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### MEMORANDUM OPI NIO N No. 04-09-00555- CV & N o. 04-09-00702- CV Penelope F ANNING , Ana B erg man, Celia Cisneros, B arba ra O fsowitz, and L inda McEvoy , Appellants

v. J ames P LACE and Ge rry Saum, Appellee s Fr om the 73rd Judi cial District Court, B exar County , Texas

Trial Court No. 2009-CI -10922 Honora ble Kar en Pozz a, Judge Pre siding 1 Opinion by : Steven C. Hilbig, Just ice Sitt ing: Kar en Ang elini, J ustice

Phy lis J . Speedlin, J ustice Steven C. Hilbig, Just ice Deliver ed and F iled: Aug ust 25, 2010 REVERSED AND REMANDED , TEMPORARY I NJ UNCTI ONS DI SSOL VED Appellants appea l the trial court’s order s g ranting two temporar y injunctions. Wit hout addre ssing the merits of the injunctive relief , we hold the order s g ranting the temporar y injunctions do not meet the specific ity require ments o f T ex as Rule of Civil Procedur e 683. Acc ording ly , we

1 ... T h e f i r s t o r d e r g r a n t i n g t e m p o r a r y i n j u n c t i o n w a s s i g n e d b y t h e H o n o r a b l e K a r e n P o z z a a n d t h e s e c o n d o r d e r w a s s i g n e d b y t h e H o n o r a b l e J a n e t L i t t l e j o h n .0 4

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reve rse the trial court’s order s, dissolve the temporar y injunctions, a

nd rema nd the case to the trial court for further proce eding s. BACK GR OUND All of the parties in this case own condominiums at Ba rring ton Condomini ums and are either prese nt or past boar d members of the condomini um association. Disputes ar ose among the par ties reg arding Appellants’ actions as Boa rd members. J ames Place and Ger ry Saum, in their individual capa cities, sued Appellants for brea ch of fiduciar y duty , fra ud, neg lige nce, g ross neg lige nce, and for decla ratory and injunctive relief

. Place and Saum first obtained a temporar y injunction that order ed the Appellants: Cease and desist from holding any future m ee t i ng of the Boa rd of Direc tors of the Ba rring ton Condomini um Association (" Association ”) whi ch purports to be conducting business on behalf of the Association unless said meeting s are proper ly noticed and called strictly pursuant to the By laws and direc ted to the following leg ally constituted Boa

rd of Dir ector s, to wit: (a.) Penelope “ Penny ” F anning , President (b.) Ana Rosa Be rg man, Vice President (c.) Celia “Sallie” Cisneros, Sec reta ry (d.) Jean Goe tz, Treasure r (e.) Ger ry Saum (f.) J ames Place I f one or more of the above Bo ar d m em b ers are remove d or repla ced by the membership of the Association at a duly held and constituted mee ting, or if one or more of the said m em b er s t erms of office expire, then notice shall be delivere d to their leg ally

elec ted and/or duly

appointed succ essor. The a ppellants filed an inter locutory appea l of this order on Septembe r 2, 2009. I n the meantime, Place and Saum obtained a second temporar y i n j u n ct i o n . The second injunction provided the appe llants were enjoined and r estraine d:

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Fr om taking any activity as the Boa rd of Direc tors of the Ba

rring ton Condomini um Association (“A ssociation”) which purports to be conducting business on behalf of the Association unless said meeting s are (i) proper ly noticed and called s t ri ctly pursuant to the Dec lara tions and By laws of the Association and (ii) are among only th following le g ally

constituted Boa

rd of Dir ector

Members, to-w it: (a.) Penelope “ Penny ” F anning , President (b.) Ana Rosa Be rg man, Vice President (c.) Celia “Sallie” Cisneros, Sec reta ry (d.) Jean Goe tz, Treasure r (e.) Ger ry Saum (f.) J ames Place I f o ne or more of the above Boa rd members are remove d or repla ce d b y t h e membership of the Association at a duly held and constituted meeting , o r if one or more of the said members terms of office expire, then notice and participa tion shall be to their leg ally

elec ted and/or duly

appointed succ essor(s)

.
The second injunction also restra ined the appellants from t er m i n at ing a manag ement contra ct or withdrawing funds from t h e as s o ci ati on unless such action was the result of a majority vote of a leg ally constituted Boa

rd of Direc tors. Additionally , the second in j u n ct i on prohibited any board meeting from taking place without notice and par ticipation of Place, Saum a nd J ean G oetz. Both injunctions included the f ollowing lang uag e: That unless the def

endants a re te mporarily

enjoined as set forth here in, D efe ndants will continue to act and pass resolutions in the purported capa city of, and in the name of, the Boa

rd of Direc tor [si c] for and on behalf of the Ba rring ton C o n d ominium Association, when in fac t said Def endants lack the authority and/or capa city to sit as a Boa rd of Direc t o rs or to act and/or pass resolutions in the name of the Boa rd of Direc tors, or act or pass resolutions for or on behalf of the Ba rring ton Condomini um As s o ci ation; said actions and/ or resolutions has and will subject the Ba rring t o n Condomini um A ssociation to liability , cause irrepa rable injury to the Plaintiffs and the Ba rr i n g ton Condomini um Association without leg al reme dy to preve nt the conduct be fore it occurs.
The a ppellants appe al both order s g rantingthe tempora ry injunctions.

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DISCUSSIO N The appellants arg ue that the two injunction order s are void beca use they do not comply with the mandatory require ments of Texas Rule of Civil Procedur e 683. Rule 683 requires the order g ranting the temporar

y injunction “ set forth the rea sons for its issuance” and be “spec ific in terms.” T E X . R. C I V . P. 683. The provisions in Rule 683 are mandatory and must be strictly followed. Qwest Commc’s. Corp. v. AT & T Corp. , 24 S.W .3d 334, 337 (Tex. 2000). Fa ilure of a temporar y injunction order to meet the strict require ments of Rule 683 rende rs the order fata lly defe ctive and void. Qwest , 24 S.W .3d at 337. An order that only rec ites “irre para ble injury will result” if injunctive relief is not g rante d does not comply with the s pecif icity require ments of R ule 6 8 3

. S ee In dep. Capital Mgmt., L.L. C. v . Co llins , 261 S.W .3d 792, 795-96 (Tex. App.—Dallas 2008, no pet.) (injunction order simply setting out elements nece ssary for relief , and failing to i d enti fy the injury from denial of the injunction, was conclusory and void); Au t oNation, Inc. v. Hatfield , 186 S.W .3d 576, 581 (Tex. App—Houston [14t h Dist.] 2005, no pet.) (mere re ci t al of “irre para ble harm” does not meet Rule 683’s specific ity require ments). When an order on l y s t ates that harm will occur if a party is not restra ined from taking the action soug ht to be restra ined, and there are not underly ing fac ts g iven in the order, t he order is conclusory and void. Kotz v. Imperial Capital Bank , 04-09-00433- CV, 2010 WL 1063919, *1 (Tex. App.—San Antonio Mar. 24, 2010, no pet.); see also City of Corpus Christ i

v. Friends of the Coliseum , 311 S.W .3d 706, 708 -709 (Tex. App.—Corpus Christi 2010, no pet. h.). I n Kotz , we held the order g ranting an injunction was not sufficie nt to satisfy Rule 683 when it did not provide specific rea sons why injury would result if an injunction was not issued. Kotz , 2010 WL 1063919, at *2. The intervenor s soug ht an injunction to restra i n Carole Kotz from taking possession of cer

tain commerc ial rea l estate, commu n i ca t i n g with tenants on the proper ty , or

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rec eiving any rents from the tenants under lease s held by the intervenor s. The order gra n t ing the injunction read a s follows: The Court finds that I nterve nors Patrick Man and Grace Man wil l suffer irrepa rable injury in their possession and use of the Subject Property in the event that the reque sted injunctive relief is not gra nted, that t hey have no adequate remedy at law, and that the reque sted injunctive relief is nece ssary to prese rve the status quo pending final trial. Id

. at *1. We held the order was conclusory beca use the order did not set forth any underly ing fac ts to support the finding that “irre para ble injury in [t he Mans’] possession and use of the Subject Property ” will occur . Id

. (citing Arkoma Basin Exploration Co. v. FMF Associates 1990-A Ltd. , 249 S.W .3d 380, 389 n. 32 (Tex. 2008)(“ ‘conc lusory ’ is define d as: expressing a fac tual infere nce without stating the underly ing fac ts on which t h e i n fe re n ce is based” ). We stated: “At most, this lang uag e char acte rizes by what means harm will occur unless Kotz is enjoined from taking possession and use of t he subjec t property

—but does not state or explain the reasons why irrepa rable injury will result absent a n injunction.” Id . at *2. Her e, the order s state that unless the appellants are restra ined from taking any actions, Place and Saum will suffe r irrepa rable injury “without leg al reme dy to preve nt the conduct befor e it

occur s.” 2 This lang uag e, as the lang uag e in Kotz , does not state the rea sons why Place and Saum will be injured if the appellants are not restra ined from acting

. See Kotz , 2010 WL 1063919, at *2 and

case s cited there in. Ra t h er, the lang uag e mere ly conclude s Saum and Place will suffe r irrepa rable harm if the board is not prevented from acting

. The specific ity require ments of Rule 683 are not satisfied by mere ly stating that “def endants are enjoined from doing X beca use X will be done unless

2 ... A l t h o u g h t h e o r d e r s s t a t e t h e a s s o c i a t i o n w i l l b e s u b j e c t t o l i a b i l i t y i f t h e i n j u n c t i o n s a r e n o t i s s u e d , t h e a s s o c i a t i o n i s n o t a p a r t y a n d t h e o r d e r d o e s n o t i n c l u d e u n d e r l y i n g f a c t s t o s u p p o r t t h i s c o n c l u s i o n .

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so enjoined.” Byrd Ranch, Inc. v. Interwest Sav. Ass’n , 717 S.W .2d 452, 454 (Tex. App.—For t Worth 1986, no writ). CONCLUSION The order s are conclusory and do not provide specific rea sons why Place and Saum would be harme d if the i njunctions did not issue. Kotz , 2 0 1 0 WL 1063919, at *1; Friends of Coliseum , 311 S.W .3d at 708 -709. Be cause we conclude the order s g ranting the temporar y injunctions fail to meet the specific ity require ments of Rule 683, they are void. We reve rse the order s, dissolve the temporar y injunctions and remand this matter to the tr ial court for further proce eding s.
Steven C. Hilbig, Just ice

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