Russell v. Waterwood Improvement Ass'n, Inc.

• Decision Date: 17 November 2011
• Docket Number: NO. 09-11-00413-CV,09-11-00413-CV
• Parties: GEORGE H. RUSSELL AND SUZANNE B. RUSSELL, Appellants v. WATERWOOD IMPROVEMENT ASSOCIATION, INC., Appellee
• Court: Texas Court of Appeals

GEORGE H. RUSSELL AND SUZANNE B. RUSSELL, Appellants

v.WATERWOOD IMPROVEMENT ASSOCIATION, INC., Appellee

NO. 09-11-00413-CV

Court of Appeals Ninth District of Texas at Beaumont

Submitted on October 19, 2011

Opinion Delivered November 17, 2011

On Appeal from the 411th District Court

San Jacinto County, Texas

Trial Cause No. CV13,114

MEMORANDUM OPINION

This is an appeal from the trial court's grant of a temporary injunction restraining George and Suzanne Russell from interfering with the Waterwood Improvement Association's ("WIA") maintenance of Waterwood Parkway. Appellants argue that the trial court erred in finding that WIA established a probable right to recovery, in improperly restricting their right to free speech, and in drafting the temporary injunction order. We affirm the order of the trial court.

BACKGROUND

This dispute involves a portion of Waterwood Parkway in San Jacinto County. The County obtained an easement over Waterwood Parkway in 1979. The County maintained the road with contributions from the WIA. George and Suzanne Russell, defendants in the underlying lawsuit, own title to some of the property that is subject to the County's easement. The Russells do not want the easement mowed but desire it to be left in a more natural state. According to the evidence, the Russells's primary concern is the mowing down of their wildflowers. The evidence also established that at one time WIA paid the Russells rent pursuant to a lease agreement to use part of the Parkway. In May 2008 WIA sent written notice to the Russells that WIA was not going to renew the lease when it expired.¹

In 2009, the County Commissioner's Court approved an agreement between the County and WIA for WIA to maintain Waterwood Parkway. WIA informed the Russells that it had entered into an agreement with the County to maintain Waterwood Parkway, and as part of that agreement, WIA intended to maintain the plants at the entrance signs and mow the easement. In an effort to alleviate the Russells's environmental concerns, WIA stated that it would preserve the areas where wild flowers and new trees were growing in the median, and delay mowing until the wild flowers had gone to seed. Inaddition, WIA would avoid cutting new trees growing in the center of the medians. Nevertheless, the Russells continued to confront WIA employees attempting to mow the easement, stating that they were on the Russells's property and demanding that they stop mowing. On one occasion, Suzanne Russell accused WIA employees of trespassing and called law enforcement officers to the property in an attempt to have law enforcement officers stop the mowing. On another occasion, employees discontinued mowing to avoid being further harassed by Mr. Russell.

In June 2011, WIA brought the underlying suit requesting a declaratory judgment regarding its rights under the easement and its agreement with the County, and seeking injunctive relief. WIA sought a temporary injunction to enjoin the Russells from interfering with WIA's maintenance of Waterwood Parkway pursuant to its agreement with the County. After hearing evidence, the trial court entered an order granting the temporary injunction, and a writ of injunction. The trial court's order provides in pertinent part:

Notwithstanding the Agreement [between WIA and San Jacinto County], Defendants have set upon a course of action to interfere with the rights of WIA under the Agreement. These have included interfering with employees of WIA and contractors for WIA. Most recently Defendants interfered with WIA's mowing of the Parkway, pursuant to the Agreement.

The Court further finds that unless Defendants are restrained from interfering with the rights of Plaintiff under its Agreement with San Jacinto County, Texas, that Plaintiff will suffer irreparable injury, to wit: interference by Defendants resulting in Plaintiff's breach of its Agreement with San Jacinto County, Texas to maintain the Waterwood Parkway.

It is therefore ordered that the temporary injunction requested be and is granted as requested, and that the clerk of this court issue a writ of injunction, pending final hearing and determination of this case, restraining and enjoining defendant from interfering with the rights of Plaintiff, and those persons acting under the direction of Plaintiff, in performance of Plaintiff's duties under its Agreement with San Jacinto County, identified above, and Defendants are ordered not to interfere with Plaintiff's mowing of the Waterwood Parkway, including but [not] limited to the mowing of the right of ways which are part of the easement of San Jacinto County, as set forth above. The Defendants are ENJOINED from physically going on the Waterwood Parkway easement while the Waterwood Improvement Association, Inc. is fulfilling its contractual obligations.

Following the court's issuance of the temporary injunction, the Russells filed this appeal.

ISSUE ONE

To obtain a temporary injunction, an applicant must plead and prove (1) a cause of action against the defendant, (2) a probable right to the relief sought, and (3) a probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). In issue one, the Russells contend the trial court's issuance of the injunction was improper because WIA failed to present sufficient evidence to show a probable right of recovery in its suit for declaratory judgment.² Specifically, the Russells argue (1) the right to maintain Waterwood Parkway is a governmental function that the County could not legally assign to WIA, and (2) the agreement between the County and WIA constitutes a taking of the Russells's property in violation of the Texas Constitution.WIA argues that the Russells failed to preserve this issue for appellate review. The Russells did not argue in the trial court that the injunction was improper because the agreement between the County and WIA was void, or that it constituted a taking of their property in violation of the Constitution. However, in a nonjury case, a complaint regarding the legal or factual sufficiency of the evidence may be raised for the first time on appeal. Tex. R. App. P. 33.1(d). Therefore, we will address the merits of the Russells's first issue.

Validity of Agreement

The Russells contend that the right to maintain Waterwood Parkway is a governmental function, and the County lacked authority to transfer its responsibility to maintain Waterwood Parkway to WIA; therefore, the agreement is void. Generally, agreements entered into by the County cannot result in abrogation or delegation of the County's governmental authority. See Clear Lake City Water Auth. v. Clear Lake Utils. Co., 549 S.W.2d 385, 391 (Tex. 1977); see also San Antonio River Auth. v. Shepperd, 299 S.W.2d 920, 927 (Tex. 1957); City of Arlington v. City of Fort Worth, 844 S.W.2d 875, 878 (Tex. App.—Fort Worth 1992, writ denied). Further, a governmental entity's police power cannot be abdicated or bargained away. Banker v. Jefferson Cnty. Water Control & Improvement Dist. No. One, 277 S.W.2d 130, 134 (Tex. Civ. App.— Beaumont 1955, writ ref'd n.r.e.). However, this rule does not prevent the County from lawfully entering into contracts in order to fulfill its duties and obligations to the public.See San Antonio River Auth., 299 S.W.2d at 926-27; see also Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 843 (Tex. 2010).

While a governmental entity cannot bind itself in a manner that restricts the free exercise of its reserved powers, not every contract entered into by a governmental entity has this effect. See Clear Lake City Water Auth., 549 S.W.2d at 391; see also Kirby, 320 S.W.3d at 843. Only those agreements that have the effect of potentially controlling and embarrassing a governmental entity in the exercise of its governmental power are improper. Clear Lake City Water Auth. , 549 S.W.2d at 392; see also Kirby, 320 S.W.3d at 843; Brubaker v. Brookshire Mun. Water Dist., 808 S.W.2d 129, 132-33 (Tex. App.— Houston [14th Dist.] 1991, no writ). The Texas Supreme Court has recognized that an agreement that is terminable at will does not infringe upon a governmental entity's free exercise of its police power, and is valid until terminated by one party. Clear Lake City Water Auth., 549 S.W.2d at 391-92; see also City of Corpus Christi v. Taylor, 126 S.W.3d 712, 723 (Tex. App.—Corpus Christi 2004, pet. withdrawn) (citing Clear Lake City Water Auth., the Court recognized that unless the agreement was treated as terminable at will it would have the impermissible effect of being void); ECO Res., Inc. v. City of Austin, No. 03-00-00353-CV, 2001 WL 23197, at *5-6 (Tex. App.—Austin Jan. 11, 2001, pet. denied) (concluding ECO's contracts with the MUDs "terminable only for cause in instances of material breach" were improper delegations of government authority) (not designated for publication).

The Russells cite Pittman v. City of Amarillo, 598 S.W.2d 941 (Tex. Civ. App.— Amarillo 1980, writ ref'd n.r.e.), in support of their contention that the agreement between the County and WIA is void. In Pittman, the court found significant that the agreement in question purported to obligate the municipality to "grant a free tap and free sewer service to the occupants of improvements located on the premises, apparently for so long as those improvements exist." Id. at 945 (emphasis added). The court concluded that "[a] grant of that nature is a bargaining away of the municipality's governmental power to regulate and control its sewer system and to charge and collect for its use." Id. Cf. City of Arlington, 844 S.W.2d at 878 (recognizing that a City's agreement to provide sewer services for a definite period of time is enforceable; whereas an agreement to provide such services indefinitely is not).

Unlike the agreement in Pittman, the agreement at issue in the present case is terminable at will by either party upon thirty days written notice. Moreover, the agreement does...