David Holubec and Mary Holubec v. Carl Brandenberger, Individually and as Next Friend of Payton Brandenberger Carson Brandenberger McKenna Brandenberger Kathy Brandenberger And First Mason II, Ltd.

• Court: Court of Appeals of Texas
• Decided: December 31, 2009
• Docket: 03-07-00463-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00463-CV

David Holubec and Mary Holubec, Appellants

v.

Carl Brandenberger, Individually and as Next Friend of Payton Brandenberger, Carson Brandenberger, and McKenna Brandenberger; Kathy Brandenberger; and First Mason II, Ltd., Appellees

FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT NO. 1998084, HONORABLE EMIL KARL PROHL, JUDGE PRESIDING

CONCURRING OPINION

While I agree with the majority’s holding that the injunction at issue in this case is

not overly broad, I write separately to note that I do not join in the majority’s discussion of the

trial court’s factual determination, or lack thereof, regarding the level of pre-November 1996

sheep farming. Because our holding regarding the breadth of the injunction necessarily disposes of

this appeal, I would not further address the issue of whether the trial court resolved conflicting

evidence in favor of the Brandenbergers.

Setting aside the fact that we need not address this issue, I also decline to join the

majority’s discussion because I consider the terms of the injunction requiring the Holubecs to:

1. Move all feeders in the approximately Ten (10) acre feedlot adjacent to Plaintiffs’ Land to the locations they occupied prior to November, 1996 and limit the number of feeders to that existing prior to November, 1996; 2. Remove all sheds and water troughs, that did not exist prior to November 1996, from the pens in the approximately Ten (10) acre feedlot adjacent to Plaintiffs’ Land;

[and]

3. Remove the wire fencing and feedlot pens that did not exist prior to November, 1996, in the approximately Ten (10) acre feedlot adjacent to Plaintiffs’ land;

to be sufficiently clear, specific, and unambiguous to apprise the Holubecs of the actions required of

them. See Ex parte Hudson, 917 S.W.2d 24, 26 (Tex. 1996) (holding that injunction requiring party

to maintain land “in a sightly condition” was sufficiently specific to apprise party of actions required

of him); Drew v. Unauthorized Practice of Law Comm’n, 970 S.W.2d 152, 156 (Tex. App.—Austin

1998, pet. denied) (holding that injunction was not void for ambiguity where it “sufficiently and

clearly informs” party of actions he cannot take).

___________________________________________

Diane M. Henson, Justice

Before Justices Puryear, Waldrop and Henson

Filed: December 31, 2009