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Mahrou v. Weeton Properties, LLC

Court of Appeals of Texas, Third District, Austin

May 24, 2019

Ali Mahrou, Appellant
v.
Weeton Properties, LLC Series B, Appellee

          FROM THE 33RD DISTRICT COURT OF BLANCO COUNTY NO. CV-08515, THE HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Triana

          MEMORANDUM OPINION

          THOMAS J. BAKER, JUSTICE

         Ali Mahrou filed this interlocutory appeal from the trial court's order issuing a temporary injunction restricting his use of a recreational easement on certain real property owned by Weeton Properties, LLC Series B (Weeton). See Tex. Civ. Prac. & Rem. Code § 51.014(a)(4) (providing for appeal from interlocutory order granting or refusing temporary injunction). We will vacate the trial court's temporary-injunction order.

         BACKGROUND

         The dispute in this case concerns the validity and scope of a recreational easement (Easement) affecting real property (the Property) in Blanco County. In August 2018, Weeton[1]sued Mahrou seeking temporary and permanent injunctive relief, declaratory relief, and damages for trespass to the Property. Weeton is the successor in title to the Property, previously owned by Reba Byrd, as Trustee of the Reba Byrd Trust Dated September 9, 2007 and as Trustee of the Byrd Trust II Dated September 9, 2007 (collectively, Byrd). Weeton purchased the Property from Byrd in January 2018.

         The Property was the subject of a prior lawsuit during Byrd's ownership. In 2013, Byrd sued Mahrou and his wife, Gypsie Mahrou, seeking declaratory relief regarding the applicability of deed restrictions to the Mahrous' tract of land in the Byrd Ranch Estates subdivision. The Mahrous counterclaimed seeking recognition of a recreational easement on Byrd's land to access and use Miller Creek. See Byrd v. Mahrou, No. 03-14-00441-CV, 2016 WL 3974702, at *1 (Tex. App.-Austin July 22, 2016, pet. denied) (mem. op.) (summarizing factual background).

         The trial court in the prior lawsuit rendered a final judgment (Final Judgment) holding, in part:

It is ORDERED, ADJUDGED and DECLARED the [Mahrous], their guests and subsequent owners of Tracts 17 and 18, located in Section 2 of the Byrd Ranch Estates shall have the right of ingress, egress and recreational use of that land owned by Plaintiffs Reba Byrd, Individually or as Trustee of the Reba Byrd Trust generally located at the entrance to the Byrd Ranch Estates/Byrd Ranch at Miller Creek Cemetery Road and contiguous to and abutting Miller Creek and the Miller Creek Dam located at said entrance to the Byrd Ranch Estates. The Court further[] Orders a permanent injunction shall issue prohibiting Plaintiffs Reba A. Byrd individually and as Trustee or the Reba Byrd Trust, or those acting under their direction or in concert with same, from interfering in any way with [the Mahrous], their guests and subsequent owners of Tracts 17 and 18, located in Section 2 of the Byrd Ranch Estates use and enjoyment of their right of ingress, egress and recreational use of this property.

         Both Byrd and the Mahrous[2] appealed the Final Judgment to this Court, and we affirmed. See id. The Final Judgment was recorded in the Blanco County deed records in January 2015.

         In the present lawsuit, Weeton pleaded for a declaration that the Easement established in the Final Judgment "did not run with the land upon [Weeton]'s acquisition of the Property." After an evidentiary hearing, the trial court rendered a Temporary Injunction Order (TI Order) on October 9, 2018, finding that "there are justiciable claims by both parties with regard to the easement, and that a temporary order be entered during the pendency of this matter." The TI Order further provided

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, that during the pendency of this lawsuit, and until a final judgment is entered with respect thereto, [Mahrou] shall have temporary access to the Easement beginning at the gate located at the Entrance and extending thirty (30) yards west of the Entrance. This area includes an extension into the water of Miller Creek perpendicular from said linear 30 yards of land.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that, except as provided in the preceding paragraph, [Mahrou] shall not have access to any other portion of any property owned by Plaintiffs.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that [Mahrou]'s activities upon the Easement shall be strictly limited to swimming and/or fishing. Under no circumstances shall [Mahrou] be entitled to navigate or utilize any boat, craft, or other flotation device on any ...

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