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Gordon v. Nickerson

Court of Appeals of Texas, Third District, Austin

April 27, 2017

Jeremie Gordon and Amber Arnold-Gordon, Appellants
v.
James B. Nickerson and Julia A. Nickerson, Trustees of the Nickerson Revocable Living Trust, Appellees

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT NO. D-1-GN-15-000917, HONORABLE KARIN CRUMP, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Bourland

          MEMORANDUM OPINION

          Jeff Rose, Chief Justice

         Jeremie Gordon and Amber Arnold-Gordon appeal from a final judgment in favor of James B. Nickerson and Julia A. Nickerson, Trustees of the Nickerson Revocable Living Trust, in the Nickersons' suit to confirm an arbitration award. The Nickersons' suit began as a contract action and request for injunctive relief regarding a water well on the Gordons' property, but shifted to an action for confirmation of an arbitration award after the parties disagreed about certain terms of their mediated settlement agreement (MSA). The Gordons challenge the trial court's judgment in five issues, asserting that the judgment (1) enforces an MSA that is void for illegality; (2) improperly modifies the arbitration award; and (3) awards attorney fees that are not properly segregated. In their two remaining issues, the Gordons challenge the injunctions granted by the trial court, asserting that (4) the temporary injunction did not comply with Rule 683;[1] and that (5) the permanent injunction improperly prevents the Gordons from exercising their legal rights. For the reasons set forth below, we will modify the trial court's judgment in part and, as modified, affirm.

         Background

         The underlying dispute arose in connection with a water well located on property owned by the Gordons. The Nickersons, who own and live on the property adjacent to the Gordons, obtain their water from the Gordon-owned water well under a "Well Use Easement Agreement" entered into in 1995 by the previous owners of the Gordon and Nickerson properties. In January 2015, shortly after purchasing the property with the water well, the Gordons told the Nickersons that the easement agreement did not allow the Nickerson property access to the water and that, unless the Nickersons started paying an annual fee, the Gordons would disconnect the well piping to cut off the Nickersons' water supply.

         In response to the Gordons' notice, the Nickersons filed suit for breach of the well-use agreement and trespass and sought injunctive relief. The Gordons answered and filed counterclaims for breach of contract and trespass and sought declaratory and injunctive relief.

         During this litigation, the parties mediated and reached a settlement agreement (the MSA), in which the parties agreed, relevant here, that:

• the Gordons would sell a portion of their property with the water well on it
("conveyance property") to the Nickersons in exchange for $32, 500;
• before closing, the Nickersons would complete a survey of the property within 60 days of the MSA;
• after closing, the parties would rewrite or vacate the well-use agreement; and
• "the rights of [the Nickersons] to continued use of the well shall be exclusive and remain uninterrupted."

         Finally, the parties agreed that binding arbitration would be used to resolve any disputes arising from the parties' MSA.

         The MSA spawned two disputes. The first, not relevant here, involved the placement of the conveyance property's boundary line. The second dispute, which is implicated here, involved whether the property had to be replatted before it was conveyed to the Nickersons. The arbitrator addressed the second dispute by ordering that the MSA should be enforced, but instead of replatting the Gordons' property, the Nickersons would agree and acknowledge that they were taking the fractional tract "without any expectation or understanding" that "the property being purchased by metes and bounds will ever be able to qualify for governmental services." The arbitrator awarded the Nickersons $3, 000 in attorney fees and ordered that amount be offset against the purchase price-i.e., changing the purchase price to $29, 500.

         Soon thereafter, the Gordons refused to allow the Nickersons' surveyor to enter their property, began clearing trees from the conveyance property, installed barbed wire around the well, and posted no-trespassing signs. In response, the Nickersons amended their pleadings in the underlying case to request confirmation of the arbitration agreement. The Nickersons also sought, and were granted, a temporary injunction enjoining the Gordons from, stated generally, using the water well, denying the Nickersons access to the water well, and removing any vegetation from the conveyance property.[2] A second temporary injunction enjoined the Gordons from disconnecting or interfering with the water-well pipes that provided the Nickersons with water; connecting water-well pipes for the Gordons' use; obstructing the Nickersons' access to the water well; disturbing the nature of the property to be conveyed; erecting a fence or any structure on the property to be conveyed; removing any vegetation from the property to be conveyed; and engaging in any act that would affect the water supply or quality.

         After a bench trial on the merits, the district court issued a final judgment that, relevant here, confirmed the MSA and two arbitration awards and ordered-

• the Gordons to sell the conveyance property to the Nickersons as specified;
• the Gordons to allow the surveyors access to the conveyance property;
• the Nickersons to pay the Gordons "$29, 500 for the Property, less $8, 571.00 for tree replacement expenses, and one-half of the closing costs, in exchange for the property at closing;"
• the Gordons to provide to the Nickersons "a special warranty deed for the property being conveyed and described in ...

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