Date: 08-02-2017

Case Style: Bret Cali v. Sisterdale General Holdings, LLC

Case Number: 04-16-00736-CV

Judge: Luz Elena D. Chapa

Court: Texas Court of Appeals Fourth District on appeal from the 216th Judicial District court, Kendall County

Plaintiff's Attorney: Shannon Lee Greenan and Christopher J. Weber

Defendant's Attorney: Robert J. Ogle

Description: Bret Cali appeals a final judgment in which the trial court denied his claim to recover on a
$1,000 bond, which Sisterdale General Holdings, LLC filed after it obtained a temporary
restraining order against him. Because Cali failed to prove the issuance of the temporary
restraining order caused him damages, we affirm the trial court’s judgment.
BACKGROUND
Sisterdale is a landlord and Cali is a tenant in a commercial lease that restricts Cali’s use
of the property to a general store. After Cali allegedly began leasing trailers as dwellings, offering
04-16-00736-CV
helicopter parking, and leasing kayaks for float trips on the Guadalupe River, Sisterdale sued Cali
for breach of contract. Sisterdale also obtained a temporary restraining order against Cali enjoining
him from conducting unauthorized activities on the property. The trial court set the bond amount
at $1,000, and Sisterdale deposited $1,000 with the trial court clerk.
In a separate suit filed in justice court, Sisterdale commenced eviction proceedings against
Cali and obtained an order of eviction. Then, in this suit, Sisterdale filed a notice of nonsuit,
seeking an order of nonsuit on its breach of contract claims against Cali. The trial court signed an
order granting Sisterdale’s request for an order of nonsuit and dismissed the case. Before the trial
court’s plenary power expired, Cali filed a motion alleging Sisterdale wrongfully obtained the
temporary restraining order and sought to recover the entire $1,000 bond.
The trial court heard Cali’s claim to recover on the bond. At the hearing, Cali’s counsel
contended Sisterdale’s nonsuit was an admission that Sisterdale wrongfully obtained the temporary
restraining order and the temporary restraining order caused Cali to cease profitable lines of
business. Sisterdale argued Cali was not injured by the temporary restraining order and denied
Cali’s factual assertions. No evidence was admitted during the hearing. 1 The trial court denied
Cali’s claim to recover on the bond, and Cali appeals.
DISCUSSION
Cali argues the record establishes his entitlement to the $1,000 bond. “A person who
obtains an injunction wrongfully is liable for damages caused by issuance of the injunction.”
DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 685 (Tex. 1990). “To prevail upon this cause of
action, the claimant must prove that the temporary restraining order or temporary injunction was
issued or perpetuated when it should not have been, and that it was later dissolved.” Id. at 685-86.
1
On appeal, Cali does not argue the trial court erred by excluding any evidence he might have offered.
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The claimant also “must prove that the issuance of the injunction caused him damages.” Goodin
v. Jolliff, 257 S.W.3d 341, 353 (Tex. App.—Fort Worth 2008, no pet.) (citing DeSantis, 793
S.W.2d at 686). “The damages recoverable in an action on an injunction bond are, of course,
limited to the amount of the bond.” DeSantis, 793 S.W.2d at 686. “The purpose of [an injunction]
bond is to protect the defendant from the harm he may sustain as a result of temporary relief granted
upon the reduced showing required of the injunction plaintiff, pending full consideration of all
issues.” Id.
Generally, “a civil litigant who asserts an affirmative claim for relief has the burden to
persuade the finder of fact of the existence of each element of his cause of action.” Vance v. My
Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 482 (Tex. 1984). Accordingly, in
wrongful injunction actions, it is the claimant who “must prove that the issuance of the injunction
caused him damages.” Goodin, 257 S.W.3d at 353; see Duradril, L.L.C. v. Dynomax Drilling
Tools, Inc., 516 S.W.3d 147, 167 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Safeco Ins. Co.
of Am. v. Gaubert, 829 S.W.2d 274, 278 (Tex. App.—Dallas 1992, writ denied). In Goodin, the
court of appeals “h[e]ld that the trial court erred by releasing the security amount to [the defendant]
in the absence of any . . . proof that she was damaged by the issuance of the temporary injunction.”
257 S.W.3d at 353. And in Safeco, the court of appeals noted “[the claimant] had the burden to
prove that the injunction resulted in damages to recover on the bond.” 829 S.W.2d at 278.
Cali argues that under the facts of this case, damages are presumed. He relies on a 1909
case from the Supreme Court of Errors of Connecticut in which the court opined, “it was for the
plaintiff to show that the defendants had suffered no damage, and not for the defendants to
demonstrate that they had suffered loss by obeying the injunction order.” Lawlor v. Merritt, 72 A.
143, 145 (Conn. 1909). The Lawlor court cited no authority for this proposition, and we are aware
of no other court that has relied on Lawlor for this proposition. Moreover, the holding in Lawlor
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is that the trial court’s finding of damages was supported by plaintiff’s concession of facts showing
economic loss resulting from the temporary restraining order. Id. at 145. Here, however, the trial
court denied relief, and Sisterdale did not concede Cali suffered any damages, but instead
“disagree[d] with all the facts” Cali presented.
Cali argues on appeal that he “has suffered lost profits and been denied due process under
the United States Constitution.” At the hearing in the trial court, counsel argued the issuance of
the temporary restraining order caused him to cease profitable lines of business. “However,
argument of counsel is not evidence.” Tex. Dep’t of Pub. Safety v. Mendoza, 952 S.W.2d 560, 564
(Tex. App.—San Antonio 1997, no writ). The trial court admitted no evidence at the hearing on
Cali’s claim to recover on the bond, and thus there is no evidence showing the issuance of the
temporary restraining order caused him damages. Because Cali failed to prove the issuance of the
temporary restraining order caused him damages, the trial court correctly denied his claim to
recover on the bond. See Goodin, 257 S.W.3d at 353; Safeco, 829 S.W.2d at 278.

Outcome: We affirm the trial court’s judgment.

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