C. D. Henderson Construction Services, Ltd. v. L & O Electric, Inc.--Appeal from 261st District Court of Travis County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 03-10-00490-CV

Case Date: 12/31/2010

Plaintiff: Manuel Acosta Grijalva

Defendant: The State of Texas--Appeal from 371st District Court of Tarrant County

Preview:Trada Partners VI, LP and Marin Development, LP v. John E. Vogt and Nelda L. Vogt--Appeal from 216th Judicial District Court of Kendall County
MEMORANDUM OPINION No. 04-06-00723-CV TRADA PARTNERS VI, LP and Marin Development, LP , Appellants v. John E. VOGT and Nelda L. Vogt , Appellees From the 216th Judicial District Court, Kendall County, Texas Trial Court No. 06-150 Honorable Charles Sherrill , Judge Presiding

Opinion by: Catherine Stone , Justice Sitting: Catherine Stone , Justice Karen Angelini , Justice Rebecca Simmons , Justice Delivered and Filed: January 24, 2007 REVERSED AND RENDERED This is an appeal from a temporary injunction that enjoined Trada Partners VI, LP and Marin Development, LP (collectively "Trada") from interfering with Jon and Nelda Vogt's use of an ingress and egress easement, which crossed over Trada's property and afforded the Vogts access to their one-acre parcel of real property. Because the Vogts did not establish a sufficient probability of irreparable injury in the absence of a temporary injunction, we reverse the trial court's order granting the temporary injunction and render judgment that the temporary injunction is dissolved. The Vogts purchased approximately 20 acres of real property in Kendall County, Texas in 1952. In 1974 or 1975, the Vogts purchased the property adjacent to their 20-acre tract. The Vogts' deed to this one-acre parcel gave the Vogts an easement across Trada's property so that the Vogts could access the property from State Highway 87. (1) In 2005, Trada commenced development of an apartment complex on the property subject to the easement. During the course of constructing the apartment complex, Trada placed "barriers, ditches, piles of dirt and debris, and earthen pads" within the area of the easement. These obstacles prevented the Vogts from using their easement for purposes of ingress and egress.
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The Vogts filed suit against Trada for temporary and permanent injunctive relief after Trada continued to obstruct the easement. The trial court issued the Vogts a temporary injunction on October 6, 2006, enjoining Trada from interfering with the Vogts' use of the easement pending a trial on the merits. Trada subsequently filed this interlocutory appeal, claiming, inter alia, that the trial court abused its discretion by issuing the temporary injunction because the Vogts failed to establish they would suffer a probable irreparable injury in the absence of a temporary injunction. The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter until a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). As a general rule, an applicant seeking a temporary injunction must plead and prove: "(1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim." Id. An injury is irreparable "if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard." Id. "The law recognizes that each and every piece of real estate is unique, and that this is certainly an element to be considered in deciding whether there has been irreparable damage." In re Medistar Corp., No. 04-0500381-CV, 2005 WL 3050447, *3 (Tex. App.--San Antonio 2005, orig. proceeding) (per curiam). "In an appeal from an order granting a temporary injunction, our review is confined to the validity of that order." Reagan Nat'l Adver. v. Vanderhoof Family Trust, 82 S.W.3d 366, 370 (Tex. App.--Austin 2002, no pet.). The decision to grant a temporary injunction lies within the sound discretion of the trial court; we will not disturb that decision absent a clear abuse of discretion. Id. We may neither substitute our judgment for that of the trial court nor consider the merits of the lawsuit. Id. Instead, we review the evidence in the light most favorable to the trial court's order, indulging every reasonable inference in its favor, and determine whether the order is so arbitrary as to exceed the bounds of reasonable discretion. Id. A trial court abuses its discretion when it misapplies the law to established facts or when it concludes that the applicant has demonstrated a probable injury or a probable right to recovery and the conclusion is not reasonably supported by evidence. Id. The circumstances presented in this case are analogous to those presented in Long v. Long,814 S.W.2d 227 (Tex. App.--San Antonio 1991, no writ). In Long, Norman Long engaged in conduct that restricted George Long in the use of a right-of-way easement he had over Norman's property. 814 S.W.2d at 227-28. George subsequently filed suit against Norman, and the trial court issued a temporary injunction enjoining Norman from restricting George's use of the easement. Id.at 228. This court, however, reversed the trial court's order and dissolved the temporary injunction. Id. at 229. One of our reasons for dissolving the injunction was that the record from the temporary injunction hearing did not support a finding of irreparable injury since George had other ways to access his property besides the right-of-way easement. Id. at 228. Because George was not completely cut off from his property, we explained "[t]he most that George will suffer is the injury of inconvenience." Id. We further stated that such injury "does not warrant the issuance of a temporary injunction." Id. As was the case in Long, the record from the Vogts' temporary injunction hearing does not demonstrate that the Vogts will likely suffer irreparable injury in the absence of a temporary injunction. Although the Vogts presented evidence at the hearing that Trada's conduct prevented them from accessing their one-acre tract by way of the easement, Mr. Vogt admitted that Trada's conduct did not completely deprive him of the use of his one-acre tract. Mr. Vogt testified that his one-acre and 20-acre tracts of land are contiguous, and that he has access to his one-acre parcel through the 20acre tract. The record therefore shows that the Vogts will suffer only the injury of inconvenience if the temporary injunction is lifted. Consequently, we hold that the trial court abused its discretion by concluding the Vogts established a sufficient probability of irreparable injury. (2) Conclusion The order of the trial court granting the temporary injunction is reversed, and judgment is rendered dissolving the temporary injunction. (3) Catherine Stone , Justice

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1. Because the Vogts' properties are contiguous, the Vogts can also access their one-acre parcel through their 20-acre tract. 2. We note that the Vogts' pleadings also assert that the obstructions Trada placed within the easement are "diver[ting] . . . the natural flow of surface water in a manner that damages [their] property" and that Trada is engaging in conduct that is "destroy[ing] the lateral support for sections of the Easement." Because the Vogts failed to adequately address these issues at the temporary injunction hearing, and because these issues are not the basis of the trial court's order, we express no opinion on whether such injuries are irreparable injuries for purposes of issuing injunctive relief. See Butnaru, 84 S.W.3d at 204 (holding that an applicant seeking a temporary injunction must plead and proveirreparable injury). 3. We note that the trial court held Trada in contempt following the issuance of the temporary injunction because Trada engaged in egregious conduct by defying the court's injunction order after it was entered. The trial court's contempt order has not been appealed by Trada, therefore we do not address it on appeal.

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