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John W. Cox Partners Ltd. v. 55 Acre Joint Venture

Court of Appeals of Texas, Ninth District, Beaumont

April 6, 2017

JOHN W. COX PARTNERS, LTD., Appellant
v.
55 ACRE JOINT VENTURE, Appellee

          Submitted on December 28, 2016

         On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 16-09-10075-CV

          Before McKeithen, C.J., Kreger and Johnson, JJ.

          MEMORANDUM OPINION

          STEVE McKEITHEN Chief Justice.

         Appellant John W. Cox Partners, Ltd. ("Cox") appeals the trial court's denial of its application for temporary injunction in a case involving the installation by appellee 55 Acre Joint Venture ("55 Acre") of a sewer line along an easement on property owned by Cox. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West Supp. 2016). We affirm the trial court's order denying Cox's application for temporary injunction.

         Cox sued appellee 55 Acre, asserting that Cox owned a certain 41.90 tract of land in Montgomery County, Texas, out of which it created a 1.240-acre development (Canyon Creek, Section 2) and a 20.62-acre development (Canyon Creek, Section 3). According to Cox, 55 Acre owns a tract that shares a common boundary with Canyon Creek, Section 3. Cox pleaded that as part of the development, it encumbered certain lots in Section 3 "with a 10 feet wide drainage easement that is restricted to sheet flow[.]" In addition, Cox pleaded that it encumbered certain lots in Section 3 "with a 10 feet wide utility easement[.]" Cox pleaded that while it was planning the development of Section 3 with the City of Conroe, 55 Acre's engineer, William J. Kotlan, proposed removing the drainage easement from Cox's property and to make 55 Acre responsible for that drainage in exchange for Cox "extending a 16 feet wide utility easement" to 55 Acre's tract. According to Cox, Kotlan stated that his proposal would enable a direct connection for sanitary sewer for the tract owned by 55 Acre, which is developing its land adjacent to Canyon Creek for multi-family residential use.

         Cox pleaded that Kotlan planned to route the sewer line through a portion of the drainage easement abutting Lot 11 of Canyon Creek, Section 3 (owned by Cox), then through the utility easement, and to tie into the sewer line Cox had installed as part of its development of Section 3 "and its future development of the balance of its land, which will be Canyon Creek, Section 4." According to Cox, 55 Acre "reports that the City of Conroe has approved its plan to route its sewer line through the Drainage Easement, then through the Utility Easement and tie into the sewer lines Cox installed as a part of its development of Canyon Creek, Section 3 and its future development." Cox pleaded that if 55 Acre's report is true, it likely resulted from a meeting between the mayor and Matt Pasternak of 55 Acre, and Cox pleaded that Marjorie Cox of Cox Partners had "declined to attend the meeting since the plat for Canyon Creek, Section 3 had already been approved by the City of Conroe." Cox pleaded that 55 Acre "hired a contractor to install its sewer line consistent with its plan and its apparent City of Conroe approval."

         According to Cox, when it learned of 55 Acre's plan to "trespass onto Lot Eleven as part of its route of its sewer line, . . . the professional engineer responsible for the development of Canyon Creek, Section 3, informed 55 Acre Joint Venture that it could not put its sewer line in the Drainage Easement and posted 'No Trespassing' signs on Lot Eleven."[1] Cox pleaded that, in response, 55 Acre hired an attorney to write a cease and desist letter to Cox and its counsel threatening litigation and contending that the City of Conroe recognizes the drainage easement as a general utility easement. Cox pleaded that the drainage easement is not a general utility easement and "the City of Conroe cannot authorize 55 Acre Joint Venture to trespass on Cox's land, which is what 55 Acre Joint Venture has done and is doing."

         According to Cox, 55 Acre has hired a contractor to bury its sewer line in the drainage easement on Lot Eleven, has laid pipe on the surface of the drainage easement, and has removed trees from the drainage easement on Lot Eleven. Cox sought a temporary restraining order, a temporary injunction, and a permanent injunction against 55 Acre, contending that 55 Acre's actions were destroying Cox's use and enjoyment of its land, and that if 55 Acre installed its sewer line through Lot Eleven's drainage easement, "such action will be a continuous trespass." Cox pleaded that it had a valid cause of action against 55 Acre on which it would likely succeed on the merits and alleged that 55 Acre had no legal right to come onto the drainage easement on Lot Eleven or to bury its sewer line there. Cox requested that, after notice and hearing, the trial court "make the ex parte Temporary Restraining Order into a Temporary Injunction[.]" Cox alleged that 55 Acre had intentionally and voluntarily entered upon a portion of the drainage easement that is on Lot Eleven; that Cox did not authorize 55 Acre to enter onto any portion of Lot Eleven; and that 55 Acre had committed both civil and criminal trespass. Cox asserted that 55 Acre's trespass had caused it to incur actual damages in the form of costs to restore the land. In a supplemental petition, Cox pleaded that if there is an ambiguity on the April 4, 2016, plat for Section 3, then the ambiguity was "clearly corrected" on August 18, 2016, when the Planning Commission approved the replat, which was recorded on or about September 16, 2016.

         The trial court signed a temporary restraining order and set a hearing on Cox's request for a temporary injunction. 55 Acre filed a response, in which it asserted that the final plat for Section 3, dedicated by Cox on April 13, 2016, identifies the land as subject "to a utility easement, not a drainage easement[.]" The temporary restraining order expired on September 16, 2016, ten days before the hearing on Cox's application for temporary injunction. Pasternak testified at the hearing that during the period between the expiration of the temporary restraining order and the hearing on the application for temporary injunction, 55 Acre entered Section 3 and constructed a sewer line along the easement. Pasternak testified at the hearing that 55 Acre had a set of plans approved by the City that show the "sewer line going all the way through to our property." Pasternak testified that he believed he was constructing the sewer line in a proposed "utility easement, which is a public easement[.]" According to Pasternak, the sewer line is complete, and the City "will take over that sewer line and its maintenance." Pasternak explained that no construction is currently going on at 55 Acre's property, and 55 Acre has no specific development plans.

         After taking the case under advisement and asking both parties to submit proposed orders, the trial judge signed an order denying Cox's application for temporary injunction. In the order, the trial judge found that (1) there is no evidence that Cox will suffer an immediate and irreparable injury, loss, or damage if a temporary injunction does not issue; and (2) there is no continuing trespass in the ten by ten foot portion of Lot 11, "where there exists a drainage easement and not a utility easement." In its sole appellate issue, Cox argues that the trial court abused its discretion by denying Cox's application for temporary injunction because 55 Acre's "naked trespass . . . constitutes irreparable and immediate harm for which [Cox] has no adequate remedy of law[.]"

         We review a trial court's order denying an application for injunction under an abuse of discretion standard. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). We may not substitute our judgment for that of the trial court unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion. Id. In reviewing the trial court's order, we view the evidence in the light most favorable to the order and indulge every reasonable inference in its favor, and our review is limited to the validity of the order. See Tri-Star Petroleum Co. v. Tipperary Corp., 101 S.W.3d 583, 587 (Tex. App.-El Paso 2003, pet. denied). Because neither party requested findings of fact and conclusions of law, we presume all findings necessary to support the trial court's order, and we will affirm if it is supported by any legal theory that is sufficiently raised by the evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). If some evidence reasonably supports the trial court's decision, the trial court does not abuse its discretion. Butnaru, 84 S.W.3d at 211. In ruling on an application for temporary injunction, the trial court does not make a final decision on disputed facts; rather, the purpose of a temporary injunction "is to preserve the status quo of the litigation's subject matter pending a trial on the merits." Id. at 204.

         Cox argues that the purpose of a temporary injunction is to preserve the last peaceable status quo, and maintains that the status quo is the last actual, peaceable, noncontested status that preceded the pending controversy. Cox cites Hastings Oil Co. v. Texas Co., 234 S.W.2d 389, 431 (1950), for the proposition that when a trespass is continuous, a legal remedy is inadequate and a temporary injunction is necessary because a jury cannot determine when the wrong was completed. Unlike this case, which involves the completed construction of a sewage pipe in a residential area, Hastings involved a trespass on land which threatened the production of minerals. Hastings, 234 S.W.3d at 431.

         When Cox filed suit, the sewer pipe had not been constructed on the property. At the hearing, the trial court heard evidence that 55 Acre has now completed construction of the sewer pipeline at issue, and Cox so admits in its appellate brief. The trial court also heard evidence that no construction is currently taking place on 55 Acre's property, and 55 Acre has no current plans to develop the property. In light of the evidence before the trial judge and the applicable law, we conclude that the trial judge did not abuse her discretion by determining that there is no evidence that Cox would suffer an immediate and irreparable injury, determining that an ongoing trespass did not exist, and denying Cox's application for temporary ...


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