Opinion
NO. 02-13-00087-CV
04-08-2013
IN RE TRACY D. WILLIAMS, REBECCA VANDERBILT REID, AND EUGENE P. PERSONNE RELATORS
ORIGINAL PROCEEDING
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
Relators Tracy D. Williams, Rebecca Vanderbilt Reid, and Eugene P. Personne (collectively, the Landowners) filed a petition for writ of injunction and a motion for emergency relief with this court on March 12, 2013. We granted the Landowners' motion for emergency relief that same day and requested a response from respondent Atmos Energy Corporation (Atmos).See Tex. R. App. P. 52.10(b) (authorizing court of appeals to grant temporary relief). Atmos filed a response that includes a motion for sanctions against the Landowners and their attorneys, and the Landowners filed a reply. We grant the Landowners' petition for writ of injunction and deny Atmos's motion for sanctions.
The Landowners identified the trial court as the respondent, but Atmos is the respondent because Atmos is the party against whom the Landowners seek injunctive relief pending resolution of their interlocutory appeal. See Tex. R. App. P. 52.2.
II. Background
The Landowners are real property owners of adjoining, multi-acre tracts of land in Parker County, Texas, on which their residences and other improvements are located. The Landowners filed the underlying suit in November 2012 against Atmos, the current owner of an easement across each of the Landowners' property. The Landowners alleged causes of action for trespass, inverse condemnation, breach of contract, negligence, negligence per se, and declaratory judgment. The trial court granted the Landowners a temporary restraining order, and the Landowners and Atmos extended the temporary restraining order by agreement on two occasions. Atmos answered the lawsuit and filed counterclaims against the Landowners for wrongful injunction and for breach of the easements.
Following a hearing on March 4, 2013, the trial court denied the Landowners' application for temporary injunction. The Landowners filed a notice of appeal from the trial court's denial of their application for temporary injunction as permitted by civil practice and remedies code section 51.014(a)(4).See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West Supp. 2012). The Landowners also filed the instant petition for writ of injunction, asking that this court enjoin Atmos from taking certain action until the merits of their interlocutory appeal can be fully and finally determined.
The cause number of the Landowners' interlocutory appeal is 02-13-00089-CV. Nothing within this opinion is intended as a comment on the merits of that appeal, nor should anything within this opinion be construed as such.
At its core, the parties' substantive dispute concerns the location of a new pipeline across the Landowners' land. The Landowners contend that the pipeline must be installed within the fifty-foot strip that has been used by Atmos and its predecessors in interest since the easements were granted in 1953. Atmos contends that the easement is not so restricted, and it further asserts that it will install the new pipeline adjacent to but beyond the fifty-foot strip.
In their petition for writ of injunction, the Landowners assert that a writ of injunction from this court is necessary because Atmos has stated an intention since October 2012 to install a new pipeline across Williams's and Reid's property and to level hundreds of mature trees in the process. The Landowners also assert that although Atmos informed Personne that it did not intend to disturb his property, Atmos nevertheless staked Personne's property, indicating a contrary intention. The Landowners further state that they sought a temporary restraining order from the trial court in late November 2012 because they had learned that Atmos intended to start clearing property outside the fifty-foot strip that same week and that they sought a writ of injunction from this court on March 12 because they had learned that Atmos "intend[ed] to raze and destroy over 700 trees on Wednesday, March 13."
Atmos does not dispute that it intends to promptly begin construction of the new pipeline, nor does Atmos dispute that it will clear portions of Williams's and Reid's property beyond the fifty-foot strip. Indeed, Atmos states in its response brief that "[i]n order to construct the new pipeline, it is necessary to clear the trees from an area seventy-five feet in width across only [a] portion of Ms. Williams'[s] property" and that it will also clear a thirty-foot area across part of Reid's property and another part of Williams's property.
Atmos contends that the "controlling issue in this original proceeding is whether an injunction is necessary to preserve this Court's ability to issue a ruling that would affect the rights of the parties as to the terms of Atmos'[s] Easement." But the Landowners state in their reply brief that they seek a writ of injunction from this court "to ensure that Atmos did/does not destroy [their] trees and property during the pendency of the interlocutory appeal." The Landowners further posit, "Were this Court to deny the Petition for Writ of Injunction during the pendency of the interlocutory appeal, nothing would prevent Atmos from cutting trees and taking/destroying [the Landowners'] property, which would render [the Landowners'] interlocutory appeal moot."
III. Discussion
Courts of appeals have limited injunctive powers. In re Health Discovery Corp., 148 S.W.3d 163, 164 (Tex. App.—Waco 2004, orig. proceeding). However, the government code grants a court of appeals the authority to issue writs necessary to enforce its jurisdiction. Tex. Gov't Code Ann. § 22.221 (West 2004); see id. § 21.001(a) (West 2004). "A court of appeals may issue such a writ to prevent an appeal from becoming moot." In re Shields, 190 S.W.3d 717, 719 (Tex. App.—Dallas 2005, orig. proceeding); see In re Teague, No. 02-06-00033-CV, 2006 WL 302123, at *1 (Tex. App. —Fort Worth Feb. 6, 2006, orig. proceeding) (mem. op.). The question before the court in this original proceeding is whether our jurisdiction will be interfered with or destroyed in the absence of a writ of injunction pending resolution of the Landowners' interlocutory appeal.
Throughout much of its response, Atmos argues its interpretation of the easement language, the potentially applicable case law, and the testimony presented to the trial court at the temporary injunction hearing. The merits of the parties' substantive dispute is not, however, before the court as part of this original proceeding. Indeed, this court has expressly declined to consider the merits of a pending appeal when deciding whether to grant injunctive relief, stating as follows:
Respondents have urged that this court consider the records now filed in the appeal on the merits. This we must decline to do. Premature consideration of such evidence to evaluate Relators' likelihood of prevailing on appeal could jeopardize unbiased hearing of the substantive questions to be presented at the appropriate time. Further, consideration of the statement of facts already filed as a part of the appellate record could result in discouraging applicants from attempting to comply in good faith with the time limits prescribed for the filing of such records. A record early filed (as was this one) could penalize a litigant by operating to deny him opportunity to be heard in full on the merits of his appeal. For the purposes of this injunction, Relators have shown that their appeal has been properly perfected and will become moot absent an enjoinder.Reyes v. Atkins, 619 S.W.2d 26, 27-28 (Tex. Civ. App.—Fort Worth 1981, orig. proceeding); see also Shields, 190 S.W.3d at 719-20 (granting writ of injunction pending appellate court's determination of appeal of trial court's order dissolving injunction and stating the court made "no conclusions on the merits as to the contentions of the parties reflected in the record").
As to whether a writ of injunction is necessary to preserve this court's jurisdiction pending determination of the Landowners' interlocutory appeal from the denial of their application for temporary injunction, another case from this court is instructive.
It has been held in many cases that where an original petition for writ of injunction is brought pendin g the appeal of the trial court's denial of a similar injunction, the appellate court should issue the writ to protect its jurisdiction over the appeal. The subject matter of such an appeal is whether the trial court properly refused to grant the requested temporary injunction. Granting the injunction preserves the subject matter of the appeal and the effectiveness of the court's decision on the appeal should the relator prevail.EMW Mfg. Co. v. Lemons, 724 S.W.2d 425, 426-27 (Tex. App. —Fort Worth 1987, orig. proceeding [injunction denied]) (citations omitted) (emphasis added) (holding that because relator's appeal was not from the denial of a temporary injunction, relator's request for injunction was instead an improper attempt to maintain the status quo pending appeal); see Health Discovery Corp., 148 S.W.3d at 163-66 (granting writ of injunction pending interlocutory appeal of denial of temporary injunction). This principle was further explained by our sister court as follows:
The subject matter of the pending appeal is whether the trial court properly refused to grant the requested temporary injunction. If respondents sell the subject property at a trustee's sale while the appeal is still pending in this Court, the appeal will become moot and our jurisdiction over the pending appeal will have been unlawfully invaded and its subject matter destroyed, since there would then be no way we could enforce our judgment or decree in the event the relators should prevail in their appeal.Pendleton Green Assocs. v. Anchor Sav. Bank, 520 S.W.2d 579, 582 (Tex. Civ. App.—Corpus Christi 1975, no writ); see also Teague, 2006 WL 302123, at *1-2 (granting petition for writ of injunction to prohibit destruction of relator's building pending his appeal of the city's plea to the jurisdiction in order to protect the subject matter of the pending appeal).
In this case, the Landowners have appealed the trial court's denial of their application for temporary injunction. The subject matter of that appeal is whether the trial court abused its discretion by failing to grant the temporary injunction. See EMW Mfg. Co., 724 S.W.2d at 426-27; Pendleton, 520 S.W.2d at 582. If this court does not grant the Landowners' petition for writ of injunction and enjoin Atmos from continuing with construction of the pipeline over the Landowners' property until the interlocutory appeal can be decided, it appears that Atmos will clear trees and otherwise alter the Landowners' property in areas outside the fifty-foot strip. But should we determine upon consideration of the merits of the interlocutory appeal that the trial court should have granted the temporary injunction, Atmos would have already cleared the trees and otherwise altered the Landowners' property. Our judgment would in that instance be a nullity. See Shields, 190 S.W.3d at 719. The Landowners' interlocutory appeal concerns whether the trial court should have enjoined Atmos from clearing trees and altering the Landowners' property in areas beyond the fifty-foot strip. If we do not similarly enjoin Atmos until such time as the Landowners' interlocutory appeal is decided on its merits, Atmos will proceed with construction and clear and otherwise alter the Landowners' property, and the interlocutory appeal will be moot. See id. (granting writ of injunction after concluding that appellate court judgment would be a nullity if subject matter of interlocutory appeal were sold before resolution of that appeal); see also Teague, 2006 WL 302123, at *2 (granting writ of injunction to prevent destruction of building and stating that "demolition of the structure on the property before resolution of the appeal would render the appeal moot"). There would be no point in deciding whether the trial court should have enjoined Atmos from clearing and otherwise altering the Landowners' property if Atmos has already cleared and altered the Landowners' property. Thus, contrary to Atmos's contention, this original proceeding is not an improper attempt by the Landowners to maintain the status quo or prevent damage pending their appeal. The purpose of the writ of injunction is to protect this court's jurisdiction over the subject matter of the appeal until the appeal can be decided. Pendleton, 520 S.W.2d at 582; see Shields, 190 S.W.3d at 719; Health Discovery Corp., 148 S.W.3d at 163-66; EMW Mfg. Co., 724 S.W.2d at 426-27; see also Teague, 2006 WL 302123, at *2.
This is a different question than whether the Landowners could or could not recover damages for any alteration to their property and is another matter upon which we express no opinion.
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Atmos also incorrectly argues that we should not grant the petition for writ of injunction because the Landowners have an otherwise adequate remedy. But whether the Landowners have an otherwise adequate remedy is an issue to be decided as part of the interlocutory appeal when considering whether the trial court abused its discretion by refusing to grant the temporary injunction. Cf. McGlothlin v. Kliebert, 672 S.W.2d 231, 232-33 (Tex. 1984) (holding that "the district court erred in granting the temporary injunction because [the applicant] had an adequate remedy at law and, therefore, failed to allege a sufficient foundation for the awarding of a temporary injunction " (emphasis added)). This original proceeding for a writ of injunction involves only whether the subject matter of the Landowners' pending appeal will be destroyed or interfered wi th if we do not issue the writ. See Shields, 190 S.W.3d at 719; Health DiscoveryCorp., 148 S.W.3d at 163-66; EMW Mfg. Co., 724 S.W.2d at 426-27; Reyes, 619 S.W.2d at 27-28; see also Teague, 2006 WL 302123, at *1-2. Because we conclude that a judgment from this court could be ineffectual and that the interlocutory appeal could become moot in the absence of a writ of injunction, we grant the Landowners' petition for writ of injunction.
IV. Scope of Injunctive Relief
Atmos also argues against the Landown ers' requested relief by contending that the language of the proposed injunction is "ambiguous and fails to describe with reasonable specificity the acts sought to be restrained." Atmos contends that the Landowners have not presented evidence of the exact location of the "50-foot strip of land" on which the Landowners say Atmos must build any additional pipeline. Atmos also asserts that natural resource code section 111.0194 does not apply.
Atmos's arguments, however, relate to the merits of the Landowners' application for temporary injunction and require consideration of the evidence presented at the temporary injunction hearing. Atmos's arguments therefore involve matters not at issue in this original proceeding. See generally Reyes, 619 S.W.2d at 27-28 (declining to review merits of pending appeal). Moreover, the scope of the injunctive relief the Landowners seek in this court is identical to that which the trial court granted in November 2012 in the temporary restraining order. Atmos has operated under that language for almost four months, twice agreeing to extend its duration, and has through its briefing demonstrated that it understands the acts from which it is restrained. It thus appears to the court that the injunctive relief sought by the Landowners is sufficiently specific and describes in reasonable detail the acts from which Atmos is restrained. See generally Tex. R. Civ. P. 683 (requiring injunction and restraining orders to "be specific in terms" and to "describe in reasonable detail . . . the act or acts sought to be restrained").
V. Motion for Sanctions
Atmos's response to the Landowners' petition for writ of injunction includes a motion for sanctions under rule of appellate procedure 52.11. Atmos contends that the Landowners misrepresented the factual record and applicable law, brought this proceeding for purposes of delay, and filed a misleading record. The majority of Atmos's arguments relate to the parties' substantive dispute and cannot be addressed without reference to the record from the interlocutory appeal, but those matters are not before the court as part of this original proceeding. See Reyes, 619 S.W.2d at 27-28. Moreover, the Landowners have shown entitlement to the relief requested in their petition for writ of injunction. The motion for sanctions is denied.
VI. Conclusion
Having considered the Landowners' petition for writ of injunction, Atmos's response, and the Landowners' reply, and having determined that the Landowners' interlocutory appeal could be rendered moot and that any judgment from this court could be ineffectual if a writ of injunction does not issue, we grant the relief requested in the Landowners' petition for writ of injunction. As Atmos has not requested any increase in the amount of the Landowners' bond, no additional bond will be required at this time.
Therefore, until this court has determined the Landowners' pending interlocutory appeal, or until otherwise ordered by this court, Atmos and its officers, agents, employees, attorneys, and all those acting in concert or participation with Atmos are restrained from:
1. Entering upon relators' land (2267, 2228, 2300 Greg Street, Azle, Parker County, Texas 76020) to conduct any work whatsoever except within the 50-foot strip of land already cleared through relators' property, with ingress to and egress from such strip of land, and then only according to the terms of the 1953 LSG Easement as limited by Tex. Nat. Res. Code Ann. § 111.0194 and Texas Law;
2. Cutting or causing to be cut any vegetation whatsoever on the relators' property except that which might have grown over the 50-foot strip of land already cleared through relators' property;
3. Damaging or causing damage to Ms. Williams' home, Ms. Reid's water well, or other real or personal property situated on relators' property; and
4. Harassing relators in any way, including, but not limited to in person, in writing or by telephone, or otherwise attempting to improperly coerce relators into allowing Atmos to enter upon and damage their land.
We express no opinion concerning the merits of the Landowners' appeal in cause no. 02-13-00089-CV.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.