Long Island Village Owners Association (LIVOA) v. Cowen Island Properties, L. P.

Opinion

NUMBER 13-14-00442-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LONG ISLAND VILLAGE OWNERS ASSOCIATION, INC., Appellant,

v.

COWEN ISLAND PROPERTIES, L.P., Appellee.

On appeal from the 445th District Court of Cameron County, Texas.

MEMORANDUM OPINION Before Justices Garza, Benavides, and Perkes Memorandum Opinion by Justice Benavides By one issue, appellant Long Island Village Owners Association, Inc. (“LIVOA”)

asserts that the trial court abused its discretion by granting appellee Cowen Island

Properties, L.P.’s (“CIP”) application for a temporary injunction. We affirm. I. BACKGROUND

This dispute concerns the rights and obligations associated with portions of an

approximately 230-acre tract of land known as Long Island located in coastal Cameron

County.

In this case, two portions of Long Island are

at issue. 1 The first is a resort-like community

development of more than 1,000 resident-owners

known as Long Island Village. LIVOA is the

entity charged with managing and operating Long

Island Village. Residents access the Long Island

Village property from the mainland by crossing a

swing bridge to South Garcia Street. Ingress and

egress to the Long Island Village property is made

through a private street known as Sea Shell

Boulevard. A guard post is located at the

entrance of Sea Shell Boulevard, which runs from

South Garcia Street through the middle of the

Long Island Village property until it dead-ends into the second portion of land at issue in

this case, which has been owned by CIP since 2008 (“the CIP property). The CIP

property is an undeveloped, approximately 104-acre tract of land.

1 For the benefit of the reader, we have embedded a map included in appellee’s brief illustrating the real property and boundaries at issue. We use this map solely for illustrative purposes.

2 John Cowen Sr., a representative of CIP, testified that CIP’s goal is to develop2 its

property, but it is unable to do so because LIVOA is denying CIP access to its property

by blocking CIP’s access to Sea Shell Boulevard through the guard post. Cowen

testified that aside from Sea Shell Boulevard, “there are no other roads that go directly to

my property.”

CIP sued LIVOA alleging numerous causes of action, specifically that: (1) CIP has

an easement through the Long Island Village property and seeks to enforce it; (2) LIVOA

impermissibly amended its condominium declarations to “cut off” CIP’s property rights;

(3) LIVOA’s actions are wrongfully barring CIP from entering its property thereby causing

damages; (4) LIVOA committed a trespass onto CIP’s property; (5) LIVOA’s conduct has

created a nuisance causing injury to CIP; and (6) promissory estoppel. In written

discovery, LIVOA admitted that it has refused and will continue to refuse to give CIP

access to Sea Shell Boulevard because neither CIP, nor its principals or personnel are

owners, renters, visitors, or guests at Long Island Village.

CIP later filed an application for temporary injunction alleging that it has an express

easement for ingress and egress through Sea Shell Boulevard as well as an express

easement for utilities. To support this argument, CIP attached the 1978 Declaration

recorded by the original developer of the Long Island Village community as well as the

plat purportedly evidencing these easements and argued that the easements are

appurtenant and burden both the Long Island Village property as well as the CIP property.

2Cowen testified that CIP had hired an architect and a “landscape artist” to assist in the development of property and had conducted engineering and “eco” studies on the property, as well.

3 CIP sought injunctive relief to enjoin LIVOA from refusing CIP access to its easement via

Sea Shell Boulevard.

After a hearing in which CIP called two witnesses and LIVOA called none, the trial

court granted CIP’s request for a temporary injunction and enjoined LIVOA, as well as the

owner-residents of Long Island Village, from preventing CIP and any of its development

contractors ingress and egress to the CIP property via Sea Shell Boulevard. This appeal

followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (West, Westlaw through

2015 R.S.).

II. TEMPORARY INJUNCTION

By its sole issue, LIVOA asserts that the trial court abused its discretion by granting

CIP’s application for a temporary injunction because CIP failed to establish a probable

right of recovery.

A. Standard of Review and Applicable Law

We review the trial court’s ruling on a party’s application for a temporary injunction

for an abuse of discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

We will not substitute our judgment for the trial court’s judgment unless the trial court’s

action was so arbitrary that it exceeded the bounds of reasonable discretion. Id.

The purpose of a temporary injunction is to preserve the status quo of the

litigation’s subject matter pending a trial on the merits. Id. A temporary injunction is an

extraordinary remedy and does not issue as a matter of right. Id. Instead, to obtain a

temporary injunction, the 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. The applicant is not required to show that he will

4 ultimately prevail on the trial of the merits, but only that he is entitled to preserve the status

quo. Salazar v. Gallardo, 57 S.W.3d 629, 632–33 (Tex. App.—Corpus Christi 2001, no

pet.).

B. Discussion

LIVOA argues that CIP has not demonstrated a probable right of recovery because

it did not join the “approximately 1,100 individual property owners who own undivided

interests in Sea [Shell] Boulevard, and who are necessary parties to any action to

establish such an easement.” We disagree.

As stated, CIP sued LIVOA alleging numerous causes of action, including the

establishment of an easement coterminous with Sea Shell Boulevard. Even taking

LIVOA’s argument as true—that the Long Island Village individual property owners own

undivided interests in Sea Shell Boulevard—the purpose of CIP’s application for

temporary injunction related specifically to the actions taken by LIVOA in preventing CIP

and its agents and contractors from utilizing Sea Shell Boulevard. In written discovery,

LIVOA also admitted that it denied and would continue to deny CIP access to Sea Shell

Boulevard because neither CIP nor its agents were property owners of Long Island

Village. At the temporary injunction hearing, CIP presented evidence to show that it had

an express easement through Sea Shell Boulevard, as described in the Long Island

Village developer’s 1978 Declaration and original site development plan. 3 Finally, CIP

3 We offer no opinion as to the merits of the underlying lawsuit. Our decision today relates only to the trial court’s grant of CIP’s application for temporary injunction.

5 presented evidence from its representative, John Cowen Sr., that LIVOA’s actions

prevented CIP from accessing and developing the land, thereby causing CIP injury.

Based on this record, we conclude that the trial court did not abuse its discretion

in granting CIP’s application for temporary injunction because CIP showed that it had a

probable right to relief.4 We overrule LIVOA’s sole issue on appeal.

III. CONCLUSION

We affirm the trial court’s order granting CIP’s application for temporary injunction.

GINA M. BENAVIDES, Justice

Delivered and filed the 12th day of November, 2015.

4 Because LIVOA only challenges this element of CIP’s application for a temporary injunction on appeal, we need not address the remaining elements. See TEX. R. APP. P. 47.1.