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 (2016)

OPINION ON REHEARING

I. Introduction

On February 5, 2016, the appellants—Josh and Kelli Savering, Chattanya Chavda, Pannaben Nancha, Phillip and Lisa Klotz, Paul Arseneau, Allison Blackstein, and Jack A. Muhlbeier—filed a motion for panel reconsideration and a motion for reconsideration en banc of our opinion issued January 21, 2016. We deny the motion for panel reconsideration except to the extent that we correct a single quotation as pointed out by appellants in their motions, and we withdraw our opinion and judgment of January 21, 2016 and substitute the following in its place.¹

In a single issue, the appellants appeal an interlocutory order denying their amended application for a temporary injunction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West Supp. 2015). The sole issue before the court in this interlocutory appeal is whether the trial court abused its discretion by denying the appellants' amended application for temporary injunction. Because we hold that the trial court did not abuse its discretion by denying the application, we affirm.

II. Background

The instant appeal arises from a dispute between appellee the City of Mansfield and the appellants—residential homeowners in the Estates of Creekwood, a gated community—over ownership of property adjacent to the appellants' homes and to a creek. The appellants included the following demarcated plat in their appendix, which we reproduce here solely to provide context:

The R2 lots—the property at issue here—are outlined in red, the floodways are outlined in blue, and a jogging path is marked in green. The residential lots belonging to the appellants abut the R2 lots along the eastern and southern parts of the development.

After the City built a bridge over the creek to connect the property at issue to a public park, the appellants sued their homeowners' association (HOA) and the City, seeking a declaratory judgment that the HOA owned the property and seeking to quiet title to the property.² They also brought against the City a claim for trespass, for breach of restrictive covenants, and for inverse condemnation. And, at issue here, they sought injunctive relief to stop the public from using the bridge both in the interim and permanently.

In their application for injunctive relief, the appellants asked the trial court to order the following:

1. That the City, City Officials and/or Mansfield Corp. shall immediately place a temporary barricade on the Walnut Creek Bridge that will prevent and/or deter access to the Estates of Creekwood by the general public.

2. That the City, City Officials and/or Mansfield Corp. shall be immediately prohibited from entering, or encouraging others to enter, the Estates of Creekwood.

3. That the City, City Officials and/or Mansfield Corp. place a valid and legally enforceable “no trespassing” sign on the barricade that will be enforceable by the City of Mansfield Police Department.

III. Discussion

The appellants argue that the trial court abused its discretion by denying the temporary injunction because they established their right to seek injunctive relief in the form of valid causes of action against the City—trespass and breach of restrictive covenants. They also contend that they established a probable right to relief and will suffer probable and irreparable injury absent a temporary injunction. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002) (op. on reh'g) (establishing that to obtain a temporary injunction, the applicant must plead and prove a cause of action against the defendant; a probable right to the relief sought; and a probable, imminent, and irreparable injury in the interim). The City points out that the appellants' causes of action are predicated on their underlying assertion that the HOA owns the lots and that because their underlying assertion is incorrect, the trial court could not have abused its discretion by denying the injunction.

A. Relief Sought

The appellants sought both prohibitive and mandatory temporary injunctions. A prohibitive injunction forbids conduct, while a mandatory injunction requires it. Lifeguard Benefit Servs., Inc. v. Direct Med. Network Solutions, Inc., 308 S.W.3d 102, 112 (Tex.App.–Fort Worth 2010, no pet.) (citing RP & R, Inc. v. Territo, 32 S.W.3d 396, 400 (Tex.App.–Houston [14th Dist.] 2000, no pet.)). A mandatory injunction is proper only when necessary to prevent irreparable injury or extreme hardship, Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex.1981); see Lifeguard, 308 S.W.3d at 112, and it should be denied absent a clear and compelling presentation of such extreme necessity or hardship. RP & R, Inc., 32 S.W.3d at 400–01.

The appellants asked the trial court to make the City put a temporary barricade and “no trespassing” signs on the bridge. These requests, if granted, would have required the City to take action through the expenditure of taxpayer dollars and use of police enforcement. Therefore, they are mandatory injunctions.³

1. Evidence

Michael Goodrich, an attorney board-certified in commercial real estate law, testified on behalf of the appellants at the injunction hearing. He stated that when he inspected the neighborhood, he walked the entire jogging trail. There was a portion of the trail that could be accessed outside of the gated community even without using the City's bridge. He said that the access point, through another neighborhood, was “a pretty good distance” from the bridge and was a very narrow entrance.

Kelli Savering, one of the appellants, testified that when she bought her home in April 2011, she believed that the neighborhood was gated based on what her real estate agent told her. She saw gates when she toured the property and understood that the gates' purpose was for security and privacy. Savering said that she was not told at that time that the land behind her house was a public park, did not learn about the bridge construction project until May 2013, and said that she would not have purchased the home if she had known there would be a public park behind it. Savering stated that she and the other adjoining homeowners had always taken care of maintaining the property at issue, mowing the grass and picking up any debris. Before the bridge was opened, the flow of traffic onto the property at issue was very minimal.

Savering testified that during the last ten months after the bridge opened, she had seen people fishing in the private lake, taking photos, picnicking on the property at issue, and using small motor vehicles on it. During nice weather, the property drew 25 to 100 people on weekdays and 100 to 250 on weekends. This concerned her because her neighborhood was no longer secure, and she was concerned about safety. She had a swimming pool in her backyard, and the public could see her and her family use the pool and their backyard, destroying her sense of privacy. No fence separated the public from the private lake because it was a floodway. Savering said that the Mansfield Parks Department had put up a few signs to keep the public off of her property and away from the lake but that the signs had not been effective.

During cross-examination, Savering said that of the 25 people on average that cross the bridge in a week, “[t]here's probably one or two a week” that go onto the homeowners' private property. The only damage she was aware of was the public's fishing and the trash that residents had had to pick up. She acknowledged having known about the Walnut Creek Linear Trail Project but said that she “didn't know it was going to come in [her] backyard,” even though she knew Walnut Creek ran along the rear of her property. Savering also acknowledged never having looked at her property's restrictive covenants to determine the type of security the covenants provided regarding pedestrian access to the neighborhood, although she was provided with a copy of the restrictive covenants at the time that she bought the property. Savering admitted that she had known there was an entryway to the trail that led along the creek area that had been there since she purchased the property. She testified during her direct examination that the access point was through a nearby neighborhood, between two homes, and that to her knowledge, only the people in that neighborhood had used the access point before January 2014, resulting in very minimal foot traffic.

Savering stated that while her swimming pool was not directly adjacent to the trail, the lake was, and she claimed that she owned the lake along with seven other homeowners in the neighborhood. Savering said that her only personal damage was the loss of privacy in her backyard, some lost tax value on her home, and the loss of her expectation of safety, which she said would be impossible to quantify.

Brian Brandstetter, an attorney who had lived in the neighborhood since 1996 and was a member of the HOA's board of directors, testified that the board of directors had determined that the property at issue did not belong to the HOA. Brandstetter stated that when he moved into the neighborhood in 1996, the trail, which he referred to as a jogging path, already existed on the property at issue.

2. Analysis

The trier of fact is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). And an abuse of discretion does not occur when the trial court bases its decision on conflicting evidence and some evidence of substantive and probative character supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.2009); Butnaru, 84 S.W.3d at 211. The trial court had the discretion to believe or disbelieve any of the testimony, to determine that the additional pedestrian access provided by the bridge—when the neighborhood already had a pedestrian access point that Savering was aware of when she bought her home—did not constitute irreparable injury or extreme hardship, and to conclude that the appellants had not made a clear and compelling presentation of extreme necessity or hardship. See RP & R, Inc., 32 S.W.3d at 400. Therefore, the trial court did not abuse its discretion by denying the requested mandatory injunctive relief.

B. Trespass

Notwithstanding the proper denial of the requested mandatory injunctive relief, the appellants argue that a probable, immediate, and irreparable injury should be presumed based on their trespass claim. A trespass-to-real-property claim requires a plaintiff to prove that he owns or has a lawful right to possess real property, that the defendant physically, intentionally, and voluntarily entered his land (or intentionally caused a third person to enter the land), and that the defendant's trespass caused injury to the plaintiff. Wilen v. Falkenstein, 191 S.W.3d 791, 797–98 (Tex.App.–Fort Worth 2006, pet. denied). When a trespass invades the possession of a person's land, or destroys the use and enjoyment of that land, an injunction is a proper remedy. Beathard Joint Venture v. W. Houston Airport Corp., 72 S.W.3d 426, 432 (Tex.App.–Texarkana 2002, no pet.) (citing City of Arlington v. City of Fort Worth, 873 S.W.2d 765, 769 (Tex.App.–Fort Worth 1994, writ dism'd w.o.j.)). An injunction is also a proper remedy to restrain repeated or continuing trespasses when the remedy at law is inadequate because of the injury's nature or the multiplicity of actions necessary to obtain redress; in such situations, the requirements of no adequate remedy at law and irreparable damage are satisfied.⁴ Id.

But a cause of action for injury to real property belongs to the person who owns the property at the time of the alleged injury. Vee Bar, Ltd. v. BP Amoco Corp., 361 S.W.3d 128, 132 (Tex.App.–El Paso 2011, no pet.). On December 11, 1995, the subdivision's developer filed a declaration containing the neighborhood's restrictive covenants and stating that the HOA “will hold ” record fee simple title to the subdivision's streets and “all other Common Properties.” [Emphasis added.] One day later, the articles of incorporation for the HOA were executed, and they were filed on December 15, 1995. Approximately one week later, on December 22, 1995, the developer executed a warranty deed conveying the property at issue not to the HOA, but instead, to the Communities Foundation of Texas.⁵

Even assuming that the declaration had attempted to convey the lots at issue to the HOA, the HOA did not exist when the declaration was filed, and a conveyance cannot be made to a nonexistent legal entity. See Sparks v. Humble Oil & Ref. Co., 129 S.W.2d 468, 471 (Tex.Civ.App.–Texarkana 1939, writ ref'd) (“ ‘It is a well-established rule that a deed can be made only to grantees in existence or life, at the time of the execution of the deed.’ ” (quoting Vineyard v. Heard, 167 S.W. 22, 25–26 (Tex.Civ.App.–San Antonio 1914), aff'd, 212 S.W. 489 (Tex.Comm'n App. 1919, judgm't adopted)); see also Parham Family Ltd. P'ship v. Morgan, 434 S.W.3d 774, 787 (Tex.App.–Houston [14th Dist.] 2014, no pet.) (“ ‘[I]n Texas, a deed is void if the grantee is not in existence at the time the deed is executed.’ ” (quoting Lighthouse Church of Cloverleaf v. Tex. Bank, 889 S.W.2d 595, 600 (Tex.App.–Houston [14th Dist.] 1994, writ denied) (op. on reh'g))).⁶

On this record, by filing the declaration a day before the articles of incorporation were executed and four days before they were filed, even if the developer had intended to convey the property to the HOA, the attempted conveyance was a day late and a dollar short. Therefore, the trial court could have found that the lots at issue had never belonged to the HOA and that even if an injury could be presumed based on the trespass claim, the appellants did not prove standing to make that claim with regard to the lots at issue. Therefore, the trial court's order denying the application is also affirmed on this basis.⁷

C. Restrictive Covenants

The appellants alternatively argue that even if the City owns the property at issue, they still had a probable right to injunctive relief because the City breached the neighborhood's restrictive covenants, which they claim clearly prohibited converting the property at issue into a public park. In their fourth amended original petition, they contended that the City's deed stated that the conveyance was made and accepted subject to the recorded restrictive covenants and that the declaration, which contained the restrictive covenants, showed that the developer intended the neighborhood to be gated and private. But they also contended in the petition that the City violated the restrictive covenants by inviting the general public to use the “HOA's properties.” As set out above, the HOA determined that it did not own the property at issue, and whether the HOA abused its discretion in making this determination has yet to be adjudicated. And the trial court could have found, as set out above in our discussion of the testimony at the temporary injunction hearing, that the appellants did not prove a probable, imminent, and irreparable injury in the interim. See Butnaru, 84 S.W.3d at 204. Therefore, we need not reach the merits of this issue. See Tex. R. App. P. 47.1.

IV. Conclusion

For these reasons, we affirm the trial court's order denying temporary injunctive relief.

FOOTNOTES

1.   The motion for reconsideration en banc is denied today in a separate order.

2.   The appellants sued the City before the bridge opened in January 2014, arguing that the lots had been conveyed to the HOA as part of the “Common Properties” by dedication in a declaration instead of to the City by deed. The appellants sued the HOA for breach of contract and for breach of the duty to act in good faith, with ordinary care, and in the best interest of the HOA members.

3.   While the dissent concludes that these are “merely incidental” to the primary relief requested, the prohibition on entry by the City or its encouragement to others to enter the property was tangential to these mandatory requests, and not the other way around. That is, the way the City would comply with the prohibitive injunction of not encouraging entry would be by erecting the barricade, placing a “no trespassing” sign on the barricade, and using the police department to enforce the sign.

4.   For example, when the owner of a development allows access to amenities to persons other than the owners of lots in the development in contravention of restrictive covenants on the property, there is no abuse of discretion when a trial court grants a permanent injunction to the lot owners. Beathard Joint Venture, 72 S.W.3d at 432 (discussing Musgrave v. Brookhaven Lake Prop. Owners Ass'n, 990 S.W.2d 386, 393 (Tex.App.–Texarkana 1999, pet. denied)).

5.   The Communities Foundation of Texas executed a deed in 2012 conveying the property to the Mansfield Park Facilities Development Corporation.

6.   In Parham, the entity never came into existence, and the deed was held void. 434 S.W.3d at 787–88. But even in cases where the entity was later created, the result is the same. William Cameron & Co. v. Trueheart, 165 S.W. 58, 61 (Tex.Civ.App.–Austin 1914, no writ) (relying on the law that “[a] deed will not pass title to a grantee not in existence,” and holding that since the conveyance “was made before the [company's] charter ․ was issued,” the deed would not pass title to the corporation).In Lighthouse, the court allowed conveyance to a corporation whose charter had been forfeited due to nonpayment of franchise taxes. 889 S.W.2d at 601. But it did so only by holding that the corporation was still in existence at the time the deed purported to convey that property because it was still legally operating during a statutory window of time when its charter could be reinstated through payment of delinquent taxes. Id. (holding that because “[f]orfeiture of a corporate charter does not extinguish the corporation as a legal entity so long as there is a statutory right to have the corporate charter reinstated,” the corporation “was not wholly extinguished as a legal entity,” and, thus, it had “sufficient legal existence at the time the deed was executed to be a grantee”) (emphasis added).

7.   Although the appellants ask that we construe the declaration, in light of the fact that the HOA had not yet been created at the time of the declaration, this is not an issue that we need to reach. See Tex. R. App. P. 47.1. However, even if we did construe the declaration, to embrace the appellants' interpretation would require us to ignore section 10.02's allocation to the HOA's board of directors of the “right, power and authority to determine all questions arising under or in connection with this Declaration and to construe and interpret the provisions thereof.” Section 10.02 provides that any determination, construction, or interpretation made by the board of directors, “in the absence of an adjudication by a court of competent jurisdiction that any such action was an abuse of discretion, shall be binding on the Owners.” [Emphasis added.] No such adjudication has occurred with regard to whether the board of directors abused its discretion by agreeing with the City that the property at issue does not belong to the HOA. The requirement that an abuse of discretion be proved makes sense in light of the circumstances of this case. Certainly before a third party may thrust the burdens of real estate ownership upon the HOA—including the obligation for payment of taxes, liability insurance premiums, and upkeep and maintenance services—the HOA should be afforded the right to determine in the first place whether it asserts any ownership interest in the property.

BONNIE SUDDERTH, JUSTICE

MEIER, J., filed a dissenting opinion.