Reagan Nat. Adv. V. Vanderhoof Family Trust

• Decision Date: 22 February 2002
• Docket Number: No. 03-01-00318-CV.,03-01-00318-CV.
• Citation: 82 S.W.3d 366
• Parties: REAGAN NATIONAL ADVERTISING, Appellant, v. VANDERHOOF FAMILY TRUST and Acme Partnership, L.P., Appellees.
• Court: Texas Court of Appeals

82 S.W.3d 366

REAGAN NATIONAL ADVERTISING, Appellant, v. VANDERHOOF FAMILY TRUST and Acme Partnership, L.P., Appellees.

No. 03-01-00318-CV.

Court of Appeals of Texas, Austin.

February 22, 2002.

Rehearing Overruled April 11, 2002.

Gina M. Joseph, Eric J. Taube, Hohmann, Taube & Summers, Austin, for appellant.

Vincent L. Hazen, Paul M. Terrill III, Hazen & Terrill, Austin, for appellees.

Before Justices KIDD, YEAKEL and PATTERSON.

MACK KIDD, Justice.

In this accelerated, interlocutory appeal, appellant Reagan National Advertising ("Reagan") seeks the reversal of a temporary injunction order that prohibits Reagan from "filing any permit application with the Texas Department of Transportation for a billboard permit on the west side of IH-35 within 1500 feet of 2801 and 2803 Cole Street, Austin, Travis County, Texas." See TEX. CIV. PRAC. & Rem.Code Ann. § 51.014(a)(4) (West Supp.2002); TEX. R.APP. P. 28.1. We hold that the stated purpose of the temporary injunction has been satisfied, and the temporary injunction has therefore become moot. Accordingly, we will dissolve the temporary injunction order and dismiss the appeal.

BACKGROUND

Reagan is in the business of outdoor advertising and has obtained permits for and erected a number of billboards in Austin. In order to erect a sign in Austin, an entity must comply with all the City of Austin (the "City") regulations, and if the proposed sign is along a regulated highway,¹ the entity must also comply with regulations issued by the Texas Department of Transportation (the "Department"). See 43 Tex. Admin. Code § 21.146 (2001). The Department regulations, for example, provide that issued permits must be renewed annually and that signs may not be erected within 1,500 feet of each other on the same side of a regulated highway. Id. §§ 21.146, 21.150(d), 21.153(d) (2001).

The City's ordinances prohibit off-premises billboards altogether.² Austin, Tex., Code of Ordinances § 25-10-102(1) (2001). However, billboard sites that were lawfully installed prior to the adoption of the prohibiting ordinances are excepted from the prohibition. See id. § 25-10-102. Replacement of these "nonconforming" billboards³ is allowed under limited circumstances. First, a City permit for the replacement sign must be issued before the existing sign is removed. Id. § 25-10-152(D)(1) (2001). Second, the replacement sign must reduce the existing sign by at least twenty-five percent. Id. § 25-10-152(B)(5)(a). And third, the replacement sign must be completed within ninety days of the removal of the existing sign. Id. § 25-10-152(D)(2). If the replacement sign is not erected within ninety days of the removal of the existing sign, the "grandfathered" status of the billboard site may be forfeited.

The Controversy

Appellee Vanderhoof Family Trust ("Vanderhoof") owns real property located at 2801 and 2803 Cole Street in Austin, which includes a nonconforming billboard site. This property is located along IH-35, a regulated highway. Reagan leased the property from Vanderhoof for the purpose of maintaining a sign. Accordingly, Reagan obtained permits from both the City and the Department. The lease was scheduled to expire by its own terms on April 30, 2001. Reagan's permit from the Department, however, was not scheduled to expire until June 1, 2001.

Prior to the expiration of Reagan's lease, Vanderhoof commenced negotiations with Acme Partnership, L.P. ("Acme"), one of Reagan's competitors. Once Vanderhoof and Acme reached an agreement regarding the replacement of the billboard on the property, Acme applied for and ultimately obtained a permit from the City.⁴ But Acme would have to wait until Reagan either voluntarily relinquished its Department permit or until the permit expired before Acme could apply for a Department permit of its own.

Suspecting that Reagan would attempt to prevent Acme from obtaining a Department permit, Vanderhoof and Acme sued Reagan, alleging tortious interference with contract and tortious interference with prospective business relations and sought a temporary restraining order and temporary injunction. According to their petition, Vanderhoof and Acme believed that Reagan would file an application for a new permit with the Department for another location within 1500 feet of Vanderhoof's property, preventing Acme from erecting a replacement billboard on the property if Reagan were granted the permit. They also contended that even if Reagan were granted a Department permit, it would be unable to erect a new billboard since the City prohibits the construction of new billboards, and no billboard currently exists within 1500 feet of Vanderhoof's property. Thus, Vanderhoof and Acme suspected that Reagan was preparing to file a permit application with the Department for the sole purpose of subverting any prospective contracts or business relations Vanderhoof might be negotiating for its existing billboard site.

These suspicions were borne out at the hearing on the temporary injunction. At the hearing, evidence was presented revealing that David Depmore and Billy Reagan, two Reagan representatives, had approached St. David's Hospital and sought the hospital's consent to sign a billboard permit application to be submitted to the Department. The hospital is located within 1500 feet of Vanderhoof's property, but it does not include a nonconforming billboard site. Thus, if the Department granted a permit for the erection of a billboard on the hospital's premises, Acme would be prohibited from obtaining a Department permit for the billboard site on Vanderhoof's property because a permit would already exist for a site within 1500 feet of the property.⁵ Even with the Department permit, however, neither Reagan nor the hospital would be able to utilize the permit and erect a billboard because the City prohibits the construction of new billboards. Vanderhoof argued to the trial court that Reagan's sole purpose in seeking a permit from the Department was to prevent Vanderhoof from negotiating a new lease with Acme.

The trial court granted the temporary restraining order and later issued a temporary injunction order. The order provides, in pertinent part:

Reagan National Advertising, its officers, agents, servants, employees, and attorneys, and those persons in active concert with them who receive actual notice of this order, are prohibited from and are hereby commanded forthwith to desist and refrain from filing any permit application with the Texas Department of Transportation for a billboard permit on the west side of IH-35 within 1500 feet of 2801 and 2803 Cole Street, Austin, Travis County, Texas.

Reagan appeals from this order.

DISCUSSION

Reagan argues that the trial court abused its discretion in granting Vanderhoofs application for a temporary injunction because (1) the trial court lacked jurisdiction to consider the application since no justiciable controversy existed; (2) Vanderhoof failed to establish the elements necessary for injunctive relief; (3) Reagan has a legal right to perform the enjoined action and therefore any resulting interference with contract or prospective business relations is justified; and (4) the granting of the temporary injunction accomplished the object of the suit and has deprived Reagan of a right to trial.

In an appeal from an order granting a temporary injunction, our review is confined to the validity of that order. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993); Universal Health Servs. v. Thompson, 24 S.W.3d 570, 576 (Tex. App.-Austin 2000, no pet.). The decision to grant or deny the temporary injunction lies within the sound discretion of the trial court; we will not disturb that decision absent a clear abuse of discretion. Thompson, 24 S.W.3d at 576. This Court may neither substitute its judgment for that of the trial court nor consider the merits of the lawsuit. Id. Rather, we view the evidence in the light most favorable to the trial court's order, indulging every reasonable inference in its favor, and determine whether the order was so arbitrary as to exceed the bounds of reasonable discretion. Id. An abuse of discretion exists when the court misapplies the law to established facts or when it concludes that the applicant has demonstrated a probable injury or a probable right to recovery and the conclusion is not reasonably supported by evidence. Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 551 (Tex.App.-Dallas 1993, no writ). The burden of proof is on the litigants attacking the trial court's judgment. Garcia-Marroquin v. Nueces County Bail Bond Bd., 1 S.W.3d 366, 379 (Tex.App.-Corpus Christi 1999, no pet.).

The trial court in this case based its order granting the temporary injunction on two alternative grounds. See TEX.R. CIV. P. 683 ("Every order granting an injunction ... shall set forth the reasons for its issuance...."). Fir...