in Re Health Discovery Corporation

In re Health Discovery Corp. IN THE TENTH COURT OF APPEALS No. 10-04-00125-CV IN RE HEALTH DISCOVERY CORPORATION Original Proceeding OPINION GRANTING PETITION FOR WRIT OF INJUNCTION In this original proceeding, Relator Health Discovery Corporation seeks an injunction to enjoin Respondents, Bill G. Williams, Shirley K. Williams, W. Steven Walker, and Automated Shrimp Corporation, from selling any share of the Relator corporation pending resolution of an interlocutory appeal from the denial of a motion for a temporary injunction by the 74th District Court. In the appeal, Relator contends the trial court should have issued the injunction to preserve the status quo pending resolution of the dispute in that court. We will grant injunctive relief to preserve our jurisdiction and preserve the subject matter of the appeal. At first blush, this case appears to be procedurally similar to In re Andrea Gayle Smith, which we dismissed for want of jurisdiction because we had no authority to issue an injunction to preserve the status quo pending an appeal. In re Andrea Gayle Smith, No. 10-03-00390-CV, 2004 WL 254079, slip op. at 3 (Tex. App.—Waco February 11, 2004, orig. proceeding). As we noted in Smith, we have limited injunctive powers. Id. slip op. at 2. However, as the Fort Worth Court observed some years ago: It has been held in many cases that where an original petition for writ of injunction is brought pending the appeal of the trial court's denial of a similar injunction, the appellate court should issue the writ to protect its jurisdiction over the appeal. See, e.g., Reyes, 619 S.W.2d at 27; Dawson, 417 S.W.2d at 653; Madison, 42 S.W.2d at 86. The subject matter of such an appeal is whether the trial court properly refused to grant the requested temporary injunction. Pendleton Green Associates v. Anchor Savings Bank, 520 S.W.2d 579, 582 (Tex. Civ. App.—Corpus Christi 1975, no writ) (per curiam). Granting the injunction preserves the subject matter of the appeal and the effectiveness of the court's decision on the appeal should the relator prevail. See id. EMW Mfg. Co. v. Lemons, 724 S.W.2d 425, 426-27 (Tex. App.—Fort Worth 1987, orig. proceeding). In Reyes, the Fort Worth Court had enjoined the sale of property pending an appeal from the refusal of the district court to grant a temporary injunction preventing a sale. Reyes v. Atkins, 619 S.W.2d 26, 27 (Tex. Civ. App.—Fort Worth 1981, orig. proceeding). In Dawson, the Tyler Court of Civil Appeals issued an injunction to protect its jurisdiction and preserve the subject matter of the litigation pending appeal from the order of the trial court denying a temporary injunction. Dawson v. First Nat. Bank of Troup, 417 S.W.2d 652, 657 (Tex. Civ. App.—Tyler 1967, orig. proceeding). The Dallas Court had observed some years earlier in Madison v. Martinez: [I]f the effect of the refusal of the trial court to continue in force the restraining order is to destroy the subject-matter of the appeal, and thereby prevent the effective operation of any judgment this court might render, the jurisdiction of this court would be unlawfully invaded, through the means of the destruction of the subject-matter of the appeal, and the power to issue a proper writ to prevent such condition rests in this court. It was made clear that, if the restraining order did not issue from this court, appellees would execute at once the writ of restitution, and appellants would thereby be ousted of the possession of their alleged homestead before this court could determine their appeal from an order permitting appellees to take such course. If this court should hold, on the merits of this appeal, that the district court erred in refusing to grant the temporary writ of injunction, and should reverse the case with instruction to the judge of the district court to grant the temporary writ, there would be nothing in such an event on which such judgment could operate, and the judgment of this court would be a nullity. Madison v. Martinez, 42 S.W.2d 84, 86 (Tex. Civ. App.—Dallas 1931, writ ref’d) (referring to now repealed article 1823 of the Revised Civil Statutes of Texas, a predecessor statute to section 22.221(a) of the Government Code). In Pendleton Green Associates v. Anchor Savings Bank, the Corpus Christi Court of Civil Appeals issued a temporary injunction to protect its jurisdiction over a pending appeal and to preserve the subject matter of the appeal. Pendleton Green Associates v. Anchor Savings Bank, 520 S.W.2d 579, 582 (Tex. Civ. App.—Corpus Christi 1975, orig. proceeding) (per curiam). Justice Gonzalez, joined by Chief Justice Phillips, has catalogued other cases in which courts of appeals have noted their power to issue writs of injunction to protect their jurisdiction. Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 658 (Tex. 1992) (Gonzalez, J. “Opinion Accompanying Order Overruling Motion for Leave to File Petition for Writ of Mandamus and Motion for Temporary Relief”). Here, Relator pleads that a sale of its shares by Respondents will destroy its ability to obtain effective relief in the trial court. The trial court refused to preserve the status quo pending its determination of the issues. Relator has filed an interlocutory appeal from the denial of its motion for a temporary injunction. Following the language of Lemons and the cases cited therein, we believe that Relator is entitled to an injunction to preserve our jurisdiction over and the subject matter of the pending interlocutory appeal while we decide its merits. We grant the petition for injunctive relief and will issue an injunction—using the terms of the trial court’s temporary restraining order—restraining Respondents from selling shares of Relator pending a final decision in the direct appeal, Cause No. 10-04-00126-CV. No bond is required of Relator as a condition to the issuance of this injunction as it is issued under authority of section 22.221(a) for the purpose of protecting our jurisdiction. See Tex. Gov’t Code Ann. § 22.221(a) (Vernon 2004); Collier v. Central Natl Bank, 564 S.W.2d 828, 829 (Tex. App.—Austin 1978, orig. proceeding) (citing repealed article 1823 of the Revised Civil Statutes); Dawson, 417 S.W.2d at 654 (also citing repealed article 1823). We express no opinion on the merits of the pending interlocutory appeal. Respondents’ motion to reconsider our order granting emergency temporary relief is denied. Respondents’ motion for sanctions is denied. The Clerk shall issue the writ. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissenting) Petition granted Order delivered and filed July 7, 2004 [OT06]