Court of Appeals of Texas, Fourth District, San Antonio
From
the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 15-405CCL Honorable Bill R. Palmer, Judge
Presiding.
Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
MEMORANDUM OPINION
Luz
Elena D. Chapa, Justice.
Ohio
Development, LLC appeals the trial court's order denying
its application for a temporary injunction. We hold Ohio has
not shown the trial court abused its discretion in denying
the order.
Background
In
2014, Ohio Development bought 370 acres of undeveloped
property immediately north of the Tapatio Springs subdivision
in Kendall County. Ohio plans to develop the property, and it
submitted an application for preliminary approval of a
subdivision plat with a Kendall County Commissioner. The
Commissioner declined to approve the preliminary application
until Ohio could establish the location of its southern
boundary line and that Ohio has a right of access to the
southern part of its property using an existing road located
in the Tapatio Springs subdivision.
A
portion of the southern boundary of Ohio's property
borders the northern boundary of the Tapatio Springs
subdivision. Some evidence supports that the southern
boundary of Ohio's property is a straight east to west
line. However, there is a fence that bows south of that line
for a little more than half of a mile, and there is some
evidence that supports the fence line is the southern
boundary of Ohio's property. The cumulative area between
the straight line and the fence is about 1.628 acres, and is
referred to as the "strip."
Wild
Turkey Blvd. runs along much of the northern side of the
subdivision, property administered by appellee, Tapatio
Springs Homeowners Association (TSHOA). For a length of about
one-half mile, immediately south of the strip, the road runs
roughly parallel to the fence, at some points as close as
three feet. There are three gates in various places within
the fence along this stretch.
In
September 2015, Ohio filed a trespass to try title action and
a request for declaratory relief against TSHOA. In its live
pleading, Ohio asserted it has fee simple record title to the
strip or, alternatively, it has title to the strip by adverse
possession. Ohio also alleged that by virtue of an express
grant in deeds to it and its predecessor, it has a
non-exclusive perpetual access easement to use Wild Turkey
Blvd. and to cross the property between the road and the
southern boundary of Ohio's property for ingress and
egress. The easement allegedly includes the right to access
the gates and to cross the strip if Ohio is found not to own
it. Ohio pled alternatively that it has a prescriptive
easement. Among other things, TSHOA denied the existence of
an easement.
While
the litigation over title and access to the property was
pending, Ohio entered into a two-year lease with a hunting
group to allow wild boar hunting on Ohio's property for
no fee. Ohio told the hunters to use Wild Turkey Blvd.
through the Tapatio Springs subdivision and the gates along
the fence to access Ohio's 370 acres. TSHOA learned of
the agreement from residents who noticed hunters driving
through the subdivision in flatbed trucks carrying
all-terrain-vehicles and equipment such as feeders and traps.
TSHOA objected to such unrestricted use of "its private
roads, gates, and property, " and attempted to negotiate
an agreement for terms of use. When discussions yielded no
agreement, TSHOA sent a letter to Ohio, stating Ohio would
need to obtain TSHOA's permission to use the road,
property, and gates and that it intended to put locks on the
gates to prohibit further use without TSHOA's prior
permission. The letter noted that one person, Willie
Stricker, had TSHOA's permission to use the road,
property, and gates for occasional access to Ohio's
property for his horseback riding operation, as he had done
in the past. In response, Ohio filed the application for a
temporary injunction to restrain TSHOA from denying Ohio and
its licensees access to Ohio's property from Wild Turkey
Blvd. and through the gates, including prohibiting the
installation of chains and locks on the gates. The trial
court held a hearing and denied the application for a
temporary injunction. Ohio filed this interlocutory appeal.
Standard
of Review
In
support of its application for a temporary injunction, Ohio
was required to plead and prove: (1) a cause of action
against the defendants; (2) a probable right to the relief
sought; and (3) a probable, imminent, and irreparable injury
in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d
198, 204 (Tex. 2002). The decision to grant or deny a
temporary injunction is a matter wholly within the trial
court's sound discretion, and we will reverse only for a
clear abuse of that discretion. Id. In our review of
the trial court's order, we cannot substitute our
judgment for that of the trial court, even if we would have
reached a contrary conclusion. Id. at 204, 211;
Amend v. Watson, 333 S.W.3d 625, 627 (Tex.
App.-Dallas 2009, no pet.). Instead, we view 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 that it
"exceed[s] the bounds of reasonable discretion."
Butnaru, 84 S.W.3d at 204; Frey v. CST Props.,
LLC, No. 04-13-00450-CV, 2014 WL 783324, at *5 (Tex.
App.-San Antonio Feb. 26, 2014, no pet.); Amend, 333
S.W.3d at 627. Because we are reviewing the trial court's
ruling solely to determine whether there has been a clear
abuse of discretion by the trial court in denying the
temporary injunction, the merits of the underlying case are
not presented for appellate review. Davis v. Huey,
571 S.W.2d 859, 861-62 (Tex. 1978). We will not find an abuse
of discretion in denying an application for temporary
injunction if the applicant did not prove one of the
requirements for a temporary injunction or if the trial court
bases its decision on conflicting evidence. Id. at
862; Frey, 2014 WL 783324, at *5.
Discussion
The
parties do not dispute that Ohio pled a cause of action. Ohio
contends on appeal that it showed it had a probable right to
relief on its claim that it holds either an express easement
or an implied easement by necessity to access its property by
way of Wild Turkey Blvd.[1] Ohio's Fourth Amended Petition did not
include a pleading that it has an implied easement by
necessity. However, Ohio presented evidence at the temporary
injunction hearing that the only road access to its property
is by using Wild Turkey Blvd. and then crossing from the road
to Ohio's property, and Ohio contends the issue of an
easement by necessity was thus tried by consent. Ohio did not
present any argument to the trial court setting out the legal
requirements for an easement by necessity, did not assert
that the requirements were met by the evidence or tried by
...