Stein v. Killough

• Decision Date: 28 March 2001
• Docket Number: No. 04-99-00805-CV,04-99-00805-CV
• Citation: 53 S.W.3d 36
• Parties: (Tex.App.-San Antonio 2001) Jarvis L. STEIN and Betty L. Stein, Appellants v. Joe B. KILLOUGH, Appellee
• Court: Texas Court of Appeals

Page 36

53 S.W.3d 36 (Tex.App.-San Antonio 2001)

Jarvis L. STEIN and Betty L. Stein, Appellants v. Joe B. KILLOUGH, Appellee

No. 04-99-00805-CV

Court of Appeals San Antonio, Fourth District of Texas

March 28, 2001

From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 98-CI-12615 Honorable Andy Mireles, Judge Presiding

[Copyrighted Material Omitted] Sitting: Catherine Stone, Justice, Paul W. Green, Justice, Karen Angelini, Justice

Karen Angelini, Justice

Jarvis L. and Betty L. Stein appeal a declaratory judgment and permanent injunction prohibiting them from shortening a median on the street which runs along the boundary of their property and that of Joe Killough. The Steins raise two issues on appeal: that the trial court abused its discretion in issuing the permanent injunction and, that there was no evidence of imminent and irreparable harm which would justify issuing the injunction. We affirm the trial court's judgment.

Factual & Procedural Background

San Antonio Ranch is a subdivision located in the extraterritorial jurisdiction of the City of San Antonio. Apacheria Street and Ranch Parkway, two roads in the subdivision, appear on a plat recorded in the Deed and Plat Records of Bexar County, Texas. The plat reflects that Sarlco, Inc., the original owner of the land, dedicated to the public's use "all streets alleys, parks, water courses, drains, easements and public places thereon shown for the purpose and consideration therein expressed." The plat also states specifically that "Green belt and median maintenance shall be provided by owner of green belts."¹ The recorded plat further reflects that the plat was approved by the City of San Antonio Planning Commission in 1980 and by the Bexar County Commissioners' Court in 1983.

The Steins and Killough own adjacent lots in San Antonio Ranch. Ranch Parkway is a main thoroughfare into the San Antonio Ranch subdivision. Apacheria runs off of Ranch Parkway, allowing further access into the subdivision. Killough's property is situated at the corner of Apacheria and Ranch Parkway, and the Steins access their property by turning off of Ranch Parkway, onto Apacheria, and passing by Killough's lot.

Both Apacheria and Ranch Parkway have medians running down their centers. The median on Apacheria extends to the end of the street, where Apacheria and Ranch Parkway intersect. The Steins frequently take large vehicles on to their property, including a travel-trailer, a dovetail-trailer and eighteen-wheeler trucks. The median, which is curbed and landscaped, impedes the Steins' ability to turn their large vehicles onto Apacheria. Therefore, they were driving over the median to make the turn. Killough placed large rocks and logs around the median's edges to prevent the Steins from driving over the median.

The Steins brought suit against Killough, seeking an injunction to prevent Killough from placing obstructions on the roadway. Specifically, they claimed that by doing so, Killough prevented them from "free ingress and egress to their property." Killough voluntarily ceased placing the obstructions on the roadway.

The Steins later informed Killough that they were going to shorten the median on Apacheria by 30 feet, which would entail removing the curb and foliage, replacing it with pavement, and replacing the curb at the shortened end of the median. Killough countersued, seeking declaratory and injunctive relief against the Steins to prevent them from making any alterations to the median.

Finding in Killough's favor, the trial court issued a judgment for declaratory and injunctive relief, which recites in part: "[T]he Court hereby declares that the streets and medians known as Apacheria Street and Ranch Parkway, located in the San Antonio Ranch Subdivision, Bexar County, Texas as set forth on plat recorded in Volume 9503, Page 83 of the Deed and Plat Records of Bexar County, Texas, are public roadways in their entirety, and the Court further declares that [the Steins], jointly or severally, have no right to alter or modify such roadways." The Steins appeal.

Jurisdiction

Because the trial court, here, found that the roads in question are public, we must first address whether Killough has standing to bring a claim on the public's or county's behalf. Standing, as a component of subject matter jurisdiction, is an issue that may be raised by the court for the first time on appeal. Texas Ass'n of Bus. v. Air Control Bd., 852 S.W.2d 440, 445-446 (Tex. 1993).

A plaintiff may not maintain an action unless he or she has standing to litigate the matters that are the basis of the lawsuit. Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984); Hotze v. Brown, 9 S.W.3d 404, 409 (Tex. App. Houston [14th Dist.] 1999, pet. granted); State v. Castle Hills Forest, Inc., 842 S.W.2d 370, 372 (Tex. App. San Antonio 1992, writ denied). Standing is "some interest peculiar to a person individually and not as a member of the general public." Bass, 664 S.W.2d at 324. A person has standing if (1) he has sustained, as a result of the wrongful conduct of which he complains, a direct injury; (2) there is a direct relationship between the alleged injury and the claim; (3) he has a personal stake in the case's outcome; (4) the challenged action has caused him some injury in fact; or (5) he is an appropriate party to assert the public's interest in the matter as well as his own interest. Hotze, 9 S.W.3d at 409. A plaintiff must show that the subject matter of the litigation affects him differently than other citizens. Hunt, 664 S.W.2d at 324; Hotze, 9 S.W.3d at 409. We review the entire record for evidence supporting subject matter jurisdiction, construing the pleadings in the plaintiff's favor and considering the plaintiff's intent. Texas Ass'n of Bus. v. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

In his pleadings, Killough alleged the following:

If Counter-Plaintiff's application for temporary restraining order is not granted, Counter-Plaintiff will suffer imminent and irreparable harm. Such harm is imminent because Counter-Defendants have advised Counter-Plaintiff that they intend to modify and alter the medians and streets adjoining Counter-Plaintiff's real property... Such harm is irreparable because the modifications and alterations of the roadways... would deprive Counter-Plaintiff of the use and enjoyment of his unique real property which is part of Counter-Plaintiff's rural homestead, and would deprive Counter-Plaintiff and the public of their rights in connections with the free and unrestricted use and enjoyment of such roadways.

And, at trial, Killough presented evidence that, should the Steins be permitted to alter the Apacheria and Ranch Parkway medians, his property value would be diminished. First, we note that Killough is an appropriate party to assert the public's rights in this litigation, as well as his own. A private landowner may enforce a public dedication, if the landowner has a property interest that will suffer if the publicly dedicated land is used in a manner inconsistent with its original purpose. See Brooks v. Jones, 578 S.W.2d 669, 674 (Tex. 1979) (discussing how an obstruction of a public road may give rise to cause of action brought by a private landowner). Secondly, viewing Killough's pleadings, as well as the entire record in his favor, the possible diminution of Killough's property value is an injury different than that which may be sustained by other citizens. Accordingly, we hold Killough has standing to bring this claim for injunctive relief.

Standard of Review

An applicant for permanent injunctive relief must establish the existence of a wrongful act, imminent harm, irreparable injury, and the absence of an adequate remedy at law. Swate v. Medina Community Hosp., 966 S.W.2d 693, 700 (Tex. App. San Antonio 1998, pet. denied). We review a trial court's ruling on applications for permanent injunctions for an abuse of discretion. Operation Rescue Nat'l v. Planned Parenthood of Houston, 975 S.W.2d 546, 560 (Tex. 1998); Chromalloy Gas Turbine Corp. v. United Techs. Corp., 9 S.W.3d 324, 328 (Tex. App. San Antonio 1999, pet. denied). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In conducting our review, we consider the evidence in the light most favorable to the trial court's judgment. Swate, 966 S.W.2d at 700. If some evidence appears in the record which reasonably supports the trial court's decision, there is no abuse of discretion. Id. In reviewing for an abuse of discretion, we do not review the issues under traditional legal and factual sufficiency standards. See Hotze, 9 S.W.3d at 414. Legal and factual sufficiency claims are not independent grounds of error; they are factors we weigh in determining whether the trial court abused its discretion. Hotze, 9 S.W.3d at 414. For example, we will find an abuse of discretion if the record reflects that the trial court's findings necessary to sustain its order are not supported by some evidence. Operation Rescue, 975 S.W.2d at 560.

Wrongful Act

In their first issue, the Steins assert the trial court abused its discretion by permanently enjoining them from removing the obstructive portion of the median located on Apacheria Street. Specifically, the Steins argue that because Apacheria and Ranch Parkway have not been accepted by the county for maintenance, they, as abutting property owners, have the right to remove obstructions to the free and convenient access to their property. Their argument is, essentially, that there is no wrongful act to enjoin.

Acceptance?

The Steins claim that because the trial court erroneously determined that the dedication in the plat made Apacheria a public road, it also erroneously found that any alteration to the median was subject to county approval. In making their claim, the Steins rely on Langford v. Kraft, 498 S.W.2d 42 ...