Opinion
No. 05-10-01660-CV
Opinion Filed October 6, 2011.
On Appeal from the Probate Court No. 2, Dallas County, Texas, Trial Court Cause No. PR-10-447-2.
Before Justices MOSELEY, LANG, and MYERS.
MEMORANDUM OPINION
Mary Gromer appeals from the trial court's order overruling her motion to dissolve a permanent injunction. In six issues, Gromer argues the trial court violated (1) the Texas Rules of Civil Procedure and (2) the due process clauses of the U.S. and Texas Constitutions by not giving appellant an opportunity to present her case at the temporary injunction hearing; (3) the court abused its discretion by granting a permanent injunction at the temporary injunction hearing; (4) ordering sanctions against appellant for violating a temporary restraining order when appellant had insufficient notice of that order; (5) failing to allow Gromer an opportunity to present her case at the hearing on the motion to dissolve; and (6) failing to file findings of fact and conclusions of law. We affirm.
Background and Procedural History
Mary Gromer and Janet Mack are daughters of 84 year-old Valma Marie Stokley. Gromer and Mack became involved in a bitter guardianship dispute over Stokley, who suffers from dementia and is incapacitated. In early February of 2010, Gromer, who lives in California, came to Dallas, Texas, and removed Stokley from the assisted living facility where she was residing.
On February 5, 2010, Mack filed an application for guardianship, temporary restraining order, temporary injunction, and permanent injunction. On February 5, following an ex parte hearing, the probate court issued a temporary restraining order against Gromer enjoining her and anyone acting on her behalf from, among other things, coming within 100 yards of Stokley. Shortly after the court signed the temporary restraining order, and while the temporary injunction application was pending, Gromer drove Stokley to Sacramento, California.
On February 9, 2010, the probate court conducted a hearing on Mack's application for a temporary injunction. On February 11, the court signed an order granting the temporary injunction. On that same day, Mack was notified that California Adult Protective Services had located Stokley and taken her to a hospital. Mack and other family members then brought Stokley back to Dallas. On February 23, 2010, the probate court held an evidentiary hearing on Mack's application for a permanent injunction. Gromer was in attendance with counsel, who made an opening statement, cross-examined witnesses, presented evidence, and objected to testimony. The probate court began the hearing by reminding both sides that "this matter is set for thirty minutes," and it gave each side ten minutes. There were no objections from either party to the time limits set by the court. Neither side moved for a continuance. On February 24, the probate court signed a permanent injunction that, among other things, enjoined Gromer and anyone acting on her behalf from coming within 100 yards of Stokley. Gromer did not appeal the permanent injunction. On that same day, the court held a separate hearing regarding Mack's request for sanctions against Gromer. On March 12, 2010, the probate court signed an order finding Gromer violated the court's February 5 temporary restraining order and February 11 temporary injunction. The court sentenced Gromer to thirty days in the Dallas County Jail but suspended execution of the sentence and ordered it to begin if and when Gromer violated the court's permanent injunction.
Both the temporary and permanent injunctions required that Stokley remain in the jurisdiction of the probate court and prevented Gromer and anyone acting on her behalf from coming withing 100 yards of Stokley, taking possession of, selling, or converting Stokley's property, or using any credit cards or other financial instruments of Stokley.
At the close of the February 23 permanent injunction hearing, the court stated that "[a]t 2:30 tomorrow afternoon the Court will hear the request for sanctions."
On April 29, 2010, Gromer filed a petition for writ of mandamus with this Court arguing the probate court abused its discretion by granting the temporary and permanent injunctions. We denied the petition. Gromer subsequently filed a "re-urged" petition for writ of mandamus that we treated as a motion for reconsideration. We denied the motion.
On June 15, 2010, the probate court heard testimony and evidence regarding Mack's application for permanent guardianship. On June 23, the court signed an order concluding Stokley was incapacitated and appointing Mack as guardian of the person and estate of Stokley.
On October 29, 2010, Gromer filed a motion with the probate court to dissolve the permanent injunction. The hearing was held on November 30, 2010. Gromer did not present any evidence or testimony at the hearing. On December 1, the probate court signed an order overruling the motion to dissolve the permanent injunction. Gromer's request for findings of fact and conclusions of law was filed on December 30, 2010. This appeal followed.
Discussion
Gromer brings the following issues in this appeal: (1) the trial court's ruling violated Texas Rule of Civil Procedure 681 by failing to allow Gromer "an opportunity to present her case at the temporary injunction hearing"; (2) the trial court's ruling violated the Due Process Clauses of the U.S. and Texas Constitutions "by failing to allow Gromer to defend herself at the temporary injunction hearing"; (3) "[t]he trial court abused its discretion by granting a permanent injunction at the temporary injunction hearing"; (4) the trial court abused its discretion when it ordered sanctions against Gromer "for violating a temporary restraining order, about which she had insufficient notice"; (5) the trial court abused its discretion by failing to allow Gromer "an opportunity to present her case at the hearing" on Gromer's motion to dissolve the permanent injunction; (6) the trial court "failed to file findings of fact and conclusions of law."
Rule 681 states, "No temporary injunction shall be issued without notice to the adverse party." Tex. R. Civ. P. 681.
At the outset, we note that Gromer's brief raises issues attacking the probate court's prior orders granting temporary and permanent injunctions. But Gromer did not appeal those orders. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(4) (West 2008) (providing for interlocutory appeals of orders granting or refusing a temporary injunction); City of Reno v. Stephens, No. 06-08-00049-CV, 2008 WL 2437560, *1 (Tex. App.-Texarkana 2008, no pet.) (mem. op., not designated for publication) ("[a] final judgment granting or denying a permanent injunction is an appealable order and would be reviewed by this Court under an abuse of discretion standard"). As a result, questions as to whether the probate court erred in granting injunctive relief, or whether it properly sanctioned Gromer, are beyond the scope of this appeal. When, as in this case, the appeal is from an order denying a motion to dissolve, and earlier orders granting injunctive relief were not appealed, we do not consider the propriety of the trial court's prior decision to grant injunctive relief. Cf. Murphy v. McDaniel, 20 S.W.3d 873, 877 (Tex. App.-Dallas 2000, no pet.) (interlocutory appeal from order granting motion to dissolve; initial order granting temporary injunctive relief was not appealed). We presume the injunction was not improvidently granted and the record as a whole supports the trial court's action. See id. We do not "review the reporter's record from the hearing on the motion to grant to ascertain if the evidence supports such a grant." Id. Our review here is limited to the narrow question of whether the probate court abused its discretion by overruling Gromer's motion to dissolve the permanent injunction.
A determination of whether to dissolve an injunction lies within the sound discretion of the trial court, and its determination will not be overruled absent a clear abuse of discretion. See Universal Health Servs. v. Thompson, 24 S.W.3d 570, 580 (Tex. App.-Austin 2000, no pet.) (citing Tober v. Turner of Texas, Inc, 668 S.W.2d 831, 834 (Tex. App.-Austin 1984, no writ)); Cellular Marketing, Inc. v. Houston Cellular Telephone Co., 784 S.W.2d 734, 735 (Tex. App.-Houston [14th Dist.] 1990, no writ). A trial court may modify an injunction because of fundamental error or changed circumstances, "but has no duty to reconsider the grant of an injunction if the movant fails to present new evidence showing fundamental error or changed conditions." Universal Health Servs., 24 S.W.3d at 580 (emphasis in original) (citing Henke v. Peoples State Bank, 6 S.W.3d 717, 721 (Tex. App.-Corpus Christi 1999, pet. dism'd w.o.j.)). "The purpose of a motion to dissolve is `to provide a means to show changed circumstances or changes in the law that 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.'. Kassim v. Carlisle Interests, Inc., 308 S.W.3d 537, 540 (Tex. App.-Dallas 2010, no pet.) (quoting Tober, 668 S.W.2d at 836). "Thus, a trial court generally has no duty to dissolve an injunction unless fundamental error has occurred or conditions have changed." Kassim, 308 S.W.3d at 540.
Fundamental error exists "in those rare circumstances in which 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); see also In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999); Universal Health Servs., 24 S.W.3d at 580. Changed circumstances are conditions that altered the status quo existing after the injunction was granted or that made the injunction unnecessary or improper. See Universal Health Servs., 24 S.W.3d at 580; City of San Antonio v. Singleton, 858 S.W.2d 411, 412 (Tex. 1993) (citing Henke, 6 S.W.3d at 721). "Changed circumstances may include an agreement of the parties, newly revealed facts, or a change in the law that make the temporary injunction unnecessary or improper." Murphy, 20 S.W.3d at 877.
At the hearing on the motion to dissolve, Gromer did not present any evidence and she did not ask for an opportunity to present evidence. Gromer also did not object on the grounds that she had evidence she wanted to present or that she was somehow denied an opportunity to be heard, and she did not attempt to make an offer of proof or file a bill of exceptions. The argument offered by Gromer's counsel was that she did not know the location or medical condition of her mother and that he brought the motion "to get some clarification for Ms. Gromer to have some access to her mom." But Gromer did not provide any evidence of changed circumstances or reveal fundamental error. We therefore see no abuse of discretion in the probate court's decision to overrule the motion to dissolve. Moreover, since Gromer did not lodge an objection in the probate court, any argument that the court erred by not allowing her an opportunity to be heard or "an opportunity to present her case" may not be considered on appeal. See Tex. R. App. P. 33.1(a)(1).
As for Gromer's contention that the trial court erred by failing to file findings of fact and conclusions of law, despite being asked to do so, findings and conclusions are not appropriate when a court rules, as in this case, on a motion without hearing any evidence. See IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997) (noting examples where findings and conclusions would be inappropriate, including "any judgment rendered without an evidentiary hearing"); see also Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.-Houston [14th Dist.] 1990, no pet.) (there is no duty on a trial court to file findings of fact or conclusions of law where there has been no trial); Kaminetzky v. Park Nat'l Bank of Houston, No. 01-03-01079-CV, 2005 WL 267665, at *5 (Tex. App.-Houston [1st Dist.] Feb. 3, 2005, no pet.) (mem. op., not designated for publication) ("[w]here no trial has occurred, the trial court is under no duty to file findings of fact and conclusions of law"). Furthermore, a request for findings of fact and conclusions of law must be filed within twenty days after the date the judgment was signed. See Tex. R. Civ. P. 296. In this case, the court's order overruling the motion to dissolve was signed on December 1, 2010, but Gromer's request for findings of fact and conclusions of law was filed on December 30, 2010, more than twenty days after the order was signed. See id. We therefore overrule Gromer's issues.
We affirm the trial court's judgment.