MEMORANDUM OPINION No. 04-11-00083-CV
SUNDANCE AT STONE OAK ASSOCIATION, INC., Appellant
v.
NORTHEAST INDEPENDENT SCHOOL DISTRICT and Pape-Dawson Engineers, LLC, Appellees
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2011-CI-00127 Honorable Karen H. Pozza, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice
Delivered and Filed: May 18, 2011
AFFIRMED
This is an accelerated appeal from the trial court’s interlocutory order denying Sundance
at Stone Oak Association, Inc.’s request for a temporary injunction against Northeast
Independent School District and Pape-Dawson Engineers, LLC (collectively “NEISD”). In its
sole issue, Sundance contends the trial court abused its discretion when it denied its application
for injunctive relief. Because Sundance failed to establish that it would suffer a probable, 04-11-00083-CV
imminent, and irreparable injury in the absence of a temporary injunction, we affirm the trial
court’s order.
BACKGROUND
The facts of this case are undisputed. Sundance is the homeowner’s association for the
Sundance at Stone Oak Subdivision, which is located in the Stone Oak area of San Antonio,
Texas. When KB Home Lone Star LP developed the Sundance at Stone Oak Subdivision, it
deeded a 6.448 acre tract of land to Sundance for the purpose of establishing a common area for
the Subdivision. Sundance has yet to develop the 6.448 acre tract, but has “been looking at
developing a tennis court [and] basketball court on the land.” The 6.448 acre tract KB Home
Lone Star LP deeded to Sundance is burdened by the Sitterle Easement, which grants NEISD an
easement and right-of-way for the “86’ roadway known as ‘Hardy Oak’” Boulevard.
NEISD is in the process of extending Hardy Oak in order to connect it to a new
elementary school that is under construction near the Sundance Subdivision. 1 The extension of
Hardy Oak will cross a portion of Sundance’s 6.448 acre tract. Sundance opposes the extension
of Hardy Oak, asserting that the terms of the Sitterle Easement do not authorize NEISD to extend
Hardy Oak across the Subdivision’s proposed common area. Sundance also opposes the
extension project because it will allegedly alter surface water drainage on the 6.448 acre tract,
making Sundance’s property susceptible to flooding. 2
Sundance filed an application for temporary injunction to stop NEISD’s extension of
Hardy Oak across its 6.448 acre common area. Following a hearing on Sundance’s application
for injunctive relief, the trial court denied Sundance’s request for a temporary injunction.
1 Pape-Dawson is the civil engineer for the extension project and Yantis is the general contractor. Sundance has non-suited Yantis from the underlying litigation. 2 Sundance has yet to experience any flooding on its property because the Hardy Oak extension project has not progressed to the stage involving the installation of the underground storm water pipes that will purportedly divert surface water drainage onto Sundance’s property.
-2- 04-11-00083-CV
Sundance subsequently brought this appeal, claiming the trial court abused its discretion when it
denied its application for injunctive relief.
STANDARD OF REVIEW
The decision to grant or deny a temporary injunction is within the trial court’s sound
discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). An appellate court will not
reverse a trial court’s decision to deny an application for a temporary injunction absent an abuse
of discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Walling, 863
S.W.2d at 58. “The reviewing court must not substitute its judgment for the trial court’s
judgment unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable
discretion.” Butnaru, 84 S.W.3d at 204. We review the evidence in the light most favorable to
the trial court’s order and indulge reasonable inferences in its favor. EMSL Analytical, Inc. v.
Younker, 154 S.W.3d 693, 696 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
TEMPORARY INJUNCTIONS
“A temporary injunction’s purpose is to preserve the status quo of the litigation’s subject
matter pending a trial on the merits.” Butnaru, 84 S.W.3d at 204. The term “status quo” is
defined as the last, actual, peaceable, non-contested status that preceded the pending controversy.
In re Newton, 146 S.W.3d 648, 651 (Tex. 2004). A temporary injunction is an extraordinary
remedy and will not issue as a matter of right. Butnaru, 84 S.W.3d at 204.
To secure a temporary injunction, an applicant must plead and prove three elements: (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. “A probable right of recovery is shown by
alleging a cause of action and presenting evidence tending to sustain it.” Frequent Flyer Depot,
Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 220 (Tex. App.—Fort Worth 2009, pet. denied), cert.
-3- 04-11-00083-CV
denied, 120 S.Ct. 2061 (2010). “An injury is irreparable if the injured party cannot be
adequately compensated in damages or if the damages cannot be measured by any certain
pecuniary standard.” Butnaru, 84 S.W.3d at 204. “That is, the applicant has to establish there is
no adequate remedy at law for damages.” Cardinal Health Staffing Network, Inc. v. Bowen, 106
S.W.3d 230, 235 (Tex. App.—Houston [1st Dist.] 2003, no pet.). “An existing remedy is
adequate if it ‘is as complete and as practical and efficient to the ends of justice and its prompt
administration as is equitable relief.’” Blackthorne v. Bellush, 61 S.W.3d 439, 444 (Tex. App.—
San Antonio 2001, no pet.) (citation omitted).
DISCUSSION
We focus our analysis on the third element of the temporary injunction test, which
requires the applicant to prove a probable, imminent, and irreparable injury. See Butnaru, 84
S.W.3d at 204. Sundance claims a temporary injunction is needed: (1) to prevent the possible
flooding of its property; and (2) to prevent it from incurring additional costs to develop the
recreational improvements it is considering for the 6.448 acre tract. Sundance’s reasons for
requesting a temporary injunction, however, are insufficient to sustain its burden of establishing
probable, imminent, and irreparable harm.
A. Flooding
Sundance argues an injunction is necessary because the underground storm water pipes
that contractors intend to install as part of the Hardy Oak extension project will make Sundance’s
property susceptible to flooding at some point in the future. At the temporary injunction hearing,
Sundance proffered David Quebedeaux, a licensed engineer, to testify about the alleged flooding.
Quebedeaux opined that the extension project will alter the drainage patterns on the 6.448 acre
tract.
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MEMORANDUM OPINION No. 04-11-00083-CV
SUNDANCE AT STONE OAK ASSOCIATION, INC., Appellant
v.
NORTHEAST INDEPENDENT SCHOOL DISTRICT and Pape-Dawson Engineers, LLC, Appellees
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2011-CI-00127 Honorable Karen H. Pozza, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice
Delivered and Filed: May 18, 2011
AFFIRMED
This is an accelerated appeal from the trial court’s interlocutory order denying Sundance
at Stone Oak Association, Inc.’s request for a temporary injunction against Northeast
Independent School District and Pape-Dawson Engineers, LLC (collectively “NEISD”). In its
sole issue, Sundance contends the trial court abused its discretion when it denied its application
for injunctive relief. Because Sundance failed to establish that it would suffer a probable, 04-11-00083-CV
imminent, and irreparable injury in the absence of a temporary injunction, we affirm the trial
court’s order.
BACKGROUND
The facts of this case are undisputed. Sundance is the homeowner’s association for the
Sundance at Stone Oak Subdivision, which is located in the Stone Oak area of San Antonio,
Texas. When KB Home Lone Star LP developed the Sundance at Stone Oak Subdivision, it
deeded a 6.448 acre tract of land to Sundance for the purpose of establishing a common area for
the Subdivision. Sundance has yet to develop the 6.448 acre tract, but has “been looking at
developing a tennis court [and] basketball court on the land.” The 6.448 acre tract KB Home
Lone Star LP deeded to Sundance is burdened by the Sitterle Easement, which grants NEISD an
easement and right-of-way for the “86’ roadway known as ‘Hardy Oak’” Boulevard.
NEISD is in the process of extending Hardy Oak in order to connect it to a new
elementary school that is under construction near the Sundance Subdivision. 1 The extension of
Hardy Oak will cross a portion of Sundance’s 6.448 acre tract. Sundance opposes the extension
of Hardy Oak, asserting that the terms of the Sitterle Easement do not authorize NEISD to extend
Hardy Oak across the Subdivision’s proposed common area. Sundance also opposes the
extension project because it will allegedly alter surface water drainage on the 6.448 acre tract,
making Sundance’s property susceptible to flooding. 2
Sundance filed an application for temporary injunction to stop NEISD’s extension of
Hardy Oak across its 6.448 acre common area. Following a hearing on Sundance’s application
for injunctive relief, the trial court denied Sundance’s request for a temporary injunction.
1 Pape-Dawson is the civil engineer for the extension project and Yantis is the general contractor. Sundance has non-suited Yantis from the underlying litigation. 2 Sundance has yet to experience any flooding on its property because the Hardy Oak extension project has not progressed to the stage involving the installation of the underground storm water pipes that will purportedly divert surface water drainage onto Sundance’s property.
-2- 04-11-00083-CV
Sundance subsequently brought this appeal, claiming the trial court abused its discretion when it
denied its application for injunctive relief.
STANDARD OF REVIEW
The decision to grant or deny a temporary injunction is within the trial court’s sound
discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). An appellate court will not
reverse a trial court’s decision to deny an application for a temporary injunction absent an abuse
of discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Walling, 863
S.W.2d at 58. “The reviewing court must not substitute its judgment for the trial court’s
judgment unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable
discretion.” Butnaru, 84 S.W.3d at 204. We review the evidence in the light most favorable to
the trial court’s order and indulge reasonable inferences in its favor. EMSL Analytical, Inc. v.
Younker, 154 S.W.3d 693, 696 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
TEMPORARY INJUNCTIONS
“A temporary injunction’s purpose is to preserve the status quo of the litigation’s subject
matter pending a trial on the merits.” Butnaru, 84 S.W.3d at 204. The term “status quo” is
defined as the last, actual, peaceable, non-contested status that preceded the pending controversy.
In re Newton, 146 S.W.3d 648, 651 (Tex. 2004). A temporary injunction is an extraordinary
remedy and will not issue as a matter of right. Butnaru, 84 S.W.3d at 204.
To secure a temporary injunction, an applicant must plead and prove three elements: (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. “A probable right of recovery is shown by
alleging a cause of action and presenting evidence tending to sustain it.” Frequent Flyer Depot,
Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 220 (Tex. App.—Fort Worth 2009, pet. denied), cert.
-3- 04-11-00083-CV
denied, 120 S.Ct. 2061 (2010). “An injury is irreparable if the injured party cannot be
adequately compensated in damages or if the damages cannot be measured by any certain
pecuniary standard.” Butnaru, 84 S.W.3d at 204. “That is, the applicant has to establish there is
no adequate remedy at law for damages.” Cardinal Health Staffing Network, Inc. v. Bowen, 106
S.W.3d 230, 235 (Tex. App.—Houston [1st Dist.] 2003, no pet.). “An existing remedy is
adequate if it ‘is as complete and as practical and efficient to the ends of justice and its prompt
administration as is equitable relief.’” Blackthorne v. Bellush, 61 S.W.3d 439, 444 (Tex. App.—
San Antonio 2001, no pet.) (citation omitted).
DISCUSSION
We focus our analysis on the third element of the temporary injunction test, which
requires the applicant to prove a probable, imminent, and irreparable injury. See Butnaru, 84
S.W.3d at 204. Sundance claims a temporary injunction is needed: (1) to prevent the possible
flooding of its property; and (2) to prevent it from incurring additional costs to develop the
recreational improvements it is considering for the 6.448 acre tract. Sundance’s reasons for
requesting a temporary injunction, however, are insufficient to sustain its burden of establishing
probable, imminent, and irreparable harm.
A. Flooding
Sundance argues an injunction is necessary because the underground storm water pipes
that contractors intend to install as part of the Hardy Oak extension project will make Sundance’s
property susceptible to flooding at some point in the future. At the temporary injunction hearing,
Sundance proffered David Quebedeaux, a licensed engineer, to testify about the alleged flooding.
Quebedeaux opined that the extension project will alter the drainage patterns on the 6.448 acre
tract. He stated that the combination of altered drainage patterns and future developments on the
-4- 04-11-00083-CV
adjoining tracts could cause Sundance’s property to flood from the diversion of surface water
onto Sundance’s property. Quebedeaux, however, conceded at the hearing that he had no idea
when, if ever, the subject underground storm water pipes would be “connected to some other
construction project” that would result in a flooding event. Quebedeaux’s testimony thus
establishes only a fear of possible injury by Sundance, and such theoretical possibility of harm is
insufficient to support the issuance of a temporary injunction. See Frey v. DeCordova Bend
Estates Owners Ass’n, 647 S.W.2d 246, 248 (Tex. 1983) (“[F]ear or apprehension of the
possibility of injury alone is not a basis for injunctive relief.”); Tex. Dep’t of Pub. Safety v.
Salazar, 304 S.W.3d 896, 908 (Tex. App.—Austin 2009, no pet.) (“Establishing probable,
imminent, and irreparable injury requires proof of an actual threatened injury, as opposed to a
speculative or purely conjectural one.”).
B. Increased Construction Costs
Sundance argues an injunction is necessary because it will incur significantly higher costs
to develop the recreational improvements it is considering making on the 6.448 acre tract if the
extension project continues. In support of this contention, Sundance relies on the testimony of
its president, Robert Colunga, showing that Sundance has “been looking at developing a tennis
court [and] basketball court” on the 6.448 acre tract. According to Colunga’s testimony, the
diversion of excess surface water onto the tract due to the extension project “will double [the]
cost” of Sundance’s proposed improvements. Colunga’s testimony, however, confirms that any
harm Sundance suffers as a result of the Hardy Oak extension project is not irreparable, but
capable of being remedied by a monetary damage award at the conclusion of a trial. See
McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984) (“A temporary injunction will not be
granted where there is a plain and adequate remedy at law.”).
-5- 04-11-00083-CV
CONCLUSION
Viewing the evidence in the light most favorable to the trial court’s order, we conclude
Sundance has failed to sustain its burden of establishing probable, imminent, and irreparable
injury in the absence of a temporary injunction. Accordingly, we hold the trial court did not
abuse its discretion in denying Sundance’s application for a temporary injunction. We therefore
resolve Sundance’s sole issue against it and affirm the trial court’s order denying Sundance’s
request for a temporary injunction.
Catherine Stone, Chief Justice
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