Phillip Roberts v. Randall Roberts and Roberts Publishing Company, Inc.

IN THE TENTH COURT OF APPEALS No. 10-05-00134-CV Phillip Roberts, Appellant v. Randall Roberts and Roberts Publishing Company, Inc., Appellees From the 74th District Court McLennan County, Texas Trial Court No. 2004-559-3 MEMORANDUM Opinion Phillip Roberts brings this interlocutory appeal from an order dissolving a temporary injunction in his favor and replacing it with a temporary injunction in favor of Randall Roberts and Roberts Publishing Company (“RPC”). Phillip contends in two issues that: (1) the court abused its discretion by dissolving the first temporary injunction and replacing it with another; and (2) the court properly granted the first temporary injunction. We will affirm. This appeal and the underlying lawsuits arise from a dispute between Phillip and Randall, who are brothers, concerning ownership and control of RPC, a family-owned business, and the alleged wrongful conversion of assets belong to RPC. Phillip, then president of RPC, hired counsel to file suit in Midland County in the name of RPC against Randall for wrongful conversion of corporate assets. Randall, then vice-president and secretary of RPC, joined Phillip as a third-party defendant, making similar allegations against Phillip. During the pendency of the suit, Phillip was convicted of a felony and sentenced to prison.[1] Randall called a special meeting of RPC shareholders to be held on January 23, 2004, about one week before a scheduled pretrial hearing. At this meeting, the shareholders elected Randall as president and his alleged paramour as secretary/treasurer. At a directors meeting later that day, the directors approved a resolution to dismiss the corporation’s lawsuit against Randall. Phillip (through counsel) challenged the legitimacy of the specially-called shareholder’s meeting on several grounds at the pretrial hearing. It was brought to the attention of the Midland court that a regularly-scheduled shareholders meeting was to be held later in February. That court continued the trial setting so that the shareholders could resolve the issues of: (1) whether counsel hired by Phillip retained authority to represent RPC in the suit; (2) whether the specially-called meeting of January 23 was valid; and (3) how corporate shares were allocated between Phillip and Randall. Shortly before the February shareholders meeting however, Phillip obtained an ex parte temporary restraining order from a McLennan County court prohibiting Randall or RPC from holding the shareholders meeting, from transferring corporate assets other than in the ordinary course of business, from dismissing the Midland County lawsuit, and from allowing Randall to act as president or appointing someone else as president. The Waco court subsequently converted the TRO to a temporary injunction following a hearing. Randall and RPC perfected an interlocutory appeal from that injunction. Several months after the entry of the temporary injunction, Phillip mailed a letter to “all publishers” doing business with RPC. Purporting to act as president of RPC, Phillip advised the publishers that he was “suspending the payment of all management fees effective immediately” due to “the sluggish economy.” In response, the publishers advised RPC that they were no longer paying the management fees. Randall and RPC filed a motion to dissolve the temporary injunction with the Waco court arguing that the cessation of payment of management fees would “destroy[ ] the company” and cause irreparable harm. Randall and RPC asked the court to enter an injunction against Phillip prohibiting him from acting as president of RPC or from otherwise interfering with the operations of RPC. After a hearing, the court[2] granted the motion of Randall and RPC to dissolve the temporary injunction and enter a different temporary injunction. Phillip contends in his first issue that the court abused its discretion by dissolving the previous temporary injunction and replacing it with another because the court “did not allow the parties to present testimony at the hearing.”[3] The hearing consisted primarily of statements by opposing counsel regarding their respective views of the pertinent facts and the legal effect of those facts. Counsel for Randall and RPC offered two documents in evidence. The court took “judicial notice of everything in the file” then asked whether the witnesses’ testimony would differ in any significant respect from the attorneys’ summaries.[4] Counsel for Randall and RPC responded that he had “proferred pretty well what we think the proof is going to be.” The court then asked Phillip’s counsel, “[A]re there any witnesses you want to call for this?” Counsel stated that some of the publishers were available to testify but he didn’t “think they w[ould] disagree with [his summary of the pertinent facts].” Statements of counsel do not generally constitute evidence unless made under oath. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997); Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 338 (Tex. App.—Texarkana 2004, pet. denied). However, the oath requirement can be waived if the opposing party fails to object when he knows or should know that an objection is necessary. Id. Phillip’s counsel should have known that an objection was necessary when Judge Strother asked whether the available witnesses would provide testimony any different than what had been stated by counsel and advised counsel that he did not think an evidentiary hearing was necessary. Phillip did respond that Judge Strother should not dissolve the prior injunction “without the benefit of all that evidence” which Judge Mayfield heard when he granted the initial injunction. Phillip never called or attempted to call a single witness and was not prevented from doing so despite his appellate protestations to the contrary. He did not pursue an objection to the lack of a formal evidentiary hearing in a motion for new trial or other post-order motion. At best, the statements of Phillip’s counsel would constitute an objection to dissolving the prior injunction without the introduction of evidence. To the extent that Phillip’s complaint relates to the court’s decision to grant a temporary injunction in favor of Randall and RPC without hearing live testimony, he has failed to preserve that complaint for appellate review. See Tex. R. App. P. 33.1(a)(1); Banda, 955 S.W.2d at 272; Russ, 128 S.W.3d at 338. To the extent that Phillip’s complaint relates to the court’s decision to dissolve the prior temporary injunction, we will conclude hereinafter that the court had sufficient evidence before it to dissolve the injunction. We review an order dissolving an injunction for an abuse of discretion. See Lee-Hickman’s Invs. v. Alpha Invesco Corp., 139 S.W.3d 698, 702 (Tex. App.—Corpus Christi 2004, no pet.) (per curiam); Chase Manhattan Bank v. Bowles, 52 S.W.3d 871, 879 (Tex. App.—Waco 2001, no pet.). An injunction may be dissolved upon a showing of changed circumstances which have altered the status quo since the granting of the injunction.[5] See Chase Manhattan Bank, 52 S.W.3d at 878-79; Murphy v. McDaniel, 20 S.W.3d 873, 878 (Tex. App.—Dallas 2000, no pet.). Here, Randall and RPC offered in evidence the letter that Phillip, after the entry of the temporary injunction, mailed to the publishers purporting to suspend the requirement that they pay management fees to RPC. They also offered in evidence a letter from the publishers’ attorney advising RPC that the publishers intended to suspend payment of the management fees accordingly. Because Randall and RPC presented evidence of changed circumstances which would alter the status quo, we cannot say that the court abused its discretion by dissolving the temporary injunction. Id. Accordingly, we overrule Phillip’s first issue and do not reach his second issue. We affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurring and dissenting) Affirmed Opinion delivered and filed February 8, 2006 [CV06] [1] See Roberts v. State, 141 S.W.3d 685 (Tex. App.—Waco 2004, pet. ref’d) (per curiam). [2] The initial injunction was granted by the Honorable Alan Mayfield, the elected judge of the 74th District Court of McLennan County. Judge Mayfield was unavailable for the hearing on the motion to dissolve this injunction, so it was heard by the Honorable Ralph Strother, the elected judge of the 19th District Court of McLennan County. See Tex. Gov't Code Ann. § 74.094(a) (Vernon 2005). [3] Phillip’s first issue presents 2 sub-issues: (1) whether the court conducted an “inadequate hearing”; and (2) whether Randall and RPC presented evidence of changed circumstances sufficient to justify the dissolution of the temporary injunction. Phillip does not challenge the sufficiency of the evidence to support the court’s decision to grant Randall’s and RPC’s request for a temporary injunction. [4] A trial court cannot take judicial notice of testimony from a prior hearing unless a transcription of the testimony is offered in evidence. See Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 539-40 (Tex. App.—San Antonio 2004, pet. denied); Escamilla v. Est. of Escamilla, 921 S.W.2d 723, 726 (Tex. App.—Corpus Christi 1996, writ denied). Nevertheless, we presume that this requirement may be waived if no objection is made to a proponent’s failure to offer the transcription in evidence. See Tex. R. App. P. 33.1(a)(1). [5] A trial court also retains the inherent authority to dissolve an injunction absent a showing of changed circumstances. See GXG, Inc. v. Texacal Oil & Gas, Inc., 882 S.W.2d 850, 852 (Tex. App.—Corpus Christi 1994, no writ); Tober v. Turner of Tex., Inc., 668 S.W.2d 831, 835 (Tex. App.—Austin 1984, no writ). However, a court will not generally be found to have abused its discretion by refusing to dissolve an injunction absent a showing of changed circumstances. See Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717, 721 (Tex. App.—Corpus Christi 1999, pet. dism’d w.o.j.); Tober, 668 S.W.2d at 835.