Tanguy v. Laux (259 S.W.3d 851, 2008)

OPINION

ELSA ALCALA, Justice.

In this interlocutory appeal, appellant, Philippe Tanguy, appeals from the trial court’s order granting a temporary injunction on behalf of appellee, David Laux. See Tex. Civ. PRác. & Rem.Code Ann. § 51.014(a)(4) (Vernon Supp.2007). Laux filed suit against Tanguy asserting that a judgment debtor of Laux’s, Richard Davis, had violated the Texas Uniform Fraudulent Transfer Act by transferring a 1986 Twin Otter aircraft to Tanguy. The trial court issued a temporary injunction prohibiting Tanguy from “selling, encumbering, transferring and/or relocating from the county” the aircraft. In four issues, Tanguy asserts that (1) the temporary injunction order is void on its face; (2) Laux had no present right of recovery because he did not have a lien on his judgment debtor’s personal property; (3) Laux was not entitled to injunctive relief because he did not record his alleged judgment hen in the records of the Federal Aviation Administration (“FAA”) registry for aircraft; and (4) Laux had no greater right in the aircraft than his alleged judgment debtor. We conclude that the temporary injunction is not void and that the trial court did not abuse its discretion in issuing a temporary injunction. We therefore affirm.

Background

In 2004, Laux filed suit against Richard Davis in district court in Harris County, seeking damages for breach of contract in connection with a partnership dispute. After a jury trial, the trial court, on or about August 11, 2006, rendered a final judgment in favor of Laux and against Davis for $384,126.94. Since that time, Laux has been attempting to collect on his judgment.

The instant suit was filed against Tan-guy, alleging that the transfer of the Twin Otter aircraft from Davis to Tanguy violated the Texas Uniform Fraudulent Transfer Act. After a temporary restraining order was initially issued in favor of Laux, the trial court held a hearing and issued the temporary injunction against Tanguy on August 16, 2007 (“the August Order”). The August Order did not set the underlying case for trial.

Tanguy timely filed a notice of appeal on September 4, 2007. Tanguy filed his initial brief in this Court on November 20, 2007, asserting four issues, including a challenge that asserted that the August Order was void since it did not set the underlying case for trial.

While the appeal of the August Order was pending in this Court, Laux filed with the trial court, on December 4, 2007, a Motion for Temporary Injunction Nunc Pro Tunc to add a trial setting to the temporary injunction. In his Motion for Temporary Injunction Nunc Pro Tunc, Laux specifically prayed that the trial court “vacate the judgment previously signed, and enter judgment in accordance with the proposed form [the December Order] which is attached to this motion.” The trial court granted Laux’s motion and ordered that “the clerk will enter judgment in accordance with the judgment as rendered and signed at this time.” The trial court then signed a temporary injunction on December 6, 2007 (“the December Order”). The December Order contains the same language as the August Order, except that it has an additional sentence not in the August Order that states, “It is further ORDERED, ADJUDGED, and DECREED this matter is scheduled to begin trial on May 26, 2008.”

After the trial court signed the December Order, Laux filed his appellee’s brief with our Court on December 10, 2007. In the brief, in response to the assertion that the August Order was void because it failed to set the underlying case for trial, Laux relies on the trial court’s grant of the nunc pro tunc order to contend that the failure to set the case for trial was a clerical error that was remedied by the December Order.

Failure to Set Case for Trial on the Merits

In his first issue, Tanguy contends that the temporary injunction is void because it fails to comply with the Texas Rules of Civil Procedure that require that the case be set for a trial on the merits. In his brief, Laux asserts that (1) the failure of the August Order to include the statement that the underlying case was set for trial was a clerical error that could be remedied by a nunc pro tunc order and (2) the December Order that was rendered pursuant to the nunc pro tunc order set the case for trial and therefore complied with the requirements for temporary injunctions. In his reply brief, Tanguy asserts that the trial court’s failure to include a trial setting is a judicial error, not a clerical one, and that a nunc pro tunc order may not be used to correct a judicial error.

Although the parties refer to the December Order as a nunc pro tunc order, it is a temporary injunction that is identical to the August Order, except that it adds a trial setting for the case. In his Motion for Temporary Injunction Nunc Pro Tunc, Laux specifically prayed that the trial court “vacate the judgment previously signed, and enter judgment in accordance with the proposed form [the December Order] which is attached to this motion.” The trial court granted Laux’s motion and ordered that “the clerk will enter judgment in accordance with the judgment as rendered and signed at this time.”