Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 06/22/2015 7:45:02 AM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-15-00127-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/22/2015 7:45:02 AM KEITH HOTTLE CLERK
No. 04-15-00127-CV
__________________________________________ I N THE C OURT OF A PPEALS OF T EXAS F OURTH J UDICIAL D ISTRICT
S AN A NTONIO , T EXAS
__________________________________________ EL CABALLERO RANCH, INC. and LAREDO MARINE, L.L.C.,
Appellants/Defendants ,
vs. GRACE RIVER RANCH, L.L.C., Appellee/Plaintiff .
__________________________________________ F ROM THE 218 TH J UDICIAL D ISTRICT , L A S ALLE C OUNTY , C AUSE N O . 13-04-00108-CVL, H ON . S TELLA S AXON , P RESIDING __________________________________________ APPELLANTS’ RESPONSE TO APPELLEE’S MOTION TO DISMISS
Kimberly S. Keller SBN: 24014182 Shane Stolarczyk SBN: 24033242 K ELLER S TOLARCZYK PLLC 234 West Bandera Rd #120 Boerne, Texas 78006 Tele: 830.981.5000 Facs: 888.293.8580 Attorneys for Appellants
*2 ARGUMENT OPPOSING MOTION TO DISMISS FOR LACK OF
JURISDICTION
Appellants (Defendants below) El Caballero Ranch, Inc. and
Laredo Marine, LLC, file this response to the motion to dismiss filed
by Appellees (Plaintiff below) Grace River Ranch, L.L.C. This Court
should summarily deny the motion to dismiss for the following
reasons:
INTRODUCTION The appeal before this Court is a statutorily-authorized interlocutory appeal of a temporary injunction granted against
Appellants. [1] In the underlying case, Grace River Ranch sued
Appellants claiming the existence of private and public easements
across Appellants’ ranches. App.A at 2. [2] In 2013, Grace River
moved for partial summary judgment as to the existence of an
easement (and as to some of Appellants’ affirmative defenses). Id.
*3 Judge Saxon granted the partial summary judgment and ordered
that the ruling regarding the validity of the easements was
immediately enforceable. App.A at 2-3. Thus, Judge Saxon ordered
Appellants to give Grace River immediate access to their ranches so
Grace River could build a concrete bridge over the low water
crossing that passes between Appellants’ ranches. Id.
Appellants sought mandamus relief from this Court. App.A
(this Court’s November 24, 2014 Mandamus Opinion). This Court
agreed with Appellants and held that Judge Saxon had abused her
discretion by making an interlocutory ruling immediately
enforceable. Id. at 5-6. This Court held it to be an abuse of
discretion to give Grace River immediate access to Appellants’ land
in light of the interlocutory nature of the partial summary judgment
order. Id. This Court held that Appellants’ would suffer an
irreparable injury because immediate enforcement of the
interlocutory ruling divested Appellants of their supersedeas rights
and allowing Grace River access would permanently change the
nature of Appellants’ land. Id. Judge Saxon complied with this
Court’s mandamus ruling and struck the “immediately enforceable”
language from the partial summary judgment order on December 3,
2014.
In 2014, Grace River filed a second motion for partial summary judgment. This motion sought declarations related to
Appellants’ affirmative defense of adverse possession. Judge Saxon,
who was about to retire, presided over the summary judgment
hearing. Shortly before her retirement, she circulated a letter to the
parties stating that she was granting Grace River’s summary
judgment motion. App.F (Judge Saxon’s letter ruling).
In January 2015, after Judge Saxon retired, Grace River filed a motion to enter an order on its second partial summary judgment
motion. App.G. Judge Peeples assigned now-retired Judge Saxon to
preside over the case as a visiting judge. Appellants objected to
Judge Saxon. T EX . G OV ’ T C ODE A NN . § 74.053(b) (objected-to visiting
judge “shall not hear the case”). Judge Saxon overruled Appellants’
objection and sat for the hearing.
At the hearing on the entry of the summary judgment order, Grace River sought new relief, i.e., a temporary injunction. App.G. at
Exh.B (Grace River’s proposed order, filed as an attachment to its
motion to enter, that seeks temporary injunctive relief in addition to
summary judgment relief). Appellants objected to Grace River’s
newly-requested injunctive relief, arguing this request fell outside
the scope of the summary judgment proceeding presided over by
Judge Saxon pre-retirement. Judge Saxon overruled Appellants’
objection and granted Grace River temporary injunctive relief,
ordering Appellants to allow Grace River immediate access to
Appellants’ ranches. App.B.
Since that ruling, La Salle County has filed an affirmative pleading with Judge Saxon, contending that it was improper for her
to declare the existence of a public road absent participation in the
proceeding by the County. (5CR298) (complaining the summary
judgment recitals regarding the existence of a public road were
handed down without participation by the County and “thus the
pronouncement quoted above should be stricken”). La Salle County
has asked that Judge Saxon, at a minimum, strike the portion of
the summary judgment orders declaring the existence of a public
road. Id. Appellants filed an appeal to this Court to challenge Judge
Saxon’s temporary injunction ruling. App.H.
After Appellants filed their interlocutory appeal to challenge the trial court’s grant of a temporary injunction to Grace River,
Grace River has asked the trial court to sever the summary
judgment motions (one of which contains the improperly granted
temporary injunction) into a separate cause from Grace River’s
unresolved claims for damages and attorney’s fees (all related to
Grace River’s contention that an easement exists across Appellant’s
ranches). (2SCR110). Also, Grace River has filed responsive briefing
to this Court in this interlocutory appeal and also filed a motion to
dismiss for lack of jurisdiction, claiming the injunction granted was
permanent , not temporary . This Court should summarily deny
Grace River’s request for dismissal for the following reasons:
ARGUMENT OPPOSING GRACE RIVER’S MOTION TO DISMISS
Grace River’s motion to dismiss is disingenuous. Grace River specifically requested the trial court grant it a temporary injunction.
During the temporary injunction hearing (held on March 3, 2015),
Grace River argued to the trial court that it should grant it a
“temporary injunction” and cited to the trial court case law
regarding the grant of a temporary injunction. Then, after the trial
court listened to Grace River’s arguments and authority about
temporary injunctive relief, the trial court ruled from the bench that
it was giving Grace River “your injunctive relief.” (RR 20-21). For
Grace River to now, in an attempt to avoid the jurisdiction of this
Court, relabel the granted injunction as permanent instead of
temporary is yet another example of Grace River’s continued playing
fast and loose with the judicial system in the underlying case.
A. Grace River specifically asked for a temporary injunction
at the temporary injunction hearing.
To avoid the jurisdiction of this Court, Grace River contends the injunction that was granted (and now challenged on appeal) is
permanent, as opposed to temporary. Mot. at 20-22. Yet, Grace
River’s own statements at the hearing belie this contention. At the
March 3, 2015 hearing, Grace River did not ask for a permanent
injunction. Instead, Grace River used only the term “temporary
injunction” when asking the trial court for injunctive relief:
“So a temporary injunction is very appropriate to enforce the right to use that easement,” (RR 11);
“And I have briefed that for the Court that – the cases that have some heartburn about issuing a temporary injunction with an easement all have to do with a case where there is no up or down determination by the court yet of the existence of easements,” (RR 12);
“But, even if that were true, then a temporary injunction would be appropriate according to the cases . . . ,” (RR 12); “One last authority, Your Honor, and that’s the AIMCO Properties L.P. versus Time Warner Entertainment, the exact situation we have here where a temporary injunction is sought to allow the use of the easement,” (RR 15); “The court went on to say that because Time Warner had demonstrated a probable right of an easement then the temporary injunction would be issued. The Court recognized, as [opposing counsel] does, that the purpose of a temporary injunction was to preserve the status quo. And the status quo the Court determined is, as we have all heard many times, the last actual peaceable, non-contested status before the controversy arose. . . . That’s exactly what we have here,” (RR 15-16);
“Well, injunctive relief is not a theory of recovery. It’s a remedy. So you don’t seek summary judgment to get a temporary injunction. You seek it on the remedy that you are proposing and then you get the remedy to enforce that right,” (RR 19).
This language – Grace River’s language -- made clear to the trial
court and all parties that Grace River sought a temporary, not
permanent injunction.
Indeed, the trial court is precluded from granting more than the relief requested. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200
(Tex. 2001) (“A judgment that grants more relief than a party is
entitled to is subject to reversal”). Here, Grace River asked for a
temporary injunction and the trial court granted Grace River the
requested relief. To do otherwise would constitute reversible error.
Id.
B. The authority cited by Grace River to the trial court
regarded a temporary, not permanent, injunction. To the trial court (and to this Court, see Br. at 47), Grace River cited AIMCO Props. L.P. v. Time Warner Entertainment-Advanced, No.
03-97-00340-CV, 1997 WL 590675 (Tex. App. – Austin 1997, no
writ) (unpublished). This case involves an appellate challenge to a
temporary injunction. Id. The appellate court considered the
elements of proof necessary to entitle a party to a temporary
injunction in a case involving a dispute about the existence of an
easement. Id. The appellate court sided with the requesting party
and affirmed the trial court’s grant of a temporary injunction. Id.
Thus, once again, Grace River’s argument to the trial court and
citation of authority to the trial court belie its contention on appeal
that the injunction granted was permanent.
C. The trial court ruled from the bench that she was
granting Grace River “its injunctive relief.” After Grace River’s arguments, wherein Grace River argues to the trial court that a temporary injunction was appropriate and
should be granted, the trial court issued its ruling from the bench.
Specifically, the trial court stated:
And I’m going to go ahead and sign a judgment – partial summary judgment granting the relief requested. I’m going to give you your injunctive relief.
(RR 20-21). So, the record makes abundantly clear that Grace River
asked the trial court for a temporary injunction, and the trial court
obliged by granting Grace River the requested injunctive relief. Id.
D. This Court’s mandamus ruling implies a holding that the
injunction granted was temporary, not permanent. At the same time they filed this interlocutory appeal, Appellants also filed an original proceeding. No. 04-15-00138-CV, In
re El Caballero Ranch, Inc. (filed March 12, 2015). In that original
proceeding, Appellants contended mandamus relief was warranted
because the temporary injunction entered was void on its face. [3]
Justices Barnard, Alvarez, and Pulliam presided over the original proceeding and determined that mandamus relief was not
warranted. No. 04-15-00138-CV, Order of this Court, March 12,
2015. Appellants contend that this Court denied mandamus relief
because it held Appellants had an adequate remedy on appeal by
way of the simultaneously-filed interlocutory appeal of the
temporary injunction. The denial of mandamus relief would not
have occurred if this Court determined the challenged order was a
permanent, not temporary. In fact, if the injunction entered was
permanent, then Appellants would not have a right to an
interlocutory appeal and mandamus relief would be warranted.
CONCLUSION Appellants respectfully request this Court deny Grace River’s motion to dismiss. Appellants also ask this Court to reverse the
temporary injunction as void and order the trial court to dissolve it.
Alternatively, Appellants request this Court sustain their merits-
*12 based challenges and reverse the temporary injunction for those
reasons. Also, should this Court determine that, despite the
language used by the trial court, the injunctive relief granted in
relation to the public road constitutes a temporary, not permanent,
injunction, Appellants ask this Court set aside such injunctive relief
for the same reason it sets aside the temporary injunctive relief
granted related to the private easement. Additionally, Appellants
request this Court grant all other relief to which they are entitled to
under equity and law.
Respectfully submitted, K ELLER S TOLARCZYK , PLLC 234 West Bandera Road #120 Boerne, Texas 78006 Tele: 830.981.5000 /s/Kimberly S. Keller Facs: 888.293.8580 Kimberly S. Keller SBN: 24014182 kim@kellsto.com Annalyn G. Smith SBN: 18532500 asmith@sr-llp.com SCHMOYER REINHARD, LLP 17806 IH 10 West, Suite 400
San Antonio, Texas 78257 Tele: 210.447.8033 Facs: 210.4478033 *13 COUNSEL FOR APPELLANTS CERTIFICATE OF SERVICE I certify Appellants’ Response was served, on June 22, 2015, on the following via e-service/email or first class mail:
Steven C. Haley M OORMAN , T ATE , U RQUHART , H ALEY , U PCHURCH & Y ATES , L.L. P. 207 East Main Street
P. O. Box 1808 Brenham, Texas 77834-1808 John H. Patterson, Jr.
M ONTEZ & P ATTERSON
508 Thorton, Suite 4
Cotulla, Texas 78014 Counsel for Grace River Ranch Donato D. Ramos & Donato D Ramos, Jr.
L AW O FFICES OF D ONATO D. R AMOS 6721 McPherson
P.O. Box 452009
Laredo, Texas 78045 Counsel for County of La Salle /s/Kimberly S. Keller Kimberly S. Keller .
[1] This Court has jurisdiction under T EX . G OV ’ T C ODE A NN . § 51.014(a)(4): “A person may appeal from an interlocutory order of a district court, county court at law, statutory probate court, or county court that: (4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65.” See also Lightning Oil Company v. Anadarko E & P Onshore, LLC, No. 04-14-00152-CV, 2014 WL 5463956 (Tex. App. – San Antonio 2014, pet. filed) (affirming denial of temporary injunction because party failed to prove imminent and irreparable injury).
[2] References to Appendices (“App.”) throughout this Response are references to the Appendices attached to Appellant’s Brief and Appendix, filed with this Court on April 29, 2015.
[3] In re M.A.V., 40 S.W.3d 581, 584 (Tex. App. – San Antonio 2001) (orig. proc.); In re Torch Energy Marketing, Inc., 989 S.W.2d 20, 22 (Tex. App. – San Antonio 1998) (orig. proc.).