PHAM & CLOVES, PLLC

In general, when bringing a lawsuit against a person or entity, the purpose of the lawsuit is to seek damages for harms performed against the complaining party and/or to direct or change a party’s behavior. If a party seeks injunctive relief, s/he/it must take certain steps prescribed by law to get a court to order a party to alter his/her/its behavior. This article addresses, in overview fashion, the steps to take to get injunctive relief, more specifically, a temporary restraining order and a temporary injunction. This article is not intended to take the place of legal counsel as all circumstances are different and each individual case deserves individual attention and counsel. Accordingly, this is NOT intended to be legal advice, but merely a primer on the concept of injunctive relief.

A good example of a situation that should warrant immediate injunctive relief is one of divorce. It is common in Texas courts for a petitioner or respondent in a divorce proceeding to seek a TRO against the opposing party. In cases where there are no accusations of family violence, a TRO simply establishes the status quo until the divorce is over and the parties are then subject to a final court order as to the disposition of property and issues concerning child support and visitation. The TRO sets out which party, until the final order is rendered, will be responsible for which debt, possession and support of the children, if any, attorney fees, new debt and any other issue unique to the parties. In some instances where the parties to a divorce own and run a business together, there needs to be an enforceable understanding about how the business is to run until final order and how profits are distributed during that time. TROs in divorce proceedings also govern the maintenance of insurance policies like health and life policies and disallow changes in those policies.

In other situations not dealing with divorce, a TRO can be put in place to keep a party from suffering imminent and irreparable harm (a prejudicial act). An injunction is also put in place to preserve the subject matter of the underlying suit until the merits of the case can be tried. Some of the requirements of a TRO are as follows:

            1.         A TRO must be in writing and cannot be enforced with contempt until signed by the judge. The court order must identify the party being restrained, state why the TRO was granted by defining the injury and why it is irreparable, identify what acts are to be restrained, if the TRO was granted without the restrained party’s input, the TRO must state the date and time the Order was signed and when the order will expire. A court can only grant a TRO for 14 days. The TRO must also state the date for the hearing on the temporary injunction.

            2.         An order extending the TRO must be in writing and be a result of a motion filed with the court seeking an extension of the original TRO. A TRO can also be extended by party agreement.  

            3.         The TRO is served on the defendant by a constable, sheriff or private process server (per order) after the bond has been paid. If there is no bond, the TRO is unenforceable. The bond is put in place to protect the defendant from any resultant harm resulting from the TRO.

            To request a temporary injunction, the party applying for the injunction must join all parties affected by the injunction including those whose rights are directly affected by the writ, all parties to a contract if the contract is the issue, in the case of restraint of a public official – the state, county or city.

            In the case of an application for temporary injunction, the party(ies) to be enjoined is/are entitled to notice and a hearing. At the hearing, the issue before the court is the merits of immediate relief until a trial on the merits can be had. At the hearing, if the applicant fails to appear, the injunction will be denied and any TRO in place will be dissolved. If the respondent fails to appear, the applicant is still required to present evidence in support of the injunction. The order must state the reasons for the injunction by describing the injury and why it is irreparable. Also, the order must reasonably define the act(s) to be enjoined.

            The respondent can challenge the injunction with certain defenses. For example, a respondent can argue that the applicant has an adequate remedy at law and does not need injunctive relief; the temporary injunction would in essence have the same result as a trial on the merits; the injunction would not preserve the status quo, but eliminate it; the applicant has dirty hands (applicant is not entitled to injunctive relief because of “inequitable conduct”); the respondent cannot comply with the order because the order does not state clearly, specifically and in unambiguous terms what the respondent it enjoined from doing; the respondent would not be able to comply with the order; or the applicant’s verification is insufficient.

            Other ways a respondent can escape the duty to comply with an injunction by moving the court to dissolve the injunction based upon a motion to modify or dissolve the injunction based upon changed circumstances that rise to the level of an alteration of the status quo after the injunction has been put in place or if the injunction has become unnecessary.

            If the respondent has been enjoined by injunction and fails to adhere to the order, the applicant can file a motion for contempt that can result in a fine (no greater than $500.00) or imprisonment. Or, the applicant can sue the respondent to enforce a penalty within the injunction.

            If a respondent believes s/he/it has been wrongfully enjoined, the respondent can file suit and must show the injunction was not supposed to have been issued and was later dissolved. A party who has wrongfully obtained injunctive relief can be held liable for damages caused by the injunction.

            Obtaining a TRO is not just a matter of course. Courts are hesitant to grant TROs if the applicant cannot show imminent and irreparable harm. It is insufficient to claim that one may be harmed at sometime in the future. The applicant must present facts under oath that establishes that harm is imminent (is going to happen) if the other party is not stopped from a course of action. Each situation is fact specific and should be analyzed by an attorney well versed in injunctive relief issues. Obtaining injunctive relief without a trial on the merits is a special kind of relief that courts will not grant without good cause. Before you try to get an injunction, make sure that not only the facts of your situation warrant extraordinary relief, but that you can prove the facts. It will likely be that you will need witnesses to support your position at the injunction hearing.

            If you are believe that you need to file an application for injunctive relief, contact a Houston injunctive relief attorney at Veritas Legal Group for a consultation to discuss your situation and what legal remedies are available to you. You may reach a Veritas Legal Group attorney at 832-484-9015, or visit the Veritas Legal Group website at www.veritaslegalgroup.com.