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In re Peter and Camella Scamardo, FLP

Court of Appeals of Texas, Tenth District

March 28, 2018

IN RE PETER AND CAMELLA SCAMARDO, FLP
v.
3D FARMS, A GENERAL PARTNERSHIP, AND FRANK DESTEFANO, TRUSTEE, SAM F. DESTEFANO TESTAMENTARY TRUST, Appellees PETER AND CAMELLA SCAMARDO, FLP, Appellant

         Original Proceeding

          From the 82nd District Court Robertson County, Texas Trial Court No. 12-06-19093-CV

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Chief Justice Gray dissenting with a note) [*]

          MEMORANDUM OPINION

          AL SCOGGINS Justice

         This case involves the entry of a mandatory injunction and the assessment of costs in a trespass case. In its petition for writ of mandamus in appellate cause number 10-17-00160-CV, relator, Peter and Camella Scamardo, FLP ("Scamardo"), contends that the trial court abused its discretion by disregarding this Court's mandate in a prior proceeding and permitting real party in interest, 3D Farms, a general partnership, and Frank DeStefano Trustee, Sam F. DeStefano Testamentary Trust (collectively "3D Farms"), to maintain a trespassing encroachment on Scamardo's property. In a concurrently-filed appeal in appellate cause number 10-17-00234-CV, Scamardo contends that the trial court abused its discretion by disregarding this Court's mandate and failing to tax costs against appellees, 3D Farms. After reviewing both filings, we deny Scamardo's mandamus petition and affirm the judgment of the trial court.

         I. Background

         As noted above, this is not the first time we have addressed this dispute. See generally Peter & Camella Scamardo, FLP v. 3D Farms, No. 10-15-00163-CV, 2016 Tex.App. LEXIS 149 (Tex. App.-Waco Jan. 7, 2016, pet. denied) (mem. op.) ("Scamardo I"). In Scamardo I, we noted that the properties of 3D Farms and Scamardo are adjacent to one another and that the crux of the dispute was that 3D Farms built an irrigation canal along the common boundary between the properties that encroached on Scamardo's property. Id. at *1. Because of the trespass, Scamardo filed suit, asserting trespass and Texas Water Code violations. Id. at **1-2. The jury concluded that 3D Farms trespassed on Scamardo's property, but that Scamardo consented to the trespass. Id. at *2. Additional findings were made, including a negative finding on Scamardo's claims under the Texas Water Code and a proportionate-responsibility finding, among other things. Id. Based on the jury's findings, the trial court entered a take-nothing judgment against Scamardo. Id.

         On appeal, Scamardo narrowed its issue to the sufficiency of the evidence supporting the jury's consent finding. Id. at *3. We concluded that the evidence relied upon by 3D Farms to prove consent was "so weak as to do no more than create a mere surmise or suspicion and, in legal effect, is no evidence." Id. at *11. Accordingly, we set aside the jury's consent finding and entered the judgment that the trial court should have rendered-that Scamardo was entitled to judgment on the trespass claim. Id. at **11-13. However, Scamardo requested on appeal that we enter a mandatory injunction requiring 3D Farms to remove, at their cost and within thirty days of our judgment, the encroachment from Scamardo's property and restore the property to its condition immediately prior to the trespass. Id. at *12. We noted that this Court is not authorized to enter a mandatory injunction under these circumstances. Id. at *13. As such, we remanded the matter to the trial court with instructions to enter a mandatory injunction in favor of Scamardo and to consider Scamardo's request for costs of court. Id.

         3D Farms unsuccessfully appealed our judgment to the Texas Supreme Court. See generally Peter & Camella Scamardo, FLP v. 3D Farms, No. 16-0241, 2016 Tex. LEXIS 682 (Tex. Aug. 12, 2016). Thereafter, on October 11, 2016, we issued the mandate in this matter. Scamardo moved the trial court to enter judgment in their favor in conformance with our mandate. Specifically, Scamardo requested that the trial court enter "a mandatory injunction ordering 3D Farms to remove the encroaching embankment, at 3D Farms' sole cost, and to return the Scamardos' land to its pre-trespass condition, " as well as tax costs against 3D Farms. In a response, 3D Farms noted that, among other things, Scamardo never asked the jury to find the scope of the alleged trespass and that our mandate did not create a ministerial duty to disregard unchallenged jury findings concerning the Water-Code claims.

         The trial court conducted two hearings. At these hearings, 3D Farms argued that any injunction must be specific enough to be enforceable by contempt. Scamardo, on the other hand, contended that our mandate specifically instructed the trial court to enter a mandatory injunction in favor of Scamardo, not make a fact finding as to the scope of the trespass. Ultimately, the trial court issued an injunction requiring 3D Farms to remove, within sixty days from the date of the judgment, "from the Scamardo FLP's property 6 inches of dirt at the property line between the FLP's property and 3D Farms' property and from or between the elm snag and the railroad tie, both of which are well known and established landmarks." The trial court also ordered that the parties bear their own costs in this matter and entered findings of fact and conclusions of law. Unhappy with the trial court's rulings, Scamardo filed its mandamus petition and appeal.

         II. Scamardo's Mandamus Petition

         In their sole issue in their mandamus petition, Scamardo contends that the trial court abused its discretion when it disregarded our mandate and permitted 3D Farms to maintain the trespassing encroachment on Scamardo's land. More specifically, Scamardo asserts that the trial court had a ministerial duty to strictly adhere to our mandate, which, as Scamardo argues, required entry of a mandatory injunction that ordered 3D Farms to remove each and every part of the embankment that encroached on Scamardo land.

         Mandamus is available to correct a clear abuse of discretion or violation of a legal duty imposed by law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Additionally, relator must establish that there is no other adequate remedy at law. Id. When the trial court's discretion is addressed to a factual issue, the relator must establish that the trial court's decision was contrary to the only decision reasonable under the circumstances. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). A trial court has no discretion to determine the applicable law, and the trial court's failure to apply the law correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 839-40.

         "When the trial court clerk receives the mandate, the appellate court's mandate must be enforced." Tex.R.App.P. 51.1(b). A district court has no discretion to interpret an appellate court's mandate. Schliemann v. Garcia, 685 S.W.2d 690, 692 (Tex. App.-San Antonio 1984, orig. proceeding). A trial court's failure or refusal to comply with a court of appeals mandate is an abuse of discretion. Lee v. Downey, 842 S.W.2d 646, 648 (Tex. 1992) (orig. proceeding). A court of appeals may issue mandamus relief to enforce compliance by the trial court with its mandate to enter a particular judgment, and the appellate court retains jurisdiction until the judgment ordered has been entered. Curtis v. Nobles, 588 S.W.2d 687, 688 (Tex. App.-Amarillo 1979, orig. proceeding).

         In analyzing the validity of Scamardo's assertions regarding the trial court's actions after the issuance of our mandate, we must examine what we did in Scamardo I. In particular, we issued the mandate in Scamardo I on October 11, 2016. The mandate clearly referenced the Scamardo I judgment, which provided the following, in relevant part:

This cause came on to be heard on the transcript of the record of the Court below, and the same being considered, because it is the opinion of this Court that there was error in the judgment, it is ordered, adjudged and decreed by the Court that the judgment be reversed and judgment rendered in favor of appellant Peter and Camella Scamardo, FLP, as to its trespass claim. However, we remand this cause for entry of a mandatory injunction in favor of appellant and for consideration of appellant's request for court costs.

         But, as noted in our opinion in Scamardo I, we arrived at the aforementioned conclusion to remand for entry of a mandatory injunction and consideration of court costs based, in part, on Texas Rules of Appellate Procedure 43.2(d) and 43.3(a)-both of which contemplate a remand to the trial court for further proceedings. See Tex. R. App. P. 43.2(d) (providing that a court of appeals may "reverse the trial court's judgment and remand the case for further proceedings"), 43.3(a) (stating that, when reversing a trial court's judgment, the appellate court must render the judgment that the trial court should have rendered except when a remand is necessary for further proceedings); see also Scamardo I, 2016 Tex.App. LEXIS 149, at *13. Further proceedings were necessary because we lack authority to enter the mandatory injunction requested by Scamardo. See, e.g., Scamardo I, 2016 Tex.App. LEXIS 149, at **12-13.

         Contrary to the arguments of Scamardo, the trial court retained a reasonable amount of discretion in entering the ordered mandatory injunction on remand in favor of Scamardo. See Russell v. Russell, 478 S.W.3d 36, 42 (Tex. App.-Houston [14th Dist.] 2015, no pet.); Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex. App.- Dallas 2011, no pet.) (noting that the trial court's jurisdiction on remand is limited to the issues specified in the mandate and the scope of the mandate is determined by referring to both the court of appeals's opinion and the mandate itself); see also In re Castle Tex. Prod. L.P., No. 12-17-00178-CV, 2017 Tex.App. LEXIS 7124, at **12-13 (Tex. App.-Tyler July 31, 2017, orig. proceeding) ("Even when remand is limited, the trial court retains a reasonable amount of discretion to comply with an appellate court mandate."). And unfortunately, in Scamardo I, we could not provide any more specificity in our instructions to the trial court regarding the mandatory injunction because the record did not reflect that Scamardo requested or obtained a finding from the jury regarding the scope of the trespass.[1]

         In any event, although we did render the judgment the trial court should have rendered on the consent finding in Scamardo I, the fact that we remanded the proceeding to the trial court to enter a mandatory injunction and consider Scamardo's request for court costs indicates that this is not a Rule 51 ministerial-duty case like the Hix appeals from this Court. See Tex. R. App. P. 51.1(b) (providing that an appellate court's mandate must be enforced-without further order from the trial court-if the appellate court: (1) affirms the trial court's judgment; (2) modifies the trial court's judgment and affirms that judgment as modified; or (3) renders the judgment the trial court should have rendered); Hix v. Robertson, 211 S.W.3d 423 (Tex. App.-Waco 2007, pet. denied) (modifying the trial court's judgment and affirming as modified); see also In re Robertson, No. 10-09-00005-CV, 2009 Tex.App. LEXIS 2641, at *6 (Tex. App.-Waco Apr. 15, 2009, orig. proceeding) (mem. op.) ("Instead of enforcing our judgment when it received our mandate, the trial court, upon Hix's motion, stayed the execution of the judgment. By staying the enforcement of the judgment, the trial court refused to comply with our mandate. The trial court had no discretion to refuse to enforce the mandate of this Court.").

         In addition to the foregoing, Scamardo did not address the adequate-remedy-at-law prong in its mandamus petition because it relied solely on the ministerial-duty argument-an argument that we have rejected. Furthermore, we note that Texas courts have held that a post-judgment order that acts in the nature of a mandatory injunction that resolves property rights-something that the mandatory injunction in this case does-is appealable. See Jack M. Sanders Family P'ship v. Roger T Fridholm Revocable Living Trust, 434 S.W.3d 236, 242 (Tex. App.-Houston [1st Dist.] 2014, no pet.) ("A post-judgment order, however, may be appealable if an appeal is statutorily authorized or if the order has the nature of a mandatory injunction that resolves property rights. . . . A post-judgment order operates as a mandatory injunction when it resolves property rights and imposes obligations on the judgment creditor or interested third parties."); see also In re Doe, 397 S.W.3d 847, 849 (Tex. App.-Fort Worth 2013, orig. proceeding) ("When, however, a post-judgment order acts in the nature of a mandatory injunction that resolves property rights, it may be appealable." (citing Schultz v. Fifth Judicial Dist. Court of Appeals, 810 S.W.2d 738, 740 (Tex. 1991) (orig. proceeding), abrogated on other grounds by In re Sheshtawy, 154 S.W.3d 114, 124-25 (Tex. 2004) (orig. proceeding) (holding that a turnover order that resolved property rights and acted "in the nature of a mandatory injunction" was appealable))). Accordingly, because Scamardo did not satisfy both prongs required to obtain mandamus relief, we deny its petition for writ of mandamus.

         III. Scamardo's Appeal

         On appeal, Scamardo raises two issues. First, Scamardo contends that the trial court abused its discretion when it disregarded this Court's mandate, ignored this Court's limited remand, decided an issue that had already been litigated to finality, and entered a final judgment that required only a partial removal of the encroaching trespass. In its second issue, Scamardo asserts that the trial court abused its discretion when it penalized Scamardo by refusing to tax costs against 3D Farms.

         A. The Mandatory Injunction

         As noted earlier, in Scamardo I, we reversed a take-nothing judgment on Scamardo's trespass claim, finding insufficient evidence to support the jury's consent finding. 2016 Tex.App. LEXIS 149, at *11. We also remanded this matter to the trial court for further proceedings to enter a mandatory injunction in favor of Scamardo. See id. at *13. The trial court conducted two hearings and entered a mandatory injunction to remove the trespass established by the uncontroverted testimony of Scamardo and Scamardo's expert at trial, among others. Specifically, the trial court defined the trespass as follows: "from the Scamardo FLP's property 6 inches of dirt at the property line between the FLP's property and 3D Farms' property and from or between the elm snag and the railroad tie, both of which are well known and established landmarks."

         On appeal, Scamardo argues that our mandate did not authorize the trial court to determine the scope of the trespass; rather, the trial court should have simply ordered 3D Farms to remove the trespass without further specificity. In response to this contention, 3D Farms directs us to Texas Rule of Civil Procedure 683, which provides, in pertinent part:

Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Tex. R. Civ. P. 683 (emphasis added). Furthermore, because a person who violates a trial court's injunction may be held in contempt, the language enjoining a party should be clear so the parties subjected to such prohibitions are not misled. See id. at R. 692 (providing that a party who disobeys an injunction may be punished by the court for contempt); see also Dickerson v. Acadian Cypress & Hardwoods, Inc., No. 09-13-00299-CV, 2014 Tex.App. LEXIS 3889, at **18-19 (Tex. App.-Beaumont Apr. 10, 2014, no pet.) (mem. op.). Therefore, based on the foregoing rules, the trial court had a duty to craft a mandatory injunction that is specific and clear so the parties subjected to the injunction- 3D Farms-are not misled. See Tex. R. Civ. P. 683, 692; see also Dickerson, 2014 Tex.App. LEXIS 3889, at **18-19.

         However, despite the foregoing, Scamardo contends that Rule 683 only applies to temporary injunctions, not mandatory injunctions like the one at issue here. We are not persuaded by this argument. First, Rule 683 clearly states that "[e]very order granting an injunction, " not just temporary injunctions, shall "set forth the reasons for its issuance" and "shall be specific in terms." Tex.R.Civ.P. 683; see MCI Sales & Serv. v. Hinton, 329 S.W.3d 475, 500 (Tex. 2010) ("'A question of statutory construction is a legal one which we review de novo, 'ascertaining and giving effect to the Legislature's intent as expressed by the plain and common meaning of the statute's words.'" (quoting F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007))). Additionally, this Court, in Halverson, has applied Rule 683 to an injunction similar to the one at issue. See, e.g., Halverson v. Podlewski, No. 10-05-00303-CV, 2006 Tex.App. LEXIS 8814, at **10-11 (Tex. App.-Waco Oct. 11, 2006, no pet.) (mem. op.) ("Rule of Civil Procedure 683 provides in pertinent part that an order granting an injunction shall be specific in terms. To satisfy this requirement, an injunction order must be as precise as possible to inform the defendant of the acts he is restrained from doing. The defendant should not be ...


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