Opinion
01-20-00314-CV
06-10-2021
AUSTIN HOUSING FINANCE CORPORATION, Appellant v. FRIENDS OF BRYKERWOODS LLC AND MARCELA PATRICIA BUENROSTRO DEL REAL, Appellees
On Appeal from the 201st District Court Travis County, Texas Trial Court Case No. D-1-GN-20-000521
The Texas Supreme Court transferred this appeal from the Court of Appeals for the Third District of Texas. See Tex. Gov't Code Ann. § 73.001 (authorizing transfer of cases between courts of appeals).
Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.
MEMORANDUM OPINION
VERONICA RIVAS-MOLLOY JUSTICE
Appellant Austin Housing Finance Corporation ("AHFC") appeals the trial court's order granting a temporary injunction in favor of appellees Friends of Brykerwoods LLC and Marcela Patricia Buenrostro del Real (collectively, "Brykerwoods"). In two issues, AHFC contends that (1) the temporary injunction is void because it does not contain any finding that Brykerwoods will suffer irreparable harm absent injunctive relief, and (2) if the temporary injunction is not void, it is overbroad, impermissibly vague, and, in part, unsupported by the evidence. We reverse and remand.
Background
AHFC is a housing finance corporation whose board of directors consists of Austin City Council members. Friends of Brykerwoods LLC is a group of property owners in the Brykerwoods subdivision of West Austin, near Mopac Expressway and approximately two-and-a-half miles from the University of Texas. Marcela Patricia Buenrostro del Real is the property owner of Lot 2 of the Brykerwoods Annex located at 3002 Funston Street.
In December 2018, AHFC acquired a vacant lot ("Lot 1") from the City of Austin located at 3000 Funston Street in the Brykerwoods subdivision. AHFC acquired the lot for the stated purpose of building a single-family home as part of the City's effort to combat an affordable housing shortage in Austin. At the time of AHFC's purchase, the lot measured 4, 289.25 square feet.
Lot 1, which is located in an area that is prone to flooding, has the following deed restriction: "No residential structure shall be erected or placed on any building plot, which plot has an area of less than 5750 square ft. or a width of less than 50 ft. at the front building setback line as shown on the recorded plat" (the "Plat Note"). In February 2020, AHFC began construction of a single-family home on Lot 1.
Brykerwoods sued AHFC for breach of restrictive covenant and contract, nuisance, negligence, violation of Texas Water Code section 11.086, and invasion and interference of property rights. Brykerwoods also sought a declaratory judgment and injunctive relief to halt construction of the home on Lot 1. AHFC filed its answer asserting a general denial and several affirmative and other defenses.
Brykerwoods also sued the City of Austin for nuisance, negligence, violations of Texas Water Code section 11.086, and invasion and interference of property rights. The City of Austin is not a party to this appeal.
The trial court held a hearing on Brykerwoods's application for temporary restraining order on February 26, 2020. At the conclusion of the hearing, the trial court granted Brykerwoods's application and entered a temporary restraining order against AHFC. The court's order stated:
1. The Court finds that Plaintiff Del Real will suffer irreparable harm and injury if a temporary restraining order is not issued. Plaintiff Del Real ha[s] no adequate remedy at law to prevent Defendant Austin Housing Finance Corporation from its continuous violation of the deed restrictions of the Brykerwoods Annex by erecting a residential structure on a Lot not meeting the minimum lot size requirements. Plaintiff Del Real will suffer continuous injury if Defendant continues its construction and
course of action and it appears to the Court the Plaintiff will have a probable right to recovery.
2. The Court also finds that Plaintiffs ha[ve] shown a probable irreparable harm and injury if a temporary restraining order is not issued due to historical flooding issues due to lack of sufficient storm sewers maintained by the City of Austin and the fact that Defendant Austin Housing Finance Corporation is now covering the storm sewers in relation to its construction project.
IT IS THEEFORE ORDERED that Plaintiffs' Application for Temporary Restraining Order is GRANTED and the Court issues A TEMPORARY RESTRAINING ORDER against Defendant AUSTIN HOUSING FINANCE CORPORATION who is ORDERED (1) to stop construction or the erection of the residential structure on the property located at 3000 Funston, Austin, Texas 78703, and (2) remove the storm drain inlet covers it has placed on the storm drains on Funston Street.
On March 11, 2020, the trial court held a hearing on Brykerwoods's application for temporary injunction. At the conclusion of the hearing, the trial court signed an order extending the temporary restraining order against AHFC for an additional fourteen (14) days. The order reiterated the findings of the first temporary restraining order.
On March 17, 2020, the trial court's staff attorney emailed the parties advising them that the judge intended to grant Brykerwoods's application for temporary injunction. The staff attorney requested that Brykerwoods's counsel prepare and circulate a proposed order to counsel so that the parties' counsel could sign "agreed to form." The staff attorney requested that the order be submitted to the court by 9:00 a.m. the following morning, regardless of whether all counsel signed the proposed order.
On March 18, 2020, Brykerwoods's counsel emailed a proposed temporary injunction order to the trial court and AHFC's counsel without having previously circulated the order to AHFC's counsel for review. AHFC's counsel responded to the email, stating, "Defendants do not agree to this proposed order. In addition, please note that it purports to grant greater relief than that pleaded for in Plaintiffs' live pleading." The trial court signed the temporary injunction the same day. The temporary injunction order states, in relevant part:
While this email was exchanged with the trial court's attorney, it was not filed with the trial court and is therefore not a part of the clerk's record. The record further reflects that AHFC did not file any formal objections to Brykerwoods's proposed order or a separate proposed order.
The Court, having heard the pleadings, examined the evidence, and heard the argument of counsel, makes the following findings:
The Court has jurisdiction over the parties and the causes of action asserted in this matter.
IT IS THEREFORE ORDERED Plaintiffs' Application for Temporary Injunction is GRANTED with the conditions set forth below.
IT IS FURTHER ORDERED that Defendants, Austin Housing Finance Corporation ("AHFC"), or their agents servants, employees, independent contractors, general contractors subcontractors, representatives, attorneys, and those in active concert or participating with Defendant AHFC, are enjoined and restrained from directly or indirectly engaging in any construction activities at the property located
at 3000 Funston, Austin, Texas 78703 (the "Property") until a hearing on a Permanent Injunction may be had.
IT IS FURTHER ORDERED that Defendant AHFC or their agents, servants, employees, independent contractors, general contractors, subcontractors, and representatives shall not place storm drain inlets covers around 3000 Funston, Austin, Texas 78703.
This interlocutory appeal followed.
Applicable Law and Standard of Review
The purpose of a temporary injunction is to preserve the status quo pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). Temporary injunctions are an extraordinary remedy and do not issue as a matter of right. Id.; Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993) (per curiam). To obtain a temporary injunction, an applicant is not required to establish that it will prevail upon a final trial on the merits, but it must plead and prove that it (1) has a cause of action against the opposing party, (2) has a probable right on final trial to the relief sought, and (3) faces probable, imminent, and irreparable injury in the interim. Taylor Hous. Auth. v. Shorts, 549 S.W.3d 865, 877-78 (Tex. App.-Austin 2018, no pet.).
Although the decision whether to grant or deny a request for a temporary injunction is committed to the sound discretion of the trial court, once the court decides to grant injunctive relief, the order itself must contain the reasons for its issuance. Tex.R.Civ.P. 683; see also Taylor Hous. Auth., 549 S.W.3d at 880 (citing Tex.R.Civ.P. 683); Helix Energy Solutions Grp., Inc. v. Howard, 452 S.W.3d 40, 44 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (same). Texas Rule of Civil Procedure 683, which governs the form and scope of injunctions and temporary restraining orders, requires that a temporary injunction order specifically set forth the reasons the trial court believes irreparable injury will result if an injunction does not issue. Tex.R.Civ.P. 683; DHJB Dev., LLC v. Graham, No. 03-18-00343-CV, 2018 WL 5987150, at *3 (Tex. App.-Austin 2018, pet. dism'd) (mem. op.); El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 748 (Tex. App.- Dallas 2011, no pet.). This requirement is mandatory. InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986). An order that does not comply with the requirements of Rule 683 "is subject to being declared void and dissolved." Helix Energy Solutions Grp., Inc., 452 S.W.3d at 44 (quoting InterFirst Bank, 715 S.W.2d at 641).
Because this is an interlocutory appeal, our review is strictly limited to determining whether there has been a clear abuse of discretion by the trial court in granting the application for a temporary injunction, and we do not address the merits of the underlying case. Brooks v. Expo Chem. Co., 576 S.W.2d 369, 370 (Tex. 1979) (stating that because "the effect of a premature review of the merits is to deny the opposing party the right to trial by a jury . . . it will not be assumed that the evidence taken at a preliminary hearing on temporary injunction will be the same as the evidence developed at a trial on the merits"). In making this determination, we may not substitute our judgment for that of the trial court unless its decision was so arbitrary that it exceeded the bounds of reasonableness. See Butnaru, 84 S.W.3d at 204.
Discussion
AHFC raises two issues on appeal. First, it contends that the temporary injunction is void because it does not comply with Texas Rule of Civil Procedure 683. Second, AHFC contends that even if the temporary injunction is not void, it should be reversed and remanded to the trial court because it is overbroad, impermissibly vague, and, in part, unsupported by the evidence.
A. Compliance with Rule 683
AHFC contends that the temporary injunction order is void and should be dissolved because it does not include any finding that Brykerwoods will suffer irreparable harm in the absence of injunctive relief. Brykerwoods asserts that (1) AHFC failed to preserve any error regarding Rule 683 because it did not present that ground to the trial court, (2) AHFC cannot show it was harmed by any alleged failure to comply with Rule 683, and (3) the trial court's order complies with Rule 683 because a temporary injunction regarding restrictive covenants does not require proof of irreparable injury.
The Texas intermediate courts of appeals are split on the issue of whether a party must preserve error on a complaint that a temporary injunction order fails to comply with Rule 683. See Hoist Liftruck Mfg., Inc. v. Carruth-Doggett, Inc., 485 S.W.3d 120, 124 (Tex. App.-Houston [14th Dist.] 2016, no pet.) (Frost, C.J., concurring) (compiling cases illustrating split of authority among courts of appeals on issue of error preservation). The majority view, including the view of this Court, is that a party need not complain of a Rule 683 deficiency at the trial court level to preserve error. See id. The Austin Court of Appeals represents the minority view, holding that a party must preserve error in the trial court to raise a Rule 683 defect on appeal. See DHJB Dev., LLC, 2018 WL 5987150, at *3 ("This Court has long recognized that a complaint that a temporary injunction fails to comply with rule 683's specificity requirements is considered one of form that is waived unless it is adequately preserved before the trial court."). Because this case was transferred to this Court from the Austin Court of Appeals, we must apply that court's precedent. See Tex. R. App. P. 41.3 ("[T]the court of appeals to which [a] case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court."). We now consider whether AHFC preserved error.
See Courtlandt Place Historical Found. v. Doerner, 768 S.W.2d 924, 926 (Tex. App.-Houston [1st Dist.] 1989, no writ); see also Mann v. Aguirre, No. 13-08-746-CV, 2010 WL 337161, at *2 (Tex. App.-Corpus Christi Jan. 28, 2010, no pet.) (mem. op.); Int'l Bhd. of Elec. Workers Local Union 479 v. Becon Const. Co., Inc., 104 S.W.3d 239, 243 (Tex. App.-Beaumont 2003, no pet.); Evans v. Woods, 34 S.W.3d 581, 583 (Tex. App.-Tyler 1999, no pet.); Big D Props., Inc. v. Foster, 2 S.W.3d 21, 23 (Tex. App.-Fort Worth 1999, no pet.); 360 Degree Commc'ns Co. v. Grundman, 937 S.W.2d 574, 575 (Tex. App.-Texarkana 1996, no writ); Fasken v. Darby, 901 S.W.2d 591, 593 (Tex. App.-El Paso 1995, no writ); Crenshaw v. Chapman, 814 S.W.2d 400, 402 (Tex. App.-Waco 1991, no writ); Hopper v. Safeguard Bus. Sys., Inc., 787 S.W.2d 624, 626 (Tex. App.-San Antonio 1990, no writ); Bayoud v. Bayoud, 797 S.W.2d 304, 313 (Tex. App.-Dallas 1990, writ denied).
The Amarillo Court of Appeals similarly holds that a party must preserve error. See Texas Tech Univ. Health Sci. Ctr. v. Rao, 105 S.W.3d 763, 768 (Tex. App.- Amarillo 2003, pet. dism'd).
AHFC contends that it preserved its Rule 683 complaint for appellate review because it timely objected to Brykerwoods's proposed injunction order. The day before the trial court signed the temporary injunction order, the trial court's staff attorney emailed the parties notifying them that the judge intended to grant the temporary injunction. The staff attorney requested that Brykerwoods prepare and circulate a proposed order to AHFC prior to sending it to the court so that the parties' counsel could sign "agreed to form." The staff attorney advised the parties' counsel that the order should be submitted to the court by 9:00 a.m. the following morning, regardless of whether all counsel signed the proposed order. Brykerwoods's counsel emailed Brykerwoods's proposed order to the court and AHFC's counsel the next day without first circulating it to AHFC's counsel. AHFC's counsel responded to the email, stating "Defendants do not agree to this Proposed Order. In addition, please note that it purports to grant greater relief than that pleaded for in Plaintiffs' live pleading." Based on this language alone, AHFC argues it preserved its challenge to the injunction order under Rule 683.
Generally, a party must present its complaint "to the trial court by a timely request, objection, or motion that . . . stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context[.]" Tex.R.App.P. 33.1(a)(1)(A). AHFC argues that it is clear from the context of its email that it was objecting to the form of the order because Rule 683 sets forth the form requirements for a temporary injunction. AHFC also asserts that the trial court understood its objection because it corrected at least one form defect- the proposed order did not set the cause for trial on the merits and the trial court added language to its issued order setting the case for trial on the merits-but it failed to correct another form defect-it did not set forth the reasons for its issuance-as required by Rule 683.
Contrary to AHFC's argument, AHFC did not specifically object to the form of the proposed temporary injunction order in the trial court. Counsel's vague statement that "Defendants do not agree to this Proposed Order" did not identify any claimed defect in the form of the order or otherwise make the trial court aware of the complaint AHFC now raises on appeal with sufficient specificity. The trial court could not divine AHFC's specific complaints from its vague disapproval of the order, nor did the trial court have an opportunity to rule on any objections because no such objections were ever filed. While AHFC emailed its general disapproval of the order to the trial court's staff attorney, AHFC did not file any formal objections or its own proposed order for the court's consideration. See Emerson v. Fires Out, Inc., 735 S.W.2d 492, 493 (Tex. App.-Austin 1987, no pet.) (holding defendants failed to preserve error complaining of Rule 683 defect in temporary injunction order where defendants' motion for reconsideration did not point out to district court any claimed deficiency in form of order); see also DHJB Dev., 2018 WL 5987150, at *3 (concluding that defendant's reliance on its responsive pleading generally asserting that injunctive relief requested by plaintiffs was vague and overbroad was not sufficiently specific to make trial court aware that resulting temporary injunction failed to specify how plaintiffs would suffer irreparable harm); Taylor Hous. Auth., 549 S.W.3d at 880 (concluding municipal housing authority failed to preserve its complaint regarding specificity of temporary injunction's stated grounds where it did not raise complaint in trial court).
Because AHFC did not preserve its complaint concerning the temporary injunction's stated grounds under Rule 683, we overrule its first issue.
B. Scope of Temporary Injunction
In its second issue, AHFC contends that the trial court abused its discretion because the temporary injunction is overbroad and fails to describe in reasonable detail the acts sought to be restrained. While a temporary injunction may be "in broad enough terms to prevent repetition of the evil sought to be stopped," it also "must be as definite, clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing." San Antonio Bar Ass'n v. Guardian Abstract & Title Co., 291 S.W.2d 697, 702 (Tex. 1956). Granting "an injunction 'so broad as to enjoin a defendant from activities which are a lawful and proper exercise of his rights'" is an abuse of discretion. Coyote Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d 53, 65 (Tex. 2016) (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 39- 40 (Tex. 2003)).
1. Construction Activities
AHFC argues that the temporary injunction is overbroad because it goes well beyond merely enforcing the terms of the Plat Note. In support of its argument, AHFC points out that the Plat Note provides only that "[n]o residential structure shall be erected or placed on any building plot, which plot has an area of less than 5750 square ft. or a width of less than 50 ft. at the front building setback line as shown on the recorded plat." AHFC points out that the Plat Note does not prohibit a lot owner from "directly or indirectly engaging in any construction activities" on a lot with a "building plot" of less than 5, 570 square feet and it says nothing about structures other than residential structures. AHFC contends that the temporary injunction is also impermissibly vague because it fails to "describe in reasonable detail . . . the act or acts sought to be restrained" and "subjects AHFC, as well as its 'agents, servants, employees, independent contractors, general contractors, subcontractors, representatives, attorneys, and those in active concert or participating with' [AHFC] to potential contempt for failing to comply if they do not refrain from taking lawful actions whose propriety is not even in dispute." We agree. The language prohibiting AHFC from "directly or indirectly engaging in any construction activities at the property" is overbroad as it arguably restrains any and all construction activities on Lot 1, including those that do not run afoul of the Plat Note. The order is not limited to construction of residential structures. It enjoins all construction activities including activity that may be lawful and well beyond that sought to be enjoined. See In re Krueger, No. 03-12-00838-CV, 2013 WL 2157765, at *6 (Tex. App.-Austin May 16, 2013, no pet.) (mem. op.) (noting injunction "must not be so broad as to enjoin a defendant from activities which are a lawful and proper exercise of his rights") (quoting Hitt v. Mabry, 687 S.W.2d 791, 795 (Tex. App.-San Antonio 1985, no writ)); see also TMRJ Holdings, Inc. v. Inhance Techs., LLC, 540 S.W.3d 202, 214 (Tex. App.-Houston [1st Dist.] 2018, no pet.) (concluding that injunction, by failing to precisely describe restrained conduct, arguably prohibited any and all involvement in fluorination business); Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 222-23 (Tex. App.- Dallas 2005, no pet.) (holding injunction too broad because it enjoined activities party had a legal right to perform).
By contrast, the temporary restraining order issued by the trial court enjoined AHFC only from constructing or erecting a residential structure on the property located at 3000 Funston Street.
The temporary injunction's prohibition of "any construction activities" in general is also impermissibly vague because it fails to provide adequate notice to AHFC of the specific acts it is restrained from performing in terms not subject to reasonable disagreement. See Tarr v. Lantana Sw. Homeowners' Ass'n, Inc., No. 03-14-00714-CV, 2016 WL 7335861, at *11 (Tex. App.-Austin Dec. 16, 2016, no pet.) (mem. op.) (holding injunction order was unenforceable where order provided nothing that would enable defendant homeowner to know exactly what duties or obligations were imposed upon him under declaration of covenants); Krueger, 2013 WL 2157765, at *7 (concluding injunction failed to comply with Rule 683 where it did not provide specific bank account names and numbers identifying specific accounts relator was enjoined from accessing); TMRJ Holdings, 540 S.W.3d at 214 (concluding that injunction was impermissibly vague where it failed to adequately identify acts that it restrained); Cooper Valves, LLC v. ValvTechnologies, Inc., 531 S.W.3d 254, 266 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (noting injunction "should inform a party of the acts he is restrained from doing without requiring inferences or conclusions about which persons might disagree and which might require additional court hearings"); Dickerson v. Acadian Cypress & Hardwoods, Inc., No. 09-13-00299-CV, 2014 WL 1400659, at *7 (Tex. App.- Beaumont Apr. 10, 2014, no pet.) (mem. op.) (concluding temporary injunction violated Rule 683 because it failed to adequately define the "current clients" restrained party could not contact); Ramirez v. Ignite Holdings, Ltd., No. 05-12-01024-CV, 2013 WL 4568365, at *4 (Tex. App.-Dallas Aug. 26, 2013, no pet.) (mem. op.) (holding temporary injunction violated Rule 683 because it failed to "define 'Proprietary Information/Trade Secrets' with enough specificity to give appellants notice of the acts they are restrained from doing").
2. Storm Inlet Drains
AHFC also argues that the injunction is overbroad because it fails to identify which storm inlet drains AHFC is prohibited from covering. The order generally prohibits AHFC from "plac[ing] storm drain inlet covers around 3000 Funston, Austin, Texas 78703." AHFC asserts that the specific radius contemplated by the term "around" is unclear from the order and the language potentially subjects AHFC to liability for covering any storm drain inlet in the City to prevent erosion from clogging it. While we do not share AHFC's expansive reading, we agree that the order does not adequately identify the inlet covers at issue. And while it may be true that AHFC knows which storm inlets are at issue, the injunction order, on its face, is not limited to those specific storm drains or otherwise identify the specific storm inlets subject to the injunction. Accordingly, the order is impermissibly vague and overbroad. See Tarr, 2016 WL 7335861, at *11; Krueger, 2013 WL 2157765, at *7; see also Computek Computer, 156 S.W.3d at 222-23 ("[T]he injunction itself must provide the specific information as to the off-limits clients, without inferences or conclusions, or, in this case, implied references to other records Computek might have. . . . [W]e cannot agree with OEM that the lack of specificity as to OEM clients is cured by any knowledge Computek may have outside the permanent injunction."); see also Moreno v. Baker Tools, Inc., 808 S.W.2d 208, 211 (Tex. App.-Houston [1st Dist.] 1991, no writ) ("The BTI-Gaston defendants also argued we can infer the reasons for the injunction from the pleadings, the evidence, and the court's oral pronouncement at the hearing. We cannot. Pleadings and testimony do not satisfy the requirement that the temporary injunction order must state the reasons for its issuance.").
By contrast, the temporary restraining order issued by the trial court enjoined AHFC only from removing the storm drain inlet covers it has placed on the storm drains on Funston Street.
AHFC also complains that the portion of the temporary injunction order enjoining others "in active concert or participating with Defendant AHFC" is not expressly limited to those "who receive actual notice of the order by personal service or otherwise" as required by Rule 683. In its brief on appeal, Brykerwoods acknowledges that the order is only binding on those who received actual notice and raises no objection to modification of the order to include such language.
Because the temporary injunction order prohibits activities beyond those described in the Plat Note and does not adequately identify (1) the specific construction activities AHFC is restrained from performing and (2) the storm inlet drains AHFC is prohibited from covering, we sustain AHFC's second issue.
Conclusion
We reverse the temporary injunction and remand this matter to the trial court with instructions to modify the scope of the injunction order consistent with this opinion. We overrule all pending motions.