversed in part, rendering judgment that Roccaforte take nothing. Greenway v. Roccaforte, 2009 WL 3460683, at *6, 2009 Tex.App. LEXIS 8290, at *15 (Tex.App.-Beaumont 2009, pet. denied). 1 In Roccaforte's separate interlocutory appeal, the court of appeals made the following notation: Roccaforte notes that immediately after the dismissal order, the trial of the case proceeded to judgment without the County as a party. No one disputes that all the claims against all other parties have been resolved. The order of dismissal is therefore appealable whether or not the statute at issue is jurisdictional. 281 S.W.3d 230, 231 n. 1. The court ultimately concluded that Roccaforte's failure to notify the County of the suit by registered or certified mail mandated dismissal of his suit against the County, but not because the trial court lacked jurisdiction. Id. at 236–37. Accordingly, the court modified the dismissal order to reflect that dismissal was without prejudice and affirmed the order as modified. Id. Roccaforte petitioned this Court for review, which we granted. 2 53 Tex.Sup.Ct.J. 1061 (Aug. 27, 2010). II. Did the trial court's final judgment moot this interlocutory appeal? © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 Before turning to the merits, we must decide a procedural matter: What happens when a party perfects an appeal of an interlocutory judgment that has not been severed from the underlying action, and that action proceeds to trial and a final judgment? The trial court did not sever Roccaforte's claims against the County 3 and denied “all relief not granted” in its final judgment. Ordinarily, under these circumstances, Roccaforte would have to complain on appeal that the trial court erroneously dismissed those claims. Roccaforte, however, did not complain about the County's dismissal in his appeal from the final judgment. His separate interlocutory appeal, then, rests on a precipice of mootness. *922 A. Roccaforte waived any complaint about the trial court's actions during the statutory stay. Although Roccaforte's interlocutory appeal was supposed to stay all proceedings in the trial court pending resolution of the appeal, 4 Roccaforte did not object to the trial court's rendition of judgment while the stay was in effect. To the contrary, he affirmatively moved for entry of judgment. Because a final judgment frequently moots an interlocutory appeal, 5 we must decide whether the trial court's failure to observe the stay made the final judgment void or merely voidable. If the final judgment is void, it would have no impact on this interlocutory appeal. Lindsay v. Jaffray, 55 Tex. 626 (Tex.1881) (“A void judgment is in legal effect no judgment.”) (quoting FREEMAN ON JUDGMENTS, § 117). 6 If voidable, then we must decide whether it moots this proceeding. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.2010) (observing that voidable orders must be corrected by direct attack and, unless successfully attacked, become final). We conclude it is voidable. Two of our courts of appeals have held that the failure to object when a trial court proceeds despite the automatic stay waives any error the trial court may have committed by failing to impose it. See Escalante v. Rowan, 251 S.W.3d 720, 724–25 (Tex.App.- Houston [14th Dist.] 2008), rev'd on other grounds, 332 S.W.3d 365 (Tex.2011) (per curiam); Henry v. Flintrock Feeders, Ltd., No. 07–04–0224–CV, 2005 WL 1320121, at *1, 2005 Tex.App. LEXIS 4310, at *1 (Tex.App.-Amarillo June 1, 2005, no pet.) (mem.op.). In Escalante, the court of appeals held that a party's failure to object to a trial court's ruling on summary judgment motions during the statutory stay “failed to preserve error as to any objection that the summary judgment is voidable based on the stay.” Escalante, 251 S.W.3d at 725. In Henry, the court held that a party's failure to object to the trial court's action in violation of the stay waived any error resulting from that action. Henry, 2005 WL 1320121, at *1–2, 2005 Tex.App. LEXIS 4310, at *4 (holding that trial court's grant of summary judgment mooted interlocutory appeal challenging denial of special appearance). We find particularly instructive a case involving a trial court's rendition of final judgment while an interlocutory appeal of a class certification order was pending: [I]f a trial court proceeds to trial during the interlocutory appeal, the class action plaintiff must inform the court of section 51.014(b) and request that the stay be enforced. If a court proceeds to trial over the objection of a class action plaintiff, the class action plaintiff could request a mandamus and this court would grant it. However, if the class action plaintiff fails to inform the trial court of section 51.014(b), and allows the court to proceed to trial, as happened here, the *923 plaintiff waives the right to object or request any relief on appeal. See TEX.R.APP. P. 33.1(a). We see this as no different from any other trial court error that is not preserved—it is waived. Siebenmorgen v. Hertz Corp., No. 14–97–01012–CV, 1999 WL 21299, at *3, 1999 Tex.App. LEXIS 311, at *10–11 (Tex.App.- Houston [14th Dist.] Jan. 21, 1999, no pet.) (dismissing as moot interlocutory appeal of order denying class certification). A third court of appeals has implicitly concluded that parties can waive the right to insist on a section 51.014(b) stay. See Lincoln Property Co. v. Kondos, 110 S.W.3d 712, 715 (Tex.App.-Dallas 2003, no pet.). In that case, the court observed that the trial court's grant of summary judgment while an interlocutory appeal was pending violated the statutory stay. Noting that “neither party requested a stay from this Court” and “both parties sought to commence the ‘trial’ below by filing and/or arguing motions for summary judgment while this appeal was pending,” the court of appeals did not conclude that the trial court's summary judgment was void. Id. at 715. Instead, the appellate court held that the summary judgment mooted the interlocutory appeal. Id. at 715–16 (noting that the interlocutory class certification order merged into the final judgment). The court concluded: “By © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 rendering a final judgment during this appeal, the trial court also rendered itself powerless to reconsider its class certification ruling were we to conclude here the ruling was entered in error.” Id. at 715. We agree with those decisions that have held that a party may waive complaints about a trial court's actions in violation of the stay imposed by section 51.014(b). That stay differs from a situation in which the relevant statute vests “exclusive jurisdiction” in a particular forum. See, e.g., Kalb v. Feuerstein, 308 U.S. 433, 439, 60 S.Ct. 343, 84 L.Ed. 370 (1940) (noting that bankruptcy law in effect at the time “vested in the bankruptcy courts exclusive jurisdiction” and “withdr[ew] from all other courts all power under any circumstances”). For that reason, we have held that actions taken in violation of a bankruptcy stay are void, not just voidable. Cont'l Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988). 7 [1] But as we have noted, “a court's action contrary to a statute or statutory equivalent means the action is erroneous or ‘voidable,’ not that the ordinary appellate or other direct procedures to correct it may be circumvented.” Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990); cf. Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex.2004) (noting that failure to comply with a non-jurisdictional statutory requirement may result in the loss of a claim, but that failure must be timely asserted and compliance can be waived). That is the case here. The trial court's rendition of final judgment while the stay was in effect was voidable, not void, and Roccaforte's failure to object to the trial court's actions waived any error related to the stay. We must, therefore, confront the fact that the trial *924 court signed a final judgment disposing of all parties and all claims and that Roccaforte did not present in his appeal from that judgment the arguments he advances in this interlocutory appeal. B. The trial court's final judgment implicitly modified its interlocutory order, and we treat this appeal as relating to that final judgment. [2] We have repeatedly held that the right of appeal should not be lost due to procedural technicalities. 8 Roccaforte timely perfected appeals from both the interlocutory order and the final judgment, and this is not a situation in which further proceedings mooted the issues raised in Roccaforte's interlocutory appeal. 9 [3] Our procedural rules provide that: After an order or judgment in a civil case has been appealed, if the trial court modifies the order or judgment, or if the trial court vacates the order or judgment and replaces it with another appealable order or judgment, the appellate court must treat the appeal as from the subsequent order or judgment and may treat actions relating to the appeal of the first order or judgment as relating to the appeal of the subsequent order or judgment. The subsequent order or judgment and actions relating to it may be included in the original or supplemental record. Any party may nonetheless appeal from the subsequent order or judgment. TEX.R.APP. P. 27.3. Here, although the trial court's final judgment did not expressly modify its interlocutory order, it did so implicitly. Because the claims against the County had not been severed, the County remained a party to the underlying proceeding despite the interlocutory appeal. The final judgment necessarily replaced the interlocutory order, which merged into the judgment, 10 even though Roccaforte's interlocutory appeal remained pending. Under our rules, however, we may treat this interlocutory appeal as an *925 appeal from the final judgment. That permits us to reach the merits of Roccaforte's claims rather than dismiss the interlocutory appeal as moot. Although not relying on rule 27.3, the court of appeals took a similar approach, treating Roccaforte's appeal as though it were from the final judgment. 281 S.W.3d at 231 n. 1. Similarly, we treat Roccaforte's appellate complaints about the trial court's grant of the County's jurisdictional plea as though they related to the appeal of the final judgment. We turn now to the merits of his claim. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 III. The post-suit notice requirements are not jurisdictional. Local Government Code section 89.0041 provides: (a) A person filing suit against a county or against a county official in the official's capacity as a county official shall deliver written notice to: (1) the county judge; and (2) the county or district attorney having jurisdiction to defend the county in a civil suit. (b) The written notice must be delivered by certified or registered mail by the 30th business day after suit is filed and contain: (1) the style and cause number of the suit; (2) the court in which the suit was filed; (3) the date on which the suit was filed; and (4) the name of the person filing suit. (c) If a person does not give notice as required by this section, the court in which the suit is pending shall dismiss the suit on a motion for dismissal made by the county or the county official. TEX. LOC. GOV'T CODEE § 89.0041. In 2005, the Legislature amended the Government Code to provide that “[s]tatutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” TEX. GOV'T CODE § 311.034. The County contends section 311.034 makes Roccaforte's failure to comply with section 89.0041's notice requirements jurisdictional—an issue we have never decided. Our courts of appeals, however, have concluded that the notice requirements are not jurisdictional, even in light of section 311.034. See El Paso Cnty. v. Alvarado, 290 S.W.3d 895, 898–99 (Tex.App.-El Paso 2009, no pet.) (holding that section 89.0041 is not jurisdictional because section 311.034 applies only to prerequisites to file suit, not post-suit notice requirements); Ballesteros v. Nueces Cnty., 286 S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009, pet. denied) (same); 281 S.W.3d 230, 232–33 (same); Dallas Cnty. v. Coskey, 247 S.W.3d 753, 754–56 (Tex.App.-Dallas 2008, pet. denied) (same); Dallas Cnty. v. Autry, 251 S.W.3d 155, 158 (Tex.App.-Dallas 2008, pet. denied) (same); Cnty. of Bexar v. Bruton, 256 S.W.3d 345, 348–49 (Tex.App.-San Antonio 2008, no pet.) (same). [4] We presume “that the Legislature did not intend to make the [provision] jurisdictional[,] a presumption overcome only by clear legislative intent to the contrary.” City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex.2009). The statutes' language reflects no such intent here. Section 311.034 applies to prerequisites to suit, not notice requirements that can be satisfied only after suit is filed. Compare TEX. GOV'T CODE § 311.034, with TEX. LOC. GOV'T CODEE § 89.0041 (requiring notice of cause number, court in which case is filed, and date of filing). Nor does Local Government Code section 89.0041 show such intent: that section states that a trial court may *926 dismiss a case for noncompliance only after the governmental entity has moved for dismissal. TEX. LOC. GOV'T CODEE 89.0041(c) (“If a person does not give notice as required by this section, the court in which the suit is pending shall dismiss the suit on a motion for dismissal made by the county or the county official.”). The motion requirement means that a case may proceed against those governmental entities that do not seek dismissal—in other words, that a county can waive a party's noncompliance. This confirms that compliance with the notice requirements is not jurisdictional. See Loutzenhiser, 140 S.W.3d at 359 (“The failure of a non-jurisdictional requirement mandated by statute may result in the loss of a claim, but that failure must be timely asserted and compliance can be waived.”). We find no basis upon which to conclude that the Legislature intended section 89.0041 to be jurisdictional. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 IV. Where the appropriate county officials receive timely notice of the suit, the case should not be dismissed if notice was provided by some means other than mail. Roccaforte provided timely notice of every item required by section 89.0041, and the requisite officials received that notice. Did the Legislature intend to bar Roccaforte's claim, merely because that notice was hand-delivered rather than mailed? Roccaforte argues that the County's actual notice of the suit and his substantial compliance with section 89.0041 should suffice. A number of courts of appeals (though not the court of appeals in this case) agree with him. 11 The County disagrees, arguing that the statute requires strict compliance with its terms, and dismissal is mandated if those terms are not satisfied. [5] Section 89.0041 ensures that the appropriate county officials are made aware of pending suits, allowing the county to answer and defend the case. See Howlett, 301 S.W.3d at 846 (“The apparent purpose of section 89.0041 is to ensure that the person responsible for answering and defending the suit—the county or district attorney-has actual notice of the suit itself.”); Coskey, 247 S.W.3d at 757 (“Section 89.0041's notice of suit requirement against a county serves the purpose of aiding in the management and control of the City's finances and property....”). That purpose was served here—the county judge and the district attorney had notice within fifteen days of Roccaforte's filing, and they answered and defended the suit. Cf. Loutzenhiser, 140 S.W.3d at 360 (observing that “if in a particular case a governmental unit were not prejudiced by lack of notice and chose to waive it, we do not see how the statutory purpose would thereby be impaired”). The statute was not intended to create a procedural trap allowing a county to obtain dismissal even though the appropriate officials have notice of the suit. See *927 Southern Surety Co. v. McGuire, 275 S.W. 845, 847 (Tex.Civ.App.-El Paso 1925, writ ref'd) (holding that failure to present written claim to commissioners' court as required by statute did not bar the claim, because “[t]he purpose of the statute was fully accomplished by [oral presentment]”); see also Coskey, 247 S.W.3d at 757 (“The manner of delivery specified by the statute assures that county officials will receive notice of a suit after it has been filed to enable it to respond timely and prepare a defense.”). Because those officers had the requisite notice, we conclude that the trial court erred in dismissing Roccaforte's claims. V. Conclusion Roccaforte's claims against the County should not have been dismissed for lack of notice. 12 We reverse the court of appeals' judgment as to those claims and remand the case to the trial court for further proceedings. TEX.R.APP. P. 60.2(d). Justice WILLETT delivered a concurring opinion. Justice WILLETT, concurring in part. I join Parts I–III of the Court's opinion. As for Part IV, I join the result but not the reasoning. There is a better approach, one more allegiant to the Legislature's words. Roccaforte's claim should proceed, but the reason is rooted not in his substantial compliance but rather the County's substantial dalliance. *** Aristotle would have enjoyed this case, which perfectly illustrates the challenge he recognized of reconciling the “absoluteness” of the written law with equity in the particular case. 1 Believing that “the equitable is superior” and that rigid laws must bend, 2 Aristotle urged “a correction of law where it is defective owing to its universality.” 3 From Athens, Greece to Athens, Texas (and beyond), judges still debate the bounds of interpretive discretion—whether it is appropriate to temper the “absoluteness” of statutory mandates and ameliorate their seeming harshness. Millennia may have passed since Aristotle's Lyceum, but this great philosophical and jurisprudential debate endures. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 I As the Court persuasively explains in Part III, the post-suit notice requirements in Section 89.0041 are not jurisdictional, meaning a County can waive a plaintiff's noncompliance. 4 Here, the County objected to Roccaforte's noncompliance, prompting the Court to ask: “Did the Legislature intend to bar Roccaforte's claim, merely because that notice was hand-delivered rather than mailed?” 5 If phrased that way, our recent and unanimous precedent answers the question “yes,” since “the surest guide to legislative intent” is the language lawmakers chose. 6 In other words, “Where text is clear, it is determinative of that intent.” 7 The Court today agrees that nothing in Section 89.0041 relieves *928 Roccaforte from compliance. So, to escape the statute's emphatic “shall dismiss the suit” mandate, 8 the Court pivots on “actual notice” and “substantial compliance” and holds that the statute's purpose was fulfilled via hand-delivery. Honoring a statute's plain words is indispensable, even if enforcing those words as written works an unpalatable result. To be sure, courts deviate from otherwise-clear textual commands to avert “absurd” results or to vindicate constitutional principles. 9 But as a general matter, if the legal deck is stacked via technical statutory requirements, the Legislature should reshuffle the equities, not us. 10 As for whether Section 89.0041's use of phrases like “shall deliver,” 11 “must be delivered,” 12 “as required,” 13 and “shall dismiss” 14 mandates strict compliance, I would take the statute at face value. Beyond that, those desiring additional reassurance that lawmakers intended what they enacted can find it in a properly contextual reading of other notice-related statutes. First, the Legislature, while omitting an actual-notice exception from Section 89.0041, expressly included one in the Tort Claims Act, stating the Act's pre-suit notice requirements “do not apply if the governmental unit has actual notice....” 15 The Legislature understands how to let actual notice excuse technical noncompliance; it easily could have said actual notice suffices, thus obviating the need for service via certified or registered mail. Instead, it opted against actual notice, presumably on purpose. For better or worse, lawmakers enacted strict compliance, not substantial compliance. Our interpretive focus, both textual and contextual, must be on the law as written, and we should refuse to engraft what the Legislature has refused to enact. Second, reading “actual notice” into Section 89.0041's post-suit notice requirement robs it of any real meaning and also makes Section 89.004's pre-suit notice requirement redundant. Section 89.004 forbids someone from suing a county or county official “unless the person has presented the claim to the commissioners court and the commissioners court neglects or refuses to pay all or part of the claim....” 16 This presentment requirement assures actual notice of a claim before it is filed and was already on the books when Section 89.0041 was added in 2003. Logically then, Section 89.0041 must require something in addition to the preexisting notice and presentment requirements. 17 *929 The requisite officials here received notice, but they did not receive “requisite notice,” as the Court states. 18 The Court may deem it adequate, but it is irrefutably not requisite. As the Court reads Section 89.0041, it is not only nonjurisdictional (I agree on this point), but also nonmandatory. I acknowledge the statute's no-exceptions mandate works a harsh result, 19 but to the degree this seems a trap for the unwary, it is a trap the Legislature left well marked. II Having said all that, I agree with the Court that Roccaforte ultimately wins his notice dispute, but on different grounds. Instead of asking whether the Legislature meant to bar Roccaforte's claim, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 I would rephrase the question in a manner less assaultive to the statutory text: Did the County effectively waive Roccaforte's noncompliance by not timely asserting it? I believe so. 20 *930 True, the County, after waiting for limitations to expire, filed a motion for dismissal complaining that Roccaforte provided notice via personal service rather than registered or certified mail. I believe that obscures the key point, which on these facts is not whether the County sought dismissal, but when. A governmental body can raise a jurisdictional bar like immunity from suit whenever it pleases because “the trial court does not have—and never had—power to decide the case,” 21 thus making judgments forever vulnerable to delayed attack. Not so with nonjurisdictional requirements like this, which are waived if not timely raised. Under our precedent, dismissal delayed is sometimes dismissal denied: “The failure of a nonjurisdictional requirement mandated by statute may result in the loss of a claim, but that failure must be timely asserted and compliance can be waived.” 22 Moreover, “if a governmental unit is to avoid litigation to which it should not be subjected because of lack of notice, it should raise the issue as soon as possible.” 23 On these facts, there was no timely assertion, much less one made “as soon as possible.” 24 We have held that waiver is decided on a case-by-case basis, meaning courts look to the totality of the circumstances. 25 Here, *931 the County sought dismissal based on imperfect notice more than two years after suit was filed; more than two years after the County filed its answer; more than two years after the County filed its special exceptions; after the County presented three County officials for deposition and defended those depositions; after the County sent written discovery requests; after the County deposed Roccaforte; and after the County filed a motion for continuance. If two-plus years qualifies as “timely asserted” or “as soon as possible”—at least in the context of a statutory notice requirement commanding action—then these phrases have been drained of all meaning. 26 Indeed, the only thing the County “timely asserted” was limitations. I would disallow the County's belated insistence on dismissal given its decision to defend the case for so long, asserting noncompliance only after seizing tactical advantage via limitations, and thus materially prejudicing Roccaforte. There is no countervailing prejudice in allowing Roccaforte's suit to proceed against the County, which can hardly argue at this late stage that imperfect notice has harmed its legal position (unlike its fiscal position, having underwritten years of legal and judicial expenses). On these facts, two-plus years of litigation activity to run out the limitations clock betrays the County's too-little, too-late request for dismissal and constitutes waiver. The Court's understandable desire to work an eminently fair result has led it to revise the statute as desired rather than read it as enacted. I favor a different approach to the same outcome. Roccaforte should win not because the Court waived the Legislature's words but because the County did. Parallel Citations 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 Footnotes 1 Today, we deny that petition for review. 2 Dallas County submitted an amicus curiae brief in support of Jefferson County. 3 “As a rule, the severance of an interlocutory judgment into a separate cause makes it final.” Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex.2001) (per curiam). 4 TEX. CIV. PRAC. & REM.CODE § 51.014(b); see also TEX.R.APP. P. 29.5 (providing that “[w]hile an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and unless prohibited by statute may make further orders, including one dissolving the order complained of on appeal”) (emphasis added). 5 See, e.g., Hernandez v. Ebrom, 289 S.W.3d 316, 319 (Tex.2009) (“Appeals of some interlocutory orders become moot because the orders have been rendered moot by subsequent orders.”). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 6 See also Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.2010) (noting that “[a] judgment is void ... when it is apparent that the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act”) (quoting Browning v. Prostok, 165 S.W.3d 336, 346 (Tex.2005)). 7 But see Sikes v. Global Marine, Inc., 881 F.2d 176, 178 (5th Cir.1989) (holding that, under the 1978 Bankruptcy Act, “the better reasoned rule characterizes acts taken in violation of the automatic stay as voidable rather than void”); see also Chisholm v. Chisholm, No. 04–06–00504–CV, 2007 WL 1481574, at *2–3, 2007 Tex.App. LEXIS 3936, at *6–7 (Tex.App.-San Antonio May 23, 2007, no pet.) (noting conflict between Sikes and Continental Casing ); In re De La Garza, 159 S.W.3d 119, 120–21 (Tex.App.-Corpus Christi 2004, no pet.) (same); Oles v. Curl, 65 S.W.3d 129, 131 n. 1 (Tex.App.-Amarillo 2001, no pet.)(same); Chunn v. Chunn, 929 S.W.2d 490, 493 (Tex.App.-Houston [1st Dist.] 1996, no pet.) (same). 8 See, e.g., Guest v. Dixon, 195 S.W.3d 687, 688 (Tex.2006) ( “[W]e have repeatedly stressed that procedural rules should be construed and applied so that the right of appeal is not unnecessarily lost to technicalities.”); Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121–22 (Tex.1991) (per curiam)(stating that procedural rules should be “liberally construed so that the decisions of the courts of appeals turn on substance rather than procedural technicality”). 9 See, e.g., Isuani v. Manske–Sheffield Radiology Grp., P.A., 802 S.W.2d 235, 236 (Tex.1991) (holding that final judgment mooted interlocutory appeal of order granting or denying temporary injunction); Providian Bancorp Servs. v. Hernandez, No. 08–04–00186– CV, 2005 WL 82197, at *1, 2005 Tex.App. LEXIS 288, at *2 (Tex.App.-El Paso Jan. 13, 2005, no pet.) (mem.op.)(dismissing as moot interlocutory appeal from order denying motion to compel arbitration, because trial court entered an order compelling arbitration); Mobil Oil Corp. v. First State Bank of Denton, No. 2–02–119–CV, 2004 WL 1699928, at *1, 2004 Tex.App. LEXIS 6940, at *2 (Tex.App.-Fort Worth July 29, 2004, no pet.) (dismissing as moot interlocutory appeal from class certification order, because trial court subsequently vacated order, decertified class, and dismissed class action); Lincoln Property Co. v. Kondos, 110 S.W.3d 712, 715–16 (Tex.App.-Dallas 2003, no pet.) (dismissing as moot interlocutory appeal of order granting class certification, as trial court subsequently granted summary judgment motion); see also Hernandez, 289 S.W.3d at 321 (acknowledging that a party may not, after trial and an unfavorable judgment, prevail on a complaint that the party's summary judgment motion should have been granted, nor could a party complain of a failure to dismiss a health care liability claim based on an inadequate expert report, after a full trial and evidence establishing the elements of that claim). 10 See Webb v. Jorns, 488 S.W.2d 407, 408–09 (Tex.1972) (holding that interlocutory judgment merged into final judgment, which was then appealable). 11 Compare Howlett v. Tarrant Cnty., 301 S.W.3d 840, 847 (Tex.App.-Fort Worth 2009, pet. denied) (holding that substantial compliance with section 89.0041 was sufficient because the purpose of the statute was to ensure notice, and that purpose was accomplished), Ballesteros v. Nueces Cnty., 286 S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009, pet. denied) (same), Dallas Cnty. v. Coskey, 247 S.W.3d 753, 757 (Tex.App.-Dallas 2008, pet. denied) (same), and Dallas Cnty. v. Autry, 251 S.W.3d 155, 158 (Tex.App.- Dallas 2008, pet. denied) (same), with 281 S.W.3d at 237 (holding that “[r]eading a broad actual notice or service exception into the statute—without any attempt by plaintiff to comply—would, in effect, largely eliminate the specified, additional written notice requirement of the statute”). That conflict gives us jurisdiction over this interlocutory appeal. TEX. GOV'T CODE § 22.225(c), (e). 12 Because this issue is dispositive, we do not reach Roccaforte's argument that 42 U.S.C. § 1983 preempts section 89.0041's notice requirements. 1 Aristotle, Nicomachean Ethics bk. V, ch. 10. 2 Id. 3 Id. 4 341 S.W.3d 919, 926 (explaining that compliance with the notice requirements of Section 89.0041 of the Local Government Code “is not jurisdictional”) (citation omitted). 5 341 S.W.3d at 926. 6 Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex.2010) (citation and quotation marks omitted). 7 Id. 8 See TEX. LOC. GOV'T CODEE § 89.0041(c). 9 The absurdity doctrine, rightly understood, is a safety valve reserved for truly exceptional cases, not just those where the mandated statutory outcome is thought unwise or inequitable. See generally John F. Manning, The Absurdity Doctrine, 116 HARV. L.REV.. 2387 (2003). As Chief Justice Marshall famously put it, a court's allegiance to the text ceases when applying the text “would be so monstrous that all mankind would, without hesitation, unite in rejecting the application.” Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 203, 4 L.Ed. 529 (1819). 10 The Legislature can, of course, if it wishes, statutorily overturn today's holding that Section 89.0041 is nonjurisdictional and subject to an actual-notice exception. 11 TEX. LOC. GOV'T CODEE § 89.0041(a). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 12 Id. § 89.0041(b). 13 Id. § 89.0041(c). 14 Id. 15 TEX. CIV. PRAC. & REM.CODE § 101.101(c). 16 TEX. LOC. GOV'T CODEE § 89.004(a). 17 Another point: As the Court notes, some courts of appeals have concluded that a substantial-compliance exception lies hidden within Section 89.0041, notwithstanding the statute's emphatic “shall dismiss” mandate. 341 S.W.3d at 928 (citing Howlett v. Tarrant Cnty., 301 S.W.3d 840, 847 (Tex.App.-Fort Worth 2009, pet. denied) (holding that substantial compliance with Section 89.0041 was sufficient because the purpose of the statute was to ensure notice, and that purpose was accomplished); Ballesteros v. Nueces Cnty., 286 S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009, pet. denied) (same); Dallas Cnty. v. Coskey, 247 S.W.3d 753, 757 (Tex.App.- Dallas 2008, pet. denied) (same); Dallas Cnty. v. Autry, 251 S.W.3d 155, 158 (Tex.App.-Dallas 2008, pet. denied) (same)). Two of the three courts of appeals even cite as support two of our decisions involving notice in other contexts. Coskey, 247 S.W.3d at 757 (“Both Artco–Bell Corp. and Cox Enterprises, Inc.. support a standard of substantial compliance with notice requirements under certain circumstances, and we conclude that standard applies in these circumstances.”) (citations omitted); Ballesteros, 286 S.W.3d at 571–72. A third court of appeals opinion in turn relies upon Coskey. See Autry, 251 S.W.3d at 158. Closer analysis reveals Coskey and Ballesteros offer feeble support, as they misinterpret this Court's holdings in Cox Enters., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956 (Tex.1986), and Artco–Bell Corp. v. City of Temple, 616 S.W.2d 190 (Tex.1981). The issue in Cox involved how much particularity was required in notice. 706 S.W.2d at 960 (noting that “less than full disclosure is not substantial compliance” and that “the Open Meetings Act requires a full disclosure of the subject matter of the meetings”). Artco–Bell is likewise inapposite. In Artco–Bell, the Court simply invalidated the notice requirement in a city's charter and held the plaintiff had provided sufficient notice. 616 S.W.2d at 193–94 (“[W]e hold that the requirement of verification represents an unreasonable limitation on the City's liability and is invalid as it is contrary to the limitation of authority placed upon home rule cities....”) (footnote omitted). Cox was about the specificity of notice; Artco–Bell resulted in the invalidation of notice. In neither case did the Court craft an exception for notice. The lower courts' treatment of these cases was thus strained, and should not be taken as a correct reading of our jurisprudence on statutory notice requirements. 18 341 S.W.3d at 927. 19 Had the County “timely asserted” Roccaforte's noncompliance, dismissal would have been mandatory under the statute's rigid, no- discretion mandate, thus raising the question of whether Section 89.0041's notice regime is preempted by 42 U.S.C. § 1983. See Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex.2004) (“The failure of a non-jurisdictional requirement mandated by statute may result in the loss of a claim, but that failure must be timely asserted and compliance can be waived.”). That question, while interesting legally, is not before us. 20 Waiver may actually be the wrong term; it may be more accurate to call this forfeiture. As the United States Supreme Court explains: “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (emphasis added) (citations and quotation marks omitted). In any event, under our definition: “[W]aiver” is the intentional relinquishment of a right actually or constructively known, or intentional conduct inconsistent with claiming that right. The elements of waiver include (1) an existing right, benefit, or advantage held by a party; (2) the party's actual or constructive knowledge of its existence; and (3) the party's actual intent to relinquish the right or intentional conduct inconsistent with the right. Perry Homes v. Cull, 258 S.W.3d 580, 602–03 (Tex.2008) (citations omitted). 21 In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 306 (Tex.2010) (citation omitted). 22 Loutzenhiser, 140 S.W.3d at 359 (emphasis added). 23 Id. at 360. “Moreover, if in a particular case a governmental unit were not prejudiced by lack of notice and chose to waive it, we do not see how the statutory purpose would thereby be impaired.” Id. 24 Reading Section 89.0041 in tandem with our settled precedent distinguishing mandatory requirements (waivable) from jurisdictional ones (nonwaivable) is consistent with a textualist approach that integrates established interpretive norms. For example, even the most ardent textualist would read a statute of limitations in light of the common-law rules of equitable tolling. See Young v. United States, 535 U.S. 43, 49, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002) (“It is hornbook law that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute.”) (citations and quotation marks omitted); see also United States v. Beggerly, 524 U.S. 38, 48, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998). As Justice Scalia noted in Young, a limitations period is subject to the principles of equitable tolling, so long as the statutory text does not preclude such tolling. 535 U.S. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 at 47, 122 S.Ct. 1036. Same here, where the Legislature drafts notice requirements in light of our decisions differentiating between mandatory and jurisdictional provisions and the consequences that flow from each characterization. 25 See Perry Homes, 258 S.W.3d at 589–91 (explaining that a party waives an arbitration clause by engaging in substantial litigation to the other party's detriment or prejudice). In Jernigan v. Langley, the Court considered whether a defendant physician waived his statutory right to contest the adequacy of the plaintiff's expert reports by waiting too long. 111 S.W.3d 153, 153 (Tex.2003). The Court held that delay does not always result in waiver, but it does when the defendant's silence or inaction for such a long period shows an intent to yield a known right. Id. at 157. I would hold that the County's actions are inconsistent with the intent to assert its statutory right to up-front dismissal based on defective notice. Moreover, Jernigan predates our 2004 decision in Loutzenhiser, which speaks specifically to statutorily mandated notice requirements involving governmental units and says notice-based objections should be asserted “as soon as possible.” 140 S.W.3d at 360. 26 It is true that defendants may assert defenses like limitations in the trial court even following extensive discovery and other pre-trial activity. See TEX.R. CIV. P. 94 (affirmative defenses including limitations must be pleaded); TEX.R. CIV. P. 63 (pleadings may be amended without leave of court until seven days before trial). Today's case, though, involves a statutory notice requirement that mandates action within a prescribed time, something Loutzenhiser held should be raised “as soon as possible” since the statutory purpose is to avoid litigation altogether. 140 S.W.3d at 360. Section 89.0041 may not be a prerequisite to bringing suit, but it is a postrequisite to maintaining suit. In my view, Section 89.0041, unlike the Tort Claims Act, does not allow actual notice to forgive defective notice, but that does not mean actual notice may not affect the waiver inquiry of whether a defendant “timely asserted” noncompliance. For reasons stated above, I believe a county that quickly asserts statutory noncompliance, even if it has actual notice, is entitled to dismissal under Section 89.0041. But a county with actual notice that untimely asserts noncompliance (here only after limitations had run two-plus years later) has waived its objection and is not entitled to dismissal. See City of DeSoto v. White, 288 S.W.3d 389, 400–01 (Tex.2009) (noting that a party that declines to act in light of “full knowledge” of a defect in a nonjurisdictional notice requirement generally waives any complaint). Any other result would incentivize counties to sit on their rights rather than assert them immediately. Here, the County would be rewarded for wasting over two-years' worth of judicial resources and taxpayer dollars in defending a suit it could have easily dismissed from the outset. *** End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997) 41 Tex. Sup. Ct. J. 165 959 S.W.2d 171 Supreme Court of Texas. SCHLUMBERGER TECHNOLOGY CORPORATION and Schlumberger Limited, Petitioners, v. John SWANSON, et al., Respondents. No. 95–0355. | Dec. 11, 1997. Consultants for offshore diamond mining project filed action against drilling company‘s parent company alleging claims of common law and statutory fraud and breach of fiduciary duty owed concerning release of claims. After jury found in favor of consultants and awarded actual damages, exemplary damages, and attorney fees, the 281st Judicial District Court, Harris County, Louis M. Moore, J., granted judgment notwithstanding the verdict (JNOV) for parent company. Appeal was taken. The Court of Appeals, 895 S.W.2d 719,reversed. Parent company filed application for writ of error. The Supreme Court, Enoch, J., held that: (1) lack of any evidence of agreement to share profits precluded existence of partnership; (2) confidential relationship imposing fiduciary duty on part of parent company concerning negotiations for release did not arise in absence of evidence of prior fiduciary relationship; and (3) consultants' unequivocal disclaimer of reliance on representations by parent company about feasibility and value of offshore diamond mining project, contained in written release, conclusively negated, as matter of law, element of reliance required to support their claims of fraudulent inducement, common law fraud, and statutory fraud. Judgment of the Court of Appeals reversed, and judgment rendered. West Headnotes (17) [1] Partnership Creation and Requisites in General Partnership consists of express or implied agreement containing four required elements: (1) community of interest in venture, (2) agreement to share profits, (3) agreement to share losses, and (4) mutual right of control or management of enterprise. 21 Cases that cite this headnote [2] Mines and Minerals Creation and existence Evidence that consultants were to receive royalty on any diamonds mined in offshore mining project and were paid consulting fee by drilling company's parent company did not constitute profit sharing required to prove existence of partnership. Vernon's Ann.Texas Civ.St. art. art. 6132b, § 7(3). 3 Cases that cite this headnote [3] Mines and Minerals Creation and existence Fact that drilling company's parent company paid money to consultants in settlement and to obtain release of their claimed interests in offshore diamond mining project did not constitute evidence of agreement to share profits in project required to prove existence of partnership. 4 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997) 41 Tex. Sup. Ct. J. 165 [4] Mines and Minerals Creation and existence Lack of any evidence of agreement to share profits precluded existence of partnership between consultants and drilling company's parent company concerning project for offshore mining of diamonds. 2 Cases that cite this headnote [5] Fraud Fiduciary or confidential relations Informal relationship may give rise to fiduciary duty where one person trusts in and relies on another, whether relation is moral, social, domestic, or purely personal one, but not every relationship involving high degree of trust and confidence rises to stature of fiduciary relationship. 114 Cases that cite this headnote [6] Fraud Fiduciary or confidential relations Although fiduciary or confidential relationship may arise from circumstances of particular case, imposition of such relationship in business transaction requires that relationship must exist prior to, and apart from, agreement that is made basis of suit. 83 Cases that cite this headnote [7] Fraud Fiduciary or confidential relations Mere subjective trust does not, as matter of law, transform arm's-length dealing into fiduciary relationship. 53 Cases that cite this headnote [8] Release Fraud and Misrepresentation Consultants' testimony that they relied on drilling company's parent company to negotiate fair price for withdrawal of offshore diamond mining project from joint venture, and that lease documents and testimony of parent company executives referred to consultants as partners, did not give rise to confidential relationship imposing fiduciary duty on part of parent company for purposes of consultants' claim that parent company fraudulently induced consultants to sign release of their alleged interests and claims relating to project and thereby allow parent company to sell project to other members in joint venture, absent evidence of prior fiduciary relationship. 5 Cases that cite this headnote [9] Release Fraud and Misrepresentation Mere fact that consultants and parent company of drilling company were aligned together in negotiating with other participants in joint venture for withdrawal of their offshore diamond mining project from joint venture did not create confidential relationship giving rise to fiduciary duty on part of parent company for purposes of consultants' claim that parent company fraudulently induced consultants to sign release of their alleged interests and claims related to project, in absence of any prior fiduciary relationship. 13 Cases that cite this headnote [10] Release Fraud and Misrepresentation © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997) 41 Tex. Sup. Ct. J. 165 Misrepresentations by drilling company's parent company to consultants about technological feasibility or commercial viability of offshore diamond mining project were actionable as fraudulent inducement of release of consultants' alleged interests in project. 1 Cases that cite this headnote [11] Release Mistake Release Fraud and Misrepresentation Release is contract, and like any other contract, is subject to avoidance on grounds such as fraud or mistake. 5 Cases that cite this headnote [12] Release Fraud and Misrepresentation Consultants' unequivocal disclaimer of reliance on representations by drilling company's parent company about feasibility and value of offshore diamond mining project, contained in written release of consultants' alleged interests and causes of action relating to project, conclusively negated, as matter of law, element of reliance required for claims of fraudulent inducement, in light of circumstances that release was executed when parties were attempting to end their deal and were embroiled in dispute over feasibility and value of project, that parties were represented by competent counsel, and that parties were sophisticated business players dealing at arm's length. 117 Cases that cite this headnote [13] Release Fraud and Misrepresentation Release that clearly expresses parties' intent to waive fraudulent inducement claims, or one that disclaims reliance on representations about specific matters in dispute, can preclude claim of fraudulent inducement, but disclaimer of reliance or merger clause will not always bar fraudulent inducement claim. 120 Cases that cite this headnote [14] Fraud Reliance on Representations and Inducement to Act Reliance is element of fraud.

¹⁶ Cases that cite this headnote [6] Evidence Matters of common knowledge or observation An expert's testimony should be excluded when the jury is equally competent to form an opinion about the ultimate fact issues or the expert's testimony is within the common knowledge of the jury. Rules of Evid., Rule 702.

¹⁸ Cases that cite this headnote [15] Fraud Fraudulent Concealment Fraud by nondisclosure is simply subcategory of fraud because, where party has duty to disclose, nondisclosure may be as misleading as positive misrepresentation of facts. 62 Cases that cite this headnote [16] Release Fraud and Misrepresentation Consultants' unequivocal disclaimer of reliance on representations by drilling company's parent company about offshore diamond mining project, contained in written release of consultants' alleged interest in project, covered both parent company's affirmative misrepresentations and alleged nondisclosures of geologic, economic, and technical information and thus precluded consultants' claims of common-law fraud based on alleged nondisclosures. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (1997) 41 Tex. Sup. Ct. J. 165

²¹ Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999) [5] Eminent Domain Persons Entitled to Sue City had standing to bring inverse condemnation suit against Texas Department of Transportation (TxDOT) for its appropriation of city street in highway expansion, based on city's justiciable interest in street that was taken and its interest in maintaining streets for its residents, regardless of whether city could ultimately prevail on merits of it suit. Cases that cite this headnote [6] Action Persons Entitled to Sue In order for a court to have subject matter jurisdiction, the party bringing suit must have standing. Cases that cite this headnote [7] Action Persons Entitled to Sue To establish standing, a party must show that (1) a real controversy exists between the parties and (2) the controversy will actually be determined by the judicial relief sought. Cases that cite this headnote [8] Eminent Domain Appeal and Error Whether city could prevail on its action against Texas Department of Transportation (TxDOT) for taking of its streets in highway expansion was issue of merits of case that could not be reviewed on interlocutory appeal from denial of TxDOT's plea to the jurisdiction of the trial court. 5 Cases that cite this headnote [9] Pleading Plea to the Jurisdiction Plea to the jurisdiction of the trial court is not sustainable where the contention is to the effect that the plaintiff has falsely stated a claim which, in fact, is nonexistent, for this is a matter of defense on the merits. Cases that cite this headnote [10] Eminent Domain Persons Entitled to Sue City's allegation of injury to public it represented was enough to confer standing to bring inverse condemnation suit against Texas Department of Transportation (TxDOT) seeking compensation for alleged increase in circuity of travel and for light and noise pollution resulting from highway expansion. 1 Cases that cite this headnote [11] Eminent Domain Appeal and Error Whether alleged increase in circuity of travel and light and noise pollution resulting from highway expansion were compensable damages in city's inverse condemnation suit against Texas Department of Transportation (TxDOT) was issue of merits of case that could not be reviewed on interlocutory appeal from denial of TxDOT's plea to the jurisdiction of the trial court. 7 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999) [12] States Declaratory Judgment States Eminent Domain Texas Department of Transportation (TxDOT) did not have sovereign immunity from city's inverse condemnation action which was in nature of takings claim concerning highway expansion and which sought declaratory relief involving nuisance claim for noise and light pollution from highway expansion. Vernon's Ann.Texas Const. Art. 1, § 17. 3 Cases that cite this headnote [13] Eminent Domain Corporations or Persons Liable Municipal Corporations Destruction of Property When a governmental entity takes, damages, or destroys property for public use, the State Constitution waives the governmental entity's immunity from both suit and liability. Vernon's Ann.Texas Const. Art. 1, § 17. Cases that cite this headnote [14] Municipal Corporations Nuisances Claim for nuisance is an alternative ground of recovery to an inverse condemnation action under the provision of the State Constitution prohibiting the taking of property without adequate compensation and thus is also an exception to the State's sovereign immunity. Vernon's Ann.Texas Const. Art. 1, § 17. 3 Cases that cite this headnote Attorneys and Law Firms *728 Kirk Kuykendall, Asst. Atty. Gen., Transp. Div., Austin, for appellant. Brad Rockwell, Scanlan, Buckle & Young, P.C., Austin, for appellee. Before Chief Justice ABOUSSIE, Justices KIDD and YEAKEL. Opinion MACK KIDD, Justice. The Texas Department of Transportation (“TxDOT”) brings this interlocutory appeal from a district court decision overruling its plea to the jurisdiction and rendering a partial summary judgment for the City of Sunset Valley (“Sunset Valley”) in a suit for inverse condemnation. In three issues, TxDOT complains that the district court erred in denying its plea to the jurisdiction because (1) Sunset Valley lacks standing to sue for the physical taking of its streets, (2) Sunset Valley lacks standing to sue for any injuries that may result from the increased circuity of travel and noise and light pollution caused by the highway's expansion, and (3) TxDOT is immune from suit by virtue of the doctrine of sovereign immunity. We will affirm the district court's ruling. BACKGROUND Sunset Valley is a small general-law municipality that is bifurcated by U.S. Highway 290 and virtually surrounded by the City of Austin. This dispute arose when *729 TxDOT expanded U.S. Highway 290 from a small ground-level highway into a multi- © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999) level, limited-access divided highway. As a result of TxDOT's decision to make Highway 290 a controlled-access highway along the length of Sunset Valley, several streets that had previously crossed or run alongside the old ground-level highway were affected. Jones Road, an important municipal artery, was one of the streets affected, and a substantial portion of it had to be closed. This street had served as a vital transportation link that the residents of Sunset Valley, as well as its police officers and other emergency personnel, had used to commute between the central and southwestern portions of the city. After the closure, travel between the two portions was possible only by traveling along Highway 290's access road to a point outside the city, crossing under, and then doubling back along the opposite side of Highway 290. Sunset Valley has since found it necessary to construct a substitute street in order to regain the transportation connection it lost as a result of the expansion. The question of who should pay for this substitute street, along with a multitude of other issues involved in the construction and completion of Highway 290, was presented to the district court. Sunset Valley also raised issues of noise and light pollution, charging that TxDOT had failed to perform state and federally mandated noise-abatement procedures and studies. Sunset Valley moved for partial, interlocutory summary judgment, and TxDOT responded by filing a plea to the jurisdiction along with several special exceptions to Sunset Valley's pleadings. The district court denied TxDOT's plea and special exceptions and granted Sunset Valley's motion for partial, interlocutory summary judgment on November 9, 1998. The court found that Sunset Valley proved all the elements of inverse condemnation as a matter of law and that the substitute facilities doctrine was the proper method of determining the amount of damages incurred by Sunset Valley. The trial court also found that Sunset Valley was entitled to declaratory relief with respect to its noise pollution claims, but that it was not entitled to relief in the form of an injunction or mandamus. TxDOT now challenges the district court's denial of its plea to the jurisdiction in this interlocutory appeal, arguing (1) that Sunset Valley lacks standing to sue for inverse condemnation, (2) that Sunset Valley lacks standing to bring its claims for damages resulting from increased circuity of travel and noise and light pollution, and (3) that TxDOT is immune from suit for declaratory relief by virtue of the doctrine of sovereign immunity. DISCUSSION Interlocutory Appeal [1] [2] [3] [4] In bringing this appeal, TxDOT must of necessity rely solely on section 51.014(a)(8) of the Texas Civil Practice and Remedies Code, which provides that “[a] person may appeal from an interlocutory order of a district court that grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001.” 2 Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West Supp.1999). A plea to the jurisdiction contests the trial court's authority to adjudicate the subject matter of the cause of action. See Dolenz v. Texas State Bd. of Med. Exam., 899 S.W.2d 809, 811 (Tex.App.—Austin 1995, no writ); Schulz v. Schulz, 726 S.W.2d 256, 257 (Tex.App.—Austin 1987, no writ). In a proper plea to the jurisdiction, a defendant contends that, even if all the allegations in a plaintiff's pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings. See *730 Firemen's Ins. Co. v. Board of Regents of Univ. of Tex. Sys., 909 S.W.2d 540, 541 (Tex.App.—Austin 1995, writ denied) (citing Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960)); Washington v. Fort Bend Indep. Sch. Dist., 892 S.W.2d 156, 159 (Tex.App.—Houston [14th Dist.] 1994, writ denied). In reviewing the grant or denial of a plea to the jurisdiction, we do not look at the merits of the case. See Firemen's Ins. Co., 909 S.W.2d at 541. This Court recently held that a governmental unit is free to appeal a trial court's denial of its plea to the jurisdiction under section 51.014(a)(8), regardless of the basis on which it asserts a lack of jurisdiction. See City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex.App.—Austin 1998, no pet.). Thus, a government unit's plea to the jurisdiction need not be based upon a claim of sovereign immunity in order for it to bring an interlocutory appeal under section 51.014(a) (8). See id. Nevertheless, because the statute authorizing interlocutory appeals is a narrow exception to the general rule that only final judgments and orders are appealable, we must give it a strict construction. See id. at 753; America Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex.App.—Houston [14th Dist.] 1997, no pet.); Tober v. Turner of Texas, Inc., 668 S.W.2d 831, 835 (Tex.App.—Austin 1984, no writ). Thus, we will limit our discussion to the narrow issue that is before us, the question of whether the trial court erred in denying TxDOT's plea to the jurisdiction. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999) Standing [5] [6] [7] We first address TxDOT's argument that the district court erred in overruling its plea to the jurisdiction because Sunset Valley lacks standing to sue TxDOT for the appropriation of Jones Road. In order for a court to have subject matter jurisdiction, the party bringing suit must have standing. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443–46 (Tex.1993). To establish standing, a party must show that (1) a real controversy exists between the parties and (2) the controversy will actually be determined by the judicial relief sought. See id. at 446. [8] TxDOT argues that because a city's interest in its streets is subordinate to the interests of the State, and since the legislature has provided TxDOT statutory authority to appropriate city streets for the construction of controlled-access highways, Sunset Valley cannot successfully bring an action against the State for TxDOT's appropriation of its streets. See City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712, 715 (1956) (holding that legal title to city streets belongs to State and that cities' authority and control limited to extent delegated by legislature or state constitution); Tex. Transp. Code Ann. § 203.003 (West Supp.1999) (authorizing transportation commission to exercise powers to lay out, construct, maintain, and operate a state highway in a county or municipality without consent of county or municipality). TxDOT contends that because Sunset Valley cannot successfully bring an action for the taking of its streets, it has no claim and ultimately lacks standing to bring suit. We disagree with this analysis. Although TxDOT characterizes this as an issue of standing, in reality TxDOT is seeking a determination of this case on the merits. TxDOT confuses the jurisdictional question of whether Sunset Valley has standing to bring a cause of action for the State's appropriation of city streets with the substantive issue of whether Sunset Valley should prevail on the merits of its case. TxDOT is attempting to meld its appeal of the denial of its plea to the jurisdiction with an appeal of the partial summary judgment rendered against it by the trial court. 3 As we have stated previously, *731 this Court is not authorized to review the merits of Sunset Valley's claims in this interlocutory appeal. We decline to permit TxDOT to use this interlocutory appeal as a vehicle to circumvent the bounds set by the statute in order to obtain judicial review of the merits of Sunset Valley's case before the district court has rendered a final judgment. 4 Certainly, a city has standing to bring suit against the State for appropriation of that city's streets, regardless of whether its action is ultimately unsuccessful. TxDOT cites no case law in support of its contention that municipalities lack standing to sue the State for the physical appropriation of city streets. Likewise, we are unable to find any authority supporting this argument. Here, Sunset Valley has pleaded that it has a justiciable interest in the street that was taken and that as a city, it has an interest in maintaining its streets for its residents. Cities have always had standing to litigate issues involving their entitlement to public property in suits against other state governmental entities. 5 [9] In asserting a claim to the streets that run within its boundaries, Sunset Valley has shown that a controversy exists as to the nature and extent of its interest in its streets and the State's responsibility for compensation. The ultimate question of whether Sunset Valley can prevail in its suit against TxDOT is a matter for the trial court to decide on the merits. “A plea to the jurisdiction of the trial court is not sustainable where the contention is to the effect that the plaintiff has falsely stated a claim which, in fact, is nonexistent, for this is a matter of defense on the merits.” Bernard Hanyard Enters., Inc. v. McBeath, 663 S.W.2d 639, 642 (Tex.App.—Austin 1983, writ ref'd n.r.e.). Because TxDOT has not presented this Court with a true jurisdictional issue, we overrule appellant's first issue. Circuity of Travel, Noise and Light Pollution [10] Having determined that Sunset Valley has standing to sue for the physical taking of its streets, we now address TxDOT's argument that Sunset Valley has no standing to sue TxDOT for any injuries resulting from increased circuity of travel and the light and noise pollution resulting from the expansion of Highway 290. In *732 support of this argument, TxDOT states in its brief that whether there has been a material and substantial impairment of access or whether there exists an issue of increased circuity of travel is a question of law that must be decided by the trial court. See State v. Wood Oil Distrib. Co., 751 S.W.2d 863, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999) 865 (Tex.1988). TxDOT adds that the burden of proving a compensable impairment of access is upon the landowner and that if the reconfiguration has caused only an increased circuity of travel, any injury suffered by Sunset Valley is noncompensable. See id.; State v. Westgate, 798 S.W.2d 903, 906–7 (Tex.App.—Austin 1990), aff'd, Westgate v. State, 843 S.W.2d 448 (1992). [11] Once again, TxDOT is attempting to reach beyond the narrow jurisdictional issue before us in order to argue its case on the merits. If a judicial determination of the issue of increased circuity of travel is necessary and the burden of proof is upon the landowner to prove a compensable impairment of access, surely that same landowner has standing to bring the action necessary to receive this judicial determination. TxDOT cannot successfully argue that because a defense of circuity of travel may exist, Sunset Valley has no standing to bring suit in the first place. TxDOT's circuity-of-travel contentions concern questions of compensable injuries and the measure of damages, which are questions on the merits, not jurisdictional issues. Likewise, TxDOT's argument that Sunset Valley's claims for injuries resulting from the noise and light pollution caused by the highway expansion are not compensable again goes to the merits of the case and not to the jurisdictional issue of standing. The fact that Sunset Valley has alleged injury to the public it represents is enough to confer standing. We overrule TxDOT's second issue. Sovereign Immunity [12] In its third and final issue, TxDOT argues that the district court erred in denying its plea to the jurisdiction because it is immune from suit pursuant to the doctrine of sovereign immunity, specifically with respect to Sunset Valley's request for declaratory judgment on its noise and light pollution claims. TxDOT complains that this declaratory relief compels the State through its officials to perform certain acts without the required legislative consent. See Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151, 153 (1960) (holding that where purpose of proceeding against state officials is to control action of State, suit is against State and cannot be maintained without legislature's consent). First, TxDOT mischaracterizes the trial court's judgment. In its partial, interlocutory summary judgment, the trial court granted TxDOT's jurisdictional challenge to Sunset Valley's request for relief by mandamus and denied Sunset Valley's request for an injunction. The only relief that the court granted Sunset Valley was a declaratory judgment with respect to its claim for noise pollution. Contrary to TxDOT's assertions, this relief does not require the State to take any action. The trial court expressly rejected any such relief when it denied Sunset Valley's requests for a mandamus and injunction. [13] [14] Furthermore, although the State as sovereign is generally immune from both liability and suit without its consent, actions for inverse condemnation brought pursuant to article I, section 17 of the Texas Constitution 6 comprise a limited exception to the doctrine of sovereign immunity. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex.1997); State v. Biggar, 848 S.W.2d 291, 295 (Tex.App.—Austin 1993), aff'd, 873 S.W.2d 11 (1994). When a governmental entity takes, damages, or destroys property for public use, the Constitution waives the *733 governmental entity's immunity from both suit and liability. See Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 596 (Tex.App.—Austin 1991, writ denied). A claim for nuisance is an alternative ground of recovery under article 1, section 17 and is also an exception to sovereign immunity. See Tarrant County v. English, 989 S.W.2d 368, 374 (Tex.App.— Fort Worth 1998, pet. denied); Golden Harvest Co. v. City of Dallas, 942 S.W.2d 682, 688–90 (Tex.App.—Tyler 1997, writ denied) (holding sovereign immunity does not make city immune from action for nuisance caused by city's non-negligent or intentional acts where suit brought under article I, section 17 of Constitution). Because Sunset Valley's entire claim is in the nature of a takings claim and the declaratory relief of which TxDOT complains involves a nuisance claim for noise and light pollution, TxDOT cannot successfully assert sovereign immunity from suit. Accordingly, we overrule TxDOT's final issue. CONCLUSION Having overruled all three issues TxDOT raised in this interlocutory appeal, we affirm the trial court's denial of TxDOT's plea to the jurisdiction. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (1999) Footnotes 1 Appellants include the Texas Department of Transportation; Charles W. Heald, both individually and in his official capacity as Executive Director of the Texas Department of Transportation; Anne S. Wynne, both individually and in her official capacity as Commissioner of the Texas Department of Transportation; Robert L. Nichols, both individually and in his official capacity as Commissioner of the Texas Department of Transportation; and David M. Laney, both individually and in his official capacity as Commissioner of the Texas Department of Transportation. 2 Section 101.001 defines “governmental unit” to include “a political subdivision of this state, including any city.” Tex. Civ. Prac. & Rem.Code Ann. § 101.001(3)(B) (West Supp.1999). 3 We note that in its motion filed with the district court, entitled “Defendant's First Amended Pleas to the Jurisdiction and Special Exceptions to Plaintiff's Amended Motion for Partial, Interlocutory Summary Judgment,” TxDOT sought to attack Sunset Valley's motion for summary judgment on substantive as well as jurisdictional grounds. Our analysis is, of necessity, confined only to TxDOT's jurisdictional arguments. 4 TxDOT's attempt to appeal the merits of this case is especially troubling because this matter was set for a trial on the merits on the issue of damages in May 1999. Absent this interlocutory appeal, all the issues TxDOT wishes to raise here would properly be before us on a regular appeal. 5 See, e.g., Texas Antiquities Committee v. Dallas Community College Dist., 554 S.W.2d 924, 930 (Tex.1977) (reaffirming its holding in Milam County v. Bateman, 54 Tex. 153 (1880), and extending same state constitutional guaranties to local governments that shield individual property owners); Brazos River Auth. v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 108–10 (1961) (extending protection to municipalities under article 1, section 17 of state constitution and affirming award to municipality for state river authority's appropriation of city's sewage disposal plant); Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20, 29 (1931) (holding that rights associated with property acquired by school districts and cities protected by same constitutional guaranties that shield property of individuals); Fort Worth Improvement Dist. No. 1 v. City of Fort Worth, 106 Tex. 148, 158 S.W. 164, 168 (1913) (upholding injunction restraining State from erecting levee that would damage city water treatment plant, absent payment of necessary compensation); State v. City of Denton, 542 S.W.2d 224 (Tex.Civ.App.—Fort Worth 1976, writ ref'd n.r.e.) (holding city enjoys exclusive dominion over its streets and denying state university's attempt to exercise eminent domain over city's streets); State v. Waco I.S.D., 364 S.W.2d 263, 265–68 (Tex.Civ.App.—Waco 1963, writ ref'd n.r.e.) (awarding school district damages against TxDOT's predecessor on grounds that appropriation of public school's property in course of constructing highway improvement constituted violation of state constitutional takings clause). 6 This section provides that “[n]o person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” Tex. Const. art. I, § 17. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Texas State Bank v. Amaro, 87 S.W.3d 538 (2002) 45 Tex. Sup. Ct. J. 1302 87 S.W.3d 538 Supreme Court of Texas. TEXAS STATE BANK, Petitioner, v. Rutilo Vargas AMARO, Respondent. No. 00–1220. | Argued Oct. 3, 2001. | Decided Sept. 26, 2002. Trustee sought declaratory relief, seeking determination of trust's status in light of another district court's decree in a separate divorce action that beneficiary was no longer incapacitated. The 206th District Court, Hidalgo County, Joe B. Evins, J., entered order terminating trust, approving trustee's accounting, and releasing trustee from any liability to trust or beneficiary. Beneficiary appealed. The Corpus Christi Court of Appeals, 28 S.W.3d 789, affirmed as modified. Trustee filed petition for review. Upon overruling motions for rehearing, the Supreme Court, Xavier Rodriguez, J., held that: (1) district court had continuing jurisdiction over trust and was not bound by adjudication of beneficiary's capacity in divorce action; but (2) district court exceeded the relief requested by approving trustee's investment philosophy and adjudicating trustee's potential tort liability; (3) district court could approve all distributions, fees, costs, and expenses under its authority to approve the accounting; (4) beneficiary did not waive his appeal from judgment by accepting payment of trust monies under that judgment; and (5) approval of trustee's final accounting did not settle trustee's tort liabilities. Affirmed as modified. West Headnotes (8) [1] Mental Health Particular Courts District court's decree creating trust and trust documents invoked that court's continuing jurisdiction over trust, including jurisdiction to determine whether beneficiary regained capacity thereby terminating trust, and thus, such court was not bound by prior adjudication of beneficiary's capacity in his divorce action, where decree creating trust stated that trust would “remain in full force and effect until further orders of this court,” and trust document provided that court retained right before termination “to mend, alter, modify, or revoke this trust.” V.T.C.A., Property Code § 142.005(d, f). Cases that cite this headnote [2] Trusts Judgment or Decree Approval of trustee's investment philosophy and adjudication of trustee's potential tort liability to the beneficiary were not components of an accounting, and thus, district court exceeded the relief requested by ruling on such matters, where trustee requested only determination of whether trust was terminated, removal as trustee if it was not terminated, and approval of final accounting. V.T.C.A., Property Code § 113.152. 3 Cases that cite this headnote [3] Trusts Form and Requisites of Account All distributions, fees, costs, and expenses trustee paid from a trust, not merely those related to trust's termination, amounted to “disbursements,” and thus, were properly part of trustee's accounting at termination, such that district © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Texas State Bank v. Amaro, 87 S.W.3d 538 (2002) 45 Tex. Sup. Ct. J. 1302 court, as court of continuing jurisdiction over trust, could approve such disbursements under its authority to approve the accounting. V.T.C.A., Property Code §§ 113.152(2), 142.005(b)(6). 1 Cases that cite this headnote [4] Declaratory Judgment Scope and Extent of Review in General By objecting in the district court to the introduction and consideration of evidence that went beyond trustee's request for declaratory relief, beneficiary preserved for appellate review issue of whether district court's order exceeded the relief requested. Cases that cite this headnote [5] Appeal and Error Acceptance of Sum Absolutely Due or Admitted to Be Due Trust beneficiary's acceptance of the trust corpus was not inconsistent with his position on appeal that district court lacked authority to rule on trustee's potential tort liability, and thus, beneficiary did not waive his appeal from judgment by accepting payment of trust monies under that judgment, where neither party disputed winding up of trust and distribution of corpus. 14 Cases that cite this headnote [6] Appeal and Error Acceptance of Sum Absolutely Due or Admitted to Be Due As long as an appellant accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment he is not estopped to prosecute an appeal which involves only his right to a further recovery.

²⁵ Cases that cite this headnote [7] Trusts Hearing or Reference Trusts Operation and Effect of Accounting District court's approval of trustee's final accounting, including the distributions, costs, and expenses, was not an adjudication of the trustee's tort liabilities, if any, and thus, beneficiary was not entitled to a jury or to 45 days' notice of the hearing that approved the accounting. Vernon's Ann.Texas Rules Civ.Proc., Rule 245; V.T.C.A., Property Code § 113.152. 1 Cases that cite this headnote [8] Trusts Operation and Effect of Accounting The Trust Code does not contemplate that an accounting will settle the trustee's tort liability. V.T.C.A., Property Code § 113.152. Cases that cite this headnote Attorneys and Law Firms *539 Lisa Powell, Gary Gurwitz, Sofia Amabel Ramon, Atlas & Hall, McAllen, for petitioner. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Texas State Bank v. Amaro, 87 S.W.3d 538 (2002) 45 Tex. Sup. Ct. J. 1302 *540 Benjamin L. Hall, III, Elizabeth B. Hawkins, Hall Law Firm, Russell S. Post, Hogan Dubose & Townsend, Jennifer Bruch Hogan, Hogan Dubose & Townsend, L.L.P., John K. Leach, O'Quinn Laminack & Pirtle, Houston, for respondent. Opinion Justice RODRIGUEZ delivered the opinion of the Court. We overrule Texas State Bank's and Rutilo Vargas Amaro's motions for rehearing. We withdraw our opinion of June 6, 2002, and substitute the following in its place. In this appeal from a modification of a district court's order, Texas State Bank (TSB) asks this Court to reinstate those parts of the district court's order the court of appeals reversed. The issues here are whether the district court had continuing jurisdiction over a trust it created under Chapter 142 of the Texas Trust Code, and whether the district court's order went beyond the relief TSB's motion requested. Because the district court did have continuing jurisdiction over the trust but the district court's judgment exceeded the relief TSB's motion requested, we reinstate only a part of the order and affirm the court of appeals' judgment, as modified. I. Rutilo Vargas Amaro (Vargas) 1 suffered severe injuries in a sugarcane field burn-off. He sued the field's owners, Rio Grande Valley Sugar Growers, Inc. (Sugar Growers), for negligence in the 206th district court and received a substantial settlement. In 1989, the district court adjudged Vargas incapacitated as defined by section 142.007 of the Texas Property Code, and, on Vargas's guardian's motion, the court created a trust for him under section 142.005 of the Code. The trust document provided that the trust would terminate when Vargas regained capacity, and the district court's decree stated that the trust would “take effect immediately to remain in full force and effect until further orders of this Court.” TSB served as trustee during the trust's nine-year existence. In May 1997, Vargas filed a “Motion for Termination of Trust” in the 206th district court, alleging that he had regained capacity. In September 1997, before the 206th district court had ruled on Vargas's motion, the 370th District Court of Hidalgo County issued an order in Vargas's uncontested divorce action decreeing that Vargas was fully capable of acting as sole managing conservator for his minor child and suffered no incapacity. Five days after the 370th district court issued its order, Vargas filed a motion with the 206th district court to withdraw his request to terminate the trust and, the following day, he filed a notice of nonsuit in the 206th district court. Vargas then sent a letter to TSB, demanding that TSB release the trust funds due to the divorce court's adjudication of his regained capacity. In the letter, Vargas threatened TSB with legal action if TSB did not promptly comply with the request. TSB responded by tendering the trust funds to the 206th district court and filing a “Motion Regarding the Rutilo Vargas Amaro Trust for Declaratory Judgment and for Other Relief” under the caption of the original personal-injury suit between Vargas and Sugar Growers. In this motion, filed September 18, 1997, TSB asked the court: (1) to determine if the trust was terminated because of Vargas's regained *541 capacity; (2) to allow TSB to resign as trustee and to appoint a substitute trustee in case the trust was not terminated; (3) to “approve final accountings to be submitted to the Court;” and (4) to order any “other and further relief, at law or in equity, to which TSB may be justly entitled.” TSB alleged jurisdiction under Chapter 142 of the Texas Property Code, the Texas Uniform Declaratory Judgments Act, 2 and section 115.001 of the Texas Trust Code. 3 On October 6, Vargas filed a plea to the jurisdiction arguing that the 206th district court did not have continuing jurisdiction over the trust, and that the 370th district court had jurisdiction to determine Vargas's capacity. At the same time, he filed a “Notice of Determination of Capacity” with the 206th district court, informing the court that the 370th district court had found © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Texas State Bank v. Amaro, 87 S.W.3d 538 (2002) 45 Tex. Sup. Ct. J. 1302 capacity. Vargas argued that the trust had terminated by its own terms when the 370th district court ruled that Vargas was not incapacitated. Vargas then filed a new suit against TSB in the 93rd District Court, also in Hidalgo County. This suit alleged that TSB had committed fraud, breach of fiduciary duty, negligence, breach of the duty of good faith and fair dealing, breach of contract, and DTPA violations in administering the trust. Some of TSB's alleged misconduct, according to Vargas, had to do with improper and imprudent investment decisions, failing to keep Vargas fully informed of trust decisions, and failing to keep proper records regarding the trust. This suit is still pending and discovery is proceeding. On November 25, 1997, the 206th district court denied Vargas's plea to the jurisdiction and claimed jurisdiction “to any matter pertaining to the assets of Mr. Rutilo Vargas as it relates to matters of his Trust.” On February 26, 1998, Vargas filed a “Supplemental Notice of Determination of Capacity and Request for Release of Monies Owed to Rutilo Vargas Amaro” and scheduled a hearing for March 11, 1998. Through a letter to the court coordinator, sent six days before the hearing date, TSB gave notice that it was also scheduling a hearing on its “Motion Regarding the Rutilo Vargas Amaro Trust for Declaratory Judgment and for Other Relief.” Vargas objected to TSB's request to have the 206th district court “make final legal determinations,” arguing that the notice requirements of Texas Rule of Civil Procedure 245 were not met. The 206th district court held hearings on both parties' motions and, on March 17, issued an “Order Terminating Trust, Approving Trust Administration, Investment Philosophy, Accounting, Actions and Fees, and Discharging Trustee Relating to the Rutilo Vargas Amaro Trust.” In this order, the court terminated the trust due to Vargas's regained capacity and approved all accountings TSB presented, including all distributions TSB made, all fees TSB received, and all fees, costs, and expenses TSB paid. In addition, the court approved TSB's investment philosophy and ordered that “[s]ubject to the payment to Vargas ... as directed above, the Court discharges TSB as trustee and releases TSB as trustee from any liability to the Trust or to Vargas.” Vargas appealed, complaining that the 206th district court erred in absolving TSB *542 of liability for its handling of the trust. Vargas argued that the Declaratory Judgments Act could not expand the district court's jurisdiction over the trust to allow it to adjudicate Vargas's tort claims against TSB. The court of appeals agreed, and modified the district court's judgment by reversing those parts of the district court's order: (1) approving all distributions, fees, costs, and expenses TSB paid, except for the fees, costs, and expenses relating to the trust's termination; (2) approving TSB's investment philosophy; and (3) absolving TSB from any liability to Vargas or the Vargas trust. 28 S.W.3d at 796. TSB filed a petition for review, asking this Court to resolve four issues: 1) Did the 206th district court exercise continuing jurisdiction over the Chapter 142 trust that it created, and thus have jurisdiction to issue its declaratory judgment in connection with the trust, related issues, and parties? 2) Did the 206th district court have jurisdiction to and properly approve the investment philosophy, distributions, and expenses of the trustee of the Vargas trust, to discharge the trustee from liability, and to issue its declaratory relief? 3) Did Vargas waive his argument concerning the proper scope of declaratory relief by failing to make the argument to the district court? and, 4) Did Vargas waive his arguments by accepting payment under the judgment? Vargas counters by asking this Court to consider cross-points that would preclude reinstatement of those parts of the 206th district court's judgment reversed by the court of appeals. Specifically, Vargas urges that the district court erred in rendering judgment for TSB when Vargas was not given the required forty-five days notice of trial under Rule 245 of the Texas Rules of Civil Procedure, and, alternatively, the district court erred in rendering judgment for TSB even though Vargas was denied his right to a jury trial. II. [1] We first consider the district court's jurisdiction over a trust created under Texas Property Code section 142.005. By filing a motion under the caption of the original Sugar Growers personal-injury suit, TSB invoked the 206th district court's continuing © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Texas State Bank v. Amaro, 87 S.W.3d 538 (2002) 45 Tex. Sup. Ct. J. 1302 jurisdiction over the trust created in that suit. TSB's motion specifically requested the 206th district court to determine whether the trust was terminated due to Vargas's regained capacity, to allow TSB to resign if the trust was not terminated, and to approve TSB's final accounting of the trust. Chapter 142 provides that the trust will continue until terminated or revoked, and allows the court to amend, modify, or revoke the trust at any time before its termination. TEX. PROP.CODE § 142.005(d),(f). The 206th district court's decree creating the trust stated that the trust would “take effect immediately to remain in full force and effect until further orders of this court.” And the trust document itself provides that the “Court shall retain the right at any time before the termination of this trust to amend, alter, modify, or revoke this trust.” Taken together, these documents invoke the 206th district court's continuing jurisdiction over the trust under Chapter 142. Therefore, the 206th district court had continuing jurisdiction over the Vargas trust until such time that it terminated the trust. Thus, although the 370th district court adjudicated Vargas's capacity in the divorce action, the 206th had jurisdiction to consider whether he regained capacity such that the trust was terminated, and the trust did not terminate until the 206th so decreed. *543 III. [2] Having determined that the 206th district court had continuing jurisdiction to determine issues related to the trust and its termination, we now consider whether the court properly exercised that jurisdiction by ordering the relief that it did. As noted, the district court has continuing jurisdiction to supervise, modify, revoke, and terminate the trust. Further, section 142.005(b) (4) provides that the trust terminates when the beneficiary regains capacity and section 142.005(e) provides that upon the trust's termination the principal and undistributed income shall be paid to the beneficiary. In this case, neither capacity nor the district court's order terminating the trust are disputed. The question here is whether the remainder of the district court's order—specifically, approval of TSB's accounting, approval of TSB's investment philosophy, and absolving TSB of liability —was properly granted. To determine the corpus due to the beneficiary, the trustee may provide the terminating court with a final accounting of the trust funds for examination. In its motion to the 206th district court, TSB asked the court to “approve final accountings to be submitted to the Court.” Property Code section 113.152 provides what an accounting should contain. A written statement of accounts shall show: (1) all trust property that has come to the trustee's knowledge or into the trustee's possession and that has not been previously listed or inventoried as property of the trust; (2) a complete account of receipts, disbursements, and other transactions regarding the trust property for the period covered by the account, including their source and nature, with receipts of principal and income shown separately; (3) a listing of all property being administered, with an adequate description of each asset; (4) the cash balance on hand and the name and location of the depository where the balance is kept; and (5) all known liabilities owed by the trust. TEX. PROP.CODE § 113.152. In the context of a terminating trust, the statutory requirements for an accounting form the basis winding up the trust to ascertain the balance due to the beneficiary. Nowhere does section 113.152 mention investment philosophy or potential tort liability to the beneficiary with regard to an accounting. Thus, these determinations are not components of an accounting. Accordingly, although the 206th district court's approving TSB's accounting was appropriate under TSB's motion to the court, the 206th district court's approving TSB's investment philosophy and absolving TSB's tort liability, if any, were not. The 206th district court improperly granted relief that TSB did not request. TSB's motion asked the district court only to determine whether the trust was terminated, to remove TSB as trustee if the trust was not terminated, and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Texas State Bank v. Amaro, 87 S.W.3d 538 (2002) 45 Tex. Sup. Ct. J. 1302 to approve TSB's final accounting. In its motion, TSB did not ask the district court to adjudicate TSB's potential tort liability as trustee, nor to approve TSB's investment philosophy, and therefore the district court should not have ruled on these issues. We conclude that the court of appeals was correct in reversing those parts of the district court's order. IV. [3] The court of appeals further modified the district court's order by reversing that part of the order approving all distributions, fees, costs, and expenses TSB paid from the Vargas trust except those relating to the trust's termination. But Chapter 142 of the Property Code gives *544 the court of continuing jurisdiction the power to approve the trustee's fees, TEX. PROP.CODE § 142.005(b)(6), and the trust instrument also provided that “[t]he trustee shall receive reasonable compensation ... on application to and approval of the 206th District Court.” And because the distributions, costs, and expenses of a trust would be “disbursements” under Property Code section 113.152(2), and therefore properly part of the trustee's accounting, we hold that the court of appeals erred by reversing that part of the district court's order. Accordingly, we reinstate that part. V. [4] TSB argues that Vargas waived his objections to the proper scope of the declaratory relief the district court granted by failing to make the argument to the district court. We disagree. The error is that the district court's order exceeded the relief TSB's motion requested. Vargas objected at the March hearing to the introduction and consideration of evidence that went beyond TSB's request for relief. And, Vargas's brief to the court of appeals clearly objected to the fact that the district court went far beyond the scope of TSB's motion in its final order. Vargas properly preserved his objections. VI. [5] [6] Finally, TSB argues that Vargas waived his objection to the district court's judgment by accepting payment of his trust monies under that judgment. This Court, in Carle v. Carle, stated that a “litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom.” 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). There is a narrow exception to this rule that as long as an appellant “accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment he is not estopped to prosecute an appeal which involves only his right to a further recovery.” Id. Here, neither side disputes that capacity was regained and that the trust should have been terminated. And neither party argues with winding up the trust and distributing the corpus. Vargas contested only the district court's ability to rule on TSB's potential tort liability to Vargas as trustee. Therefore, Vargas's acceptance of the trust corpus is not inconsistent with his position and falls within the Carle exception. VII. Because we reinstate the trial court's judgment approving the accounting, including the approval of distributions, fees, costs, and expenses, we next consider Vargas's alternative grounds for affirming the court of appeals' judgment reversing these rulings. Vargas argues that judgment cannot be rendered on these issues because he was not given the forty-five days notice of trial required under Rule 245 of the Texas Rules of Civil Procedure. Vargas also argues that the 206th district court erred in rendering judgment for TSB because it denied him the right to a jury trial. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Texas State Bank v. Amaro, 87 S.W.3d 538 (2002) 45 Tex. Sup. Ct. J. 1302 [7] As we stated above, the trustee may provide the court with a final accounting of the trust funds to determine the amount due to the beneficiary, and we held that the court's approval of the accounting was within its jurisdiction and within the scope of relief requested by TSB's motion. To properly assess Vargas's argument that the ruling violates his due process rights, we must determine the nature of the trial court's ruling. TSB contends that “[a]pproval of an ‘accounting’ involves more than merely approval of *545 the math involved in expenditure and disbursement: approval of an accounting disposes of all claims that might be made in regard to matters relating thereto.” For support, TSB cites only one case—Coble Wall Trust Co., Inc. v. Palmer, 859 S.W.2d 475, 480–81 (Tex.App.-San Antonio 1993, writ denied). In that case, the court of appeals held that a probate court's judgment, after a full hearing based on the new administrators' and others' objections, that approved the final accounts and discharged Coble Wall from all liability barred the plaintiff's subsequent suit for negligence and DTPA violations. In that case, full evidentiary hearings were conducted and the court of appeals noted that all of the contentions advanced by the plaintiffs regarding the estate plan and fees were heard by the probate court and thus were placed in issue and adjudicated. Thus, the guardian's liability had been fully litigated in the probate court. Coble Wall does not hold that a court's approval of an accounting necessarily includes adjudication of the trustee's tort liability; it merely affirms that, in certain circumstances, it may. 4 [8] Contrary to TSB's assertion, the Trust Code does not contemplate that an accounting will settle the trustee's tort liability. As noted, section 113.152 establishes the contents of an accounting and requires the trustee to list trust property, transactions, property, cash, and all known liabilities owed by the trust. It simply does not reach the trustee's tort liability. This conclusion is supported by the Trust Code's structure, which includes Subchapter E “Accounting by Trustee” within Chapter 113, entitled “Administration.” In contrast, Chapter 114 concerns “liabilities, rights, and remedies of trustees, beneficiaries, and third persons.” Thus, the final accounting “form[s] the basis for a winding up of the trust to ascertain the balance due to the beneficiary.” Supra at 543. As TSB states in its brief, “TSB's requested relief in essence provided for determination of what amounts should be paid to Vargas by TSB and the closing of the trust and issues relating thereto.” Determining TSB's tort liability is not necessary to the closing of the trust or ascertaining the trust balance due the beneficiary, and, as we held above, was not within the scope of TSB's requested relief. Accordingly, because approving the accounting, including the distributions, costs, and expenses, was not an adjudication of TSB's tort liabilities, Vargas was not entitled to a jury or to forty-five days notice of the hearing. VIII. In sum, we conclude that under Property Code section 142.005 and the trust documents, the district court had continuing jurisdiction to rule on the issues requested by TSB's motion; specifically, the 206th district court had jurisdiction in this case to terminate the trust and to approve TSB's final accounting, including all distributions, fees, costs, and expenses of the trust. We hold that the 206th district court's order exceeded, in part, the relief TSB requested and should not have encompassed approving TSB's investment philosophy, nor ruling on TSB's potential tort liability to Vargas. We modify the court of appeal's judgment by reinstating that part of the 206th district court's order approving the distributions, fees, costs, *546 and expenses TSB paid from the Vargas Trust. Accordingly, we affirm the court of appeal's judgment, as modified. Justice SCHNEIDER did not participate in the decision. Parallel Citations 45 Tex. Sup. Ct. J. 1302 Footnotes 1 The court of appeals referred to Rutilo Vargas Amaro as “Vargas.” For the sake of consistency, we do the same. 2 TEX. CIV. PRAC. & REM.CODE § 37.005. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Texas State Bank v. Amaro, 87 S.W.3d 538 (2002) 45 Tex. Sup. Ct. J. 1302 3 TEX. PROP.CODE § 115.001 (providing for the original and exclusive jurisdiction of a district court “over all proceedings concerning trusts, including proceedings to: ... (4) determine the powers, responsibilities, duties, and liability of a trustee”). 4 In Bohlssen v. Bohlssen, 56 S.W.2d 913, 916 (Tex.Civ.App.-Galveston 1932, no writ), upon which the court in Coble Wall relied, the probate court not only approved the final accounting and discharged the guardian, but the ward expressly released the guardian from any further liability to him and acknowledged that he would not thereafter “have [a] claim against his guardian.” End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984) 668 S.W.2d 831 Court of Appeals of Texas, Austin. Rick TOBER, Appellant, v. TURNER OF TEXAS, INC., Appellee. No. 13881. | March 14, 1984. Salesman appealed from an order of the 98th Judicial District Court, Travis County, Charles D. Mathews, P.J., overruling his motion to dissolve an injunction which temporarily enjoined him from selling specialty advertising items in competition with his former employer. The Court of Appeals, Phillips, C.J., held that: (1) since salesman made an untimely cash deposit in lieu of an appeal bond, the Court of Appeals was without jurisdiction to consider an appeal of the order granting temporary injunction; (2) salesman's cash deposit was made within 30 days of signing of order overruling his motion to dissolve the injunction; thus, the Court of Appeals had jurisdiction to review trial court's order overruling such motion; (3) by failing to perfect an appeal from the grant of the temporary injunction, salesman waived right to complain of errors allegedly committed by the trial court in originally granting temporary injunction; and (4) trial court had no duty, upon filing of motion to dissolve, to reconsider propriety of grant of the temporary injunction. Affirmed. West Headnotes (23) [1] Appeal and Error Injunction While an order granting a temporary injunction is an appealable interlocutory order, appeal of such an order must conform to requirements for accelerated appeals. Vernon's Ann.Texas Rules Civ.Proc., Rule 385. Cases that cite this headnote [2] Appeal and Error Deposit as security In all accelerated appeals, deposit in lieu of appeal bond must be made within 30 days after order is signed. Vernon's Ann.Texas Rules Civ.Proc., Rule 385(d). Cases that cite this headnote [3] Appeal and Error Deposit as security Requirement for accelerated appeal that a deposit in lieu of appeal bond must be made within 30 days after order appealed from is signed is a prerequisite to invoking the Court of Appeals' jurisdiction. Vernon's Ann.Texas Rules Civ.Proc., Rule 385(d). 1 Cases that cite this headnote [4] Appeal and Error Effect of failure to give or defects in security © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984) Salesman who made a cash deposit in lieu of an appeal bond more than 30 days after grant of order which temporarily enjoined him from selling specialty advertising items within a certain area could not appeal such order; the Court of Appeals was without jurisdiction to consider it. Vernon's Ann.Texas Rules Civ.Proc., Rule 385(d). Cases that cite this headnote [5] Appeal and Error Injunction An order overruling a motion to dissolve a temporary injunction is an appealable interlocutory order. Vernon's Ann.Texas Civ.St. art. 4662. 1 Cases that cite this headnote [6] Appeal and Error Continuing, modifying, vacating, or dissolving Court of Appeals had jurisdiction to review a trial court order overruling salesman's motion to dissolve an order which temporarily enjoined him from selling specialty advertising items within a certain county and various cities in competition with his employer, where salesman's cash deposit in lieu of an appeal bond was made within 30 days of the overruling of such motion, though he had not timely appealed from original injunction order. Vernon's Ann.Texas Civ.St. art. 4662.; Vernon's Ann.Texas Rules Civ.Proc., Rule 385(d). 1 Cases that cite this headnote [7] Injunction Authority and discretion of court Determination of question of whether to dissolve a temporary injunction is a matter lying within discretion of the trial court. 1 Cases that cite this headnote [8] Appeal and Error Continuing, vacating, or dissolving Scope of Court of Appeals' review of a trial court order overruling a motion to dissolve a temporary injunction is limited to the narrow question of whether the action of the trial judge, in overruling motion to dissolve, constituted an abuse of discretion. 4 Cases that cite this headnote [9] Injunction Evidence and affidavits Salesman who filed motion to dissolve an order which temporarily enjoined him from selling specialty advertising items within a particular county and various cities had burden to show that trial court abused its discretion. 1 Cases that cite this headnote [10] Appeal and Error Continuing, vacating, or dissolving Salesman's four points of error, relating to errors allegedly committed by the trial court in originally granting temporary injunction enjoining salesman from selling specialty advertising items within a particular area, were not a proper basis upon which salesman could contend that the trial court abused its discretion in overruling his motion to dissolve such injunction; by failing to perfect an appeal from grant of temporary injunction, salesman waived right to complain of the specified alleged errors, where none of the alleged errors were fundamental in nature, and where the trial court © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984) was made aware of such alleged errors prior to signing temporary injunction. Vernon's Ann.Texas Rules Civ.Proc., Rule 385(d). 4 Cases that cite this headnote [11] Appeal and Error Injunction Since appeal was from denial of salesman's motion to dissolve an injunction which temporarily enjoined him from selling specialty advertising items within a particular area and was not an appeal of the grant of the temporary injunction, Court of Appeals would presume that record as a whole supported trial court's action in granting the temporary injunction, and would not look to statement of facts from hearing on motion to grant temporary injunction to ascertain if evidence supported such grant. 2 Cases that cite this headnote [12] Injunction Authority and discretion of court Trial court has no duty, upon filing of a motion to dissolve a temporary injunction, to reconsider propriety of the granting of the temporary injunction, at least where the motion does not allege fundamental error, and also where motion is not based upon evidence of changed conditions, but is rather based upon evidence which was before the court at prior hearing on motion to grant the temporary injunction. 8 Cases that cite this headnote [13] Judgment Discretion of court A trial court cannot be held to have abused its discretion where it refused to alter its prior decision in the absence of new evidence. Cases that cite this headnote [14] Appeal and Error Interlocutory appeals Purpose of rule providing that no motion for new trial should be filed in appeals from interlocutory orders appealable by law is to avoid duplicity of effort and to give some degree of finality to interlocutory orders. Vernon's Ann.Texas Rules Civ.Proc., Rule 385. Cases that cite this headnote [15] Appeal and Error Injunction A motion to dissolve a temporary injunction may not be used as a means of evading or expanding rules applicable to appealing interlocutory orders. Cases that cite this headnote [16] Appeal and Error Interlocutory and Intermediate Decisions A statute authorizing an appeal from an interlocutory order must be given a strict construction since the statute is in derogation of the general rule that only final judgments and orders are appealable. 10 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984) [17] Injunction Authority and discretion of court Trial court did not lack authority to reverse its prior temporary injunction order on a showing of changed conditions. 2 Cases that cite this headnote [18] Injunction Evidence and affidavits A trial court will not be deemed to have abused its discretion by refusing to reverse a prior grant of a temporary injunction, absent pleading and proof of changed conditions, or perhaps upon pleading and proof of fundamental error. 9 Cases that cite this headnote [19] Injunction Right or necessity A trial court may not enter a temporary injunction against a party before that party has presented its defenses and has rested its case. Vernon's Ann.Texas Rules Civ.Proc., Rule 681. Cases that cite this headnote [20] Injunction Authority and discretion of court Under rule precluding a trial court from entering a temporary injunction against a party before that party has presented its defenses and has rested its case, party opposing temporary injunction has an opportunity to fully litigate the issue of whether the temporary injunction should issue prior to the granting of such injunction; thus, there is no longer any reason for requiring a trial court to reexamine the legal and factual basis of a preliminary injunction upon a motion to dissolve. Vernon's Ann.Texas Rules Civ.Proc., Rule 681. 1 Cases that cite this headnote [21] Injunction Terminating, Vacating, or Dissolving Injunction Purpose of motion to dissolve a temporary injunction is to provide a means to show that changed circumstances or changes in the law require modification or dissolution of the injunction; the purpose is not to give an unsuccessful party an opportunity to relitigate the propriety of the original grant. 8 Cases that cite this headnote [22] Injunction Evidence and affidavits Trial court did not abuse its discretion in refusing to hear evidence of employer's alleged breach of employment contract with salesman in hearing on motion to dissolve temporary injunction; such evidence was not within proper scope of motion to dissolve. Cases that cite this headnote [23] Appeal and Error Sufficiency of offer of proof or showing of evidence excluded Even if the trial court had refused to hear testimony on motion to dissolve temporary injunction, movant showed no error where he did not direct the Court of Appeals to a bill of exceptions which would show what the witnesses would have testified to. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984) 1 Cases that cite this headnote Attorneys and Law Firms *833 John L. Bates, Bates & Cates, Waco, for appellant. Jeffrey M. Friedman, Friedman, Weddington, Hansen & Fisher, Austin, for appellee. Before PHILLIPS, C.J., and POWERS and BRADY, JJ. Opinion PHILLIPS, Chief Justice. Rick Tober appeals from the trial court's order overruling a motion to dissolve a temporary injunction. We affirm that order. Rick Tober was formerly employed by Turner of Texas, Inc. as a salesman of advertising specialty products. In September of 1982 Turner instituted this action against Tober. Turner contended that Tober had violated an agreement not to compete with Turner; Turner sought damages for prior breaches of the agreement as well as an injunction precluding future breaches. Tober lodged a counterclaim against Turner, seeking damages for Turner's alleged wrongful withholding of commissions earned by Tober. On October 11, 1982, following an evidentiary hearing at which both Tober and Turner participated, the trial court signed an order which temporarily enjoined Tober from, inter alia, selling specialty advertising items within all of Travis County and the city limits of San Antonio, Dallas, Fort Worth, and Houston. On November 9, 1982 Turner filed a motion requesting that the trial court order Tober to appear and show cause as to why Tober should not be held in contempt. On November 16, 1982 Tober filed a motion captioned “Defendant's Response To Plaintiff's Motion To Show Cause; Defendant's Amended Motion To Set Aside the Temporary Restraining Order And/Or Alternatively Motion to Provide Adequate Bond.” On December 1, 1982 the trial court, following a hearing at which Tober and Turner were represented, signed an order overruling Tober's motion (apparently treating it as a motion to dissolve the temporary injunction). The trial court also found Tober in contempt of the temporary injunction; the contempt order is not here challenged. Tober made a cash deposit in lieu of an appeal bond on December 13, 1982. [1] [2] [3] [4] We initially note that although Tober purports to appeal from the order granting temporary injunction as well as the order overruling his subsequently filed motion, he has not perfected an appeal from the initial order. While an order granting a temporary injunction is an appealable interlocutory order, see Tex.Rev.Civ.Stat.Ann. art. 4662 (Supp.1982), the appeal of such an order must conform to the requirements for accelerated appeals, Tex.R.Civ.P.Ann. 385 (Supp.1983). In all accelerated *834 appeals, the deposit in lieu of appeal bond must be made within thirty days after the order is signed. Id. 385(d). Such a requirement is a prerequisite to invoking this Court's jurisdiction; since Tober made an untimely cash deposit, we are without jurisdiction to consider an appeal of the order granting a temporary injunction. Marshall v. Good Times, Inc., 537 S.W.2d 536 (Tex.Civ.App.1976, writ dism'd). [5] [6] However, Tober's cash deposit was made within thirty days of the signing of the order overruling Tober's subsequent motion. Although that subsequent motion was rather awkwardly titled, to the extent possible we will treat it as a motion to dissolve the temporary injunction. An order overruling a motion to dissolve a temporary injunction is an appealable interlocutory © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984) order. Tex.Rev.Civ.Stat.Ann. art. 4662 (Supp.1982). Therefore, although we lack jurisdiction to entertain an appeal of the order granting the temporary injunction, we have jurisdiction to review the trial court's order overruling the motion to dissolve the injunction. Marshall v. Good Times, Inc., supra. [7] [8] [9] The determination of the question of whether to dissolve a temporary injunction is a matter lying within the discretion of the trial court; the scope of this Court's review of a trial court order overruling a motion to dissolve a temporary injunction is limited to the narrow question of whether the action of the trial judge, in overruling the motion to dissolve, constituted an abuse of discretion. Marshall v. Good Times, Inc., supra. Tober, as movant, has the burden to show that the trial court abused its discretion. Id. As stated above, Tober was represented at the hearing on the application for temporary injunction. At that hearing Tober presented evidence in opposition to the granting of the temporary injunction. Later, at the hearing on the motion to dissolve the temporary injunction, Tober presented no evidence in support of dissolution; his case was based exclusively upon his attorney's legal argument. Appellant's first four points of error relate to errors allegedly committed by the trial court in originally granting the temporary injunction; each of these matters were brought to the trial court's attention prior to the signing of the temporary injunction order, and were obviously rejected by the trial court. These points of error provide that the trial court erred in granting the temporary injunction because: (1) neither the contract of employment nor the restrictive covenant designate the market area of Turner, (2) the restrictive covenant is not reasonable either as to limitation of time or limitation of geographical area, (3) under the evidence presented Turner had breached the contract of employment prior to any breach upon the part of Tober, and (4) an inadequate injunction bond was set by the court. [10] We hold that the above four points of error are not a proper basis upon which Tober may contend that the trial court abused its discretion in overruling the motion to dissolve. They are a proper basis upon which Tober could have contended, upon direct appeal of the order granting the temporary injunction, that the trial court abused its discretion in granting such. By failing to perfect an appeal from the grant of the temporary injunction, Tober has now, upon appeal of the motion to dissolve, waived the right to complain of the specified alleged errors; this is particularly true where, as here, none of the alleged errors are fundamental (i.e. jurisdictional) in nature, and where, as here, the trial court was made aware of such alleged errors prior to signing the temporary injunction. [11] Additionally, to the extent that appellant complains that the restrictive covenant was unreasonable as to geographic scope, we note that the trial court has limited the scope of the temporary injunction in this regard, and has thereby reformed the covenant. Since this is not an appeal of the grant of the temporary injunction, we will presume that the record as a whole supports the trial court's action in granting the temporary injunction. See State v. Friedmann, 572 S.W.2d 373 (Tex.Civ.App.1978, writ ref'd n.r.e.) We will not *835 look to the statement of facts from the hearing on the motion to grant the temporary injunction to ascertain if the evidence supports such grant. Id. [12] [13] Finally, we hold that the trial court has no duty, upon the filing of a motion to dissolve, to reconsider the propriety of the granting of a temporary injunction, at least where the motion does not allege fundamental error, and also where the motion is not based upon evidence of changed conditions but is rather based upon evidence which was before the court at the prior hearing on the motion to grant the temporary injunction. We will specify both practical and legal reasons for this holding below; however, assuming it to be sound, the trial court cannot be held to have abused its discretion where, as here, it refused to alter its prior decision in the absence of new evidence. From a practical standpoint, if a litigant could, by motion to dissolve, force reconsideration of the original grant, without a showing of changed conditions, then there is an incentive for him to do so at least once, or more often, in hope that he will be able to wear down the resistance of the original trial judge, or in hope that he will be able to secure a hearing before a different trial judge who may be more sympathetic. Such actions needlessly add to the judicial caseload, both at the trial and appellate © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984) level. Recognition of the principle that the trial court has no duty to reconsider the validity of the original grant of temporary injunction upon motion to dissolve enables the trial court to dispose of motions to dissolve solely upon the pleadings when the motion to dissolve, on its face, shows that the litigant offers no new evidence. [14] There is a legal basis for holding that the trial court has no duty, upon motion to dissolve, to reconsider the original grant of temporary injunction. Tex.R.Civ.P.Ann. 385 (Supp.1983) provides that no motion for new trial shall be filed in appeals from interlocutory orders appealable by law. The purpose of this rule is to avoid duplicity of effort and to give some degree of finality to interlocutory orders. If a litigant is permitted, upon motion to dissolve, to again challenge the original temporary injunction grant, without an allegation of changed conditions, then the litigant could accomplish indirectly what he could not directly do (make a motion for new trial). Cf. State v. Friedmann, supra. In such a manner, the litigant could thereby render meaningless the appellate timetable applicable to accelerated appeals, see Tex.R.Civ.P.Ann. 385(d) (Supp.1983); a litigant, after unsuccessfully opposing a temporary injunction, could wait for an indefinite period to perfect an appeal of the grant of the temporary injunction (by filing a subsequent motion to dissolve, which raises the points of error which could have, and should have, been raised in a direct appeal of the order granting temporary injunction). [15] [16] A motion to dissolve may not be used as a means of evading or expanding the rules applicable to appealing interlocutory orders. A statute authorizing an appeal from an interlocutory order must be given a strict construction since the statute is in derogation of the general rule that only final judgments and orders are appealable. 4 Tex.Jur.3d Appellate Review § 70 (1980). We note that Tober did not file his motion to dissolve until after it was too late to perfect an appeal from the order granting a temporary injunction. [17] [18] We should not be understood to say that a trial court lacks the authority to reverse its prior temporary injunction order absent a showing of changed conditions; it does have that power. City of Hudson v. Ivie, 592 S.W.2d 658 (Tex.Civ.App.1979, no writ). We hold only that the trial court will not be deemed to have abused its discretion by refusing to reverse a prior grant of temporary injunction, absent pleading and proof of changed conditions, State v. Friedmann, supra; see 6 L. Lowe Texas Practice—Remedies § 186 (1973), or perhaps upon pleading and proof of fundamental (i.e. jurisdictional) error, but see Texas Board of Examiners in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242 (1961). *836 In Carp, the Supreme Court held that a plea of privilege, as to which appeal had not been timely perfected, was not reviewable in conjunction with review of an order granting temporary injunction, as to which appeal had been timely perfected. The Supreme Court also held that the Court of Civil Appeals lacked jurisdiction to review pleas to the jurisdiction which had been rejected by the trial court. The Supreme Court stated the rule that appellate courts lack jurisdiction to review an unappealable interlocutory order in an appeal “from another interlocutory order which is appealable except insofar as the questions raised might affect the validity of the latter order.” 343 S.W.2d at 243. We hold that the questions relevant to the grant of the temporary injunction, raised by Tober in this appeal, do not affect the validity of the order overruling the motion to dissolve; however, our holding does not here turn solely upon jurisdiction, but is also grounded upon Tober's failure to prove that the trial court abused its discretion in overruling the motion to dissolve. We should stress that most of what we have said above, especially as it relates to the trial court's duty in considering a motion to dissolve, is applicable to temporary injunctions, which are granted only after notice and an opportunity for an evidentiary hearing; the trial court's duty in considering a motion to dissolve an injunctive order rendered without notice and opportunity for hearing would be broader. Compare State v. Friedmann, supra (motion to dissolve filed after full evidentiary hearing on grant of temporary injunction) with Whitaker v. Wilson, 349 S.W.2d 753 (Tex.Civ.App.1961, writ ref'd n.r.e.) (temporary injunction granted solely upon intervenor's sworn petition). Much of the confusion as to the proper scope of a motion to dissolve arises from cases decided at a time when no distinction was made as between injunctive relief granted before and injunctive relief granted after a full evidentiary hearing. Apparently, under prior law it was standard procedure for a trial court to issue a temporary injunction solely upon the applicant's sworn petition; therefore, upon filing a motion to dismiss, the opposite party had a right to a full evidentiary hearing upon the issue © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Tober v. Turner of Texas, Inc., 668 S.W.2d 831 (1984) of whether the temporary injunction should have, in the first instance, been granted. See Plateau Oil Co. v. Choate Oil Corp., 235 S.W. 686 (Tex.Civ.App.1921, writ dism'd). [19] [20] [21] Under current rules the trial court may not enter a temporary injunction against a party before that party has presented its defenses and has rested its case. Tex.R.Civ.P.Ann. 681 (1967); Great Lakes Engineering, Inc. v. Andersen, 627 S.W.2d 436 (Tex.App.1981, no writ); City of Austin v. Texas Public Emp. Ass'n, 528 S.W.2d 637 (Tex.Civ.App.1975, no writ). Under this procedure the party opposing the temporary injunction has an opportunity to fully litigate the issue of whether the temporary injunction should be granted prior to the granting of such; there is no longer any reason for requiring the trial court to reexamine the legal and factual basis of the preliminary injunction upon motion to dissolve. See Nu-Tred Tire Co. v. Dunlop Tire & Rubber Corp., 118 Ariz. 417, 577 P.2d 268 (App.1978). The purpose of the motion to dissolve is to provide a means to show that changed circumstances or changes in the law require the modification or dissolution of the injunction; the purpose is not to give an unsuccessful party an opportunity to relitigate the propriety of the original grant. Id.; see State v. Friedmann, supra. Tober's first four points of error are overruled. In his fifth point of error Tober contends that the trial court erred in granting a temporary injunction which by its terms restrained persons who were not parties to this action. Although this point attacks the original grant of temporary injunction, apparently it could not have been brought to the trial court's attention prior to entry of the judgment. However, it could have been raised in a direct appeal from the order granting temporary injunction. For that reason, it is questionable, under the above analysis, as to whether it can now be raised in the appeal of the order overruling the motion to dissolve. However, we need *837 not resolve that question, since it is obvious from reading the temporary injunction order that Tober, and no other person, is thereby enjoined. The fifth point of error is overruled. Finally, Tober complains that the trial court abused its discretion in refusing to hear evidence of Turner's breach of the employment contract. Tober contends that such evidence was relevant to showing that Turner lacked clean hands and that Turner was therefore not entitled to equitable relief. [22] To the extent that Tober complains of the trial court's refusal to hear evidence at the hearing on application for temporary injunction, we hold, for reasons given above, that such is not within the proper scope of a motion to dissolve. The same holds true as to any complaint of the trial court's refusal, at the hearing on the motion to dissolve, to consider evidence not relevant to changed conditions, unless, perhaps, there is an allegation that such evidence is newly discovered. [23] Also, we have examined the statement of facts from the hearing on the motion to dissolve. At no point did Tober offer any evidence; the trial court certainly never prevented the introduction of any evidence. Even if the trial court had refused to hear testimony, Tober does not direct us to a bill of exceptions which would show what the witnesses would have testified to; therefore, no error is shown. Schutz v. Southern Union Gas Co., 617 S.W.2d 299 (Tex.App.1981, no writ). The final point of error is overruled. Having overruled all of appellant's points of error, we affirm the trial court's order. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884 (1985) 690 S.W.2d 884 Supreme Court of Texas. UVALDE COUNTRY CLUB, Petitioner, v. MARTIN LINEN SUPPLY COMPANY, INC., Respondent. No. C–3920. | May 22, 1985. | Rehearing Denied June 26, 1985. Supply company brought suit against country club to collect on contract for services rendered, and country club failed to file an answer or enter an appearance. The 285th District Court, Bexar County, Paul Rivera, J., entered default judgment. Country club appealed. The Court of Appeals, 685 S.W.2d 375, Tijerina, J., affirmed. On petition for review, the Supreme Court held that record did not reflect strict compliance with Rules of Civil Procedure relating to issuance, service, and return of citation, where petition alleged that registered agent was “Henry Bunting, Jr.” whereas sheriff's return on citation showed delivery to “Henry Bunting.” Reversed and remanded. West Headnotes (3) [1] Appeal and Error Judgment by Default There are no presumptions in favor of valid issuance, service, and return of citation in face of writ of error attack on default judgment. 152 Cases that cite this headnote [2] Process Defects and Irregularities in Writ or Other Process or Notice Process Defects and Irregularities in Service or Return or Proof Thereof Failure to affirmatively show strict compliance with Rules of Civil Procedure 101, 106, and 107, relating to issuance, service, and return of citation, renders attempted service of process invalid and of no effect. Vernon's Ann.Texas Rules Civ.Proc., Rules 101, 106, 107. 165 Cases that cite this headnote [3] Clubs Actions by or Against Clubs Record in suit against country club did not reflect strict compliance with Rules of Civil Procedure 101, 106, and 107 relating to issuance, service, and return of citation, where petition alleged that registered agent was “Henry Bunting, Jr.” whereas sheriff's return on citation showed delivery to “Henry Bunting.” Vernon's Ann.Texas Rules Civ.Proc., Rules 101, 106, 107. 142 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884 (1985) Attorneys and Law Firms *884 Clemens, Spencer, Welmaker & Finck, George H. Spencer, Jr., San Antonio, for petitioner. Cox & Smith, R. Laurance Macon, San Antonio, for respondent. Opinion PER CURIAM. The question here is whether service of citation was proper in the face of a writ of error attack on a default judgment. The plaintiff's original petition alleged that the defendant, Uvalde Country Club, could be served by serving its registered agent, Henry Bunting, Jr., 137 West Nopal Street, in Uvalde, Uvalde County, Texas. The citation was directed to Uvalde Country Club, by serving its registered agent, “Henry Bunting.” The sheriff's return on this citation showed delivery to “Henry Bunting.” Uvalde Country Club failed to answer, and the trial court rendered a default judgment in favor of Martin Linen Supply Company, Inc. Uvalde Country Club brought writ of error to the court of appeals within six months of the default judgment. In affirming the trial court judgment, the court of appeals held that the lack of “Jr.” was immaterial because it did not constitute any part of the name of the registered agent. 685 S.W.2d 375. We reverse the judgment of the court of appeals and remand the cause to the trial court. [1] [2] The court of appeals holding conflicts with our holdings in Hendon v. Pugh, 46 Tex. 211, 212 (1876) and Faver v. Robinson, 46 Tex. 204 (1876). In Hendon, we remanded a default judgment because the return reflected that it was served on J.N. Hendon, not the named defendant, J.W. *885 Hendon. In Faver, we remanded a default judgment against John R. Faver because the citation was addressed and served on John R. Favers. There are no presumptions in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a default judgment. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965). Moreover, failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect. McKanna, 388 S.W.2d at 929. [3] The record does not show that the person served with citation, “Henry Bunting,” was authorized to receive service or that he was connected with the appellant. Rather, the petition alleges that the registered agent is “Henry Bunting, Jr.” Thus, the record in this case does not reflect strict compliance with the rules of civil procedure relating to the issuance, service, and return of citation. See, e.g., Tex.R.Civ.P. 101, 106, and 107. In view of our holding we need not discuss the other points of error. Pursuant to Tex.R.Civ.P. 483, without hearing oral argument, we reverse the judgment of the court of appeals and remand the cause to the trial court. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014) 439 S.W.3d 585 Court of Appeals of Texas, Houston (14th Dist.). Alice M. WOOD and Daniel L. Wood, Appellants v. HSBC BANK USA, N.A. and Ocwen Loan Servicing, L.L.C., Appellees. No. 14–13–00389–CV. | July 31, 2014. Synopsis Background: Borrowers, who obtained home-equity loan that encumbered their homestead with a lien, sued current lienholder, loan servicer, and other defendants seeking declaratory judgment and relief for breach of security instrument. Current lienholder counterclaimed, seeking declaration that it was equitably subrogated to rights of prior lienholders. The 268th District Court, Fort Bend County, Brady G. Elliott, J., granted summary judgment in favor of current lienholder and loan servicer and denied borrowers' motion for summary judgment. Holdings: Court of Appeals, Marc W. Brown, J., held that: [1] four-year residual statute of limitations applied to borrowers' constitutional claims; [2] constitutional claims accrued on date home equity transaction closed; and [3] breach of contract claim accrued on date hone equity transaction closed. Affirmed. West Headnotes (15) [1] Judgment Particular defenses A defendant moving for summary judgment on the affirmative defense of limitations must: (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pleaded or otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered the nature of its injury; if the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Vernon's Ann.Texas Rules Civ.Proc., Rule 166a(c). Cases that cite this headnote [2] Judgment Weight and sufficiency A matter is conclusively established, for purposes of summary judgment, if reasonable people could not differ as to the conclusion to be drawn from the evidence. Vernon's Ann.Texas Rules Civ.Proc., Rule 166a(c). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014) Cases that cite this headnote [3] Homestead Exceptions from exemptions in general Homestead liens that do not comply with constitutional requirements are voidable, rather than void, in light of existence of cure provision in constitution. Vernon's Ann.Texas Const. Art. 16, § 50(a, c). 1 Cases that cite this headnote [4] Declaratory Judgment Limitations and laches Borrowers' declaratory judgment action to cancel home equity lien that secured their home equity loan, on the ground that lien was defective under State constitution in that the fees exceeded 3% of the loan amount, was not an action to recover real property, and thus four-year residual statute of limitations applied to constitutional claims, as claims would not support a trespass to try title action and required equitable powers of court to cancel lien. Vernon's Ann.Texas Const. Art. 16, § 50(a, c); V.T.C.A., Civil Practice & Remedies Code § 16.051. 2 Cases that cite this headnote [5] Limitation of Actions Recovery of Real Property An action for the recovery of real property, to which the four-year residual statute of limitations would not apply, is one that would support a trespass to try title suit without first invoking the equitable powers of the court to cancel a deed. V.T.C.A., Civil Practice & Remedies Code § 16.051; V.T.C.A., Property Code § 22.001(a). 1 Cases that cite this headnote [6] Trespass to Try Title Nature and scope of remedy A trespass to try title suit is generally used to clear problems in chains of title or to recover possession of land unlawfully withheld from a rightful owner. V.T.C.A., Property Code § 22.001(a). Cases that cite this headnote [7] Declaratory Judgment Validity and construction of deeds A declaratory judgment action provides an efficient procedural method for seeking a declaration of rights regarding the construction or validity of deeds by those whose rights are affected by such instruments. Cases that cite this headnote [8] Limitation of Actions Penalties and Forfeitures Borrowers' cause of action challenging the validity of home equity lien on ground that it was defective under State constitution, in that fees exceeded 3% of the loan amount, accrued, and four-year limitations period began to run, on the date that the home equity transaction closed, rather than after the 60–day period to cure deficiencies expired, in borrowers' declaratory judgment action against current lienholder and loan servicer to cancel lien; legal injury occurred when the transaction closed, the facts that would have alerted borrowers to potential constitutional violations existed when the transaction closed, as did their right to seek a judicial remedy, and nothing in constitution prevented borrowers from initiating declaratory judgment action as soon as the transaction closed. Vernon's Ann.Texas Const. Art. 16, § 50(a, c); V.T.C.A., Civil Practice & Remedies Code § 16.051. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014) Cases that cite this headnote [9] Limitation of Actions Causes of action in general Generally, a cause of action accrues, for statute of limitations purposes, when a wrongful act causes a legal injury. 1 Cases that cite this headnote [10] Limitation of Actions Penalties and Forfeitures In cases involving a challenge to the validity of a home-equity lien on constitutional grounds, the legal injury occurs, and the cause of action accrues for statute of limitations purposes, on the date the transaction closes. Vernon's Ann.Texas Const. Art. 16, § 50(a, c); V.T.C.A., Civil Practice & Remedies Code § 16.051. 1 Cases that cite this headnote [11] Declaratory Judgment Appeal and Error Borrowers, in declaratory judgment action seeking to cancel home equity lien on ground that it was constitutionally defective, failed to adequately brief their arguments that statute of limitations was tolled due to current lienholder's alleged continuing and ongoing constitutional violations, and thus borrowers waived those arguments on appeal, where borrowers did not explain or cite any legal authority in support of their contention. Rules App.Proc., Rule 38.1(i); V.T.C.A., Civil Practice & Remedies Code § 16.051. Cases that cite this headnote [12] Limitation of Actions Effect of security Borrowers' breach of contract claim, alleging that current lienholder and loan servicer breached security agreement that created borrower's home equity lien by charging fees exceeding 3% of loan amount in violation of State constitution, accrued, and the four-year residual statute of limitations began to run, on the date that the excessive fees were charged, namely the date that the transaction closed, rather than the date on which borrowers sent current lienholder notice of the alleged constitutional violations; absent mitigating circumstances, which borrowers did not allege, borrowers had four years in which to demand a cure and file breach of contract action. Vernon's Ann.Texas Const. Art. 16, § 50(a) (6)(E); V.T.C.A., Civil Practice & Remedies Code § 16.051. Cases that cite this headnote [13] Limitation of Actions Breach of contract in general A claim for breach of contract accrues, for statute of limitations purposes, when the contract is breached. Cases that cite this headnote [14] Limitation of Actions Demand for performance of contract Generally, when demand is a condition precedent to the right to sue, the statute of limitations does not begin to run until demand is made, unless the demand is waived or unreasonably delayed. Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014) [15] Limitation of Actions Demand for performance of contract Where demand is a prerequisite to a right of action, the injured party must make the demand within a reasonable time after it may lawfully be made; the reasonableness of the delay is normally a fact question, but in the absence of mitigating circumstances, the law will ordinarily consider a reasonable time as being coincident with the running of the statute of limitations, and an action will be barred if a demand is not made within that period. Cases that cite this headnote Attorneys and Law Firms *587 Russell S. Post, Anh Dinh, Constance H. Pfeiffer, Robert Petersen, Robert C. Lane, Houston, for Appellants. Valerie Anne Henderson, Houston, for Appellees. Panel consists of Justices BOYCE, CHRISTOPHER, and BROWN. *588 OPINION MARC W. BROWN, Justice. This case arises out of a home-equity loan obtained by appellants Alice M. Wood and Daniel L. Wood in 2004 that encumbered their homestead with a lien. The Woods appeal the summary judgment granted in favor of appellees HSBC Bank USA, N.A. and Ocwen Loan Servicing, L.L.C. The Woods presented a single issue on appeal, which we address in two separate sub-issues: (1) Whether the Texas Civil Practice and Remedies Code section 16.051 four-year statute of limitations bars the Woods' claims for monetary and declaratory relief based on HSBC's and Ocwen's alleged violations of the home-equity lending protections found in article XVI, section 50(a)(6), of the Texas Constitution. (2) Whether the section 16.051 statute of limitations bars the Woods' claim for monetary relief based on HSBC's and Ocwen's alleged breach of the security instrument creating the home-equity lien. Because we conclude that the Woods' claims are barred by limitations, we affirm. I. FACTS AND PROCEDURAL BACKGROUND On July 2, 2004, the Woods obtained a home-equity loan of $76,000 from Fremont Investment & Loan, secured by a first lien on their homestead located in Fresno, Fort Bend County, Texas. On March 16, 2012, the Woods sent HSBC, the current holder of the lien, a “Notice of Request to Cure.” The Notice alleged that the home-equity lien violated seven provisions of article XVI, section 50(a)(6), of the Texas Constitution and demanded that HSBC cure the alleged violations. HSBC did not respond to the Woods' letter. On July 9, 2012, the Woods sued HSBC, Ocwen, Ameriapraise, Inc., and Joel Brock seeking forfeiture of principal and interest for the constitutional violations, damages for breach of contract, damages for fraud, and a declaratory judgment that (1) the loan and accompanying home-equity lien were void, (2) HSBC failed to cure the constitutional defects, and (3) HSBC must forfeit all principal and interest paid on the loan. HSBC and Ocwen answered on August 10, 2012. HSBC filed a counterclaim on February 28, 2013, seeking a declaration that it was equitably subrogated to the rights of the prior lienholders. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014) On January 3, 2013, the Woods filed a motion for summary judgment on their claim that the fees exceeded three percent of the loan amount. On February 7, 2013, HSBC and Ocwen filed a hybrid traditional and no-evidence motion for summary judgment. In their motion, HSBC and Ocwen asserted that all of the Woods' claims were barred by limitations, that no tolling rule delayed the accrual of the Woods' claims, that the constitutional claims failed as a matter of law, that the Woods' breach of contract claim failed as a matter of law, and that no evidence supported the Woods' fraud claim. 1 On April 4, 2013, the trial court granted HSBC's traditional and no- *589 evidence motions and denied the Woods' motion for summary judgment. The Woods then nonsuited defendants Ameriapraise, Inc. and Joel Brock, and HSBC nonsuited its counterclaim for equitable subrogation against the Woods. The Woods timely appealed. II. SUMMARY JUDGMENT STANDARD OF REVIEW [1] [2] We review the trial court's granting of summary judgment de novo. Mid–Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex.2007). To prevail on a traditional motion for summary judgment, the movant must carry the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Tex.R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). When reviewing a traditional summary judgment granted in favor of the defendant, we determine whether the defendant conclusively disproved at least one element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). A defendant moving for summary judgment on the affirmative defense of limitations ... must (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pleaded or otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered the nature of its injury. If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. KPMG Peat Marwick, 988 S.W.2d at 748 (footnotes omitted). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. Farmers Ins. Exch. v. Rodriguez, 366 S.W.3d 216, 221 (Tex.App.- Houston [14th Dist.] 2012, pet. denied). In deciding whether a disputed material fact issue exists precluding summary judgment, we must take evidence favorable to the non-movant as true, and we must indulge every reasonable inference and resolve any doubts in favor of the non-movant. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994). We will affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003). III. DISCUSSION A. The Woods' claims for monetary and declaratory relief under Texas Constitution article XVI, section 50(a)(6), are barred by the section 16.051 four-year statute of limitations. The Woods alleged in their petition that the home-equity lien on their residence violated article XVI, sections 50(a)(6)(B), 50(a) (6)(E), 50(a)(6)(Q)(v), and 50(a)(6)(Q)(viii), of the Texas Constitution. The Woods contend that their home-equity lien is void because of section 50(c), which states, “No mortgage, trust deed, or other lien on the homestead shall ever be valid unless it secures a debt described by this section ....” Tex. Const. art. XVI, § 50(c). The Woods assert that section 50(c) renders “void but curable” any home-equity lien that does not strictly comply with a provision of section 50(a)(6). Consequently, because an action to remove a cloud on *590 title is not subject to the four-year residual statute of limitations if a lien is void, see Ford © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014) v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex.2007), the Woods argue that the trial court erred in granting summary judgment in favor of HSBC. HSBC and Ocwen respond that the Woods' constitutional claims are barred by the four-year residual statute of limitations. Relying on the Dallas Court of Appeals' decision in Williams v. Wachovia Mortg. Corp., 407 S.W.3d 391 (Tex.App.-Dallas 2013, pet. denied), and the Fifth Circuit Court of Appeals' decision in Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667 (5th Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 196, 187 L.Ed.2d 256 (2013), they contend a lien that violates section 50(a)(6) is voidable. They further assert that section 50(a)(6)(Q)(x) allows a lender to cure a lien that would otherwise be invalid. HSBC argues that the trial court properly granted summary judgment on limitations grounds because a voidable lien is subject to limitations and the Woods did not file suit until eight years after closing the transaction. 1. Home-equity liens that do not comply with section 50(a)(6) are voidable. The fundamental question we face today is whether a home-equity lien that violates section 50(a)(6) of the Texas Constitution is void or voidable. Two courts have recently concluded that constitutionally noncompliant homestead liens are voidable. First, like the Woods, the plaintiffs in Priester obtained a home-equity loan that did not comply with the constitutional requirements. 708 F.3d at 671. Five years after the transaction closed, the plaintiffs sent a letter to the defendant, which had acquired the loan from the original lender, requesting cure under section 50(a)(6)(Q)(x). Id. The defendant took no action to cure the perceived infirmities. Id. The plaintiffs then sued the defendants for a declaratory judgment that the loan and lien on their home were void ab initio, that the defendants had failed to cure, and that the defendants were required to forfeit all principal and interest. Id. In deciding whether a statute of limitations applied to the plaintiffs' claims, the Priester court reasoned: The decision in Doody v. Ameriquest Mortgage Co., 49 S.W.3d 342 (Tex.2001), offers indirect support for the applicability of limitations. The court responded to a question certified by this court on the issue of cure, explaining that a lien cured under Section 50(a)(6)(Q) became valid even if it was “invalid” before the cure. Id. at 347. Discussing forfeiture, the court stated that “if a lien that secures such a loan is voided,” the lender loses all rights to recovery. Id. at 346. That language suggests that the Texas Supreme Court considers liens created in violation of Section 50(a)(6) to be voidable rather than void—a “void” lien could not be “voided” by future action. 708 F.3d at 674. The Priester court further noted that “[b]ecause a cure provision exists in Section 50(a)(6)(Q), liens that are contrary to the requirements of § 50(a) are voidable rather than void from the start.” Id. at 674 n. 4. 2 *591 Second, after the Priester decision was issued, the Dallas Court of Appeals faced a similar question in Williams. In that case, the plaintiff's husband took out a loan on the couple's residence and represented himself to be an unmarried man. Williams, 407 S.W.3d at 392. Six years after she discovered the home-equity loan and lien, the plaintiff sought declaratory judgment that the home-equity lien was void. Id. at 392–93, 398. The trial court granted the defendants' motion for summary judgment, which was based in part on the applicability of the four-year residual statute of limitations found in section 16.051 of the Texas Civil Practice and Remedies Code. Id. at 393. The plaintiff argued on appeal that the home-equity lien on her homestead was void because she did not sign the agreement granting the lien or consent to it. Id. at 395; see Tex. Const. art. XVI, § 50(a)(6)(A). Finding the Priester court's analysis persuasive, the Williams court held that the noncompliant home-equity lien was voidable. Id. at 397. We too find the Priester court's analysis persuasive not only because of its sound reasoning, but also because its conclusion comports with Texas Supreme Court precedent on the key distinction between a void act and a voidable act, which is a party's ability—either through its own action or through the judicial process—to disaffirm, ratify, or confirm a voidable act. See Brazzel v. Murray, 481 S.W.2d 801, 803 (Tex.1972) (“A void act is one entirely null within itself, not binding on either party, and which is not susceptible of ratification or confirmation.... A voidable act ... is binding until disaffirmed, and ... may be made finally valid by failure within proper time to have it annulled, or by subsequent ratification or confirmation.”); Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 674 (1942); Murchison v. White, 54 Tex. 78, 81 (1880); Cummings v. Powell, 8 Tex. 80, 85 (1852); see also Oles v. Curl, 65 S.W.3d 129, 131 n. 1 (Tex.App.-Amarillo 2001, no pet.) (“Simply put, if a supposedly void act can be © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014) validated then the act cannot actually be void.”); In re Moreno, 4 S.W.3d 278, 280–81 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Bayoud v. Bayoud, 797 S.W.2d 304, 309 (Tex.App.-Dallas 1990, writ denied). Keeping this distinction in mind, if we were to decide that a noncompliant home-equity lien is void from the start, then the lien would not be susceptible to correction, ratification, confirmation, disaffirmation, or even cure. While this may have been the case prior to the 1997 constitutional amendment that added the section 50(a)(6)(Q)(x) cure provisions, it is not the case now. The 1997 home-equity loan amendment affords lenders the means to correct mistakes in order to validate a noncompliant home-equity lien. Doody, 49 S.W.3d at 346 (discussing Collier v. Valley Bldg. & Loan Ass'n, 62 S.W.2d 82, 84 (Tex.Com.App.1933, holding approved)). The section 50(a)(6)(Q)(x) cure provisions place noncompliant home-equity liens on the voidable side of the void-voidable scale. 3 *592 Despite the Woods' argument that a plain reading of section 50(c) necessitates finding a constitutionally noncompliant lien void, our conclusion is consistent with the rules governing interpretation of the Texas Constitution: When interpreting our state constitution, we rely heavily on its literal text and must give effect to its plain language. We strive to give constitutional provisions the effect their makers and adopters intended. We construe constitutional provisions and amendments that relate to the same subject matter together and consider those amendments and provisions in light of each other. And we strive to avoid a construction that renders any provision meaningless or inoperative. Doody, 49 S.W.3d at 344 (citations omitted). In adhering to these core principles, the Doody court stated: [T]he cure provision in section 50(a)(6)(Q)(x) applies to all the lender's obligations under the ‘extension of credit’ including section 50(c)'s requirements that to be valid a homestead must secure a debt described by this section. Id. at 345. Accepting the Woods' position would require us to read section 50(c) in isolation and in contravention of Texas Supreme Court precedent, which we decline to do. [3] Accordingly, we hold that because a cure provision exists in the Texas Constitution, homestead liens that do not comply with the constitutional requirements are voidable. Priester, 708 F.3d at 674; Williams, 407 S.W.3d at 396–97. 2. The four-year statute of limitations of Texas Civil Practice and Remedies Code section 16.051 applies to the Woods' constitutional claims. [4] Having determined that noncompliant home-equity liens are voidable, and because such liens are subject to limitations, we must decide which statute of limitations applies to the Woods' constitutional claims. “Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the cause of action accrues.” Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (West 2008). Section 50(a)(6) does not contain an express limitations period. Williams, 407 S.W.3d at 394. Therefore, the Woods' causes of action based on HSBC and Ocwen's alleged violations of section 50(a)(6) are subject to the section 16.051 four-year residual statute of limitations. [5] [6] [7] Anticipating the possibility that section 16.051 would apply to their constitutional claims, the Woods assert that section 16.051 does not apply to their declaratory judgment action to cancel HSBC's lien because it constitutes an action for the recovery of real property. An action for the recovery of real property is one that would support a trespass to try title suit without first invoking the equitable powers *593 of the court to cancel a deed. Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62, 69 (1959); Carr v. Weiss, 984 S.W.2d 753, 762 (Tex.App.-Amarillo 1999, pet. denied); see also Neill v. Pure Oil Co., 101 S.W.2d 402, 404 (Tex.Civ.App.-Dallas 1937, writ ref'd); Landram v. Robertson, 195 S.W.2d 170, 175 (Tex.Civ.App.- San Antonio 1946, writ ref'd n.r.e.). A trespass to try title suit is “the method of determining title to lands, tenements, or other real property.” Tex. Prop.Code Ann. § 22.001(a) (West 2000). It is generally used to clear problems in chains of title or to © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014) recover possession of land unlawfully withheld from a rightful owner. Martin v. Amerman, 133 S.W.3d 262, 265 (Tex.2004). A declaratory judgment action, on the other hand, provides an efficient procedural method for seeking a declaration of rights regarding the construction or validity of deeds by those whose rights are affected by such instruments. Jordan v. Bustamante, 158 S.W.3d 29, 35 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). Initially, we note that the Woods' claim for forfeiture of principal and interest is an action to recover money damages. As such, it is not an action for the recovery of real property. Nor is the Woods' declaratory judgment action to void the home-equity lien —which does not implicate any of the issues resolved by a trespass to try title suit—an action for the recovery of real property. Cf. Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14–10–00090–CV, 2011 WL 1364070, at *4 (Tex.App.-Houston [14th Dist.] Apr. 12, 2011, pet. denied) (mem. op.) (where defendant did not dispute plaintiff's title to property and plaintiff did not dispute defendant's ownership of deed of trust, plaintiff's claim that deed of trust was invalid did not implicate any issues resolved by trespass to try title suit). Citing the general principle that the legal and equitable estates in real property are severed when a mortgagor executes a deed of trust, see Flag–Redfern Oil Co. v. Humble Expl. Co., Inc., 744 S.W.2d 6, 8 (Tex.1987), the Woods further contend that their suit to invalidate the home-equity lien is an action to recover “equitable title.” Therefore, it is an action to recover real property. The Woods then cite two cases, MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334 (1944), and In re Lemons, 281 S.W.3d 643 (Tex.App.-Tyler 2009, no pet.), for the proposition that “the Supreme Court has long held that suits for equitable title are not subject to the 4–year residual statute of limitations.” We reject the Woods' argument. In MacDonald, the plaintiff brought an action in trespass to try title seeking to impose a constructive trust on the legal title to real property acquired by the defendant through an alleged breach of fiduciary duty. 180 S.W.2d at 335–36. The Texas Supreme Court held that if the plaintiff could successfully establish a relationship of trust and confidence with the defendant, then the four-year statute of limitations would not apply to the plaintiff's suit because it would be an action to recover real property. Id. at 338. In Lemons, the plaintiff sued to impose a constructive trust on the legal title to real property purchased by the defendant with funds that were removed from the plaintiff's bank account without authority. 281 S.W.3d at 645. The defendant moved to transfer venue under section 15.011 of the Texas Civil Practice and Remedies Code. Id. at 646. Section 15.011 is a mandatory venue provision stating that “[a]ctions for recovery of real property ... shall be brought in the county in which all or a part of the property is located.” Tex. Civ. Prac. & Rem.Code Ann. § 15.011 (West 2002); Lemons, 281 S.W.3d at 646. The Tyler Court of Appeals held that *594 section 15.011 applied to the plaintiff's claim because “a suit to impose a constructive trust on real property is a suit for the recovery of real property.” Lemons, 281 S.W.3d at 647. Based on the context provided by the facts of MacDonald and Lemons, the more accurate proposition is that suits for equitable title by reason of a constructive trust are not subject to the four-year residual statute of limitations because a beneficiary's interest under a constructive trust will support an action in trespass to try title. See Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471, 476 (1945); Grunwald v. Grunwald, 487 S.W.2d 240, 245 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref'd n.r.e.); Gates v. Coquat, 210 S.W.2d 614, 615 (Tex.Civ.App.-San Antonio 1948, no writ). Here, the Woods are not attempting to impose a constructive trust on the home-equity lien and do not allege that HSBC has acquired legal title through wrongdoing. To the contrary, the Woods have merely asserted a cause of action to cancel their home-equity lien, which will not support an action in trespass to try title and which requires the equitable powers of the court to determine. Cf. Neill, 101 S.W.2d at 403 (“[P]laintiffs' action [to cancel the voidable deeds] rests upon equitable title, assertion of which requires the aid of a court of equity to determine, thus the action is not one to recover real estate but one to remove the impediment to such title, and is barred by the [article 5529, now section 16.051] statute of limitation....”); Johnson v. Wood, 138 Tex. 106, 157 S.W.2d 146, 148 (Tex.Com.App.1941) (a cause of action to cancel a conveyance will not support an action in trespass to try title); see also Groves, 2011 WL 1364070, at *4 (declaratory judgment action to cancel deed of trust did not implicate issues resolved by trespass to try title suit). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014) Because the Woods' declaratory judgment action to cancel their home-equity lien would not support a trespass to try title action and requires the equitable powers of the court to cancel their lien, their declaratory judgment action to cancel the home-equity lien is not an action to recover real property. We conclude that the section 16.051 four-year statute of limitations applies to the Woods' constitutional claims. 3. The Woods' constitutional claims accrued on July 2, 2004, the date the home-equity transaction closed. [8] [9] [10] We now address whether HSBC and Ocwen conclusively proved when the Woods' cause of action accrued. Generally, a cause of action accrues when a wrongful act causes a legal injury. Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 623 (Tex.2011); Williams, 407 S.W.3d at 398. In cases involving a challenge to the validity of a home-equity lien on constitutional grounds, the legal injury occurs on the date the transaction closes. Priester, 708 F.3d at 676; Williams, 407 S.W.3d at 398; Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834, 840 (Tex.App.-Dallas 2008, no pet.); Schanzle v. JPMC Specialty Mortg. LLC, No. 03–09–00639–CV, 2011 WL 832170, at *4 (Tex.App.-Austin Mar. 11, 2011, no pet.) (mem. op.). Here, the Woods are challenging the validity of the home-equity lien on constitutional grounds. Therefore, the Woods' constitutional claims accrued on July 2, 2004, the date the Woods' home-equity loan closed. In reaching this conclusion, we reject the Woods' alternative arguments for a later accrual date. The Woods initially rely on Dessommes v. Dessommes, 543 S.W.2d 165 (Tex.Civ.App.-Texarkana 1976, writ ref'd n.r.e.), in support of their position *595 that no controversy arose with respect to their declaratory judgment action until HSBC failed to cure. Essentially, the Woods argue that, for purposes of determining the accrual date, their legal injury did not occur until the sixty-day period for cure expired. See Tex. Const. art. XVI, § 50(a)(6)(Q)(x). However, Dessommes simply restates the general principle that a statute of limitations begins to run when facts come into existence authorizing a party to seek a judicial remedy, i.e., when the legal injury occurs. 543 S.W.2d at 169 (citing Williams v. Pure Oil Co., 124 Tex. 341, 78 S.W.2d 929, 931 (1935)); see also Knott, 128 S.W.3d at 221. We have already held that the legal injury in this case occurred when the transaction closed on July 2, 2004. The facts that would have alerted the Woods to potential constitutional violations—e.g., fees exceeding three percent of the loan amount— existed when the transaction closed, as did their right to seek a judicial remedy for those violations. Furthermore, nothing in the Texas Constitution prevented the Woods from initiating their declaratory judgment action as soon as the transaction closed. See Priester, 708 F.3d at 675 n. 6 (“[T]here is nothing in the Texas Constitution that suggests that the borrower must seek cure before filing suit.”). [11] The Woods next argue that the statute of limitations was tolled because of HSBC's “continuing and ongoing violations” of the Texas Constitution. The Woods did not explain or cite any legal authority in support of their contention. This issue is therefore inadequately briefed. See Tex.R.App. P. 38.1(i); In re S.A.H., 420 S.W.3d 911, 929 (Tex.App.-Houston [14th Dist.] 2014, no pet.). Because we conclude that the Woods have waived error on this particular argument, we decline to address it. 4 In sum, because a cure provision exists in the Texas Constitution, homestead liens that do not comply with the constitutional requirements are voidable. The section 16.051 four-year residual statute of limitations applies to the Woods' constitutional claims, and their constitutional claims are not actions for the recovery of real property. The Woods' constitutional claims accrued when the home-equity transaction closed on July 2, 2004. The Woods had until July 2, 2008, to file their petition. The Woods did not file their original petition until July 9, 2012. With regard to the Woods' constitutional claims, we conclude that the trial court did not err in granting HSBC's motion for summary judgment on limitations grounds. The Woods' first sub-issue is overruled. 5 *596 B. The Woods' breach-of-contract claim was barred by the section 16.051 four-year statute of limitations. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014) [12] The Woods alleged in their second amended petition that HSBC and Ocwen breached paragraph 13 of the security agreement that created the home-equity lien by charging fees exceeding three percent of the loan amount, in violation of section 50(a)(6)(E) of the Texas Constitution. 6 The Woods contend on appeal that because notice is a prerequisite to filing suit under the security instrument, 7 their cause of action for breach of contract did not accrue until March 16, 2012, the date they sent HSBC notice of the alleged constitutional violations. HSBC and Ocwen respond that the Woods' breach-of-contract claim is barred by limitations because the Woods filed suit more than four years after their claim accrued on July 2, 2004, when the transaction closed. [13] [14] [15] The limitations period for a breach-of-contract cause of action is four years. See Tex. Civ. Prac. & Rem.Code Ann. § 16.051; Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.2002). A claim for breach of contract accrues when the contract is breached. Barker v. Eckman, 213 S.W.3d 306, 311 (Tex.2006); Stine, 80 S.W.3d at 592. Generally, when demand is a condition precedent to the right to sue, the statute of limitations does not begin to run until demand is made, unless the demand is waived or unreasonably delayed. Gabriel v. Alhabbal, 618 S.W.2d 894, 896 (Tex.Civ.App.-Houston [1st Dist.] 1981, writ ref'd n.r.e.). Where demand is a prerequisite to a right of action, the injured party must make the demand within a reasonable time after it may lawfully be made.... The reasonableness of the delay is normally a fact question, but in the absence of mitigating circumstances, the law will ordinarily consider a reasonable time as being coincident with the running of the statute, and an action will be barred if a demand is not made within that period. Barnes v. LPP Mortg., Ltd., 358 S.W.3d 301, 306 (Tex.App.-Dallas 2011, pet. denied) (quoting Stevens v. State Farm Fire & Cas. Co., 929 S.W.2d 665, 671 (Tex.App.-Texarkana 1996, writ denied)). *597 Assuming, for the sake of argument, that HSBC did in fact breach the security agreement by charging fees in excess of three percent of the loan amount, the breach occurred on the date the excessive fees were charged. The Woods referred to certain itemized charges in the HUD–1 settlement statement as evidence that HSBC assessed excessive fees. 8 The HUD–1 identified the settlement date as July 2, 2004, which coincides with the closing date of the transaction. Therefore, the alleged excessive fees were charged, and the Woods' breach-of-contract claim accrued, on July 2, 2004. Absent mitigating circumstances, the Woods had until July 2, 2008, to demand cure and file their breach-of-contract cause of action. The Woods did not demand cure until March 16, 2012, and they did not file their original petition until July 9, 2012. The Woods did not allege in their live petition any mitigating circumstances to justify waiting nearly eight years to demand cure. Therefore, with regard to the Woods' breach-of-contract claim, we conclude that the trial court did not err in granting HSBC and Ocwen's motion for summary judgment on limitations grounds. The Woods' second sub-issue is overruled. IV. CONCLUSION The trial court did not err by granting summary judgment in favor of HSBC and Ocwen on limitations grounds. We overrule both of the Woods' sub-issues on appeal and affirm the trial court's judgment. Footnotes 1 The Woods have abandoned their challenge to the no-evidence summary judgment in favor of HSBC and Ocwen on the fraud claim because the Woods have not raised the fraud issue on appeal. See Tex.R.App. P. 38.1(f), 47.1; Shafaii Children's Trust & Party & Reception Ctr., Inc. v. W. Am. Ins. Co., 417 S.W.3d 614, 622 n. 6 (Tex.App.-Houston [14th Dist.] 2013, pet. denied); Martinez v. El Paso Cnty., 218 S.W.3d 841, 844 (Tex.App.-El Paso 2007, pet. struck) (“When reviewing a civil matter, an appellate court has no discretion to consider an issue not raised in the appellant's brief, even if the ends of justice so require.”); see also Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844, 846 (Tex.Com.App.1927). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Wood v. HSBC Bank USA, N.A., 439 S.W.3d 585 (2014) 2 Priester effectively overruled prior federal district court cases that reached the opposite conclusion. See Ausmus v. Deutsche Bank Trust Co. Nat'l Ass'n, No. 3:13–CV–148, 2013 WL 3938515, at *2–*3 (S.D.Tex. Jul. 29, 2013); see also Moran v. Ocwen Loan Servicing, L.L.C., 560 Fed.Appx. 277, 277 (5th Cir.) (Priester is controlling precedent in Fifth Circuit); Smith v. JPMorgan Chase Bank Nat'l Ass'n, 825 F.Supp.2d 859, 868 (S.D.Tex.2011) (holding that noncompliant home-equity liens are void ab initio), adhered to on reconsideration sub nom.; Santos v. CitiMortgage, Inc., No. 3:11–CV–2592–M–BK, 2012 WL 1058159, at *3 (N.D.Tex. Feb. 7, 2012) (same), rejected in part, 2012 WL 1065464 (N.D.Tex. Mar. 29, 2012). 3 The Woods cite Collier, in support of the proposition that the Doody court created a new “void but curable” status for section 50(a) (6) home-equity liens. Collier stands for the proposition that an invalid lien cannot be ratified unless the authority to ratify it exists under our Constitution or statutes. Collier v. Valley Bldg. & Loan Ass'n, 62 S.W.2d 82, 84 (Tex.Com.App.1933, holding approved). Referring to Collier, the Doody court made clear that the 1997 home-equity loan amendment affords lenders the authority to ratify an invalid lien. Doody, 49 S.W.3d at 346. The Doody court's statement supports our conclusion that constitutionally noncompliant liens are voidable. The Woods' further reliance on York v. State, 373 S.W.3d 32 (Tex.2012), in support of their “void but curable” argument is also misplaced. The York court held that a judgment that violates a bankruptcy automatic stay is void unless a federal bankruptcy court modifies the stay. Id. at 40. The Woods' situation is distinguishable because the lender in a home-equity transaction has the ability under our Constitution to cure the noncompliant lien without the involvement of the federal judiciary or any other third party. Furthermore, the Texas Supreme Court has noted that the rationale for classifying judgments in violation of an automatic stay as void was that bankruptcy law vests “exclusive jurisdiction” in the bankruptcy courts. See Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 923 (Tex.2011) (citing Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940)). That rationale does not apply to the present case. 4 The Woods pleaded two alternative tolling theories in their second amended petition—the discovery rule and equitable tolling. Both theories were addressed in HSBC and Ocwen's motion for summary judgment and in the Woods' response to HSBC and Ocwen's motion for summary judgment. The Woods did not raise these theories on appeal and have therefore abandoned them. See Tex.R.App. P. 38.1(f), 47.1; Shafaii Children's Trust, 417 S.W.3d at 622 n. 6; Martinez, 218 S.W.3d at 844 (“When reviewing a civil matter, an appellate court has no discretion to consider an issue not raised in the appellant's brief, even if the ends of justice so require.”); see also Clonts, 294 S.W. at 846. 5 In an additional argument against the applicability of a statute of limitations to their constitutional claims, the Woods characterize their declaratory judgment action as a defense to foreclosure. According to the Woods, because defenses are not governed by the statutes of limitations, their declaratory judgment action is not barred by limitations. We have indicated in the foreclosure context that a lender's failure to comply with the constitutional requirements is in the nature of an affirmative defense. Wilson v. Aames Capital Corp., No. 14–06–00524–CV, 2007 WL 3072054, at *1 (Tex.App.-Houston [14th Dist.] Oct. 23, 2007, no pet.) (mem. op.). However, potential defendants like the Woods cannot “use a declaratory judgment to prematurely adjudicate defenses to liability that may not yet exist.” Transcon. Realty Investors, Inc. v. Orix Capital Mkts., LLC, 353 S.W.3d 241, 245 (Tex.App.-Dallas 2011, pet. denied) (citing Calderon v. Ashmus, 523 U.S. 740, 748, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998), for the proposition that under the federal constitution, a party cannot use a declaratory judgment to obtain an advance ruling on an affirmative defense). Nothing in the record before us indicates that the Woods were actually faced with foreclosure; thus, their liability may not yet exist, and because we are prohibited from issuing advisory opinions, Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993), we decline to treat the Woods' declaratory judgment action as a defense to foreclosure. 6 Paragraph 13 of the security agreement reads, in pertinent part: “Lender may not charge fees that are expressly prohibited by this Security Instrument or by Applicable Law.” The term “Applicable Law” is defined as “all controlling applicable ... state and local statutes ....” 7 Paragraph 19 of the security agreement states, in pertinent part: Neither Borrower nor Lender may commence ... any judicial action ... that arises from the other party's actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party ... of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action. 8 For purposes of the HUD–1, “settlement means the process of executing legally binding documents regarding a lien on property that is subject to a federally related mortgage loan. This process may also be called ‘closing’ or ‘escrow’ in different jurisdictions.” 24 C.F.R. § 3500.2(b) (2014). End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 24.1. Suspension of Enforcement, TX R APP Rule 24.1 Vernon's Texas Rules Annotated Texas Rules of Appellate Procedure Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos) Rule 24. Suspension of Enforcement of Judgment Pending Appeal in Civil Cases (Refs & Annos) TX Rules App.Proc., Rule 24.1 24.1. Suspension of Enforcement Currentness (a) Methods. Unless the law or these rules provide otherwise, a judgment debtor may supersede the judgment by: (1) filing with the trial court clerk a written agreement with the judgment creditor for suspending enforcement of the judgment; (2) filing with the trial court clerk a good and sufficient bond; (3) making a deposit with the trial court clerk in lieu of a bond; or (4) providing alternate security ordered by the court. (b) Bonds. (1) A bond must be: (A) in the amount required by 24.2; (B) payable to the judgment creditor; (C) signed by the judgment debtor or the debtor's agent; (D) signed by a sufficient surety or sureties as obligors; and (E) conditioned as required by (d). (2) To be effective a bond must be approved by the trial court clerk. On motion of any party, the trial court will review the bond. (c) Deposit in Lieu of Bond. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 24.1. Suspension of Enforcement, TX R APP Rule 24.1 (1) Types of Deposits. Instead of filing a surety bond, a party may deposit with the trial court clerk: (A) cash; (B) a cashier's check payable to the clerk, drawn on any federally insured and federally or state-chartered bank or savings- and-loan association; or (C) with leave of court, a negotiable obligation of the federal government or of any federally insured and federally or state-chartered bank or savings-and-loan association. (2) Amount of Deposit. The deposit must be in the amount required by 24.2. (3) Clerk's Duties; Interest. The clerk must promptly deposit any cash or a cashier's check in accordance with law. The clerk must hold the deposit until the conditions of liability in (d) are extinguished. The clerk must then release any remaining funds in the deposit to the judgment debtor. (d) Conditions of Liability. The surety or sureties on a bond, any deposit in lieu of a bond, or any alternate security ordered by the court is subject to liability for all damages and costs that may be awarded against the debtor--up to the amount of the bond, deposit, or security--if: (1) the debtor does not perfect an appeal or the debtor's appeal is dismissed, and the debtor does not perform the trial court's judgment; (2) the debtor does not perform an adverse judgment final on appeal; or (3) the judgment is for the recovery of an interest in real or personal property, and the debtor does not pay the creditor the value of the property interest's rent or revenue during the pendency of the appeal. (e) Orders of Trial Court. The trial court may make any order necessary to adequately protect the judgment creditor against loss or damage that the appeal might cause. (f) Effect of Supersedeas. Enforcement of a judgment must be suspended if the judgment is superseded. Enforcement begun before the judgment is superseded must cease when the judgment is superseded. If execution has been issued, the clerk will promptly issue a writ of supersedeas. Credits Eff. Sept. 1, 1997. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 24.1. Suspension of Enforcement, TX R APP Rule 24.1 Notes of Decisions (82) Rules App. Proc., Rule 24.1, TX R APP Rule 24.1 Current with amendments received through 3/15/2015 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Rule 11. Agreements To Be in Writing, TX R RCP Rule 11 Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part I. General Rules (Refs & Annos) TX Rules of Civil Procedure, Rule 11 Rule 11. Agreements To Be in Writing Currentness Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record. Credits Oct. 29, 1940, eff. Sept. 1, 1941. Amended by order of July 15, 1987, eff. Jan. 1, 1988. Editors' Notes COMMENT--1988 The amendment makes it clear that Rule 11 is subject to modification by any other rule of Civil Procedure. Notes of Decisions (567) Vernon's Ann. Texas Rules Civ. Proc., Rule 11, TX R RCP Rule 11 Current with amendments received through 3/15/2015 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1