### IN THE TENTH COURT OF APPEALS
No. 10
- 08
- 00234
- CV BRETT OIL COMPANY, C UARENTA STAR CORPORATION, AN D TWENTY OAKS OF TEXAS, INC., DBA TWENTY OAKS CORP. , Appellant s v. FIRST SOURCE ENERGY, L.P. , Appellee

From the 12th District Court Leon Count y, Texas Trial Court No. 0
- 08
- 236

MEMORANDUM OPINION
A temporary injunction was granted by the trial court in Leon County staying an arbitration proceeding pending in Harris County between Brett Oil Company , Cuarenta Star Corporation, and Twenty Oaks o f Texas, Inc., dba Twenty Oaks Corp. , and First Source Energy . An interlocutory appeal to this C ourt followed pursuant to Texas Civil Practice and Remedies Code § 51.014. T EX . C IV . P RAC . & R EM . C ODE A NN . § 51.014 (Vernon 2008). Because no evidence was p resented at the temporary injunction hearing,Brett Oil Company v. First Source Energy, L.P. Page 2

w e find that the trial court abused its discretion in granting the temporary injunction and that the temporary injunction is declared void and order that the temporary injunction is dissolved. Jurisdiction
The granting of a temporary injunction may be appealed by an interlocutory appeal

. T EX . C IV . P RAC . & R EM . C ODE A NN

. § 51.014(a)(4) (Vernon 2008)

. In this case,

t he heading of the injunction is styled “Permanent Injunction ; ” however, the language
of the orde r indicates that the injunction is intended to be a temporary injunction. The Texas Supreme Court has rejected the notion that the form of the order controls the
nature of the order but that “the character and function of an order” determine its
classific ation. See Del Valle Independent School District v. Lopez , 845 S.W.2d 808, 809 (Tex. 1992). See also Qwest Communications International v. AT&T Corp ., 24 S.W.3d 334 (Tex. 2000). It is apparent from the reporter’s record, the briefs of both Appellants an d Appellee , and the order entered that the intent was that a temporary injunction be entered. The last phrase in the order is “until further order of the court , ” which indicates that the order was intended to be temporary. We hold that this is a temporar y injunction and is an appealable interlocutory order under § 51.014(a)(4). T EX . C IV . P RAC

. & R EM . C ODE A NN . § 51.014 (Vernon 2008). Standard of Review The decision to grant or deny a temporary injunction lies within the sound
discretion of the trial cour t, and we will not disturb that decision absent a clear abuse ofBrett Oil Company v. First Source Energy, L.P. Page 3

discretion. Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 204 (Tex. 2002). Because this appeal is from an interlocutory order, this Court may not consider the merits of the underlying lawsuit. Davis v. Huey , 571 S.W.2d 859, 861 (Tex. 1978). The trial court does not abuse its discretion if some evidence reasonably supports its decision. Butnaru , 84
S.W.3d at 211.
I f no evidence is presented at the temporary injunction hearing, absent the parti es' agreement, a writ of injunction is improper. Millwrights Local Union No. 2484 v. Rust Eng ineerin g Co. , 433 S.W.2d 683, 686 (Tex. 1968) ; Wyly v. Preservation Dallas , 165 S.W.3d 460, 464 (Tex. App.

— Dallas, 2005, no pet.). The party applying for the inj unction has the burden of production, and evidence must be adduced under
standard rules of evidence ; testimony by affidavit does not suffice, nor does a sworn petition constitute evidence. Millwrights , 433 S.W.2d at 687 ; Wyly , 165 S.W.3d at 464.
The Hea ring
T he district court did not hear any evidence in support of First Source Energy’s application for injunctive relief but only arguments of counsel. W e are therefore compelled to conclude that there is no evidence to support the court's decision and tha t it abused its discretion in issuing the temporary injunction. Butnaru , 84 S.W.3d at 211.
Motion To Dismiss And Motion To Abate Appellants also complain that the trial court did not dismiss this action as an improper use of the declaratory judgment act or alternatively that the trial court erred when it failed to abate or dismiss the case under the doctrine of dominant jurisdiction.
We do not address these complaints as t hi s is an interlocutory appeal

. These otherBrett Oil Company v. First Source Energy, L.P. Page 4

complaints are not statutorily authori zed to be addressed in an interlocutory appeal and
therefore are not properly brought before this Court.
CONCLUSION Having found the trial court abused its discretion in granting the temporary injunction , 1 we declare the temporary injunction void and orde r that it is dissolved

.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Reversed and remanded Opinion delivered and filed June 17 , 2009 [CV06]

1 The injunction is also void due to the omissions required by Texas Rul es of Civil Procedure 683 and 684, which require that a temporary injunction both set a final hearing in the order and set a bond to be posted. T EX . R. C IV . P ROC . 683, 684. These requirements are mandatory and their absence renders the injunction void. Interfirst Bank San Felipe, N.A. v. Paz Construction Co., e t a l. , 715 S.W.2d 640 (Tex. 1986); Lancaster v. Lancaster , 155 Tex. 528, 291 S.W.2d 303, 308 (Tex. 1956).