Savering v. City of Mansfield, 02–15–00034–CV

Citation505 S.W.3d 33
Decision Date29 September 2016
Docket NumberNO. 02–15–00034–CV,02–15–00034–CV
Parties Josh and Kelli SAVERING, Chattanya Chavda, Pannaben Nancha, Phillip And Lisa Klotz, Paul Arseneau, Allison Blackstein, and Jack A. Muhlbeier, Appellants v. CITY OF MANSFIELD, Appellee
CourtCourt of Appeals of Texas

David E. Keltner, Bill Warren, Sharon F. Fulgham, Mary H. Smith ; Kelly Hart & Hallman LLP, Fort Worth, Texas, for Appellants.

Tim G. Sralla, Daniel R. Barrett, Ashley D. Dierker ; Taylor, Olson, Adkins, Sralla & Elam, L.L.P., Fort Worth, Texas, for Appellee.

Lee L. Cameron, Jr., Kristina M. Oropeza ; Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Dallas, Texas, for Amicus Estates of Creekwood Homeowners' Association.

Before the court en banc.

OPINION ON EN BANC RECONSIDERATION

BILL MEIER, JUSTICE

Appellants filed a further motion for en banc reconsideration of the majority opinion on rehearing that issued in this cause on May 26, 2016. We grant the motion, withdraw the opinion on rehearing and judgment dated May 26, 2016, and substitute the following.

I. INTRODUCTION

Appellants Josh and Kelli Savering, Chattanya Chavda, Pannaben Nancha, Phillip and Lisa Klotz, Paul Arsenau, Allison Blackstein, and Jack A. Muhlbeier appeal from an interlocutory order denying their amended application for a temporary injunction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West Supp. 2016). In a single issue, divided into several subparts, Appellants argue that the trial court abused its discretion by denying their application because they established each legal and evidentiary requirement for temporary injunctive relief. We agree and will therefore reverse and remand.

II. BACKGROUND

In November 1995, The Arbors at Creekwood Partners Joint Venture, Phase II, filed a Plat Revision (the Plat) in the Tarrant County records for the purpose of developing a residential community in Mansfield called The Arbors of Creekwood. The Plat divided most of lots 52 through 71 into "R1" and "R2" lots and contained a number of conditions of approval. The Plat's first Condition stated that the R2 lots—which are located along Creekwood's northern and western borders and run adjacent to Walnut Creek—"are intended for public recreation use." Appellants included the following demarcated plat in their brief's appendix, which we reproduce here solely to provide context:

The R2 lots are outlined in red, the floodways are outlined in blue, and the jogging path is marked in green. The R1 residential lots abut the R2 lots along the eastern and southern parts of the development.

On December 11, 1995, the Joint Venture filed its Declaration of Covenants, Conditions and Restrictions for The Arbors of Creekwood–Gated Community (the Declaration). Among other things, the Declaration defines numerous terms used therein, sets out the rights to be exercised and the functions to be performed by The Arbors of Creekwood–Gated Community Homeowners Association, Inc. (the HOA), and includes various provisions regarding Creekwood's "Common Properties," including one which states that "[t]he [HOA] will hold record fee simple title to the ... Common Properties." The Declaration, which became effective upon its filing, also specified that the streets are private, and it required the Joint Venture to install a "mechanical system that limits vehicular access to the Streets from public streets."

Soon after the Joint Venture recorded the Declaration, it executed a warranty deed on December 22, 1995, that purportedly conveyed the R2 lots to the Communities Foundation of Texas, Inc. (the Foundation). Years later, in December 2012, the Foundation executed a deed that purportedly conveyed the R2 lots to the Mansfield Park Facilities Development Corporation (the Park Corporation), the entity responsible for administering the City's parks and recreation budget.

Between 1995 and 2013, both the homeowners whose properties border the R2 lots and the HOA maintained the R2 lots. Although residents in an adjacent neighborhood could access the jogging trail on the R2 lots through a point located between two residences, the public could not access the R2 lots by crossing Walnut Creek. The area was therefore enjoyed primarily by the residents of Creekwood. This changed in 2014.

In 2013, the City constructed a bridge over Walnut Creek that connects the jogging trail on the R2 lots to a trail in a public park located on the opposite side of the creek. This prompted Appellants—whose residential properties abut the R2 lots—to initiate this litigation just before the bridge opened in late January 2014. Seeking injunctive relief and to quiet title to the R2 lots, Appellants challenged the City's claim that it owned the property comprising the R2 lots, averring that the lots had instead been conveyed to the HOA, by the Declaration, as part of the Common Properties. The trial court denied Appellants' application, and the bridge opened, permitting the public to access the R2 lots by using the bridge to cross Walnut Creek.

Later, after the HOA had intervened and failed to approve a mediated settlement agreement between the parties, Appellants filed their fourth amended petition and an amended application for temporary injunctive relief, asserting a claim for trespass; arguing that the Joint Venture had conveyed the R2 lots to the HOA by dedication in the Declaration before conveying them to the Foundation by deed; and asking the trial court to temporarily enjoin the City from entering, or encouraging others to enter, Creekwood.1

At the hearing on Appellants' amended application, Kelli Savering testified that when she and her husband bought their house in 2011, they were not told that the land located behind it was a public park; rather, they believed that Creekwood was a gated community.2 Savering explained that the bridge has given the public direct, unfettered access to the R2 lots behind her house, and she estimated that between 25 and 100 people on weekdays and between 100 and 250 people on weekends now use the R2 lots. Although she acknowledged that the majority of people who cross the bridge remain on the jogging trail, Savering explained that a number of people trespass onto the R1 lots, and she lamented that her family's sense of privacy had been lost.

Michael Goodrich, an attorney hired by Appellants to render an opinion about the ownership of the R2 lots, opined that the HOA holds fee simple title to the R2 lots because the Common Properties, whose Declaration definition encompasses the R2 lots, were conveyed to the HOA by the Declaration. Contrary to Appellants' position, Brian Brandstetter, vice president of the HOA's Board of Directors, testified that the HOA's Board had determined that the HOA does not own the R2 lots. During closing arguments, the City clarified that it had not acquired the R2 lots by dedication in the Declaration; the City maintains that the Park Corporation has title to the R2 lots as a result of the December 22, 1995, and December 2012 deeds. The trial court denied Appellants' application, and this accelerated, interlocutory appeal followed.

III. TEMPORARY INJUNCTIVE RELIEF

Appellants argue in their only issue that the trial court abused its discretion by denying their request for a temporary injunction. They contend that they have the right to pursue injunctive relief and that they conclusively established both a probable right to relief on their trespass and breach-of-restrictive-covenants claims and a probable, irreparable injury in the interim. The City challenges every aspect of Appellants' appeal, responding that they lack standing to seek, and failed to establish the requirements for, temporary injunctive relief.

A. Standard and Scope of Review

The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 204 (Tex. 2002) (op. on reh'g). A temporary injunction is an extraordinary remedy and will not issue as a matter of right. Id. 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. Id. To establish a probable right to relief, a party is not required to prove that it will prevail at a final trial in order to invoke the trial court's discretion to grant a temporary injunction. Oil Field Haulers Ass'n v. R.R. Comm'n , 381 S.W.2d 183, 196 (Tex. 1964). Rather, a probable right of recovery is shown by alleging a cause of action and presenting evidence tending to sustain it. Frequent Flyer Depot, Inc. v. Am. Airlines, Inc. , 281 S.W.3d 215, 220 (Tex. App.–Fort Worth 2009, pet. denied), cert. denied , 559 U.S. 1036, 130 S.Ct. 2061, 176 L.Ed.2d 414 (2010).

Whether to grant or deny a temporary injunction is within the trial court's sound discretion. Butnaru , 84 S.W.3d at 204. A trial court abuses its discretion if the court acts without reference to any guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry , 221 S.W.3d 609, 614 (Tex. 2007) ; Cire v. Cummings , 134 S.W.3d 835, 838–39 (Tex. 2004).

B. Construction Rules

The parties' issues and arguments require us to construe the Declaration. We apply general rules of contract interpretation when construing a declaration of covenants. See Pilarcik v. Emmons , 966 S.W.2d 474, 478 (Tex. 1998) ; Harris Cty. Flood Control Dist. v. Glenbrook Patiohome Owners Ass'n , 933 S.W.2d 570, 580 (Tex. App.–Houston [1st Dist.] 1996, writ denied). Our primary duty is to ascertain the parties' objective intent from the language used in the entire instrument. Cherokee Water Co. v. Forderhause , 641 S.W.2d 522, 524–25 (Tex. 1982) ; Cooke v. Morrison , 404 S.W.3d 100, 113 (Tex. App.–Houston [1st Dist.] 2013, no pet.). We strive to harmonize and give effect to all the provisions so that none are rendered meaningless. See J.M. Davidson, Inc. v. Webster , ...

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