Dismissed in Part and Reversed and Rendered in Part and Opinion filed

February 14, 2023.

In The

Fourteenth Court of Appeals

NO. 14-21-00178-CV

NO. 14-21-00179-CV

NO. 14-21-00180-CV

SHAWN DEANE GRUSS, AS INDEPENDENT EXECUTOR OF THE 

ESTATE OF MAURITA J. GALLAGHER; AND NUCLEAR SOURCES 

AND SERVICES, INC., Appellants 

V.

GARY W. GALLAGHER, DANIELLE KEOGH, BRENT R. CALDWELL,

AND DIVERSIFIED MANAGEMENT SERVICES, LLC, INDIVIDUALLY 

AND AS TRUSTEES OF NSSI ACQUISITION TRUST; DANIEL 

WEBSTER KEOGH; NSSI ACQUISITION TRUST; AND NSSIDMS 

HOUSTON, LLC, Appellees 

On Appeal from the Probate Court No. 3 

Harris County, Texas

Trial Court Cause Nos. 442,656, 442,656-401, and 442,656-402

O P I N I O N 

In three consolidated appeals from identical interlocutory judgments 
2 

rendered in three trial court cases, we conclude we have appellate jurisdiction over 

paragraphs 6 and 7 of the judgments under section 51.014(a)(4) of the Civil 

Practice and Remedies Code. We reverse the second sentence of paragraph 6 and 

paragraph 7 of the judgments, declare these parts of the judgments void for failure

to fix the amount of security to be given, and order them dissolved. After 

concluding that the trial court erred in granting a motion to dissolve temporary 

injunction in the first sentence of paragraph 6 of the judgments, we reverse this 

sentence and render judgment denying the motion to dissolve. After determining

that we lack appellate jurisdiction over paragraphs 3-5 of the judgments, we 

dismiss the fourth, fifth, sixth, and seventh issues for lack of jurisdiction. Because 

judicial efficiency does not militate against requiring the appellants to file a 

separate original proceeding, we do not treat the appellants’ brief as a petition for 

writ of mandamus.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Nuclear Sources and Services, Inc. (the “Company”) is a closely 

held corporation founded by Robert Gallagher, the husband of Maurita Gallagher.

The Company processes nuclear and other toxic waste chemicals. Before his death 

Robert owned 100% of the stock of the Company. Robert died on October 8, 2014,

and the assets of his estate, including the Company stock, passed under the terms 

of his will to his surviving spouse Maurita. 

Maurita died on August 25, 2015, and the stock of the Company became an 

asset of Maurita’s estate. Robert’s daughter, Shawn Gruss, qualified as 

Independent Executor of the Estate of Maurita Gallagher. Shawn asked her brother 

Gary W. Gallagher (“Gary”), son of Robert and a beneficiary of Maurita’s Estate, 

to assist Shawn in handling the Company.

On August 16, 2016, Shawn as Independent Executor of the Estate of 
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Maurita Gallagher (the “Executor”) and Gary as Member of the Board of Trustees 

of NSSI Acquisition Trust (“Acquisition Trust”), an entity created for the purpose

of buying 100% of the outstanding common stock of the Company (the “Shares”), 

signed a Stock Purchase Agreement (the “Agreement”) effective as of May 1, 

2016. The Agreement provided terms and conditions for Acquisition Trust to

purchase the Shares from the Executor. The Agreement was signed in the offices 

of Brent R. Caldwell, a lawyer who represented the Executor when the Agreement 

was drafted and signed. Caldwell was also a member of the Company’s Board of 

Directors and a trustee of Acquisition Trust.

The Agreement provided that the aggregate purchase price for the Shares 

was $2,405,882.50 (the “Purchase Price”). It is undisputed that to date, Acquisition 

Trust has not paid the Executor any part of the Purchase Price. Various disputes 

arose relating to the Company, including a dispute between the Executor and 

Acquisition Trust as to the meaning of the Agreement’s language and as to whether 

the Independent Executor or Acquisition Trust owns the Shares. 

The First Case

In cause number 442,656 in Harris County Probate Court Number 3,

1

Plaintiffs Sandra Bentley, Timothy Meyers, and Christina Meyers, beneficiaries of 

the Estate (the “Bentley Parties”), each individually and derivatively on behalf of 

the Company filed claims against the Executor, Gary, Daniel Webster Keough

(Gary’s son-in-law), Danielle Keough (Gary’s daughter), Caldwell, Diversified 

Management Services, LLC (“Diversified”), Acquisition Trust, and NSSIDMS 

Houston, LLC (“NSSIDMS”). In this case (the “First Case”), the Bentley Parties 

asserted the following claims: (1) a declaratory judgment action against all 

1 This cause number was assigned when the Executor filed an application to probate the will of 

Maurita Gallagher.
4

defendants seeking declarations that (a) the Agreement is void and unenforceable; 

(b) any purported sale of the Shares by the Executor without court approval is 

void; and (c) the Business Services Agreement, and Gary and Daniel’s Executive 

Employment Agreements are void as a matter of law; (2) breach-of-fiduciary-duty 

claims against Gary, Daniel, Caldwell, and Gruss; (3) waste of corporate asset 

claims against Gary, Daniel, and Caldwell; (4) an action to rescind certain

transactions against Gary, Daniel, and Caldwell; (5) fraud claims against Gary, 

Acquisition Trust, and Diversified, (6) conversion claims against all defendants, 

(7) purported unjust enrichment claims against all defendants, (8) a request for a 

constructive trust against Diversified and NSSIDMS, (9) a request for appointment 

of a receiver for the Company, and (10) a request for the appointment of an 

auditor. The Executor settled the Bentley Parties’ claims against her, and the 

Bentley Parties assigned their claims against the other defendants to the Executor.

In the First Case, the Executor also asserted a crossclaim against Caldwell, Gary, 

and Danielle as trustees of Acquisition Trust, seeking a declaration that the Estate 

of Maurita J. Gallagher (the “Estate”) is the lawful owner of the Shares.

On August 13, 2019, the trial court signed a temporary injunction in the First 

Case enjoining Gary, Daniel, Danielle, Diversified, Acquisition Trust, and 

NSSIDMS from (1) holding themselves out as stockholders, officers, or directors 

of the Company, (2) taking any position contrary to the Company’s current Board 

of Directors, (3) taking any action in furtherance of a sale of the Company’s stock 

or assets, (4) making any withdrawals or authorizing any transfer of any funds

from any bank or brokerage account of the Company, Diversified, or NSSIDMS, 

(5) taking any action as a shareholder of Acquisition Trust, and (6) engaging in any 

self-dealing transactions or transactions with interested parties under section 

21.418 of the Texas Business Organizations Code. In this injunction, the trial court 

ordered the Company to suspend performance of all contracts with any of the 
5

enjoined parties and ordered the enjoined parties not to take any action against the 

Company to enforce any purported contractual obligation of the Company without 

the trial court’s permission. 

The Second Case

In Cause No. 442,656-401 (the “Second Case”), the Executor sued 

Diversified as Trustee of Acquisition Trust seeking (1) the following declaratory 

relief: (a) a declaration as to the rights of ownership in the Shares, (b) a declaration 

that the Estate owns the Shares, and (c) a declaration that the Estate is entitled to 

reasonable attorney’s fees; and (2) the following injunctive relief: (a) an injunction 

that Diversified not assert any position contrary to the Company’s Board of 

Directors; (b) an injunction that Diversified not make any withdrawals or authorize 

any transfers from any bank or brokerage account maintained by the Company or 

Diversified (to the extent the Company’s funds are in such accounts); (c) an 

injunction that Diversified not engage in any transactions that constitute selfdealing or that otherwise represent transactions with interested parties under 

section 21.418 of the Texas Business Organizations Code; and (d) an injunction 

that Diversified not take any action in furtherance of a sale or potential sale of the 

Company to any buyer.

In the Second Case on August 13, 2019, the trial court signed a temporary

injunction whose body contains the same text as the August 13, 2019 temporary 

injunction in the First Case. In this second August 13, 2019 temporary injunction, 

the trial court enjoins Gary, Daniel, Danielle, Acquisition Trust, and NSSIDMS 

even though none of them is a party in the Second Case.

The Third Case

In Cause No. 442,656-402 (the “Third Case”), the Company sued Gary, 

Daniel, Caldwell, and Diversified asserting the following claims: (1) breach-offiduciary-duty claims against Gary, Daniel, and Caldwell; (2) money-had-and-
6

received claims against Gary, Daniel, and Diversified; (3) Theft Liability Act 

claims against Gary, Daniel, and Diversified; (4) conversion claims against Gary, 

Daniel, and Diversified; (5) a negligence claim against Caldwell; and (6) a 

declaratory-judgment action against all defendants seeking declarations that (a) 

Gary and Daniel’s Executive Employment Agreements are each void as a matter of 

law; (b) the Business Services Agreement between the Company and Diversified is 

void as a matter of law; and (c) the website “nssienvironmental.com” belongs to 

the Company.

The trial court did not issue any temporary injunction in the Third Case. 

Although the Company sought declaratory relief, the Company did not seek a 

declaratory judgment as to the ownership of the Shares or as to the effect of the 

Agreement on the transfer of ownership of the Company’s stock from the Estate to 

Acquisition Trust.

The Trial Court’s Separate Trial Order 

The Executor filed an opposed motion to consolidate the three cases, along 

with two cases regarding the Estate of Robert Gallagher, into a single case. The 

Company joined the motion. In an order entitled “Order on Shawn Deane Gruss’s 

First Amended Motion to Consolidate Joined by [the Company],” the trial court 

stated that this motion came on to be heard, and then proceeded to not rule on 

consolidation. Instead, the trial court stated that “by agreement between counsel, 

two (2) issues shall be tried to the bench.” The trial court ordered that “the cause of 

action pled in [the First Case, the Second Case, and the Third Case] for a 

declaratory judgment as to the effect of the [Agreement] on the transfer of 

ownership of the [Shares] from the [Estate] to [Acquisition Trust] shall be tried to 

the bench on [a specified date].” The trial court also ordered that the claims in one 

of the cases regarding the Estate of Robert Gallagher “shall also be tried to the 
7

bench if same is necessary.”2 Although the trial court stated in this order that there 

was a claim in the Third Case for declaratory relief regarding the Agreement, there 

never has been any claim for such relief in the Third Case. Although the trial court 

suggested that it was ruling on the Executor’s motion to consolidate, the court 

never ruled on this motion, and the First Case, Second Case, and Third Case

remain unconsolidated. Instead of granting consolidation, the trial court effectively 

determined that a declaratory-judgment claim allegedly pending in the three cases 

should be tried together in a bench trial separate from the trial of the remaining 

claims in each of the respective cases. So the substance of the order is a separate 

trial order rather than a consolidation order.

A Bench Trial and A Judgment

The trial court conducted a two-day bench trial on the claims for declaratory 

relief allegedly pending in the three separate cases. After trial the court signed a

judgment that was entered by the clerk in each of the three cases. In the judgments, 

the trial court stated in pertinent part:

• “The causes of action tried to the bench related only to [the Executor’s] 

request for a declaratory judgment as to the effect of the [Agreement] on the 

transfer of ownership of the [Shares] from the Estate to [Acquisition Trust] 

in [the First Case, the Second Case, and the Third Case].”

• The trial court ordered “that pursuant to the terms of the [Agreement], the 

Closing commenced on August 16, 2016 (“Closing”), but has not been 

completed; accordingly, [Acquisition Trust] has sixty (60) days from the 

date of this Order to pay the Purchase Price of . . . ($2,405,882.50) to the 

Estate for the [Shares] as set forth in the [Agreement] between the [Estate]

and [Acquisition Trust] entered into August 16, 2016 dated effective May 1, 

2016 (“Purchase Price”) to finalize the Closing.”

• The trial court ordered “that upon timely delivery of the purchase price the 

2 Apparently trying the claims in this case was not necessary because the record reflects that the 

trial court did not try these claims along with the declaratory-judgment claims mentioned.
8

stock shall remain in the possession, ownership and control of [Acquisition 

Trust]; however, if the trustees of Acquisition Trust fail to pay the Purchase 

Price to the Estate by no later than sixty (60) days from the date of this 

Order, the [Agreement] is null and void and ownership of the [Shares] will 

vest with the Estate, which shall be declared the lawful owner of the 

[Shares].”

• The trial court also ordered “that in the event [Acquisition Trust] pays the 

Purchase Price to the Estate within sixty (60) days of this Order then all 

other terms of the [Agreement] shall remain in place, including but not 

limited to, [the Executor’s] right within sixty (60) days after receipt of the 

Purchase Price to obtain a current Adjusted Valuation (i.e., “Fairness 

Opinion”).”

• The trial court ordered that its “Temporary Injunction, dated August 13, 

2019, is DISSOLVED.”3

• The trial court further ordered “that the current books and records of [the 

Company] shall be made available to [Acquisition Trust] immediately and 

the parties shall cooperate to provide [Acquisition Trust] access to [the 

Company] at a mutually agreed date and time but no later than [within] two 

(2) weeks of the date of this judgment.”

• The trial court ordered “that no expenditures or distributions shall be made 

by [the Company] other than in the ordinary course of business without prior 

approval of the Court.”

The trial court did not rule on the parties’ requests for attorney’s fees but stated in 

the judgment that the parties could submit applications for attorney’s fees as to the 

claims tried in the bench trial within 90 days of the date of the judgment.

The Executor and the Company (collectively the “Gruss Parties”) timely 

perfected an interlocutory appeal from the identical judgments that the trial court 

rendered in each of the three cases (collectively the “Judgments”). In each 

judgment, the trial court ordered all remaining claims in each of the three cases to 

be tried to the bench on a specified date, but before that date, the trial court granted 

the Executor’s motion to abate each of the three cases pending the disposition of 

3 Presumably the trial court meant to dissolve the temporary injunction it issued on that date in 

the First Case and the temporary injunction it issued on that date in the Second Case.
9 

the interlocutory appeal in each case by the Executor and the Company.

The trial court set a supersedeas amount for the Judgments, and counsel for 

the Executor and the Company made a cash deposit in lieu of supersedeas bond in 

this amount. The trial court also issued findings of fact and conclusions of law. 

II. ISSUES AND ANALYSIS

A. Does this court have appellate jurisdiction to review the Judgments?

The Gruss Parties assert in their second issue that the trial court erred in 

dissolving the August 13, 2019 temporary injunctions. In their third issue, the 

Gruss Parties contend that the trial court erred in issuing a new temporary 

injunction in the Judgments. In their fourth, fifth, sixth, and seventh issues the 

Gruss Parties challenge the merits of the relief the trial court granted in the 

Judgments regarding the Agreement and Acquisition Trust’s ability to pay the 

Purchase Price and to own the Shares. In their first issue the Gruss Parties assert

that this court has appellate jurisdiction to consider all issues presented in their 

appellate brief. The Gruss Parties brief various bases on which they assert this 

court has appellate jurisdiction.

Appellees Gary W. Gallagher, Daniel Webster Keogh, Danielle Keogh, 

Diversified Management Services, LLC, NSSI Acquisition Trust, and NSSIDMS 

Houston, LLC (collectively the “Gallagher Parties”) have filed an appellate brief.4

The Gallagher Parties assert that this court has appellate jurisdiction, although they 

do not brief this point or specify the basis on which they think this court has 

jurisdiction in this interlocutory appeal. We are obligated to review sua sponte

issues affecting our appellate jurisdiction. See M.O. Dental Lab v. Rape, 139

S.W.3d 671, 673 (Tex. 2004). Thus, we first address whether and to what extent 

4 Caldwell represents himself on appeal and has not filed a brief.
10 

this court has appellate jurisdiction in these appeals. 

1. Are the Judgments final judgments appealable under section 

51.012 of the Civil Practice and Remedies Code? 

In civil cases in which the judgment or amount in controversy exceeds $250, 

exclusive of interest and costs, a person may take an appeal to the court of appeals 

from a final judgment of a district or county court. See Tex. Civ. Prac. & Rem. 

Code Ann. § 51.012 (West, Westlaw through 2021 R.S.). Under the general rule 

for determining finality, an order issued without a conventional trial on the merits 

is final for purposes of appeal if it (1) actually disposes of all claims and all parties 

before the court or (2) states with unmistakable clarity that it is a final judgment.

See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 192, 200 (Tex. 2001). In each of 

the Judgments, the trial court did not actually dispose of all claims and all parties 

before the court, nor did the trial court state with unmistakable clarity that the 

judgment is a final judgment.5 See id. The trial court did not grant a severance to 

make any of the Judgments final. Under the general rule for determining finality, 

each of the judgments is interlocutory and not appealable under section 51.012 of 

the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 

51.012; Lehmann, 39 S.W.3d at 192, 200. The Gruss Parties and the Gallagher 

Parties agree that this is so. 

2. Are the Judgments final orders under section 32.001(c) of the

Estates Code? 

An exception to the general rule for determining finality applies in probate 

cases because orders resolving certain discrete matters in probate cases may be 

final for purposes of appeal even though these orders do not dispose of all pending

parties and claims. See Tex. Est. Code § 32.001(c) (West, Westlaw through 2021 

5 Indeed, the trial court acknowledged that the Judgments were not final since it abated all 

remaining claims pending this appeal. 
11 

R.S.) (“A final order issued by a probate court is appealable to the court of 

appeals”); Lehmann, 39 S.W.3d at 195; Crowson v. Wakeham, 897 S.W.2d 779, 

781–83 (Tex. 1995); Clark v. Clark, 638 S.W.3d 829, 835 (Tex. App.—Houston 

[14th Dist.] 2021, no pet.). To determine whether the probate order is final on this 

basis, we first consider whether there is a statute specifically declaring this type of 

order to be the end of a particular phase of proceedings under the Estates Code. See 

De Ayala v. Mackie, 193 S.W.3d 575, 578–79 (Tex. 2006); Crowson, 897 S.W.2d 

at 781–83. If there is such a statute, then that statute controls; if not, the order is 

final if, in the order, the probate court disposed of all parties and all issues in a 

particular phase of the probate proceedings of which the order logically may be 

considered a part. See De Ayala, 193 S.W.3d at 578–79; Crowson, 897 S.W.2d at 

781–83; Clark, 638 S.W.3d at 835. Probate proceedings are an exception to the 

“one final judgment” rule. Lehman, 39 S.W.3d at 192. Not every interlocutory 

order in a probate case, however, is appealable. See De Ayala, 193 S.W.3d at 578. 

There is no statute specifically declaring orders like the Judgments to be the 

end of a particular phase of proceedings under the Estates Code. Thus, to 

determine whether the Judgments are final and appealable under the probate 

exception to the general rule for determining finality, we must determine (1) if 

there is a particular phase of the probate proceedings of which the Judgments 

logically may be considered a part, and (2) if, in the Judgments, the probate court 

disposed of all parties and all issues in this phase. See id. at 578–79; Crowson, 897 

S.W.2d at 781–83; Clark, 638 S.W.3d at 836. To make this determination, we 

examine the live pleadings contained in the record.

 In each judgment, the trial court granted certain declaratory relief, and did 

not dispose of the remaining claims. The adjudicated claims for declaratory relief 

are not themselves a particular phase of the probate proceedings; rather, they are 
12 

some of the claims asserted in the cases below. In none of the Judgments did the 

trial court dispose of all parties and all issues in a particular phase of the probate 

proceedings. See De Ayala, 193 S.W.3d at 578–79 (holding that an order refusing 

to remove an executor did not dispose of all parties and all issues in a particular 

phase of the probate proceedings); Crowson, 897 S.W.2d at 781–83 (holding that

interlocutory summary judgment that Crowson was not the common law wife of 

the decedent was interlocutory, even though it adjudicated all of Crowson’s 

heirship claims, because the judgment did not adjudicate all of the other parties’ 

heirship claims); In re Estate of Pustka, No. 14-18-00166-CV, 2018 WL 2926202, 

at *2–3 (Tex. App.—Houston [14th Dist.] Jun. 12, 2018, no pet.) (holding that the 

trial court’s partial-summary-judgment order logically should be considered as part 

of the phase of the probate proceeding in which appellant requested to be 

appointed guardian and sought the removal of the current guardian and that order 

ruling on the former request but not the latter was interlocutory) (mem. op.); Asafi

v. Rauscher, No. 14-09-00800-CV, 2009 WL 4346067, at *1–2 (Tex. App.—

Houston [14th Dist.] Dec. 3, 2009, pet. denied) (holding that the probate court’s 

partial-summary-judgment orders were interlocutory and did not dispose of all 

parties and all issues in a particular phase of the probate proceedings because the 

orders related to claims and issues that remained pending before the probate court) 

(mem. op.). None of the Judgments is a final order under the probate exception to

the general rule for determining finality. See De Ayala, 193 S.W.3d at 578–79; 

Crowson, 897 S.W.2d at 781–83; In re Estate of Pustka, 2018 WL 2926202, at *2–

3; Asafi v. Rauscher, 2009 WL 4346067, at *1–2. 

The Gruss Parties cite Estate of Wright for the proposition that a probate 

court’s “order is appealable if it finally adjudicates some substantial right.” 676 

S.W.2d 161, 163 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.). The Supreme 
13 

Court of Texas has determined that the “substantial right” legal standard is no 

longer the correct legal standard for determining the appealability of a probate 

court order in this context. See De Ayala, 193 S.W.3d at 578–79; Clark, 638 

S.W.3d at 835. The Gruss Parties also cite Christensen v. Harkins, a case that is 

also not on point because it did not apply the current legal standard. See 740 

S.W.2d 69, 72–74 (Tex. App.—Fort Worth 1987, no writ) (op. on mot.). The Gruss 

Parties cite Chase Manhattan Bank v. Bowles. See 52 S.W.3d 871, 878 (Tex. 

App.—Waco 2001, no pet.). But the court in that case applied a legal standard 

based on the “substantial right” test rather than the current legal standard based on

the “particular phase of the probate proceedings.” See id. The Gruss Parties rely on

Estate of Durrill, a case in which the Thirteenth Court of Appeals stated the current 

legal standard, cited Estate of Wright for the “substantial right” legal standard, and 

concluded that the probate court’s judgment was appealable because the judgment 

met “the tests in Crowson and in Lehman that ‘[a] judgment that finally disposes of 

all remaining parties and claims, based on the record in the case, is final.’” 570 

S.W.3d 945, 956–57 (Tex. App.—Corpus Christi 2019, no pet.). The Estate of 

Durrill case is not on point. See id. The Gruss Parties cite Gordon v. Gordon, in 

which the court of appeals recited the correct legal standard and concluded the 

court had appellate jurisdiction, without identifying the particular phase of the 

probate proceedings involved in the case. See No. 11-14-00086-CV, 2016 WL 

1274076, at *2 (Tex. App.—Eastland Mar. 31, 2016, pet. denied) (mem. op.). In its

summary judgment, the probate court in Gordon held that the clause at issue was 

testamentary, that Patrick and Beverly did not by the joint will revoke the trust, and 

that the trust assets were not a part of Patrick’s estate. See id. Thus, the Gordon

court appears to have concluded that the particular phase of the probate 

proceedings was the determination as to whether the trust assets were assets of 

Patrick’s estate and that the trial court’s summary judgment disposed of all parties 
14 

and all issues in that particular phase. See id. The facts of Gordon are materially 

different from the facts in today’s case. See id. 

Under the applicable legal standard from the Supreme Court of Texas, we 

conclude that we do not have appellate jurisdiction under section 32.001(c) and the 

probate exception to the general rule for determining finality. See Tex. Est. Code

§ 32.001(c); De Ayala, 193 S.W.3d at 578–79; Crowson, 897 S.W.2d at 781–83; In 

re Estate of Pustka, 2018 WL 2926202, at *2–3; Asafi v. Rauscher, 2009 WL 

4346067, at *1–2.

3. Are parts of the Judgments subject to an interlocutory appeal 

because they grant a temporary injunction?

Because the Judgments are interlocutory, they are not appealable unless 

explicitly made so by statute. Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex.

1998). The Gruss Parties assert that in parts of the Judgments the trial court granted 

a temporary injunction, and thus this court has interlocutory appellate jurisdiction 

under section 51.014(a)(4) of the Civil Practice and Remedies Code. See Tex. Civ. 

Prac. & Rem. Code Ann. § 51.014(a)(4) (West, Westlaw through 2021 R.S.). This 

statute provides that “a person may appeal from an interlocutory order of a . . . 

statutory probate court . . . that . . . grants or refuses a temporary injunction.” See

id. But, an appellant may not use an appeal under this statute as a vehicle for 

obtaining an interlocutory appeal of other rulings not subject to an interlocutory

appeal that are made in the order in which the trial court granted or refused a 

temporary injunction. See Clark, 638 S.W.3d at 837. To the extent the trial court 

granted a temporary injunction as well as non-injunctive relief that is not subject to 

an interlocutory appeal, this statute provides for an interlocutory appeal only from 

the part of the order in which the trial court granted the temporary injunction. See 

Alexander Dubose Jefferson & Townsend LLP v. Chevron Phillips Chem. Co., 540 

S.W.3d 577, 587–88 (Tex. 2018); Clark, 638 S.W.3d at 837. This court bases its
15 

determination as to whether the trial court granted or refused a temporary 

injunction in an order on the substance, character, and function of the order, not on 

its form or title. See Del Valle ISD v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992);

Clark, 638 S.W.3d at 838. 

The Gruss Parties argue that Paragraphs 3-7 of the Judgments require the

parties to take certain actions and therefore the substance of these paragraphs is a 

temporary injunction. See Clark, 638 S.W.3d at 838. In paragraphs 3, 4, and 5, the 

trial court interprets the Agreement and allows the parties to take actions if they 

wish, but the court does not command or prohibit any conduct. See id. The trial

court does not require Acquisition Trust to either pay or not pay the Purchase 

Price. See id. In the first sentence of paragraph 6, the trial court dissolves 

temporary injunctions but does not command or prohibit any conduct.6 See id. 

Under the plain text of the Judgments and considering the Judgments’ substance, 

character, and function, we conclude that paragraphs 3 through 5 and the first 

sentence of paragraph 6 of the Judgments do not grant a temporary injunction and 

are not subject to an interlocutory appeal under this part of section 51.014(a)(4) of 

the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 

51.014(a)(4); Clark, 638 S.W.3d at 838.

However, in the second sentence of paragraph 6 of the Judgments, the trial 

court orders that the current books and records of the Company shall be made 

available to Acquisition Trust immediately and that the parties cooperate to 

provide Acquisition Trust access to the Company at a mutually agreed date and 

time but no later than two weeks after the date of the Judgments. In this sentence, 

the trial court commands the parties, including the Company, to engage in certain 

6

 In the next subsection, we discuss the appealability of this sentence under another part of 

section 51,014(a)(4) of the Civil Practice and Remedies Code.
16

conduct. See Clark, 638 S.W.3d at 838. In paragraph 7, the trial court orders that 

no expenditures or distributions shall be made by the Company other than in the 

ordinary course of business without prior approval of the trial court. In this 

paragraph the trial court prohibits the Company from engaging in certain conduct. 

See id.

The Gallagher Parties assert that these parts of the Judgments are not a new 

injunction because they represent no change from an agreed temporary injunction 

issued in the First Case on June 24, 2019.7 In the prior agreed injunction, the trial 

court enjoins the Executor and any agents, servants, employees, and 

representatives, as well as all those acting in concert with her from (1) making any 

withdrawals or authorizing any transfers from any bank or brokerage account 

maintained by the Company or Diversified, except as is necessary in the ordinary 

course of business to pay trade payables to disinterested and independent vendors 

and payroll expenses of disinterested employees, except that the Executor may be 

paid a $600 per week salary from the Company; (2) engaging in any transaction

that constitutes self-dealing or that otherwise represents transactions with 

interested parties under Texas Business Organizations Code section 21.418; and

(3) taking any action in furtherance of a sale or potential sale of the Company to 

any buyer, except as may be approved by the trial court, with the exception of 

exchange of due diligence materials with Republic Services. This prior injunction 

does not order that the Company’s current books and records be made available to 

any party. Though the first provision of the prior injunction regarding withdrawals

and transfers from any bank or brokerage account maintained by the Company has 

some similarity to paragraph 7 of the Injunctions, there are material differences. In 

addition, in the prior injunction, the trial court enjoined only the Executor and any 

7 The trial court did not issue this prior injunction in the Second Case or in the Third Case.
17 

agents, servants, employees, and representatives, as well as all those acting in 

concert with her. In paragraph 7 of the Judgments, the trial court enjoins the 

Company. We conclude that the second sentence of paragraph 6 and paragraph 7 

of the Judgments are different from the prior injunction in the First Case and do not 

serve to maintain or carry forward the prior injunction.8 Instead, under the plain 

text of the Judgments and considering the Judgments’ substance, character, and 

function, we conclude that the second sentence of paragraph 6 and paragraph 7 of 

the Judgments grant a new temporary injunction and are subject to an interlocutory 

appeal under section 51.014(a)(4) of the Civil Practice and Remedies Code as an 

interlocutory order that grants a temporary injunction, whereas the other parts of 

the Judgments are not subject to an interlocutory appeal under this part of section 

51.014(a)(4). See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4); Qwest

Communications Corp. v. AT & T Corp., 24 S.W.3d 334, 337–38 (Tex. 2000); 

Clark, 638 S.W.3d at 838.

4. Is the first sentence of paragraph 6 of the Judgments subject to an 

interlocutory appeal because in it the trial court grants a motion 

to dissolve a temporary injunction?

The Gruss Parties also rely on the part of section 51.014(a)(4) of the Civil 

Practice and Remedies Code in which the Legislature provides that “a person may 

appeal from an interlocutory order of a . . . statutory probate court . . . that . . . 

grants . . . a motion to dissolve a temporary injunction as provided by Chapter 65.” 

See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4). After the bench trial, 

Acquisition Trust moved to dissolve the trial court’s temporary injunction dated 

August 13, 2019. Under the plain text of the Judgments and considering the

Judgments’ substance, character, and function, we conclude that in the first 

8 To the extent that this prior injunction has not been dissolved or set aside, the injunction 

continues to be in effect in the First Case.
18 

sentence of paragraph 6 the trial court effectively granted this motion to dissolve 

these temporary injunctions. Thus, this court has jurisdiction over the Gruss 

Parties’ interlocutory appeal from the first sentence of paragraph 6 of the 

Judgments under this part of section 51.014(a)(4) of the Civil Practice and 

Remedies Code. See id.; Murphy v. McDaniel, 20 S.W.3d 873, 877 (Tex. App.—

Dallas 2000, no pet.).

5. Does the trial court’s granting of a temporary injunction in part 

of the Judgments or its granting of a motion to dissolve a 

temporary injunction in another part of the Judgments mean that 

all parts of the Judgments are subject to an interlocutory appeal

under section 51.014(a)(4) of the Civil Practice and Remedies 

Code? 

The Gruss Parties assert that because they may pursue an interlocutory 

appeal of the parts of the Judgments in which the trial court granted a temporary 

injunction and the part of the Judgments in which the trial court granted a motion 

to dissolve a temporary injunction, they may appeal every part of the Judgments 

under section 51.014(a)(4) of the Civil Practice and Remedies Code. See Tex. Civ. 

Prac. & Rem. Code Ann. § 51.014(a)(4). The cases the Gruss Parties cite for this 

proposition apply subsection (a)(6) of section 51.014 of the Civil Practice and 

Remedies Code, rather than subsection (a)(4). See Tex. Civ. Prac. & Rem. Code 

Ann. § 51.014(a)(6) (West, Westlaw through 2021 R.S.); Dallas Symphony Ass’n,

Inc. v. Reyes, 571 S.W.3d 753, 760 (Tex. 2019); Delta Airlines, Inc. v. Norris, 949 

S.W.2d 422, 429 (Tex. App.—Waco 1997, writ denied). The language of

subsection (a)(6) is materially different from that of subsection (a)(4). See Tex. 

Civ. Prac. & Rem. Code Ann. § 51.014(a)(6) (stating that “[a] person may appeal 

from an interlocutory order of a district court, county court at law, statutory 

probate court, or county court that . . . denies a motion for summary judgment that 

is based in whole or in part upon a claim against or defense by a member of the 
19 

electronic or print media, acting in such capacity, or a person whose 

communication appears in or is published by the electronic or print media, arising 

under the free speech or free press clause of the First Amendment to the United 

States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 

73”) (emphasis added). Thus, the cases the Gruss Parties cite are not on point. In 

addition, under binding precedent, an appeal under section 51.014(a)(4) of the 

Civil Practice and Remedies Code of the parts of an order or judgment in which the

trial court grants or refuses a temporary injunction or grants or denies a motion to 

dissolve a temporary injunction does not give this court interlocutory appellate 

jurisdiction over other parts of the order or judgment. See Tex. Civ. Prac. & Rem. 

Code Ann. § 51.014(a)(4); Alexander Dubose Jefferson & Townsend LLP, 540 

S.W.3d at 587 (stating that portions of an order can be injunctive in nature and 

appealable, while other provisions of the same order can be interlocutory and 

unreviewable because they do not resemble injunctive relief); Clark, 638 S.W.3d at 

837 (holding that “[t]o the extent the trial court grants a temporary injunction as 

well as non-injunctive relief that is not appealable, [section 51.014(a)(4)] provides 

for an interlocutory appeal only from the part of the order granting the temporary 

injunction”). Thus, we reject the Gruss Parties’ argument that the appealability of 

the trial court’s granting of a temporary injunction and dissolving of a prior 

temporary injunction makes every ruling in the Judgments subject to an 

interlocutory appeal under section 51.014(a)(4). See Alexander Dubose Jefferson & 

Townsend LLP, 540 S.W.3d at 587–88; Clark, 638 S.W.3d at 837. 

6. Does this court have appellate jurisdiction over the nonappealable parts of the Judgments based on State v. Cook United, 

Inc.? 

In the event that this court determines that it has appellate jurisdiction over 

paragraphs 6 and 7 of the Judgments, the Gruss Parties assert that this court has 
20

jurisdiction over paragraphs 3-5 of the Judgments based on “pendent” interlocutory 

appellate jurisdiction under State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex. 

1971).9 The Gruss Parties cite Cook United for the proposition that an order of the 

trial court not subject to interlocutory appeal may be attacked in an interlocutory 

appeal from the trial court’s temporary injunction in so far as the questions raised 

as to the order affect the validity of the temporary injunction.10 See State v. Cook 

United, Inc., 464 S.W.2d 105, 106 (Tex. 1971). The Gruss Parties assert that 

because the trial court based its rulings in paragraphs 6 and 7 on the trial court’s 

interpretation of the Agreement and determination of the parties’ rights in 

paragraphs 3-5, the issues they raise as to paragraphs 3-5 affect the validity of 

paragraphs 6 and 7, and therefore, this court has “pendent” interlocutory appellate 

jurisdiction to address their issues as to paragraphs 3-5.

In Cook United, in an interlocutory appeal from a temporary injunction, the 

defendants asserted two points of error in the court of civil appeals: (1) that the

trial court erred in overruling their pleas in abatement, and (2) that the trial court 

erred in failing to state its reasons in the temporary-injunction order. See id. The 

court of civil appeals sustained both points and reversed the trial court’s 

9 The Gruss Parties also rely on a 2000 unpublished opinion of this court, Santos Ltd. v. Gibson, 

No. 14-00-00151-CV, 2000 WL 1588095 (Tex. App.—Houston [14th Dist.] Oct. 26, 2000, no 

pet.)(not designated for publication). But, because it is an unpublished opinion issued before 

January 1, 2003, this opinion has no precedential value. See Tex. R. App. P. 47.7(b) & 2008 

cmt.; Stearns v. Martens, 476 S.W.3d 541, 548 n.5 (Tex. App.—Houston [14th Dist.] 2015, no 

pet.); Office of Att’y Gen’l v. Long, 401 S.W.3d 911, 915, n.2 (Tex. App.—Houston [14th Dist.]

2013, no pet.).

10 Federal appellate courts apply pendent interlocutory appellate jurisdiction in rare 

circumstances. See Noble Capital Fund Management, L.L.C. v. U.S. Capital Global Investment 

Management, L.L.C., 31 F.4th 333, 336–37 (5th Cir. 2022). The Gruss Parties have not cited and 

research has not revealed any Texas precedent in which a court expressly addresses whether to 

apply this doctrine. Instead, the Gruss Parties effectively assert that the Cook United opinion

applies pendent interlocutory appellate jurisdiction, though the court in that case does not 

expressly mention that doctrine. See Cook United, Inc., 464 S.W.2d at 106–07.
21

temporary-injunction order. See id. The Supreme Court of Texas stated that the 

trial court’s order overruling the plea in abatement was an interlocutory order from 

which no appeal is provided. See id. The high court stated that this order “may be 

attacked in the appeal from the temporary injunction only in so far as the questions 

raised affect the validity of the injunction order.” Id. The Cook United court said 

nothing further regarding the respondents’ challenges to the plea in abatement 

order. See id. at 106–07. The court did not address whether these challenges 

affected the validity of the injunction order or whether the court had interlocutory 

appellate jurisdiction over these challenges. See id. The supreme court proceeded 

to address the challenge to the temporary-injunction order, concluded that this 

challenge lacked merit, reversed the court of civil appeals’s judgment, and 

affirmed the trial court’s temporary-injunction order. See id. To the extent the 

sentence quoted above is a legal rule, the high court did not explain or apply this 

rule. See id. The only authority that the court cited in support of this sentence is 

Texas State Board of Examiners in Optometry v. Carp, 343 S.W.2d 242 (Tex.

1961). 

In Carp, in an interlocutory appeal from a temporary injunction, the 

defendant asserted: (1) that the trial court erred in overruling its plea to the 

jurisdiction and its motion for severance, and (2) that the trial court erred in 

granting the temporary injunction. See id. at 243. The Supreme Court of Texas 

noted that the trial court’s orders overruling the motion for severance and plea to 

the jurisdiction were interlocutory, and that no statute provided for an appeal 

therefrom. See id. The high court stated that these orders “cannot be attacked in an 

appeal from another interlocutory order which is appealable except in so far as the 

questions raised might affect the validity of the latter order.” Id. The Carp court 

said nothing further regarding the petitioner’s challenges to the orders overruling 
22

the motion for severance and plea to the jurisdiction. See id. at 243–47. The court 

did not address whether these challenges affected the validity of the injunction 

order or whether the court had interlocutory appellate jurisdiction over these 

challenges. See id. The supreme court proceeded to address the challenge to the 

temporary-injunction order, concluded that this challenge had merit, reversed the 

court of civil appeals’s judgment, and dissolved the trial court’s temporaryinjunction order. See id. To the extent the sentence quoted above from Carp is a 

legal rule, the high court did not explain or apply this rule. See id. The only 

authority that the court cited in support of this sentence are these two cases: Zanes 

v. Mercantile Bank & Trust Co., 49 S.W.2d 922 (Tex. Civ. App.—Dallas 1932, 

writ ref’d) and Witt v. Witt, 205 S.W.2d 612 (Tex. Civ. App.—Fort Worth 1947, no

writ). See Carp, 343 S.W.2d at 243.

In Zanes the Supreme Court of Texas did not say that interlocutory orders 

not subject to interlocutory appeal may be attacked in an appeal from an appealable 

interlocutory order if the questions raised about the former affect or might affect 

the validity of the latter. See Zanes v. Mercantile Bank & Trust Co., 49 S.W.2d 

922 (Tex. Civ. App.—Dallas 1932, writ ref’d). Instead, the high court ruled that in 

an interlocutory appeal from the trial court’s order granting a temporary injunction 

and appointing a receiver, it was proper for the high court to refuse to address

appellants’ challenges to the trial court’s order on a plea of misjoinder and a plea in 

abatement. See id. at 929. Although the appellants argued that the court should 

consider these challenges because the pleas related to appellee’s right to a

temporary injunction, the high court stated that no statute provided for an 

interlocutory appeal from an order on a plea of misjoinder or on a plea in 

abatement and that the court should not review these rulings on an interlocutory 

appeal from an order appointing a receiver and granting a temporary injunction 
23

“unless a reasonable necessity should exist therefor.” Id. The Supreme Court of 

Texas concluded that to adjudicate the appeal from the temporary-injunction and 

receivership order, it was not necessary to address the challenges to the orders on 

the pleas of misjoinder and abatement. See id. Thus, Zanes does not support the 

proposition stated by the Carp court; instead, Zanes says that interlocutory orders 

not subject to interlocutory appeal may be attacked in an appeal from an appealable 

interlocutory order only if the questions raised about the former are reasonably

necessary to adjudicate the appeal of the latter. See id.

In Witte v. Witte, appellant sought to appeal from the parts of the trial court’s 

order that granted a temporary injunction, as well as the parts that overruled a plea

to the jurisdiction and a plea in abatement. See Witt v. Witt, 205 S.W.2d 612, 615

(Tex. Civ. App.—Fort Worth 1947, no writ). The court of civil appeals cited Zanes

for the following proposition: “We know of no rule of law which would authorize 

the tacking of interlocutory orders from which no appeal lies to those in the same 

case from which an appeal will lie, and thus authorize the appellate court to review 

orders from which no appeal lies.” Id. The Witte court dismissed the appeal to the

extent appellant sought to appeal from the parts of the order that did not grant a 

temporary injunction. See id. Thus, Witte does not support the proposition stated by 

the Carp court. See id. Likewise, the Supreme Court of Texas has cited its opinion 

in Zanes for the proposition that the high court could not address the petitioners’

challenge to an order overruling their plea in abatement because that order was a 

non-appealable interlocutory order, even though it accompanied an appealable 

temporary-injunction order. See Hastings Oil Co. v. Texas Co., 234 S.W.2d 389, 

398 (Tex. 1950).

Thus, the Cook United line of cases is based on Zanes, which at most stands 

for the proposition that interlocutory orders not subject to interlocutory appeal may 
24 

be attacked in an appeal from an appealable interlocutory order only if the 

questions raised about the former are reasonably necessary to adjudicate the appeal 

of the latter. See id. As shown below, we need not address the Gruss Parties’ 

challenges to paragraphs 3-5 to reverse paragraphs 6 and 7 of the Judgments. We 

conclude that no reasonable necessity exists to address the Gruss Parties’ 

challenges to paragraphs 3-5. See Zanes, 49 S.W.2d at 929. Thus, the Gruss 

Parties’ argument as to “pendent” interlocutory appellate jurisdiction does not 

show that this court has interlocutory appellate jurisdiction to review paragraphs 3-

5 of the Judgments.

As discussed above, this court has jurisdiction over the Gruss Parties’ 

interlocutory appeal from paragraphs 6 and 7 of the Judgments under section 

51.014(a)(4) of the Civil Practice and Remedies Code. None of the bases for 

appellate jurisdiction asserted by the Gruss Parties provides this court with 

interlocutory appellate jurisdiction over paragraphs 3-5 of the Judgments. We 

conclude that this court lacks appellate jurisdiction over these paragraphs, and 

therefore we dismiss the fourth, fifth, sixth, and seventh issues for lack of appellate 

jurisdiction.11

B. Should this court dismiss the appeal in cause number 14-21-00180-CV

for the reasons stated by the Gallagher Parties?

The Gallagher Parties assert that this court should dismiss the appeal in 

cause number 14-21-00180-CV because no party in the Third Case sought a 

declaratory judgment as to the effect of the Agreement on the transfer of ownership 

of the Company’s stock from the Estate to Acquisition Trust. Though it is true that

no party sought this relief in the Third Case, the trial court signed an order in 

11 In their first issue, the Gruss Parties assert that this court has appellate jurisdiction to consider 

all issues presented in their appellate brief. This issue assigns no error by the trial court. In any 

event, we conclude that this court has appellate jurisdiction to review paragraphs 6 and 7 of the 

Judgments, but not the remainder of the Judgments. 
25 

which the trial court ordered that “the cause of action pled in [the First Case, the 

Second Case, and the Third Case] for a declaratory judgment as to the effect of 

the [Agreement] on the transfer of ownership of the [Shares] from the [Estate] to 

[Acquisition Trust] shall be tried to the bench on [a specified date]” (emphasis

added). The reporter’s record reflects that the trial court held this bench trial in all 

three cases, and the clerk’s record reflects that the trial court rendered judgment in 

each of the three cases. We conclude that the Gallagher Parties have not shown that 

they are entitled to a dismissal of cause number 14-21-00180-CV on the basis that 

they assert. 

C. Should this court strike the Company as an appellant?

Although the Company timely perfected appeal, the Gallagher Parties 

contend that, the Company is not a proper appellant in these appeals. The 

Gallagher Parties ask this court to strike the Company as an appellant. In support 

of this request, the Gallagher Parties assert that the trial court did not impose any 

new injunction or modify any existing injunction affecting any conduct or claim by 

the Company that might be subject to review at this time. We concluded in section 

II.A.3. above that the second sentence of paragraph 6 and paragraph 7 of the 

Judgments do impose a new injunction. This new injunction affects the Company’s 

conduct because the trial court orders that (1) the Company’s current books and 

records be made available to Acquisition Trust, (2) the parties cooperate to provide 

Acquisition Trust access to the Company, and (3) no expenditures or distributions 

be made by the Company other than in the ordinary course of business without 

prior approval of the trial court. The Company timely appealed from this new 

temporary injunction, and this court has appellate jurisdiction to review this relief 

under section 51.014(a)(4) of the Civil Practice and Remedies Code. See Tex. Civ.

Prac. & Rem. Code Ann. § 51.014(a)(4); Qwest Communications Corp., 24 S.W.3d
26 

at 337–38; Clark, 638 S.W.3d at 838.

The Gallagher Parties also assert that no claim by the Company was tried

and that the trial concerned a declaration of the rights of the parties to the 

Agreement, but the Company is not a party to the Agreement. We have already 

determined that this court lacks appellate jurisdiction over paragraphs 3-5 of the 

Judgments, in which the trial court addressed the rights of the parties to the 

Agreement.

We conclude that the Company is a proper appellant in these appeals, and 

therefore we deny the Gallagher Parties’ request that we strike the Company as an 

appellant.

D. Should this court declare the parts of the Judgment granting a 

temporary injunction void?

As discussed above, the second sentence of paragraph 6 and paragraph 7 of 

the Judgments grant a temporary injunction and are subject to an interlocutory 

appeal under section 51.014(a)(4) of the Civil Practice and Remedies Code. See

Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4). The Texas Rules of Civil

Procedure require that an order granting a temporary injunction fix the amount of 

security to be given by the applicant. See Tex. R. Civ. P. 684. This procedural 

requirement is mandatory, and an order granting a temporary injunction that does 

not meet this requirement is subject to being declared void and dissolved. See

Qwest Communications Corp., 24 S.W.3d at 337; McCurry v. Smith, No. 14-10-

00722-CV, 2011 WL 824882, at *1 (Tex. App.—Houston [14th Dist.] Mar. 10, 

2011, no pet.) (mem. op.). At no place in the Judgments does the trial court fix the 

amount of security to be given as to either of these temporary injunctions. Thus, 

we reverse the second sentence of paragraph 6 and paragraph 7 of the Judgments, 

declare these parts of the Judgments void, and order them dissolved. We sustain 

the third issue to the extent the Gruss Parties challenge the second sentence of 
27 

paragraph 6 or paragraph 7 of the Judgments. To the extent the Gruss Parties 

challenge any other party of the Judgments, we dismiss the third issue for lack of 

appellate jurisdiction.

E. Did the trial court err in granting the motion to dissolve the prior 

temporary injunctions?

In their second issue, the Gruss Parties assert that the trial court erred in 

granting the motion to dissolve the temporary injunctions issued on August 13, 

2019, in the First Case and in the Second Case. Deciding whether to dissolve a 

temporary injunction is a matter that falls within the broad discretion of the trial 

court. See De Los Salmones v. Anchor Development Group, LLC, No. 14-20-

00720-CV, 2022 WL 1218541, at *3 (Tex. App.—Houston [14th Dist.] Apr. 26, 

2022, no pet.) (mem. op.). This interlocutory appeal is from an order granting a 

motion to dissolve the temporary injunctions; this appeal is not from the temporary 

injunctions issued by the trial court on August 13, 2019. Thus, we do not have 

jurisdiction to consider the propriety of the trial court’s decision to grant the 

temporary injunctions. See id.; Cellular Marketing, Inc. v. Houston Cellular 

Telephone Co., 784 S.W.2d 734, 735 (Tex. App.—Houston [14th Dist.] 1990, no 

writ). We presume that the temporary injunctions were not improvidently granted 

and that the record supported the trial court’s action in granting the temporary 

injunctions. See De Los Salmones, 2022 WL 1218541, at *3; Cellular Marketing, 

Inc., 784 S.W.2d at 735. Our review of the trial court’s order dissolving the

temporary injunctions is limited to the narrow question of whether that action by

the trial court constitutes a clear abuse of discretion. See De Los Salmones, 2022 

WL 1218541, at *3. 

The purpose of a motion to dissolve a temporary injunction is not to give a 

party the opportunity to relitigate the propriety of the temporary-injunction order. 

Id. at *4. The trial court has the authority to dissolve a temporary injunction upon a 
28

showing of changed circumstances. Id. Changed circumstances are conditions that

alter the status quo existing after the temporary injunction was granted that make

the injunction unnecessary or improper. Id. 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. Id. The movant bears the burden to 

present new evidence establishing changed circumstances. Id. If the movant fails to 

present new evidence showing fundamental error or changed circumstances, then 

the trial court abused its discretion in granting the motion to dissolve. Id.; Murphy, 

20 S.W.3d at 878–79 & n.4.

The only changed circumstances asserted by the Gallagher Parties are the 

trial court’s rulings on the merits of two declaratory judgment claims and granting 

declaratory relief in the Judgments. The only legitimate purpose of a temporary 

injunction is to preserve the status quo pending trial, and the most expeditious 

relief from an unfavorable preliminary order dissolving an injunction is a prompt 

trial on the merits. See Murphy, 20 S.W.3d at 877. An interlocutory appeal should

not be used to obtain an advance ruling on the issues. See id.

The Gruss Parties argue that the trial court’s rulings on the merits of the 

declaratory judgment claims are not changed circumstances authorizing dissolution 

of the trial court’s otherwise properly granted temporary injunction. See id. at 878–

79. 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. See id. Here, the changed circumstances alleged by the 

Gallagher Parties were not newly revealed facts or a change in the law; rather, the 

“change” was merely an interlocutory judicial determination of the merits of the

declaratory judgment claims. In the Judgments the trial court did not address the 

remaining claims in the three cases, and the trial court did not order any severance 
29

of any claims. We conclude that the trial court’s interlocutory rulings on the merits 

of the declaratory-judgment claims are not changed circumstances authorizing 

dissolution of the trial court’s temporary injunctions. See id. The motion to 

dissolve was not based on fundamental error. Thus, the trial court clearly abused its 

discretion in granting the motion to dissolve the August 13, 2019 temporary 

injunctions. See id. In the Third Case, there was no “Temporary Injunction, dated

August 13, 2019.” Therefore, the trial court clearly abused its discretion in granting 

the motion to dissolve temporary injunction in the Third Case. We sustain the

Gruss Parties’ second issue, reverse this part of the Judgments, and render 

judgment denying the motion to dissolve, and reinstating the temporary 

injunctions.

F. Should this court treat the Gruss Parties’ appellate brief as a petition 

for writ of mandamus?

In the alternative, if this court determines, as it has, that the court lacks 

appellate jurisdiction to consider one or more of the issues in the Gruss Parties’ 

brief, then the Gruss Parties ask this court to treat these parts of their appellate 

brief as a mandamus petition and grant the Gruss Parties mandamus relief. See

CMH Homes v. Perez, 340 S.W.3d 444, 452-54 (Tex. 2011). In the CMH Homes

case, the supreme court instructed the court of appeals to consider the appeal as a 

petition for mandamus because (1) the appellant specifically requested the court of 

appeals to treat its appeal as a mandamus petition, (2) the appellant preserved this 

issue in the high court, and (3) judicial efficiency militated against requiring the 

appellant to file a separate original proceeding since doing so would waste the 

parties’ time and judicial resources by requiring the appellant to file a separate 

document with the title “petition for writ of mandamus” listed on the cover. See id. 

at 453–54.
30 

In the section of their brief in which they ask this court to treat parts of their 

appellate brief as a mandamus petition, the Gruss Parties state in a conclusory 

manner that “the requirements for mandamus relief are satisfied.” They then assert 

that “[f]or the reasons stated in sections II–VI, the trial court abused its discretion 

in signing the Judgment.” But, in sections II–VI of their brief, the Gruss Parties 

present various arguments as to why the trial court reversibly erred and why this 

court should reverse the Judgments on appeal. To establish their entitlement to 

mandamus relief as to the Judgments, the Gruss Parties must show, among other 

things, that the trial court clearly abused its discretion by signing the Judgments.

See In re Akin Gump Strauss Hauer & Feld, LLP, 252 S.W.3d 480, 488 (Tex.

App.—Houston [14th Dist.] 2008, orig. proceeding). Yet, in the referenced

sections II–VI, the Gruss Parties do not argue that the trial court clearly abused its 

discretion or that they are entitled to mandamus relief. In these sections, the Gruss 

Parties do not cite mandamus cases. In the section of their brief in which they ask 

this court to treat parts of their appellate brief as a mandamus petition, the Gruss 

Parties do not brief an argument that the trial court clearly abused its discretion in 

signing the Judgments. The Gruss Parties’ appellate brief does not contain any 

argument or analysis in support of the proposition that the trial court clearly abused 

its discretion by signing the Judgments. See Tex. R. App. P. 52.3(h) (stating that 

“[t]he petition must contain a clear and concise argument for the contentions made, 

with appropriate citations to authorities and to the appendix or record”); In re Akin

Gump, 252 S.W.3d at 495. Even construing the Gruss Parties’ opening brief

liberally, we cannot conclude that the Gruss Parties adequately briefed an

argument that they are entitled to mandamus relief based on the trial court’s clear

abuse of discretion in signing the Judgments. See City of Houston v. G.L., 560 

S.W.3d 744, 751 (Tex. App.—Houston [14th Dist.] 2018, no pet.); In re Akin

Gump, 252 S.W.3d at 495. Thus, if we were to treat the Gruss Parties’ appellate 
31 

brief as a petition for writ of mandamus, the Gruss Parties would not have shown 

their entitlement to mandamus relief due to this briefing waiver. See In re Akin

Gump, LLP, 252 S.W.3d at 495. In this context, judicial efficiency does not 

militate against requiring the appellants to file a separate original proceeding. See

G.L., 560 S.W.3d at 751. Therefore, we do not treat the Gruss Parties’ appellate 

brief as a petition for writ of mandamus. See CMH Homes, 340 SW.3d at 453–54; 

G.L., 560 S.W.3d at 751.

III. CONCLUSION

Under the plain text of the Judgments and considering the Judgments’ 

substance, character, and function, the second sentence of paragraph 6 and 

paragraph 7 of the Judgments grant a new temporary injunction and are subject to 

an interlocutory appeal under section 51.014(a)(4) of the Civil Practice and 

Remedies Code. In the Judgments the trial court does not fix the amount of 

security to be given as to either of these temporary injunctions. Thus, we reverse 

the second sentence of paragraph 6 and paragraph 7 of the Judgments, declare 

these parts of the Judgments void, and order them dissolved.

Under the plain text of the Judgments and considering the Judgments’ 

substance, character, and function, in the first sentence of paragraph 6 of the 

Judgments the trial court effectively granted a motion to dissolve the August 13, 

2019 temporary injunctions. Thus, this court has jurisdiction over the Gruss 

Parties’ interlocutory appeal from this part of the Judgments under section 

51.014(a)(4) of the Civil Practice and Remedies Code. The trial court’s 

interlocutory rulings on the merits of the declaratory-judgment claims are not 

changed circumstances authorizing dissolution of the trial court’s temporary 

injunctions, and the motion to dissolve was not based on fundamental error. 

Therefore, the trial court clearly abused its discretion in granting the motion to 
32

dissolve the August 13, 2019 temporary injunctions. We reverse the first sentence 

of paragraph 6 of the Judgments and render judgment denying the motion to 

dissolve and reinstating the temporary injunctions.

The Gallagher Parties have not shown that the appeal in cause number 14-

21-00180-CV should be dismissed because no party in the Third Case sought a 

declaratory judgment as to the effect of the Agreement on the transfer of ownership 

of the Company’s stock from the Estate to Acquisition Trust. The Gallagher Parties 

have not shown that the Company should be stricken as an appellant.

This court lacks interlocutory appellate jurisdiction over paragraphs 3-5 of 

the Judgments, and therefore we dismiss the fourth, fifth, sixth, and seventh issues 

for lack of appellate jurisdiction. Concluding that judicial efficiency does not 

militate against requiring the appellant to file a separate original proceeding, we do 

not treat the Gruss Parties’ appellate brief as a petition for writ of mandamus.

/s/ Randy Wilson

Justice

Panel consists of Justices Wise, Poissant, and Wilson.