Opinion
NO. 03-18-00166-CV
03-23-2018
Kimberly McNeely, Acting Director of PARD, in her Official Capacity; and the City of Austin, Appellants v. Watertight Endeavors, Inc. d/b/a Austin Party Cruises, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-18-000004 , HONORABLE KARIN CRUMP, JUDGE PRESIDING ORDER
PER CURIAM
Appellee Watertight Endeavors, Inc. d/b/a Austin Party Cruises has filed a verified motion for emergency relief pursuant to Texas Rule of Appellate Procedure 29.3, seeking to prevent the trial court's injunction order from being suspended pending the appellants' interlocutory appeal. In the alternative, Austin Party Cruises requests that we issue a comparable injunction and designate an amount of bond that Austin Party Cruises is to pay. Because we conclude that the trial court's injunction order is not suspended during the appellants' interlocutory appeal, we will grant the motion.
In the underlying lawsuit, Austin Party Cruises sued the appellants, the City of Austin and Kimberly McNeely, Acting Director of PARD, in her Official Capacity ("the City Defendants"), after the director announced that the Parks and Recreation Department would not be renewing boat permits or considering new boat permits for rental boats picking up passengers at the Walsh Boat Landing dock. After a hearing on Austin Party Cruises' application for temporary injunction and the City Defendants' plea to the jurisdiction, the trial court issued an order denying the plea to the jurisdiction as to Austin Party Cruises' ultra vires claims and granting the plea to the jurisdiction as to all other claims. The trial court also granted Austin Party Cruises' application for temporary injunction, ordering that the City "Defendants are hereby enjoined from taking any action banning [Austin Party Cruises'] boats from accessing and using the public dock at Walsh Boat Landing so long as the boat dock is available for public use, until a final trial on the merits is conducted." The trial court also ordered Austin Party Cruises to execute and file a $500 bond to effectuate the order.
After Austin Party Cruises paid the bond to the clerk, it served the City Defendants with the writ of injunction. The City Defendants initially represented to Austin Party Cruises that their position was that "the limited injunction temporarily suspends the Director's decision to refuse to accept and consider permit applications for temporary commercial use of Walsh Boat Landing" and that they believed that Austin Party Cruises was still required to apply for a permit. Austin Party Cruises delivered its permit application to the Department on the next business day, March 12, 2018. The City Defendants filed their notice of interlocutory appeal three days later, on March 15. On March 19, the City Defendants' counsel informed Austin Party Cruises' counsel that the City had changed its position and was no longer considering the boat-permit application because it considered the trial court's order to be suspended by the City's appeal. The City Defendants further informed Austin Party Cruises that "[a]t this time, the Austin Parks and Recreation Department is not issuing permissive use permits for commercial activity at Walsh Boat Landing" and "[c]ommercial usage without a permit is subject to citation(s)."
Rule 29.3 gives this Court authority to "make any temporary orders necessary to preserve the parties' rights until disposition of the [interlocutory] appeal." Tex. R. App. P. 29.3. Relief sought under Rule 29.3 is analogous to writs to protect our jurisdiction as provided for in Government Code Section 22.221, as well as in Texas Rule of Appellate Procedure 52, the Rule governing original proceedings for writs of mandamus, prohibition, and injunction. Lamar Builders, Inc. v. Guardian Sav. & Loan Ass'n, 786 S.W.2d 789, 791 (Tex. App.—Houston [1st Dist.] 1990, no writ). In order to obtain relief under the Rule, a movant must make a clear showing that it is entitled to relief by stating the relief sought, the basis for the relief (including "the compelling circumstances" which establish the necessity for relief), and setting forth the facts necessary to establish a right to the relief sought. See id.
Austin Party Cruises explains that it has conducted a rental-boat business on Lake Austin for over 22 years, renting its boats to customers from a private marina, who take possession of the boat there with a hired pilot, who then takes the boat to pick up their guests at Walsh Boat Landing. In its verified petition to the trial court and testimony at the injunction hearing, it explained that the public dock at Walsh Boat Landing is, and historically has been, the only practical and safe location for houseboat-type boats, like the ones it uses, to embark and disembark passengers. It further explained that Austin Party Cruises will have to stop its business for rental agreements already made and cease taking future orders if it cannot use the dock. Austin Party Cruises argues that without emergency relief to allow it to operate during the pendency of this appeal, it will effectively be put out of business, rendering its lawsuit to preserve its business moot. Included with the motion is an exhibit from the temporary-injunction hearing listing 44 scheduled events for which Austin Party Cruises has rented boats and for which boarding is to occur at Walsh Boat Landing between March 23, 2018, and October 27, 2018.
The Texas Supreme Court has definitively determined that "a trial court has discretion to deny any party—even the State—the right to supersede a non-money, non-property judgment." See In re State Bd. for Educator Certification, 452 S.W.3d 802, 803, 808-09 (Tex. 2014) (orig. proceeding) (noting that "[t]he State's position—boundless entitlement to supersede adverse non-money judgments—would vest unchecked power in the executive branch, at considerable expense to the judicial branch, not to mention the wider public we both serve"). While a municipality may appeal from a judgment without giving supersedeas or cost bond, see Texas Civil Practices & Remedies Code Section 6.002, the City Defendants have "no unqualified right to supersedeas in light of the trial court's discretion under TRAP 24." Id. at 808. "A governmental entity's notice of appeal does not deprive a trial court of discretion to refuse suspension of its judgment if the appellee posts security in accordance with TRAP 24.2(a)(3)." Id. at 809. Rule 29.2 further recognizes the trial court's discretion: "The trial court may permit an order granting interlocutory relief to be superseded pending an appeal from the order. If the trial court refuses to permit the appellant to supersede the order, the appellant may move the appellate court to review that decision for abuse of discretion." Tex. R. App. P. 29.2 (emphasis added); see also City of Rio Grande City, Tex. v. BFI Waste Servs. of Tex., LP, 511 S.W.3d 300, 306 (Tex. App.—San Antonio 2016, no pet.) (applying holding of In re State Board for Educator Certification when determining effect of Texas Civil Practices & Remedies Code Section 6.002 in interlocutory appeal following trial court's grant of temporary injunction). In the underlying case, the trial court required Austin Party Cruises to post security before issuing the temporary injunction, thus declining to permit the judgment to be superseded. See Tex. R. App. P. 24.2(a)(3) ("When the judgment is for something other than money or an interest in property, the trial court must set the amount and type of security that the judgment debtor must post. . . . But the trial court may decline to permit the judgment to be superseded if the judgment creditor posts security ordered by the trial court in an amount and type that will secure the judgment debtor against any loss or damage caused by the relief granted the judgment creditor if an appellate court determines, on final disposition, that that relief was improper.").
We conclude that Austin Party Cruises has made a clear showing that it is entitled to the relief sought. Accordingly, we grant the motion for emergency relief to the extent of confirming that the trial court's order remains in place and is not suspended during this appeal, or alternatively so order.
It is so ordered March 23, 2018. Before Justices Puryear, Pemberton, and Bourland