Opinion issued=20
April 3, 2008
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-07-00765-CV
PHILIPPE TANGUY, Appellant
V.
DAVID LAUX, Appellee
On Appeal from the =
165th=20
Judicial District
Harris County,=20
Texas
Trial Court Cause =
No.=20
2007-44578
O P I N I O=20
N
<=
/SPAN>In=20
this interlocutory appeal, appellant, Philippe Tanguy, appeals =
from the=20
trial court=E2=80=99s order granting a temporary injunction on =
behalf of appellee,=20
David Laux. See =
Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 =
51.014(a)(4)=20
(Vernon Supp. 2007). Laux=20
filed suit against Tanguy asserting that a judgment debtor of =
Laux=E2=80=99s,=20
Richard Davis, had violated the Texas Uniform Fraudulent Transfer=20
Act
by=20
transferring a 1986 Twin Otter aircraft to Tanguy. The trial court =
issued=20
a temporary injunction prohibiting Tanguy from =E2=80=9Cselling, =
encumbering,=20
transferring and/or relocating from the county=E2=80=9D the =
aircraft. In four issues, Tanguy asserts that (1) =
the=20
temporary injunction order is void on its face; (2) Laux had no =
present=20
right of recovery because he did not have a lien on his judgment =
debtor=E2=80=99s=20
personal property; (3) Laux was not entitled to injunctive relief =
because=20
he did not record his alleged judgment lien in the records of the =
Federal=20
Aviation Administration (=E2=80=9CFAA=E2=80=9D) registry for =
aircraft; and (4) Laux had no=20
greater right in the aircraft than his alleged judgment debtor.=20
We conclude that the =
temporary=20
injunction is not void and that the trial court did not abuse its=20
discretion in issuing a temporary injunction. We therefore=20
affirm.
BackgroundIn 2004, Laux filed =
suit=20
against Richard Davis in district court in Harris County, seeking =
damages=20
for breach of contract in connection with a partnership dispute. =
After a=20
jury trial, the trial court, on or about August 11, 2006, rendered =
a final=20
judgment in favor of Laux and against Davis for $384,126.94. Since =
that=20
time, Laux has been attempting to collect on his =
judgment.
<=
/SPAN>The=20
instant suit was filed against Tanguy, alleging that the transfer =
of the=20
Twin Otter aircraft from Davis to Tanguy violated the Texas =
Uniform=20
Fraudulent Transfer Act. After a temporary restraining order was =
initially=20
issued in favor of Laux, the trial court held a hearing and issued =
the=20
temporary injunction against Tanguy on August 16, 2007 =
(=E2=80=9Cthe August=20
Order=E2=80=9D). The August Order did not set the underlying case =
for trial.=20
<=
/SPAN>Tanguy=20
timely filed a notice of appeal on September 4, 2007. Tanguy filed =
his=20
initial brief in this Court on November 20, 2007, asserting four =
issues,=20
including a challenge that asserted that the August Order was void =
since=20
it did not set the underlying case for trial.
<=
/SPAN>While=20
the appeal of the August Order was pending in this Court, Laux =
filed=20
with the trial court, on =
December 4,=20
2007, a Motion for =
Temporary=20
Injunction Nunc Pro Tunc to add a trial setting to the temporary=20
injunction. In his Motion for Temporary Injunction Nunc Pro Tunc, =
Laux=20
specifically prayed that the trial court =E2=80=9Cvacate the =
judgment previously=20
signed, and enter judgment in accordance with the proposed form =
[the=20
December Order] which is attached to this motion.=E2=80=9D The =
trial court granted=20
Laux=E2=80=99s motion and ordered that =E2=80=9Cthe clerk will =
enter judgment in=20
accordance with the judgment as rendered and signed at this=20
time.=E2=80=9D The trial =
court then signed a=20
temporary injunction on December 6, 2007 (=E2=80=9Cthe December=20
Order=E2=80=9D). The =
December Order contains=20
the same language as the August Order, except that it has an =
additional=20
sentence not in the August Order that states, =E2=80=9CIt is =
further ORDERED,=20
ADJUDGED, and DECREED this matter is scheduled to begin trial on =
May 26,=20
2008.=E2=80=9D
<=
/SPAN>After=20
the trial court signed the December Order, Laux filed his =
appellee=E2=80=99s brief=20
with our Court on December 10, 2007. In the brief, in response to =
the=20
assertion that the August Order was void because it failed to set =
the=20
underlying case for trial, Laux relies on the trial =
court=E2=80=99s grant of the=20
nunc pro tunc order to contend that the failure to set the case =
for trial=20
was a clerical error that was remedied by the December Order. =
Failure to Set=20
Case for Trial on the Merits
<=
/SPAN>In=20
his first issue, Tanguy contends that the temporary injunction is =
void=20
because it fails to comply with the Texas Rules of Civil Procedure =
that=20
require that the case be set for a trial on the merits. ![3DFootnote](3D"")
In his=20
brief, Laux asserts that (1) the failure of the August Order to =
include=20
the statement that the underlying case was set for trial was a =
clerical=20
error that could be remedied by a nunc pro tunc order and (2) the =
December=20
Order that was rendered pursuant to the nunc pro tunc order set =
the case=20
for trial and therefore complied with the requirements for =
temporary=20
injunctions. In his reply brief, Tanguy asserts that the trial =
court=E2=80=99s=20
failure to include a trial setting is a judicial error, not a =
clerical=20
one, and that a nunc pro tunc order may not be used to correct a =
judicial=20
error.
<=
/SPAN>Although=20
the parties refer to the December Order as a nunc pro tunc order, =
it is a=20
temporary injunction that is identical to the August Order, except =
that it=20
adds a trial setting for the case. In his Motion for Temporary =
Injunction=20
Nunc Pro Tunc, Laux specifically prayed that the trial court =
=E2=80=9Cvacate the=20
judgment previously signed, and enter judgment in accordance with =
the=20
proposed form [the December Order] which is attached to this =
motion.=E2=80=9D The=20
trial court granted Laux=E2=80=99s motion and ordered that =
=E2=80=9Cthe clerk will enter=20
judgment in accordance with the judgment as rendered and signed at =
this=20
time.=E2=80=9D
<=
/SPAN>=E2=80=9CWhile=20
an appeal from an interlocutory order is pending, the trial court =
retains=20
jurisdiction of the case and may make further orders, including =
one=20
dissolving the order appealed from . . . .=E2=80=9D Tex. R. App. P. =
29.5. =
=E2=80=9CBut the=20
[trial] court must not make an order that . . . interferes with or =
impairs=20
the jurisdiction of the appellate court or effectiveness of any =
relief=20
sought or that may be granted on appeal.=E2=80=9D Tex. R. App. P. =
29.5(b). =E2=80=9CWhile=20
an appeal from an interlocutory order is pending, . . . the appellate court may review . . =
. a=20
further appealable interlocutory order concerning the same subject =
matter.=E2=80=9D =
Tex. R.=20
App. P. 29.6(a)(1); see Ahmed v. Shimi Ventures, =
L.P., 99=20
S.W.3d 682, 688=E2=80=9389 (Tex. App.=E2=80=94Houston [1st Dist.] =
2003, no=20
pet.).
<=
/SPAN>We=20
have jurisdiction to address the December Order because it is a =
further=20
appealable interlocutory order that concerns the same subject =
matter.=20
See Tex. R. App. =
P.=20
29.5; Ahmed, 99 S.W.3d at =
689. Further, the trial court had =
jurisdiction to=20
dissolve the August Order and to replace it with the December =
Order that=20
concerned exactly the same =
subject=20
matter but with the addition of the trial date, if those actions=20
did not interfere with or =
impair our=20
jurisdiction or the effectiveness of the relief sought in the =
appeal.=20
See Tex. R. App. P. =
29.5; see=20
Ahmed, 99 S.W.3d at 688=E2=80=9389. =
We conclude=20
that the trial court=E2=80=99s actions in dissolving the August =
Order and=20
replacing it with the December Order do not interfere with or =
impair our=20
jurisdiction or the effectiveness of the relief sought in the =
appeal=20
because Tanguy=E2=80=99s =
appellate challenges=20
concerning the substance of the injunction remain alive, despite =
the trial=20
court=E2=80=99s orders, because the two injunctions are substantively the same. =
See Tex. R. App. P. =
29.5.=20
For example, if we =
agreed with=20
Tanguy=E2=80=99s challenges to the merits of the injunction, we =
could reverse the=20
injunction and give him the relief he seeks in the appeal. See =
id.=20
Therefore, the trial court=E2=80=99s actions in dissolving the =
August Order and=20
issuing the December Order on the same subject do not diminish the =
effectiveness of the substantive challenges asserted by Tanguy in =
the=20
appeal, which we address in issues two through four. See id.
<=
/SPAN>Although=20
the substantive challenges by Tanguy are not affected by the trial =
court=E2=80=99s=20
orders, Tanguy also made a procedural challenge to the injunction. =
Tanguy=E2=80=99s procedural challenge asserts that the August =
Order was void on=20
its face because it failed to set the case for trial. Tanguy =
wanted the=20
August Order dissolved due to its lack of the trial setting, and =
the trial=20
court agreed with him by dissolving the order and issuing a new =
injunction=20
in the December Order that included a trial date. We conclude that the dissolution of the =
August=20
Order does not interfere with or impair the effectiveness =
of the=20
relief sought because the trial court gave Tanguy all the relief =
he sought=20
from us. See Tex. R.=20
App. P. 29.5(b). When we=20
addressed an almost identical situation, we said,
A trial court should not be allowed to =
frustrate a=20
party=E2=80=99s right to appellate review. However, that has not =
happened in this=20
case. The amended order merely sets a trial date for a hearing on =
the=20
permanent injunction, as required . . . . The appellant should not =
be able=20
to complain both that the order is void because no trial date is =
set and=20
also that a trial date has been set. The reason for requiring that =
a=20
temporary injunction set a date for trial on the merits is to =
prevent the=20
temporary injunction from becoming effectively permanent, without =
a trial=20
having occurred. That purpose was accomplished here by the setting =
of the=20
trial date. The trial court=E2=80=99s amended order accomplishes =
the purpose of=20
rule 683 by preventing the temporary injunction from becoming =
=E2=80=9Cpermanent=E2=80=9D=20
while the appellant waits indefinitely for a trial on the merits.=20
Moreover, it does not interfere with our power to grant relief on =
appeal.=20
It is unnecessary to vacate this injunction in order to protect =
either=20
appellant=E2=80=99s right to a speedy trial or to effective =
appellate review of=20
the temporary injunction.
Eastern Energy, Inc. v. SBY =
P=E2=80=99ship,=20
750 S.W.2d 5, 6 (Tex. App.=E2=80=94Houston [1st Dist.] 1988, =
no writ).=20
<=
/SPAN>We=20
conclude the trial court had jurisdiction to dissolve the August =
Order and=20
to issue the December Order that set the case for trial. =
See Tex. R. App. P. 29.5;=20
Ahmed, 99 S.W.3d at 689. We=20
hold that the December Order granting the injunction was not void. =
We=20
overrule Tanguy=E2=80=99s first issue.=20
Merits =
of the=20
Temporary Injunction
=
Tanguy=E2=80=99s =
three remaining=20
issues contend that Laux has not met his burden to establish the =
temporary=20
injunction.
A. Standard of Review for the =
Temporary=20
Injunction
=
The=20
decision to grant or deny a temporary injunction lies in the sound =
discretion of the trial court, and the court=E2=80=99s ruling is =
subject to=20
reversal only for a clear abuse of discretion. TMC Worldwide, L.P. v. =
Gray, 178 S.W.3d 29, 36 (Tex. =
App.=E2=80=94Houston [1st Dist.]=20
2005, no pet.) (citing Walling v. Metcalfe, 863 =
S.W.2d 56,=20
58 (Tex. 1993)). We must not =
substitute=20
our judgment for the trial court=E2=80=99s judgment unless the =
trial court=E2=80=99s=20
action was so arbitrary that it exceeded the bounds of reasonable=20
discretion. Id. (citing Johnson v. Fourth Ct. App., =
700=20
S.W.2d 916, 918 (Tex. 1985)). In reviewing an order granting or =
denying a=20
temporary injunction, we draw all legitimate inferences from the =
evidence=20
in a manner most favorable to the trial court=E2=80=99s judgment. =
Id.=20
(citing CRC-Evans Pipeline Int=E2=80=99l v. Myers, 927 =
S.W.2d 259, 262=20
(Tex. App.=E2=80=94Houston [1st Dist.] 1996, no writ)). Abuse of =
discretion does=20
not exist if the trial court heard conflicting evidence and =
evidence=20
appears in the record that reasonably supports the trial =
court=E2=80=99s decision.=20
Id. (citing Davis v. Huey, 571 S.W.2d 859, 862 (Tex. =
1978);=20
Myers, 927 S.W.2d at 262).
B. Elements of Temporary=20
Injunction
<=
/SPAN>A=20
temporary injunction=E2=80=99s purpose is to preserve the status =
quo of the=20
litigation=E2=80=99s subject matter pending a trial on the merits. =
TMC Worldwide, 178 S.W.3d at 36 =
(citing=20
Walling, 863 S.W.2d at 57). A =
temporary=20
injunction is an extraordinary remedy and does not issue as a =
matter of=20
right. Id. To obtain a temporary injunction, the applicant =
must=20
plead and prove three specific elements: (1) a cause of action =
against the=20
defendant; (2) a probable right to the relief sought; and (3) a =
probable,=20
imminent, and irreparable injury in the interim. Id. =
(citing=20
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)). =
An=20
injury is irreparable if the injured party cannot be adequately=20
compensated in damages or if the damages cannot be measured by any =
certain=20
pecuniary standard. Id.
<=
/SPAN>Tanguy does not address any of the =
elements of a=20
temporary injunction in his brief. In his second, third, and =
fourth=20
issues, Tanguy contends that (1) Laux had no present right of recovery =
because he=20
did not have a lien on his judgment debtor=E2=80=99s personal =
property; (2) Laux=20
was not entitled to injunctive relief because he did not record =
his=20
alleged judgment lien in the records of the FAA registry for =
aircraft; and=20
(3) Laux had no greater right in the aircraft than his alleged =
judgment=20
debtor. We construe these as an attack on the =
second=20
element necessary for a temporary injunction=E2=80=94=E2=80=9Ca =
probable right to the=20
relief sought.=E2=80=9D
C. The Second Element: A Probable =
Right to the=20
Relief Sought
=
A probable right to the relief sought is =
shown by=20
alleging a cause of action and presenting evidence that tends to =
sustain=20
it. Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., =
80=20
S.W.3d 601, 607 (Tex. App.=E2=80=94Houston [1st Dist.] 2002, no =
pet.).=20
Laux filed suit against =
Tanguy=20
asserting a cause of action under the Texas Uniform Fraudulent =
Transfer=20
Act. The Texas Uniform Fraudulent Transfer Act =
provides,
A transfer made . . . by a debtor is =
fraudulent as=20
to a creditor, whether the creditor=E2=80=99s claim arose before =
or within a=20
reasonable time after the transfer was made . . . , if the debtor =
made the=20
transfer . . . :
(1)with actual intent to hinder, delay, =
or defraud=20
any creditor of the debtor; or
(2)without receiving a reasonably =
equivalent value=20
in exchange for the transfer . . . , and the =
debtor:
(A)was engaged or was about to engage in =
a=20
business or a transaction for which the remaining assets of the =
debtor=20
were unreasonably small in relation to the business or =
transaction;=20
or
(B)intended to incur, or believed or =
reasonably=20
should have believed that the debtor would incur, debts beyond the =
debtor=E2=80=99s ability to pay as they became =
due.
Tex. Bus.=20
& Com. Code Ann. =C2=A7 24.005(a) (Vernon 2002). The =
allegations of=20
Laux=E2=80=99s petition track these statutory provisions. In =
addition, the Texas=20
Uniform Fraudulent Transfer Act provides that as a remedy a =
creditor may=20
seek =E2=80=9Cavoidance of the transfer . . . to the extent =
necessary to satisfy=20
the creditor=E2=80=99s claim.=E2=80=9D Id. =C2=A7 =
24.008(a)(1). The statute also=20
specifically provides that =E2=80=9Csubject to applicable =
principles of equity and=20
in accordance with applicable rules of civil procedure,=E2=80=9D a =
creditor may=20
obtain =E2=80=9Can injunction against further disposition by the =
debtor or a=20
transferee, or both, of the asset transferred.=E2=80=9D Id. =
=C2=A7=20
24.008(a)(3)(A).
<=
/SPAN>Under=20
the Texas Uniform Fraudulent Transfer Act, a temporary injunction =
may be=20
sustained if the trial court was presented with evidence of intent =
to=20
defraud the creditor. Tel. Equip. =
Network, 80 S.W.3d at =
609. The=20
Texas Uniform Fraudulent Transfer Act lists several nonexclusive =
factors=20
to consider in =
determining=20
intent:
(1)the transfer or =
obligation was to an insider;
(2)the debtor =
retained=20
possession or control of the property transferred after the=20
transfer;
(3) the transfer =
or=20
obligation was concealed;
(4)before the =
transfer was=20
made or obligation was incurred, the debtor had been sued or =
threatened=20
with suit;
(5)the transfer =
was of=20
substantially all the debtor=E2=80=99s assets;
(6)the debtor=20
absconded;
(7)the debtor =
removed or=20
concealed assets;
(8)the value of =
the=20
consideration received by the debtor was reasonably equivalent to =
the=20
value of the asset transferred or the amount of the obligation=20
incurred;
(9)the debtor was =
insolvent=20
or became insolvent shortly after the transfer was made or the =
obligation=20
was incurred;
(10)the transfer =
occurred=20
shortly before or shortly after a substantial debt was incurred;=20
and
(11)the debtor =
transferred=20
the essential assets of the business to a lienor who transferred =
the=20
assets to an insider of the debtor.
Tex. Bus. & Com. Code =
Ann. =C2=A7=20
24.005(b)(1)=E2=80=93(11).
=
None=20
of Tanguy=E2=80=99s contentions undermine Laux=E2=80=99s showing =
of a probable right to=20
recover under the Texas Uniform Fraudulent Transfer Act.=20
<=
/SPAN>1. Lack of Proof of =
Lien
<=
/SPAN>Tanguy=E2=80=99s challenges in his =
second and third issues=20
do not pertain to the proof required to establish a violation of =
Texas=20
Uniform Fraudulent Transfer Act.
<=
/SPAN>In his second =
issue, Tanguy=20
contends,
Appellee Laux had =
no present=20
right to injunctive relief since the mere recovery of a judgment =
or filing=20
of an abstract of judgment does not create a lien on a judgment =
debtor=E2=80=99s=20
personal property.
Under this issue, =
Tanguy=20
contends that Laux has not established any type of lien against =
the=20
personal property of Davis, the judgment debtor. However, Tanguy =
does not=20
assert that the existence of a lien is a prerequisite to =
injunctive relief=20
and he does not cite any authority that stands for the proposition =
that=20
failing to establish a lien against Davis precludes Laux from =
obtaining=20
injunctive relief.
=
Similarly,=20
in his third issue, Tanguy asserts,
Laux=E2=80=99s =
failure to prove=20
recordation of his alleged judgment lien in the records of the =
F.A.A.=20
registry for aircraft was fatal to his right to recover injunctive =
relief.
Under this issue, =
Tanguy=20
contends, =E2=80=9CA judgment creditor who wants to impose a =
judgment lien on an=20
aircraft must timely record his writ of execution or attachment in =
the FAA=20
registry BEFORE the =
judgment Debtor=20
sells the aircraft.=E2=80=9D Assuming that Tanguy=E2=80=99s legal =
contention concerning=20
the imposition of a lien on an aircraft is correct, he makes no =
argument=20
and cites to no authority that the existence of a lien is =
necessary before=20
a temporary injunction may be issued or that the existence of a =
lien has=20
any relation to Laux=E2=80=99s cause of action asserted under the =
Texas Uniform=20
Fraudulent Transfer Act.
<=
/SPAN>We=20
conclude that the lack of proof of the existence of a lien does =
not=20
undermine Tanguy=E2=80=99s showing of a probable right to recovery =
under the Texas=20
Uniform Fraudulent Transfer Act, which allows a creditor to =
obtain =E2=80=9Can=20
injunction against further disposition by the debtor or a =
transferee, or=20
both, of the asset transferred.=E2=80=9D Id. =
=C2=A7 24.008(a)(3)(A). The express language of Texas Uniform =
Fraudulent=20
Transfer Act, which Laux followed in his petition seeking relief =
against=20
Tanguy, provides that a transfer made by a debtor is fraudulent as =
to a=20
creditor if the debtor made the transfer =E2=80=9Cwith actual =
intent to hinder,=20
delay, or defraud any creditor of the debtor.=E2=80=9D Id.=20
=C2=A7 24.005(1). The statute does not =
require that=20
a creditor have a lien against the debtor=E2=80=99s property in =
order to pursue=20
relief under the Texas Uniform Fraudulent Transfer Act. Because =
the=20
existence of a lien is not a prerequisite to Laux=E2=80=99s cause =
of action under=20
the Texas Uniform Fraudulent Transfer Act, Tanguy=E2=80=99s =
assertions in his=20
second and third issues do not tend to establish that Laux did not =
have a=20
probable right to the relief sought.
=
We overrule =
Tanguy=E2=80=99s second=20
and third issues.
&nbs=
p;2. Greater Right of Ownership
<=
/SPAN>In=20
his fourth issue, Tanguy asserts,
Laux, as a judgment creditor, had no =
greater right=20
in the aircraft than his alleged judgment debtor Davis even if =
Davis (not=20
an L.L.C.) sold the aircraft to appellant =
Tanguy.
Tanguy contends that the FAA records =
reflect that=20
13,500 Air Express, L.L.C. was the owner of the disputed aircraft, =
not=20
Davis. Tanguy asserts that, even if Davis was the owner,=20
when Davis sold =
the aircraft=20
to Tanguy, there was =E2=80=9Cno restriction by judicial lien or =
otherwise=20
preventing him from transferring the aircraft to Tanguy.=E2=80=9D =
The factual=20
basis of this contention is that the documents that memorialize =
the sale=20
of the aircraft are dated January 5, 2006, approximately seven =
months=20
before the date that Laux obtained a judgment against=20
Davis.
=
Although=20
Tanguy presented evidence that indicated that the sale of the =
aircraft=20
occurred on January 5, 2006, which was before Laux obtained a =
judgment=20
against Davis, the standard of review dictates that we must view =
the=20
evidence in favor of the trial court=E2=80=99s judgment. =
See TMC Worldwide, 178 S.W.3d at 36. The bill of sale =
for the=20
aircraft was not dated until May 3, 2007, approximately 9 months=20
after the judgment against Davis and only six weeks before =
Davis=20
filed for bankruptcy. Additionally, Laux filed suit against Davis =
in April=20
2004. Viewing the evidence in a light most favorable to the trial =
court=E2=80=99s=20
order, the court could have inferred that (1) Davis or Tanguy =
attempted to=20
conceal the transfer by waiting 16 months before filing the bill =
of sale=20
with the FAA, see Tex. Bus.=20
& Com. Code Ann. =C2=A7 24.005(b)(3); (2) Davis became =
insolvent=20
shortly after the transfer, see id. =C2=A7=20
24.005(b)(9); and (3) Davis =
had been=20
sued before the transfer occurred, see id. =C2=A7=20
24.005(b)(4). See also Tel. =
Equip.=20
Network, 80 S.W.3d at 609 =
(finding=20
that trial court did not abuse discretion by issuing temporary =
injunction=20
under Texas Uniform Fraudulent Transfer Act when evidence tended =
to=20
support finding of factors listed in section 24.005(b), including =
that=20
transfer had been concealed and that debtor had been sued before =
the=20
transfer). Although Tanguy asserts that there is evidence that =
weighs=20
against the trial court=E2=80=99s decision to issue a temporary =
injunction, we=20
cannot conclude that the trial court abused its discretion when =
the record=20
contains conflicting evidence. See TMC Worldwide, 178 S.W.3d at 36.
<=
/SPAN>We overrule Tanguy=E2=80=99s fourth=20
issue.
Conclusion
=
We=20
affirm the trial court=E2=80=99s order granting a temporary=20
injunction. All pending =
motions are=20
dismissed as moot.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Elsa=20
Alcala
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Justice
Panel consists of =
Justices=20
Taft, Keyes, and=20
Alcala. |