Colleen Marie Fisher v. Paul M. Cooke, Sr., 05-21-00243-CV

Background

In July 2008 Colleen Fisher and her then-husband conveyed a Dallas residence to Paul Cooke (Fisher’s father) and Fisher’s mother; an accompanying Option Agreement allegedly gave Fisher a right to repurchase.
The house burned in 2010 and remained vacant. In April 2018 Cooke contracted to sell the Property; in May 2018 the JCLLA Trust (through Jonathan Fisher as trustee), as assignee of Fisher, sued claiming repurchase rights and recorded a lis pendens.
Cooke answered, sought declaratory relief and injunctive relief, obtained an ex parte TRO and later an agreed temporary injunction that nullified the lis pendens and set a trial date.
The trial court granted a no-evidence summary judgment against the Trust, then granted a partial/traditional summary judgment declaring Cooke sole owner, converted relief to a permanent injunction, struck Fisher’s counterclaims and imposed monetary sanctions for violating the injunction and filing pleadings without leave.
Final judgment (Jan. 5, 2021) incorporated the summary judgments and sanction orders, awarded Cooke attorney’s fees under the Declaratory Judgment Act, and was appealed by Fisher; the court of appeals affirmed.

Issues

Issue	Plaintiff's Argument (Fisher)	Defendant's Argument (Cooke)	Held
1) TRO / right to jury / due process	TRO issued ex parte deprived Fisher of due process and jury trial	TRO permissible under rules; Fisher got notice/reconsideration; summary judgment did not deny jury when no genuine fact issue exists	Affirmed: TRO procedure and summary-judgment process not unconstitutional here; TRO moot by passage of time
2) Validity of temporary injunction (Rule 683, bond, agreement)	Fisher did not agree to the injunction; injunction failed Rule 683 or bond requirements	Injunction was agreed at hearing, recited Rule 683 findings and referenced existing bond	Affirmed: injunction was agreed, satisfied Rule 683, and was not void
3) Ownership / Option Agreement / summary judgment	Option Agreement was valid; Fisher (and Trust) paid consideration; Fisher/Trust had standing and factual disputes requiring trial	Option never fully executed; consideration unpaid; Trust’s claims defeated by no-evidence MSJ; Fisher failed to present admissible summary-evidence or raise affirmative defenses	Affirmed: no genuine fact issue; Cooke declared sole owner; Trust and Fisher take nothing
4) Sanctions / striking counterclaims	Striking counterclaims and monetary sanctions were improper; filings did not violate injunction	Fisher filed pleadings without leave within seven days of/after summary-judgment hearing and filed a prohibited Bexar County claim; sanctions and striking were within court’s discretion	Affirmed: sanctions and striking were permissible and, if erroneous, harmless because pleadings were untimely without leave
5) Attorney’s fees under Declaratory Judgment Act	Fee award was inequitable and unjust	Fees authorized and properly awarded under the Declaratory Judgment Act	Affirmed: trial court did not abuse discretion in awarding fees

Key Cases Cited

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (summary-judgment standard and de novo review)
Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (view summary-judgment evidence in favor of nonmovant and indulge inferences)
Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984) (burden on nonmovant to produce evidence supporting affirmative defenses at summary judgment)
Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334 (Tex. 2000) (Rule 683’s requirements for injunctions are mandatory)
Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) (trial court’s discretion in granting injunctions; equitable relief involving real property)
Davis v. Huey, 571 S.W.2d 859 (Tex. 1978) (a temporary injunction may be granted despite conflicting evidence)
Low v. Henry, 221 S.W.3d 609 (Tex. 2007) (sanctions reviewed for abuse of discretion)
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (final judgment implies denial of outstanding motions)