Kinchen v. Kinchen

ELLIS, Judge. This suit was filed by plaintiff Edna Stewart Kinchen against defendant Leonard Kinchen, and others, to rescind a certain act of partition to which they were parties. In connection therewith, she asked for a temporary restraining order to prevent defendants from disposing of the property in dispute pending a hearing for a preliminary injunction. The restraining order was granted on November 14, 1967, to expire ten days from its date. On December 4, 1967, over ten days after the restraining order had expired, defendant filed a motion to dissolve it, and further prayed for damages and attorney’s fees, and for the denial of the preliminary injunction. The case was heard on February 19, 1968, on the motion for the preliminary injunction, the rule to dissolve the restraining order, and the opposition to the granting of the preliminary injunction. On March 22, 1968, judgment was rendered dissolving the temporary restraining order, dismissing the request for a preliminary injunction, and awarding to defendant damages and attorney’s fees in the amount of $300.00 for the wrongful issuance of the restraining order. Plaintiff has appealed suspensively from that part of the judgment awarding $300.00 to defendant. Although neither party has raised the issue, we note that the restraining order was never extended by the trial court, and therefore expired by its own terms some ten days before the motion to dissolve it was filed. We further note that the record is devoid of any evidence tending to show that defendant was in any way damaged by the issuance of the restraining order. Article 3608 of the Code of Civil Procedure, on which defendant’s claim is founded, reads as follows: “The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a recon- *927 ventional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.’’ Under the above article, only attorney’s fees for service rendered in connection with obtaining the dissolution may be awarded. At the time defendant’s counsel filed the motion to dissolve, there was neither a temporary restraining order nor a preliminary injunction in existence to be dissolved, and the pleading presented to the court an issue moot at its inception. We do not believe an award of attorney’s fees to be appropriate under the circumstances. Since no other damages were proven by defendant, we conclude that the entire award was for attorney’s fees, and must be set aside. The judgment appealed from is reversed, and there will be judgment herein in favor of Edna Stewart Kinchen and against Leonard Kinchen, denying his prayer for damages for the wrongful issuance of the temporary restraining order, at defendant’s cost. Reversed and rendered.