MET WATER VISTA RIDGE LP v. BLUE WATER SYSTEMS LP LLC (2025)

OPINION

This appeal traces its origins to the Vista Ridge project, a $3.4 billion pipeline venture undertaken by Abengoa Vista Ridge LLC to supply water to San Antonio. The project necessitated leasing groundwater rights from hundreds of landowners in central Texas, which led to a years’ long dispute between Appellant Metropolitan Water Vista Ridge, LP and Appellees Blue Water Systems, LP and Blue Water Vista Ridge, LLC (together, “Blue Water”). The trial court granted permanent injunctive relief against Met Water Vista Ridge and two non-parties. We modify the permanent injunction and affirm the final judgment as modified.

Background

Metropolitan Water Co., LP (“Met Water”) was the original lessee of the Vista Ridge groundwater leases. It later assigned its rights as lessee to Blue Water Vista Ridge, LLC, but remained the lease administrator in charge of managing the lease files. “Managing the lease files” included taking certain actions to ensure the leases stayed in effect, such as paying delay rentals and pooling the leases when necessary.

Met Water allowed some of the groundwater leases to lapse and revert to the landowners, however. It then created Met Water Vista Ridge, a new entity that signed new leases with the landowners to replace the ones that had previously been assigned to Blue Water—all without Blue Water's knowledge. In an effort to combat this subterfuge, Blue Water, Met Water, and Met Water Vista Ridge signed the Post-Closing Agreement, in which Met Water agreed “to convey or assign all new leases ‘New Leases’ taken in Met Water's or an affiliate's name ․ in replacement of or in connection with the [Vista Ridge] Leases.” (emphasis in original). On the same day, Met Water Vista Ridge assigned 32 new leases to Blue Water Vista Ridge pursuant to the Post-Closing Agreement.

Blue Water sued Met Water and Met Water Vista Ridge, arguing that Met Water Vista Ridge was also required to assign seven other Vista Ridge leases under section II(7) of the Post-Closing Agreement. The trial court agreed and granted summary judgment to Blue Water. It then severed all of Blue Water's claims related to the Post-Closing Agreement into a new action and signed a final judgment permanently enjoining Met Water, Met Water Vista Ridge, and two non-parties from (1) refusing to assign the seven leases to Blue Water Vista Ridge, (2) taking any action with respect to the leases other than assigning them to Blue Water Vista Ridge, and (3) taking any new lease in replacement of or in connection with any Vista Ridge lease. This appeal followed.

Analysis

Met Water Vista Ridge is the only remaining appellant and raises five issues, including the scope of the injunctive relief, the propriety of the underlying summary judgments, and the denial of its motion to transfer venue. We sustain one issue in part.

I. Injunctive relief granted against non-parties

Met Water Vista Ridge first argues that the trial court erred by granting permanent injunctive relief against non-parties Scott Carlson and Petroleum Leases, who were not named as parties, cited, or served, though they were discussed in Blue Water's pleadings and request for injunctive relief. Met Water Vista Ridge argues that this injunctive relief violated rule 124, which “build[s] in due process protections.” We review for an abuse of discretion, Huynh v. Blanchard, 694 S.W.3d 648, 673-74 (Tex. 2024), and sustain this issue as to Petroleum Leases.¹

A permanent injunction may bind both “the parties to the action, their officers, agents, servants, employees, and attorneys” and “those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” Tex. R. Civ. P. 683.² By allowing an injunction against both “parties” and “persons,” rule 683 clearly allows injunctions against non-parties as long as they have actual notice, whether “by personal service or otherwise.” For good reason: “a corporation can only act through human agents of one kind or another,” so an injunction must bind those agents even if it “might mention only the corporation.” San Antonio Bar Ass'n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 701 (1956).

But how do we reconcile rule 683’s broader terms—which require only actual notice—with rule 124, which provides that “in no case” shall judgment be rendered unless the defendant has been served, accepted service, waived service, or made an appearance? See Tex. R. Civ. P. 124. We find the answer in the last clause of rule 124: its terms control “except where otherwise expressly provided by law or these rules.” See id. Rule 683 expressly provides otherwise when the question is which parties can be enjoined, as here.

We therefore reject Met Water Vista Ridge's argument that Texas law prohibits enjoining non-parties in all instances. The question is instead whether the non-parties fit into one of rule 683’s categories.

A. Scott Carlson

The injunction against Carlson satisfies rule 683 because sufficient evidence shows that he was an agent of parties Met Water and Met Water Vista Ridge; no showing of active concert or participation was required.

Blue Water's petition established that Carlson owns and controls Met Water Texas, the general partner of Met Water and Met Water Vista Ridge. In fact, all of the agreements to assign the seven leases to Blue Water were signed by Carlson on Met Water and Met Water Vista Ridge's behalf—first the original assignment in 2014, then the Post-Closing Agreement in 2016, and then again in 2018, when he signed a Cooperation and Non-Disturbance Agreement, agreeing not to “disturb, or in any way interfere with or question the validity or enforceability of” the Vista Ridge leases or the agreements governing them. As the bankruptcy court noted when Met Water Vista Ridge filed for bankruptcy, Met Water Vista Ridge and Met Water “have both been controlled by Mr. Carlson throughout this time period.” Carlson would therefore have been bound by the injunction as an agent even if the trial court hadn't specifically named him.

We affirm the injunction against Carlson.

B. Petroleum Leases

The trial court's injunction also bound Petroleum Leases, another entity owned by Scott Carlson. Petroleum Leases is not an officer, agent, servant, employee, or attorney of parties Met Water and Met Water Vista Ridge, so the question is therefore whether Petroleum Leases was in active concert or participation with the parties. See Ex parte Davis, 470 S.W.2d 647, 649 (Tex. 1971) (per curiam) (noting that an injunction binds those who are “in active concert or participation with the named party”).³ We find that the trial court did not abuse its discretion in prohibiting Petroleum Leases from (1) refusing to assign the seven Vista Ridge leases; (2) refusing to cooperate with their assignment; and (3) taking any action with respect to the leases other than assigning them to Blue Water.

The evidence shows that Petroleum Leases actively concerted and participated with Met Water Vista Ridge to avoid assigning the leases to Blue Water. Met Water Vista Ridge declared bankruptcy on the eve of a scheduled summary judgment hearing that would have determined the parties’ obligations under the Post-Closing Agreement. It then used the bankruptcy process to sell the disputed leases to Petroleum Leases, owned by Scott Carlson—who also owned the general partner of both Met Water and Met Water Vista Ridge. The bankruptcy court remanded the case back to Washington County for a decision on the motion for summary judgment, but this time, Met Water Vista Ridge avoided a ruling by filing a motion to recuse the judge. The bankruptcy court noted that Met Water Vista Ridge had “engaged in procedural gamesmanship” by “actively prevent[ing]” and “thwart[ing]” a judicial determination.

The bankruptcy court also ordered that Petroleum Leases had “the same obligations” to third parties after the sale that Met Water Vista Ridge did—meaning Petroleum Leases was required to assign the seven new Vista Ridge leases to Blue Water Vista Ridge. It never did. This evidence is sufficient to support the trial court's finding that Petroleum Leases was participating with Met Water Vista Ridge in impairing their assignment, and we affirm those parts of the injunction. See Hsin-Chi-Su v. Vantage Drilling Co., 474 S.W.3d 284, 296 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (affirming injunction when named party was corporation's sole director, shareholder, and officer and there was some evidence of fraud and breach of fiduciary duty).

We reach a different conclusion as to the part of the injunction prohibiting Petroleum Leases from “taking any new lease in replacement of or in connection with any Vista Ridge leases.” The evidence does not show that Petroleum Leases took any new Vista Ridge leases—Met Water and Met Water Vista Ridge did. Nor did Petroleum Leases act in “active concert or participation with” Met Water or Met Water Vista Ridge in doing so. The evidence is insufficient to support the permanent injunction on this point with respect to Petroleum Leases. See id.

We therefore sustain Met Water Vista Ridge's first issue in part.

II. Blue Water's amended petition in the severed action

In its second issue, Met Water Vista Ridge asserts the trial court erred by failing to strike Blue Water's amended petition after it severed Blue Water's claims related to the Post-Closing Agreement into a new action. We disagree.

We review the trial court's ruling on a motion to strike for an abuse of discretion. Tex. Black Iron, Inc. v. Arawak Energy Int'l Ltd., 566 S.W.3d 801, 827 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). Generally, parties may freely amend their pleadings if the amended pleading is filed at least seven days before trial or a summary judgment hearing and does not violate any court-imposed deadlines. Tex. R. Civ. P. 63; see also MedStar Funding, LC v. Willumsen, 650 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2022, no pet.). But even if an amended pleading is timely filed, the opposing party may move to strike the pleading on grounds that it “operate[s] as a surprise.” Tex. R. Civ. P. 63; see, e.g., Andrews v. John Crane, Inc., 604 S.W.3d 495, 499-501 (Tex. App.—Houston [14th Dist.] 2020, pet. denied).

Here, the record does not show that Blue Water's amended petition was filed within seven days of a trial setting or a summary judgment hearing or otherwise ran afoul of any court-imposed deadlines. Accordingly, Blue Water's amended petition should have been stricken only if it “operate[d] as a surprise” to Met Water Vista Ridge. See Tex. R. Civ. P. 63.

The trial court did not abuse its discretion in holding that Met Water Vista Ridge was not surprised by Blue Water's amended petition, which relied on substantially the same facts as those asserted in its previous petition filed over a year earlier. Like the amended petition, Blue Water's previous petition requested permanent injunctive relief against Met Water, Met Water Vista Ridge, and their affiliates to secure the assignment of “all leases taken ․ in replacement of or in connection with any Vista Ridge Lease tract.” Blue Water's previous petition detailed at length Scott Carlson's involvement in the alleged lease-stealing scheme, just as the amended petition did. Given this overlap, the trial court did not abuse its discretion in concluding that the amended petition did not “operate as a surprise” to Met Water Vista Ridge. See id.

We overrule Met Water Vista Ridge's second issue.

III. Blue Water's summary judgment in the severed action

In its third issue, Met Water Vista Ridge raises four arguments challenging the trial court's final summary judgment in the severed action granting permanent injunctive relief. We reject these arguments.

A. Standard of review

The construction of an unambiguous contract is a question of law we review de novo. Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). A contract is unambiguous if it can be given one certain or definite legal interpretation. Polaris Guidance Sys., LLC v. EOG Res., Inc., 575 S.W.3d 85, 88 (Tex. App.—Houston [14th Dist.] 2019, no pet.). We give contract terms their plain, ordinary, and generally accepted meanings unless the contract itself shows them to be used in a technical or different sense. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). We examine and consider the entire writing in an effort to harmonize and give effect to all provisions of the contract so that none will be rendered meaningless. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). We take as true all evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in the non-movant's favor. Valence Operating Co., 164 S.W.3d at 661.

B. Met Water Vista Ridge's objections to Blue Water's summary judgment evidence fail

In its first argument, Met Water Vista Ridge argues that Blue Water failed to establish its entitlement to summary judgment because its motion (1) “tried simply incorporating the evidence from several past motions by general reference,” and (2) attempted to rely on evidence filed “just seven days” before the summary judgment hearing. We reject both arguments.

Proper summary judgment evidence includes all evidence on file with the trial court at the time of the summary judgment hearing. See Lance v. Robinson, 543 S.W.3d 723, 732-33 & n.8 (Tex. 2018) (summary judgment movant could properly rely on exhibits previously admitted at temporary injunction hearing). Here, the trial court ordered the district clerk to initiate a separate proceeding with a new cause number—in front of the same judge—and to include documents that were originally filed in the main action on the severed action's docket. Both Blue Water's Third Traditional Motion for Partial Summary Judgment and its First Supplement were on the severed action's docket, therefore, and both included detailed citations to their attached exhibits. Blue Water then filed a summary judgment motion in the severed action that incorporated by reference all testimony and exhibits to the Third Motion and the First Supplement. We therefore reject Met Water Vista Ridge's contention that Blue Water's summary judgment motion in the severed action relied merely on impermissible “general reference[s].”

Met Water Vista Ridge also points out that Blue Water filed additional summary judgment evidence only seven days before the motion hearing, contrary to the 21 days required by Rule 166a(c). Specifically, Blue Water filed two bankruptcy court documents and excerpts from Carlson's deposition to show that (1) Met Water Vista Ridge is controlled by its general partner Met Water Texas, (2) Met Water Texas is controlled by Carlson, and (3) Carlson owns Petroleum Leases. Because this evidence was cumulative of other timely filed summary judgment evidence, any error in its admission is harmless. See, e.g., Aguillera v. John G. & Marie Stella Kenedy Mem'l Found., 162 S.W.3d 689, 697 (Tex. App.—Corpus Christi 2005, pet. denied) (any error in the admission of late-filed summary judgment evidence was “harmless” because “it was merely cumulative of other evidence that was timely filed”). Therefore, we overrule Met Water Vista Ridge's argument on this point.

C. Blue Water was not required to establish a theory like alter ego or veil piercing

Met Water Vista Ridge also asserts that Blue Water failed to plead and prove a theory like alter ego or veil piercing to allow judgment against it. But Met Water Vista Ridge does not cite (and our research has not found) any cases holding that one of these theories must be established before a named party's affiliates may be bound by a permanent injunction—and rule 683 provides otherwise. See Tex. R. Civ. P. 683. Because we have fully considered these arguments in the context of the trial court's permanent injunction, we need not reexamine them here. We overrule Met Water Vista Ridge's argument.

D. Blue Water proved its entitlement to an express trust

Met Water Vista Ridge next challenges the trial court's conclusion that the seven new Vista Ridge leases were held in trust for the benefit of Blue Water Vista Ridge because, it argues, Blue Water failed to prove a constructive trust.

A constructive trust is an equitable remedy imposed when one party holds property that legally belongs to another. Messier v. Messier, 458 S.W.3d 155, 164 (Tex. App.—Houston [14th Dist.] 2015, no pet.); In re Estate of Skinner, 417 S.W.3d 639, 643 (Tex. App.—Houston [14th Dist.] 2013, no pet.). The proponent of a constructive trust must prove (1) breach of a special trust, fiduciary relationship, or actual fraud, (2) unjust enrichment of the wrongdoer, and (3) tracing to an identifiable property. Hsin-Chi-Su, 474 S.W.3d at 299.

Creation of an express trust, on the other hand, is much simpler; it requires only that “the settlor manifests an intention to create a trust.” See Tex. Prop. Code § 112.002; see also Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985, 987 (1948) (“An express trust can come into existence only by the execution of an intention to create it by the one having legal and equitable dominion over the property made subject to it.”). To create a trust by written instrument, the instrument must identify the beneficiary, the subject property, and the trust's purpose or object. Perfect Union Lodge No. 10, A.F. & A.M., of San Antonio v. Interfirst Bank of San Antonio, N.A., 748 S.W.2d 218, 220 (Tex. 1988).

Here, the trial court held that the seven new Vista Ridge leases were held in trust for Blue Water Vista Ridge based on the Post-Closing Agreement:

Within three days after the Effective Date Met Water agrees to convey and assign all new leases “New Leases” ․ Met Water holds all such New Leases and any consideration received thereunder in trust for the benefit of Blue Water.

(second emphasis added). This provision is sufficiently specific to create an express trust. See Hubbard v. Shankle, 138 S.W.3d 474, 484 (Tex. App.—Fort Worth 2004, pet. denied) (“There are no particular words required to create a trust if there exists reasonable certainty as to the intended property, object, and beneficiary.”); McAnally v. Friends of WCC, Inc., 113 S.W.3d 875, 882 (Tex. App.—Dallas 2003, no pet.) (same); Fred Rizk Constr. Co. v. Cousins Mortg. & Equity Invs., 627 S.W.2d 753 , 757 (Tex. App.—Houston [1st Dist.] 1981, writ ref'd n.r.e.) (same). Accordingly, Blue Water was not required to plead and prove a constructive trust to support the challenged relief.

We overrule Met Water Vista Ridge's argument.

E. Blue Water presented legally sufficient evidence to support summary judgment

Met Water Vista Ridge next asserts that Blue Water failed to present legally sufficient evidence that five of the seven Vista Ridge leases were New Leases and, thus, Blue Water was not entitled to summary judgment and permanent injunctive relief as to those five leases. We disagree.

The trial court held that all seven of the disputed Vista Ridge leases qualified as New Leases based on the plain language of the Post-Closing Agreement, the 2016 Additional Assignments of Met Water Lease Rights assigning 32 Vista Ridge leases, and memoranda showing that all seven of the leases were leased to Met Water Vista Ridge after the parties signed the Post-Closing Agreement. In addition, Blue Water's custodian of records testified that the seven leases replaced the original Vista Ridge leases and were entered into by Met Water Vista Ridge without Blue Water Vista Ridge's consent:

• After Blue Water discovered that Met Water Vista Ridge was taking new leases “in replacement of or in connection with” Vista Ridge leases, the parties executed the 2016 Additional Lease Assignments to assign the “new leases” back to Blue Water Vista Ridge in accordance with the terms of the Post-Closing Agreement.

• After 2016, Blue Water “discovered additional New Leases taken in [Met Water Vista Ridge's] name in replacement of or in connection with Vista Ridge Leases.”

• Each of the seven groundwater leases was entered into “without [Blue Water Vista Ridge's] consent.”

• Each of the seven leases was either “in replacement of a Vista Ridge Lease because Met Water allowed that lease to expire” or “in connection with a Vista Ridge Lease because Met Water determined that the original lease was not with the correct owner of groundwater rights for the subject tract of land.”

That testimony is clear, positive, and direct, is credible and free from contradictions and inconsistencies, and could have been readily controverted. As such, it is uncontroverted testimonial evidence sufficient to support summary judgment on this issue. See Klein Indep. Sch. Dist. v. Wardlaw, 693 S.W.3d 610, 618 (Tex. App.—Houston [14th Dist.] 2023, pet. denied).

This evidence, taken together, is sufficient to show as a matter of law that the seven leases were New Leases because they were taken “in replacement of or in connection with” a Vista Ridge lease. The burden then shifted to Met Water Vista Ridge, Reg'l Specialty Clinic, P.A. v. S.A. Randle & Assocs., P.C., 625 S.W.3d 895, 900-01 (Tex. App.—Houston [14th Dist.] 2021, no pet.), but it neither produced contrary evidence to raise a fact issue nor challenged Blue Water's custodian's declaration except to baldly assert that it is “conclusory.”

We overrule Met Water Vista Ridge's argument on this point.

* * *

Having overruled all of Met Water Vista Ridge's arguments raised within this issue, we overrule Met Water Vista Ridge's third issue in its entirety.

IV. Blue Water's third motion for partial summary judgment in the main proceeding

In its fourth issue, Met Water Vista Ridge raises four arguments challenging the trial court's summary judgment in the main proceeding before it severed Blue Water's claims into a new action. We analyze these arguments under the summary judgment standard of review set out above in section III.A.

A. The Post-Closing Agreement supports the granted relief

Met Water Vista Ridge contends that section II(7) of the Post-Closing Agreement cannot be interpreted as a matter of law and that the provision does not create a continuing obligation—rather, its obligation applied only to those groundwater leases in existence “within three days” of the Post-Closing Agreement's effective date. We disagree with both contentions.

Met Water Vista Ridge's argument is belied by the parties’ other agreements, which we must read together to ascertain the parties’ intent even though they “were executed at different times and they do not refer to each other.” Polaris Guidance Sys., LLC, 575 S.W.3d at 89 (citing Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000)). Five months after the Post-Closing Agreement, the parties agreed that 21 additional leases were “held in trust for BWVR's benefit as replacements of several leases which were originally assigned to” Blue Water Vista Ridge—in other words, they were New Leases even though they did not exist within three days of the Post-Closing Agreement's effective date.

The trial court therefore did not err in concluding that the Post-Closing Agreement unambiguously imposes a continuing obligation on Met Water Vista Ridge to assign all new leases taken in replacement of or in connection with existing Vista Ridge leases, including the seven new Vista Ridge leases.

We overrule Met Water Vista Ridge's argument on this point.

B. The statute of limitations does not preclude relief

Met Water Vista Ridge next argues that the statute of limitations bars Blue Water's claims because two 2016 letters put Blue Water “on notice” that the Joe Baldwin lease (one of the seven Vista Ridge leases) had not been conveyed to Blue Water Vista Ridge. Because breach of contract claims are subject to a four-year limitations period, Met Water Vista Ridge argues that Blue Water's 2021 suit was too late to seek relief with respect to this specific lease. See Tex. Civ. Prac. & Rem. Code § 16.004.

Statute of limitations is an affirmative defense. Godoy v. Wells Fargo Bank, N.A., 575 S.W.3d 531, 536 (Tex. 2019). Met Water Vista Ridge was therefore required to come forward with evidence sufficient to raise an issue of fact on each element of limitations to avoid summary judgment. See Rogers v. Asset Lending, L.L.C., No. 14-16-00980-CV, 2018 WL 3118645, at *3 (Tex. App.—Houston [14th Dist.] June 26, 2018, no pet.) (mem. op.).

The question here is whether Met Water Vista Ridge produced some evidence to show that Blue Water's cause of action accrued more than four years before it filed suit. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003) (“a cause of action accrues and the statute of limitations begins to run when facts come into existence that authorize a party to seek a judicial remedy”).

Met Water Vista Ridge first points to a September 2016 letter from Scott Carlson to Ross Cummings entitled “Vista Ridge,” which states:

The current owner of tract 082-069 is Joe Baldwin. Met Water Vista Ridge, no relation to Metropolitan Water Company, has signed a Lease with Mr. Baldwin covering 082-069. This Met Water Vista Ridge Lease covers a previously unleased tract of land and such Lease is not part of the Project.

The letter is signed by Carlson and includes the Baldwin lease as an attachment. Met Water Vista Ridge also points to a similar letter dated November 7, 2016, sent to “Chris Noe.”

This evidence is insufficient to raise a fact issue on Met Water Vista Ridge's limitations defense. The letters contain no indication that they were actually mailed, such as how or when they were supposedly mailed or even what address was used. Therefore, the letters are insufficient to show that Blue Water was on notice about the Baldwin lease's status. See, e.g., Sellers v. Foster, 199 S.W.3d 385, 395 (Tex. App.—Fort Worth 2006, no pet.) (“the mere presence of the letter in the court's file is no evidence that it was mailed or received”).

Nor is this deficiency cured by Carlson's declaration, which states only that the letters were made and kept in the regular course of business—but says nothing about whether they were actually mailed. We recently examined an affidavit that, unlike here, explicitly stated that a letter “was mailed” and concluded the statement was conclusory and “no evidence” of mailing. See Galloway v. Wells Fargo Bank, N.A. on Behalf of Registered Holders of Bear Stearns Asset Backed Secs. I, LLC, No. 14-23-00363-CV, 2024 WL 4785014, at *6-8 (Tex. App.—Houston [14th Dist.] Nov. 14, 2024, no pet.). Here, where Carlson's declaration offers much less, it is subject to the same fate and is no evidence that the letters were actually sent as necessary to raise a fact issue as to notice.

Finally, Met Water Vista Ridge does not point to any evidence in the record showing who “Chris Noe” is or why the November 2016 letter to him would constitute notice to Blue Water regarding the status of the Baldwin lease. In its reply brief filed in this court, Met Water Vista Ridge refers to Chris Noe as a “Blue Water employee”; in its summary judgment response, Met Water Vista Ridge stated that Noe was “with Pape-Dawson Engineers, which was working as an agent of Vista Ridge LLC and Blue Water Vista Ridge, LLC.” Regardless, Met Water Vista Ridge fails to point to any evidence in the record showing why this letter would have put Blue Water on notice for purposes of its limitations defense.

Because Met Water Vista Ridge did not produce any evidence to support its limitations defense, the trial court did not err in granting summary judgment. We overrule Met Water Vista Ridge's limitations argument.

C. The record does not raise a fact issue as to whether Blue Water surrendered any rights in the Vista Ridge leases

In its final challenge to the motion for summary judgment in the main proceeding, Met Water Vista Ridge summarily asserts that “the record creates a fact issue about whether Blue Water had any right to pursue these leases at all,” pointing out that section II(7) of the Post-Closing Agreement gives Abengoa Vista Ridge, LLC the “sole authority to direct the management and administrative rights pertaining to the [Vista Ridge] leases.”

We disagree that this sentence in the Post-Closing Agreement vitiates the relief Blue Water obtained via summary judgment. Met Water Vista Ridge does not point to any portion of the record to show that “management and administrative rights” can be equated with the right to assign the groundwater leases. To the contrary, Blue Water, Met Water, and Met Water Vista Ridge have themselves entered into numerous agreements to secure the assignment of the Vista Ridge leases to Blue Water Vista Ridge, without Abengoa's involvement. We therefore overrule Met Water Vista Ridge's argument on this point.

* * *

Having overruled all of Met Water Vista Ridge's arguments raised within this issue, we overrule Met Water Vista Ridge's fourth issue in its entirety.

V. Motion to transfer venue

In its final issue, Met Water Vista Ridge asserts that this case should have been transferred to Washington County instead of Travis County pursuant to a motion to transfer venue made by Met Water before Met Water Vista Ridge was a party. The thrust of its argument on appeal appears to be that, because venue was improper in Burleson County, where Blue Water filed suit, Met Water was entitled to the first county of its choosing, i.e., Travis County. We disagree.

If the county in which an action is pending is not a county of proper venue, the trial court “shall transfer an action to another county of proper venue.” Tex. Civ. Prac. & Rem. Code § 15.063(a). Applying this statute, the Supreme Court of Texas has stated that, “[i]f the plaintiff fails to establish proper venue, the trial court must transfer venue to the county specified in the defendant's motion to transfer, provided that the defendant has requested transfer to another county of proper venue.” In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig. proceeding) (emphasis added). The defendant has the burden of proving that its requested venue is proper. Id.

But Met Water failed to establish that its requested venue, Travis County, was a “county of proper venue” because the major-transactions venue statute on which Met Water relied does not apply if “venue is established under a statute of this state other than this title.” See Tex. Civ. Prac. & Rem. Code § 15.020(d)(3). Venue here was established under a statute from a separate title—namely, section 65.023(a), which states that writs of injunction “shall be tried in a district or county court in the county in which the party is domiciled.” Id. § 65.023(a).

Section 65.023(a) applies when “a plaintiff's pleadings in the underlying suit establish the relief sought is ‘purely or primarily injunctive,’ ” a matter that we review de novo. In re Fox River Real Estate Holdings, Inc., 596 S.W.3d 759, 765 (Tex. 2020) (orig. proceeding) (quoting In re Cont'l Airlines, Inc., 988 S.W.2d 733, 736 (Tex. 1998) (orig. proceeding)) (holding that a pleading did not seek primarily injunctive relief when it sought “significant damages, attorney's fees, declaratory relief, and other equitable relief, including a constructive trust”). We consider “the entire record” in determining whether venue was proper in Washington County. Tex. Civ. Prac. & Rem. Code § 15.064.

When the trial court ruled on Met Water's motion to transfer venue, Blue Water did not seek damages. Rather, it sought temporary and permanent injunctions requiring Met Water to (1) transfer to Blue Water all files relating to the Vista Ridge leases, (2) refrain from amending, altering, or otherwise affecting the Vista Ridge leases, and (3) refrain from communicating with others about the parties’ rights or obligations under the Vista Ridge leases. Its requests for declaratory relief essentially mirrored these issues. The petition, therefore, primarily sought injunctive relief. See In re FPWP GP LLC, No. 05-16-01145-CV, 2017 WL 461355, at *5 (Tex. App.—Dallas Jan. 25, 2017, orig. proceeding) (mem. op.) (holding that claims for declaratory and injunctive relief were two means to the same end and, thus, petition primarily sought injunctive relief).

Our decision is not changed by the fact that Blue Water added Met Water Vista Ridge as a defendant a year after the trial court ruled on Met Water's venue motion and, for the first time, sought damages in the alternative. Once a lawsuit has been transferred to a proper county, as here, “no further motions to transfer shall be considered.” See Tex. R. Civ. P. 87(5); In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex. 2008) (orig. proceeding). There is an exception to this rule if a subsequent motion to transfer asserts a new claim of mandatory venue that was not available to the original movant, Tex. R. Civ. P. 87(5), but that exception does not apply here because Met Water Vista Ridge did not assert a new mandatory venue argument.

In any event, Blue Water's request for injunctive relief was still “first in order of rank or importance,” even after it added a claim for damages. See Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706, 707 (1957) (holding that suit still primarily sought injunctive relief even when it made an alternative claim for damages). Blue Water's petition begins by stating that its lawsuit was “to enforce critical property rights and contract rights” and “to obtain permanent injunctive relief” to prevent interference with those rights. Its requests for relief span two pages and include eight permanent injunctions but only briefly request “all actual and exemplary damages.” Indeed, the trial court awarded only injunctive relief, not damages. Venue for Blue Water's suit was, therefore, proper in Washington County under section 65.023.

We overrule Met Water Vista Ridge's fifth issue.

Conclusion

We sustain in part Met Water Vista Ridge's first issue challenging the scope of the trial court's permanent injunction. Therefore, we modify the final paragraph of the trial court's permanent injunction to read as follows:

IT IS FURTHER DECLARED, ORDERED, AJUDGED and DECREED that Defendants Metropolitan Water Company, LP and Met Water Vista Ridge LP, as well as their officers, agents, servants, employees, and attorneys, and those in active concert or participation with them who receive actual notice of this judgment, including William Scott Carlson, are PERMANENTLY ENJOINED from taking any new lease in replacement of or in connection with any Vista Ridge Leases.

We affirm the trial court's final judgment as so modified.

FOOTNOTES

1.   Met Water Vista Ridge also complains on appeal that the trial court granted permanent injunctive relief against non-party Met Water Texas, which operates as general partner for Met Water and Met Water Vista Ridge. However, the trial court's final judgment did not specifically grant any injunctive relief against Met Water Texas.

2.   We reject Met Water Vista Ridge's argument that rule 683 applies only to temporary injunctions. The plain text of the rule applies to all injunctions, see Pauli v. Hayes, No. 14-17-00026-CV, 2018 WL 3440767, at *13-14 (Tex. App.—San Antonio July 18, 2018, no pet.) (mem. op.) (“[t]he plain language of the rule applies the scope limitations to all injunctions”), and the Supreme Court of Texas has specifically applied it to permanent injunctions, see, e.g., In re Tr. A & Tr. C Established Under the Bernard L. & Jeannette Fenenbock Living Tr. Agreement, 690 S.W.3d 80, 89 & n.5 (Tex. 2024); Ex parte Conger, 163 Tex. 505, 357 S.W.2d 740, 743-44 (1962) (orig. proceeding). To the extent other opinions from this Court have suggested that rule 683 does not apply to permanent injunctions, those opinions were inconsistent with and have been abrogated by Supreme Court precedent. See, e.g., Houston Laureate Assocs., Ltd. v. Russell, 504 S.W.3d 550, 569 n.12 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Malekzadeh v. Malekzadeh, No. 14-05-00113-CV, 2007 WL 1892233, at *2 (Tex. App.—Houston [14th Dist.] July 3, 2007, pet. denied) (mem. op.); In re B.G., No. 14-04-00944-CV, 2006 WL 1594043, at *3 (Tex. App.—Houston [14th Dist.] June 13, 2006, no pet.) (mem. op.); Bostow v. Bank of Am., No. 14-04-00256-CV, 2006 WL 89446, at *8 (Tex. App.—Houston [14th Dist.] Jan. 17, 2006, no pet.) (mem. op.); Cook's Bryan, Inc. v. State, 459 S.W.2d 682, 688 (Tex. App.—Houston [14th Dist.] 1970, writ ref'd n.r.e.).

3.   Rule 683 states that a permanent injunction may bind those persons in active concert or participation with the parties “who receive actual notice of the order by personal service or otherwise.” Tex. R. Civ. P. 683 (emphasis added). Met Water Vista Ridge does not argue that Petroleum Leases did not receive actual notice of the permanent injunction. See Ex parte Jackman, 663 S.W.2d 520, 523 (Tex. App.—Dallas 1983, orig. proceeding) (even though relator and his attorney were not present when the court issued the permanent injunction, notice was sufficient under rule 683 because “movant's attorney notified relator of the contents of the order the same day it was issued”). Accordingly, Petroleum Leases can be bound upon a showing that it acted “in active concert or participation with” the named parties.

Katy Boatman, Justice