United Food and Commercial Workers International Union, Organization United for Respect at Walmart, North Texas Jobs With Justice, and Lester Eugene Lantz v. Wal-Mart Stores, Inc., Wal-Mart Real Estate Business Trust, Wal-Mart Realty Company, Wal-Mart Stores Texas, LLC, Wal-Mart Stores East, LP, and Sam's East, Inc. ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00374-CV
UNITED FOOD AND COMMERCIAL APPELLANTS
WORKERS INTERNATIONAL
UNION; ORGANIZATION UNITED
FOR RESPECT AT WALMART;
NORTH TEXAS JOBS WITH
JUSTICE; AND LESTER EUGENE
LANTZ
V.
WAL-MART STORES, INC.; WAL- APPELLEES
MART REAL ESTATE BUSINESS
TRUST; WAL-MART REALTY
COMPANY; WAL-MART STORES
TEXAS, LLC; WAL-MART STORES
EAST, LP; AND SAM’S EAST, INC.
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 352-266419-13
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MEMORANDUM OPINION1
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1
See Tex. R. App. P. 47.4.
Appellants appeal from the trial court’s final summary judgment entered in
favor of Appellees on Appellees’ claims against Appellants. Appellants also
challenge the trial court’s permanent injunction. We affirm the trial court’s
judgment but modify the permanent injunction and affirm it as modified.
I. BACKGROUND
A. DEMONSTRATIONS
Appellant United Food and Commercial Workers International Union
(UFCW) is a labor organization of which appellant Organization United for
Respect at Walmart (OUR) is a subsidiary. Because Walmart employees are not
unionized, neither UFCW nor OUR operated as the representative of Walmart
employees in labor negotiations with Walmart.2 Appellant North Texas Jobs With
Justice (North Texas Jobs) is affiliated with UFCW and OUR and is a coalition of
community and union groups in the Dallas area. North Texas Jobs is part of the
national organization Jobs With Justice, which advocates for “employees . . . to
stand up for themselves.” Appellant Lester Eugene Lantz was the director of
North Texas Jobs beginning in 1990 until approximately 2013.3 North Texas
Jobs worked with UFCW and OUR regarding demonstrations at Walmart stores
in support of Walmart employees.
2
The parties alternately use “Wal-Mart” and “Walmart” to identify each
appellee. Although the style of this appeal includes “Wal-Mart” and follows the
style of the case from the trial court, we will use “Walmart” in this opinion.
3
We will collectively refer to UFCW, OUR, North Texas Jobs, and Lantz as
“the labor organizations.”
2
Beginning in 2011, the labor organizations planned, conducted, and
participated in several demonstrations at Walmart stores in Texas and around
the United States. In their brief, the labor organizations characterize these
demonstrations as “peaceful events.” See United Food & Commercial v. Wal-
Mart Stores, Inc., 192 So. 3d 585, 587 (Fla. Dist. Ct. App. 2016) (“Although
UFCW’s demonstrations [in and around Walmart stores] were loud and
disruptive, they were not violent.”) (hereinafter, “United Food Florida”). In late
2011, fifteen to twenty protestors, wearing OUR shirts, entered a Walmart store
in Irving “dispersed throughout the store and dropped off stacks of fliers all over
the place,” leaving the approximately 1,500 to 2,000 sheets of paper “on shelves
and in boxes.” This caused a “big disruption” in Walmart’s business operations
that day. A few months later, protestors wearing OUR shirts repeated this type of
demonstration in the Irving store and approached employees, asking for their
personal contact information. In May 2012, demonstrators, wearing OUR shirts,
projected an anti-Walmart video onto an outside wall of a Dallas Walmart store
and played loud music from a van adorned with OUR logos located in the
Walmart parking lot. In September 2012, OUR members did a similar “video
bomb” at a Walmart in Ennis. In October 2012 at stores in Dallas and Lancaster,
demonstrators in OUR shirts chanted and marched around the stores for
approximately one hour.
On October 31, 2012, leading up to Black Friday, protestors entered a
Sam’s Club in Duncanville dressed as zombies in OUR shirts and staged a “flash
3
mob” in the front of the store, dancing to Michael Jackson’s “Thriller,” which one
protestor played from a radio he was carrying. During this dance, the
demonstrators threw OUR cards in the air, chanted, blocked customers’ access
to the cashiers and some exits, and told customers that Walmart employees
needed more pay. On November 8, 2012, forty to forty-five demonstrators in
OUR shirts marched in the parking lot of an Ennis Walmart, chanting loudly and
“blocking traffic in the parking lot and making it difficult for customers to enter and
exit the Store and the parking lot.” On the night of November 22, 2012, which
was Thanksgiving, buses filled with demonstrators in OUR shirts4 converged on
Walmart parking lots in Balch Springs and Lancaster. The demonstrators
banged on drums and chanted at the front entrances of the stores. In Balch
Springs, the protestors eventually moved off Walmart’s property but continued to
“patrol” an adjacent parking area, which “impeded ingress and egress into the
parking lot, backing up traffic.” The next day, Black Friday, approximately fifty
demonstrators, most of whom wore OUR shirts, protested at a Fort Worth
Walmart by “chanting disparaging comments about Walmart” in the parking lot.
The demonstrations continued into 2013 and involved protestors entering
One demonstrator was “a leading UFCW organizer from previous
4
demonstrations.”
4
Walmart stores in Texas, blocking customers at the front of the stores, passing
out flyers, and abandoning shopping carts full of refrigerated items in the store. 5
Walmart had repeatedly informed the labor organizations at the
demonstration sites and through letters to UFCW’s general counsel beginning in
2011 that their demonstrations could not be conducted on Walmart property.
Further, several of the stores had no-trespassing signs at their entrances and all
of the stores in Texas had no-solicitation signs. The demonstrations on Walmart
property continued, and the labor organizations planned similar demonstrations
for Black Friday 2013. Counsel for the labor organizations admitted that absent
an injunction, the labor organizations would not stop their actions on Walmart’s
properties.
B. NLRB CHARGES
On March 1, 2013, appellee Walmart Stores, Inc. filed a charge against the
labor organizations with the National Labor Relations Board (NLRB), alleging that
they had violated the National Labor Relations Act (the Act) by “planning,
orchestrating, and conducting a series of unauthorized and blatantly trespassory
in-store mass demonstrations . . . by which [the labor organizations] restrained
and coerced employees in the exercise of their . . . rights [under the Act] (which
5
At oral argument, counsel for the labor organizations stated that the
affidavit and video evidence submitted to the trial court showed that the labor
organizations’ protests were “fun events” and involved no violence such as
people being “punched” or property being damaged.
5
includes the right to refrain from supporting the [labor organizations]).”6 See
29 U.S.C.A. §§ 157, 158(b)(1)(A) (West 1998) (guaranteeing employees’ right to
refrain from union-organization activities). Walmart Stores, Inc. attached a
summary of seventy “Events” at stores in thirteen states, including fifteen events
in Texas.
On May 21, 2013, Walmart Stores, Inc. filed an amended charge, stating
that the labor organizations “made threats of violence to employees and
attempted to make improper payments to employees to yield to [the labor
organizations’] wishes.” In support of this amended charge, Walmart Stores, Inc.
attached a summary of nine events in five states occurring between October 25
and November 23, 2012, which previously had been included in the original
charge. Five of the events occurred at stores in Texas and involved
demonstrators’ actions in directly approaching Walmart employees and
confronting them in an effort to intimidate or coerce them into supporting the
labor organizations. The amended charge did not include “trespassory . . .
demonstrations” as did the original charge. Indeed, Walmart has represented to
other courts that it amended its charge to remove any trespass allegations
included in the original charge, which it believed would enable it to pursue
trespass claims in state courts. See Wal-Mart Stores, Inc. v. United Food &
6
Although Walmart Stores, Inc. filed the charge specifically against UFCW,
it stated that UFCW acted “directly and through its subsidiaries, affiliated
organizations, and agents, including [OUR].”
6
Commercial Workers Int’l Union, 354 P.3d 31, 33 (Wash. Ct. App. 2015)
(hereinafter, “United Food Washington”), review denied, 367 P.3d 1084 (Wash.
2016); United Food & Commercial Workers Int’l Union v. Wal-Mart Stores, Inc.,
451 S.W.3d 584, 585 & n.1 (Ark. 2014) (hereinafter, “United Food Arkansas”).
No party disputes that Walmart Stores, Inc. eventually withdrew its
amended charge after the NLRB took no action on it.7 See Tex. R. App. P.
38.1(g); see also 29 C.F.R. § 102.9 (2016).
C. SUIT FILED IN TEXAS STATE COURT
1. Motion to Dismiss and Plea to the Jurisdiction
Appellees, six business entities that comprise a portion of the Walmart
corporate family,8 filed suit against the labor organizations in a Texas state court,
raising a trespass claim and seeking a declaratory judgment and a permanent
injunction. Other than its request for an award of attorney’s fees and costs,
Walmart did not seek monetary damages. Walmart filed similar suits in several
state courts, including Arkansas, California, Colorado, Florida, Maryland, and
Washington. See, e.g., United Food Florida, 192 So. 3d at 588. In the Texas
litigation, the labor organizations filed a plea to the jurisdiction, arguing that
7
Although one state court noted that the NLRB began an investigation into
the charge before it was withdrawn, our record does not contain this information.
See United Food Washington, 354 P.3d at 33. But see United Food Florida,
192 So. 3d at 588 (“Walmart later withdrew these charges before the NLRB took
action on the matter . . . .”).
8
We will refer to Appellees collectively and in the singular as “Walmart.”
7
Walmart’s claims were completely preempted by the Act, and pleaded the
defense of consent. They also filed a motion to dismiss Walmart’s claims under
the Texas Citizens Participation Act (the TCPA), arguing that Walmart’s claims
impermissibly infringed on their rights to free speech and association. See Tex.
Civ. Prac. & Rem. Code Ann. § 27.003 (West 2015).
The trial court overruled the plea to the jurisdiction and denied the motion
to dismiss. The labor organizations sought mandamus relief in this court from
the order overruling their plea to the jurisdiction, which we and the supreme court
denied. In re United Food & Commercial Workers Int’l Union, No. 02-13-00434-
CV, 2014 WL 670663, at *1 (Tex. App.—Fort Worth Feb. 20, 2014, orig.
proceeding [mand. denied]) (mem. op.). The labor organizations appealed the
denial of their motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.008 (West 2015). We affirmed the trial court’s denial after concluding that
Walmart had established a prima facie case of trespass and that the labor
organizations had failed to establish its defense of consent. United Food &
Commercial Workers Int’l Union v. Wal-Mart Stores, Inc., 430 S.W.3d 508, 513–
14 (Tex. App.—Fort Worth 2014, no pet.).
2. Summary Judgment and Permanent Injunction
Walmart then added a claim to their complaint against the labor
organizations, seeking recovery for its private nuisance injuries that flowed from
the labor organizations’ intentional and substantial interference with Walmart’s
use and enjoyment of its property and that caused unreasonable discomfort or
8
annoyance. Walmart also sought recovery for public-nuisance injuries caused by
the labor organizations’ interference on “public thoroughfares.” Again, Walmart’s
only prayer for a monetary recovery was one for attorney’s fees and costs.
North Texas Jobs filed a no-evidence motion for summary judgment on
Walmart’s claims for trespass, nuisance, injunctive relief, and a declaratory
judgment. Lantz similarly moved for a no-evidence summary judgment on each
of Walmart’s claims. The labor organizations then filed a traditional motion for
summary judgment on Walmart’s declaratory-judgment claim, a no-evidence
motion on Walmart’s claim for its nuisance injuries, and a traditional motion on
Walmart’s trespass claim. Walmart moved for summary judgment on its claims
for trespass, nuisance, a declaration of rights and on its request for injunctive
relief.
The trial court granted Walmart’s motion regarding nuisance and trespass,
denied Walmart’s motion as to its claim for a declaratory judgment, granted the
labor organizations’ motion for summary judgment on Walmart’s request for a
declaratory judgment, and denied the remaining summary-judgment motions.9
The trial court then entered a final judgment in Walmart’s favor and entered a
permanent injunction, enjoining the labor organizations; “their parents,
subsidiaries and affiliates[;] their non-Walmart employee officers, employees, and
Walmart does not appeal the trial court’s summary judgment in favor of
9
the labor organizations on Walmart’s declaratory-judgment request. Thus, we
will not address this portion of the trial court’s order.
9
agents[;] and all other non-Walmart employees who act in concert with [the labor
organizations], directly or indirectly,” from
a. Trespassing on Walmart’s private property at any store or
facility in the State of Texas that is owned or controlled by
[Walmart];
b. Entering on Walmart’s private property at any store or facility
in the State of Texas that is owned or controlled by [Walmart]
to engage in activities such as unlawful picketing, patrolling,
parading, demonstrations, “flash mobs,” handbilling,
solicitation, customer disruptions, and manager
confrontations;
c. Entering on Walmart’s private property at any store or facility
in the State of Texas that is owned or controlled by [Walmart]
for any purpose other than shopping for and/or purchasing
merchandise;
d. Barricading, blocking, or preventing access to, egress from, or
free movement over, Walmart’s private property at any store
or facility in the State of Texas that is owned, operated, or
controlled by [Walmart]; and
e. Interfering with, obstructing, or blocking Walmart’s and its
customers’ access to, and use of, easements and/or right-of-
ways granted to Walmart across or upon apron sidewalk areas
and parking lots adjacent to stores for which Walmart has a
“building-only” lease.
Similar permanent injunctions have been entered in California, Colorado, Florida,
and Maryland. See Walmart Stores, Inc. v. United Food & Commercial Workers
Int’l Union, No. B259926, 2016 WL 5957279, at *3 (Cal. Ct. App. Oct. 14, 2016)
(op. on reh’g) (hereinafter, “United Food California”); Wal-Mart Stores, Inc. v.
United Food & Commercial Workers Int’l Union, No. 14CA2061, 2016 WL
2605737, at *1–2 (Colo. App. May 5, 2016) (hereinafter, “United Food
10
Colorado”), cert. denied, No. 16SC478, 2016 WL 5723926 (Colo. Oct. 3, 2016);
United Food Florida, 192 So. 3d at 587; United Food & Commercial Workers Int’l
Union v. Wal-Mart Stores, Inc., 137 A.3d 355, 361 (Md. Ct. Spec. App. 2016)
(hereinafter, “United Food Maryland”), cert. granted, No. 242, 2016 WL 5723986
(Md. Sept. 2, 2016); see also United Food Arkansas, 451 S.W.3d at 586–87
(affirming temporary injunction with similar prohibitions).
D. APPEAL
The labor organizations filed this appeal from the trial court’s final
judgment, arguing that because Walmart’s claims were the same in a
fundamental respect to the allegations in Walmart’s administrative charge,
Walmart’s state-court claims were preempted by the Act under the Supremacy
Clause. Accordingly, the labor organizations contend that the trial court erred by
denying their plea to the jurisdiction based on preemption.
The labor organizations also attack the trial court’s summary judgment on
Walmart’s trespass claim and its permanent injunction as it relates to any entry
onto parking lots and sidewalks to which Walmart does not have the right of
exclusive possession. They argue the summary judgment as to Walmart’s claim
based on the labor organizations’ interference leading to nuisance injuries was in
error because Walmart failed to prove that the labor organizations’ conduct was
objectively unreasonable or that it suffered harm different in kind from the general
public. Finally, the labor organizations contend that the trial court erred by
11
entering the injunction regarding entry for any non-shopping purpose because
such a prohibition is overbroad.
II. PREEMPTION
As they argued in their petition for writ of mandamus seeking relief from
the trial court’s denial of their plea to the jurisdiction, the labor organizations
argue in their first issue on appeal that the Act completely preempted Walmart’s
claims against them. Although we denied their mandamus petition, we conclude
that our previous memorandum ruling, which did not address the merits of the
petition, is not the law of the case; thus, we will determine whether Walmart’s
claims are preempted by the Act. See San Patricio Cty. v. Nueces Cty.,
492 S.W.3d 476, 487 (Tex. App.—Corpus Christi 2016, pet. filed).
We review de novo the trial court’s conclusion that Walmart’s claims were
not preempted by the Act and its resulting denial of the labor organizations’ plea
to the jurisdiction. See Hous. Belt & Terminal Ry. Co. v. City of Hous.,
487 S.W.3d 154, 160 (Tex. 2016) (reviewing ruling on plea to the jurisdiction
under de novo standard of review); DHL Express (USA) Inc. v. Falcon Express
Int’l Inc., 408 S.W.3d 406, 410 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)
(“Whether a claim is preempted is an issue of law we review de novo.”), cert.
denied, 135 S. Ct. 2893 (2015). Federal preemption is an affirmative defense
over which the labor organizations bore the burden to show its application and to
overcome the presumption against preemption. See Great Dane Trailers, Inc. v.
12
Estate of Wells, 52 S.W.3d 737, 743 (Tex. 2001); Comcast Cable of Plano, Inc.
v. City of Plano, 315 S.W.3d 673, 677 (Tex. App.—Dallas 2010, no pet.).
Although the application of preemption to a dispute is multilayered and the
parties necessarily expend the vast majority of their briefing on this issue, we are
fortunate that several state courts have blazed a path through the preemption
forest as it covers these same parties, the same complained-of conduct by the
labor organizations, the same NLRB charge and amended charge, and the same
state-court strategies. Beginning in May 2016, four state courts have conducted
detailed legal reviews of the preemption doctrine as applied to Walmart’s
allegations and concluded that Walmart’s claims are not preempted by the Act.
In short, those courts concluded that because the conduct underlying the state
suits was the interference with Walmart’s property rights and did not encompass
any coercion or restraint of employee rights under the Act, the state-court claims
were not preempted by the Act. See United Food California, 2016 WL 5957279,
at *17; United Food Colorado, 2016 WL 2605737, at *4–5; United Food Florida,
192 So. 3d at 588–92; United Food Maryland, 137 A.3d at 365–71. One state
court concluded the opposite: Walmart’s trespass claim was preempted by the
Act because Walmart challenged labor-organization conduct as well as its
location. United Food Washington, 354 P.3d at 36–38. But see United Food
California, 2016 WL 5957279, at *15–17 (disagreeing with United Food
Washington and concluding Walmart’s claims were not preempted because
trespass claim “turned on the location of the union’s conduct, rather than its
13
objective, purpose, or effect”); United Food Colorado, 2016 WL 2605737, at *5
(criticizing United Food Washington and stating “controversies are not identical
merely because they concern the same conduct, if that conduct is objectionable
for entirely different reasons under state law and the [Act],” as was the conduct of
the labor organizations directed at Walmart).
We agree with the reasoning stated by the California, Colorado, Florida,
and Maryland state appellate courts in reaching their conclusions that Walmart’s
tort claims were not preempted by the Act. See United Food California, 2016 WL
5957279, at *4–10; United Food Colorado, 2016 WL 2605737, at *2–6; United
Food Florida, 192 So. 3d at 588–92; United Food Maryland, 137 A.3d at 366–71.
Walmart’s claims raised in the trial court here focused on the location of the
demonstrations and did not call upon the trial court to consider whether the
challenged conduct interfered with employee rights under the Act. We do not
need to reinvent the wheel and engage in an exhaustive explanation of the law of
preemption, its exceptions, and their application to Walmart’s claims and to the
arguments raised by the labor organizations. It is enough to say that Walmart
sought to stop the labor organizations’ conduct not based on its content or the
fact that it involved labor relations, which is a subject for the NLRB, but based on
its location on Walmart’s property, which is a subject for state tort law; thus,
Walmart’s state-court claims of trespass and nuisance were not preempted by
the Act because the state court’s adjudication of that controversy would not
realistically interfere with the NLRB’s primary jurisdiction to regulate unfair labor
14
practices under the Act. See Sears, Roebuck & Co. v. San Diego Cty. Dist.
Council of Carpenters, 436 U.S. 180, 194–98, 98 S. Ct. 1745, 1755–58 (1978);
see also Belknap, Inc. v. Hale, 463 U.S. 491, 509–12, 103 S. Ct. 3172, 3182–84
(1983); Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 784 (9th Cir.), cert.
denied, 534 U.S. 1020 (2001); Windfield v. Groen Div., Dover Corp., 890 F.2d
764, 769–70 (5th Cir. 1989); United Food Maryland, 228 A.3d at 369–71;
cf. Lechmere, Inc. v. NLRB, 502 U.S. 527, 536–41, 112 S. Ct. 841, 847–50
(1992) (noting the Act confers rights only on employees, not on unions or their
nonemployee organizers, and recognizing employer’s right to exclude
nonemployee organizers from its property if union access to employees away
from employer’s property is available); Retail Store Emps. Local 1001,
203 N.L.R.B. 580, 581 (1973) (“Whether or not the [union’s] conduct [of
distributing union literature in employee lunchroom and soliciting membership], in
violation of the Company’s posted no-solicitation and no-distribution rule,
constitutes a trespass is a matter for the state and local authorities and [the
NLRB] make[s] no comment thereon. The only issue [before the NLRB] is
whether the [union’s] admitted conduct restrains and coerces employees within
the meaning of . . . the Act.”). We overrule the labor organizations’ first issue.
III. SUMMARY JUDGMENT
A. STANDARD AND SCOPE OF REVIEW
We review a trial court’s granting of a summary judgment de novo. Nall v.
Plunkett, 404 S.W.3d 552, 555 (Tex. 2013). Here, the parties filed cross-motions
15
for summary judgment; therefore, we consider the entire record and determine
whether there is more than a scintilla of probative evidence raising genuine
issues of material fact on each element of the challenged claims and on all
questions presented by the parties. See Tex. R. Civ. P. 166a(c), (i); Neely v.
Wilson, 418 S.W.3d 52, 59 (Tex. 2013); Buck v. Palmer, 381 S.W.3d 525, 527 &
n.2 (Tex. 2012); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). In short, our “ultimate question is simply
whether a fact issue exists.” Buck, 381 S.W.3d at 527 n.2. When, as here, a trial
court’s order granting summary judgment does not specify the ground or grounds
relied on for its ruling, we will affirm the summary judgment if any of the theories
presented to the trial court and preserved for appellate review are meritorious.
See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.
2003).
B. TRESPASS
In their second issue, the labor organizations argue that the trial erred by
entering summary judgment in favor of Walmart on its trespass claim because
Walmart did not hold the right to exclusively possess the sidewalks and parking
lots adjacent to Walmart stores located in shopping centers. The labor
organizations argue in their appellate briefing that because the common areas
around Walmart stores located in shopping centers are subject to nonexclusive,
business-use easements granted to neighboring tenants, Walmart does not have
sufficient property rights to state a trespass claim based solely on the
16
demonstrators’ mere presence; therefore, they argue that Walmart was required
to show the labor organizations’ activities unreasonably interfered with Walmart’s
use and enjoyment of these areas, which it did not do.
Although the labor organizations frame this issue as an attack on the
summary judgment in favor of Walmart on its trespass claim, the argument
primarily challenges the scope of the injunction to the extent it enjoined activities
in areas where Walmart’s ownership interest was subject to nonexclusive
easements. See United Food Colorado, 2016 WL 2605737, at *6; United Food
Maryland, 137 A.3d at 372–73. It is important to recognize that the labor
organizations do not argue that Walmart could not support a trespass claim as to
the interior of Walmart’s stores or as to parking lots and sidewalk areas not
subject to an easement. They argue in their briefing only that Walmart could not
maintain a trespass claim and that the trial court could not enjoin any activity
occurring in parking lots or sidewalk areas that were subject to an easement.
The labor organizations recognize that even in these areas, they would not have
the “privilege” to trespass or the “right” to hold “events” there. At oral argument,
however, the labor organizations clearly stated that they were not arguing that
Walmart did not have a sufficient property interest in the stores at issue to
maintain a trespass claim. And Walmart’s counsel stated at oral argument, and
the labor organizations’ counsel did not contradict, that the undisputed evidence
showed that Walmart had the exclusive right to control the properties subject to
the trial court’s injunction.
17
We conclude that based on the tenor of the parties’ oral arguments and
their recognition that the facts regarding Walmart’s trespass claim are
undisputed, it is unnecessary to parse each element of this claim in light of the
summary-judgment evidence and the standard of review. Walmart established
through undisputed summary-judgment evidence its right to exclusive possession
of the properties subject to the injunction and the labor organizations’
unauthorized entries onto those properties. Trespass requires nothing more.
E.g., Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 422
(Tex. 2015); Gleason v. Taub, 180 S.W.3d 711, 713–14 (Tex. App.―Fort Worth
2005, pet. denied); accord United Food Colorado, 2016 WL 2605737, at *3, *6–7
(“[T]o sustain its trespass claim, Walmart needed only [to] prove that the unions
entered its property without its permission. It was not required to show that the
unions unreasonably interfered with its use and enjoyment of the property.”);
United Food Maryland, 137 A.3d at 373–74 (“Having consented to entry onto its
land for that limited purpose [i.e., ingress and egress to adjacent property
lessees, Walmart] did not give up its right to exclude from its property others
entering for a non-business purpose, such as the Union demonstrators who
paraded and otherwise protested in its common areas, even if those activities did
not unreasonably interfere with Walmart’s use of the property.”). We overrule
issue two.
18
C. NUISANCE
In their third issue, the labor organizations argue that the trial court erred
by entering summary judgment in favor of Walmart on its claim that the labor
organizations’ interference caused public and private nuisance injuries because
Walmart failed to proffer any summary-judgment evidence either that it suffered a
special injury or that the labor organizations’ conduct was objectively
unreasonable.10 See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, No. 15-0049,
2016 WL 3483165, *6 (Tex. June 24, 2016) (recognizing nuisance refers “not to a
cause of action or to the defendant’s conduct or operations, but instead to the
particular type of legal injury that can support a claim or cause of action seeking
legal relief.”) For the following reasons, we overrule the labor organizations’ third
issue.
1. Private-Nuisance Injuries
Regarding private nuisance, the labor organizations assert that there was
no summary-judgment evidence that their conduct was objectively unreasonable.
A substantial interference with another’s interest in the private use and
enjoyment of land that causes objectively unreasonable discomfort or annoyance
qualifies as a nuisance injury. Id. at *6–8; Holubec v. Brandenberger,
111 S.W.3d 32, 37 (Tex. 2003); Lethu Inc. v. City of Hous., 23 S.W.3d 482, 489
10
Although the labor organizations raised other arguments in their no-
evidence motion for summary judgment regarding nuisance, these are the only
arguments in their appellate briefing and, thus, preserved for our review.
19
(Tex. App.―Houston [1st Dist.] 2000, pet. denied). Stated another way, an
interference with use or enjoyment must be sufficiently substantial and its effects
objectively unreasonable to establish the legal injury of nuisance. Crosstex,
2016 WL 3483165, at *11–12.
But as the supreme court has cautioned, the objective-unreasonableness
inquiry focuses on the interference’s effect on Walmart’s comfort or contentment,
not on the nature of the labor organizations’ conduct. See id. at *8–9. The labor
organizations do not address the summary-judgment evidence in this light, solely
pointing out the alleged absence of evidence that their conduct was objectively
unreasonable. Walmart offered undisputed evidence that the demonstrators on
more than one occasion blocked ingress and egress to the stores, blared music
outside the stores, projected an anti-Walmart video from the parking lots onto
exterior store walls, and chanted through megaphones while marching around
the exterior of stores. Customers and employees complained about the noise.
In some instances, Walmart had to call the police to get the demonstrators to
leave the property. Some customers indicated that “they would have done their
shopping somewhere else had they known the incident was taking place,” and
one stated she would not shop at that store again. This undisputed evidence
established as a matter of law a prima facie claim of an intentional interference
causing objectively unreasonable discomfort or annoyance. The labor
organizations do not rebut this evidence but only argue that their actions
constituted constitutionally protected free speech, which can never be considered
20
objectively unreasonable. Once again, we look to the conduct’s effect on
Walmart’s use and enjoyment of its property, not the conduct itself. Although
whether the effects of an interference were objectively unreasonable is generally
a question of fact, Walmart’s undisputed evidence of the effects of the labor
organizations’ actions on its use and enjoyment entitled it to judgment as a
matter of law on its claim for private nuisance injuries. See id. at *20 (noting that
although nuisance elements generally are questions for a fact-finder, they may
be decided as a matter of law if the underlying facts are undisputed).
2. Public-Nuisance Injuries
An unreasonable interference with a right common to the general public
may lead to public-nuisance injuries. See Eric J. Mayer & Brian Lowenberg,
Nuisance Joins the PJC, 61 The Advocate (Tex.) 54, 54 (2012). The labor
organizations assert that Walmart has no standing to recover for its public-
nuisance injuries flowing from the labor organizations’ actions on public
roadways because it does not have the requisite special injury different than that
suffered by others. Indeed, to have standing to assert a claim seeking recovery
for public-nuisance injuries, Walmart must show that its injuries were different in
kind from that suffered by the public at large. See Jamail v. Stoneledge Condo.
Owners Ass’n, 970 S.W.2d 673, 676 (Tex. App.—Austin 1998, no pet.); Boone v.
Clark, 214 S.W. 607, 610–11 (Tex. Civ. App.—Fort Worth 1919, writ ref’d). Of
course, standing to seek redress for the legal injury of nuisance is a jurisdictional
21
issue that a trial court decides as a matter of law and we review de novo.
See Mayer & Lowenberg, supra, at 55.
Walmart points to undisputed summary-judgment evidence showing that
the labor organizations commonly impeded road traffic going into or coming out
of its stores by blocking adjacent roads and intersections with the stated goal of
stopping traffic. Jobs with Justice issued a pamphlet to its members that
included “some ideas about potential Change Walmart actions,” which were in a
“menu” and grouped by “Appetizers,” “Vegetables,” or “Main Course.” One main-
course suggestion was “Outside – march and rally – try to have maximum impact
– e.g. block traffic, occupy intersections.” These road blockages were directed at
Walmart and its customers, specifically in an attempt to prevent customers from
entering or exiting Walmart’s property. Although the general public suffered an
interference with the public right of travel and resulting inconvenience from the
labor organizations’ actions in public roadways, Walmart suffered injuries to its
business interests, different in kind and degree than that of the general public.
See Restatement (Second) of Torts § 821C cmts. b, i (Am. Law Inst. 1979); see
also Robinson v. Indianola Mun. Separate Sch. Dist., 467 So. 2d 911, 918 (Miss.
1985) (recognizing adjacent landowner is specially damaged where highway
obstruction resulting in public nuisance prevents ingress and egress to his
property); Boone, 214 S.W. at 611 (noting if owners of properties adjacent to
road obstructed by producing oil wells show that the wells will drain oil from their
properties, they will sustain a special injury not suffered by the general public).
22
The trial court did not err by concluding that Walmart had standing to assert a
claim for redress of its public-nuisance injuries.
IV. SCOPE OF PERMANENT INJUNCTION
In their fourth issue, the labor organizations argue that the trial court’s
permanent injunction was overbroad because it prohibited them from entering
Walmart stores for any non-shopping purpose. They do not directly contest the
sufficiency of the evidence to support the necessary elements of a permanent
injunction and, therefore, that the trial court abused its discretion by entering
permanent injunctive relief. Indeed, based on the undisputed evidence
establishing Walmart’s claims as a matter of law, the trial court did not abuse its
discretion by awarding Walmart permanent injunctive relief. Cf. Hanson
Aggregates W., Inc. v. Ford, 338 S.W.3d 39, 48 (Tex. App.―Austin 2011, pet.
denied) (op. on reh’g) (“Given . . . appellees’ failure to prove an actionable
nuisance by Hanson as a matter of law, the district court lacked discretion to
issue the permanent injunction.”).
As we do when considering the propriety of injunctive relief, we review the
scope of an injunction for an abuse of the trial court’s discretion. See Holubec v.
Brandenberger, 214 S.W.3d 650, 658 (Tex. App.―Austin 2006, no pet.); see
also Noell v. City of Carrollton, 431 S.W.3d 682, 712 (Tex. App.―Dallas 2014,
pet. denied). An injunction that enjoins lawful as well as unlawful actions may
constitute an abuse of discretion; thus, a permanent injunction must be
sufficiently specific and descriptive to enjoin only those acts specifically sought to
23
be restrained. Holubec, 111 S.W.3d at 39–40; Lagos v. Plano Econ. Dev. Bd.,
Inc., 378 S.W.3d 647, 651 (Tex. App.―Dallas 2012, no pet.); see also Tex. R.
Civ. P. 683. Further, a permanent injunction may not go beyond the relief prayed
for by the plaintiff. Holubec, 111 S.W.3d at 39; Webb v. Glenbrook Owners
Ass’n, Inc., 298 S.W.3d 374, 384 (Tex. App.―Dallas 2009, no pet.) (op. on
reh’g). But an injunction must be broad enough to prevent a repetition of the
wrong sought to be corrected “whether the repetition be in form identical to that
employed prior to the injunction or (what is far more likely) in somewhat different
form calculated to circumvent the injunction as written.” San Antonio Bar Ass’n v.
Guardian Abstract & Title Co., 291 S.W.2d 697, 702 (Tex. 1956).
The labor organizations assert that the permanent injunction was
overbroad because it went beyond Walmart’s factual pleadings and enjoined
lawful activities such as applying for a job at a particular Walmart store. 11 See
RCI Entm’t (San Antonio), Inc. v. City of San Antonio, 373 S.W.3d 589, 603 (Tex.
App.—San Antonio 2012, no pet.) (“Where a party’s acts are divisible, and some
acts are permissible and some are not, an injunction should not issue to restrain
actions that are legal or about which there is no asserted complaint.”). In their
verified petition, Walmart alleged that the labor organizations committed trespass
by entering Walmart’s property without permission “to engage in picketing,
11
In response to Walmart’s permanent-injunction application, the labor
organizations argued in the trial court that any relief must be “narrowly defined to
prohibit those activities of which Walmart has complained” and could not include
a “blanket prohibition against any entry for ‘non-shopping purposes.’”
24
patrolling, demonstrations, ‘flash mobs,’ handbilling, solicitation, customer
disruptions, associate engagement for any non-shopping purpose, and manager
confrontations.” In its prayer for relief, Walmart asked the trial court to enjoin the
labor organizations’ entry into any Walmart store “for any purpose other than
shopping for and/or purchasing merchandise at Walmart stores.” This is the
same conduct the trial court ultimately enjoined. Accordingly, we disagree with
the labor organizations’ argument that the trial court’s injunctive relief went
beyond that prayed for by Walmart.
But we agree with the labor organizations’ argument that this prohibition
was overly broad because it arguably enjoined lawful activities. When Walmart
formally notified the labor organizations that it considered their actions to be
trespass, Walmart explained that its business invitation did not allow the labor
organizations to commit trespass on its property:
This letter constitutes yet another formal, written notice that non-
Walmart associates acting under — or in response to — the
direction, control, or inducement of the Union, its agents, employees,
representatives, or affiliates . . . shall not enter inside any Walmart
facility in the country to engage in the activity described above[12] or
any other non-shopping, labor-related activity including, but not
limited to, picketing, patrolling, parading, petitioning, handbilling,
soliciting, ‘flash mobs,’ customer disruptions, or other
demonstrations inside any Walmart facility at any time. . . .
Walmart’s invitation to the general public to shop at its stores
does not include authorization for non-associates to engage in the
labor-related activities described above. Walmart — again —
12
The in-store activity was described as entering the store to confront
managers and handing out literature to customers and employees.
25
expressly revokes any invitation, license, or privilege of the Union
and its non-associate agents to enter onto or inside Walmart’s
property to engage in any of the aforementioned activities, and
failure to comply with this prohibition shall constitute trespass under
applicable state law. [First emphasis supplied.]
Walmart considered this notice to “revoke[] the license” of the labor organizations
to be on its property “for any non-shopping purpose.” In the trial court, Walmart
argued that the requested “non-shopping” prohibition was not overbroad because
the labor organizations could only enter the property “for the purpose of the
general invitation of the public.”
In United Food Maryland, the labor organizations raised this same
complaint regarding the scope of the injunction. 137 A.3d at 374. The court of
special appeals noted that the permanent injunction was not as broad as the
labor organizations asserted:
The injunction plainly does not extend to idle conversation between
Union-affiliated customers, on the one-hand, and customers,
associates, or managers, on the other hand, while shopping in a
Walmart store. Nor does it extend to activities that are incidental to
shopping, such as a Union member’s picking up a shopper in a
Walmart parking lot or attending a Girl Scout cookie sale with
children at a Walmart store.
Id. at 375 n.21. The court of special appeals concluded that the labor
organizations did not have the right to enter onto Walmart’s private property to
engage in activities “unrelated to the limited business invitation to shop at the
store.” Id. at 374–75. Thus, the court concluded, the trial court’s injunction
barring all non-shopping activities by the labor organizations was not overly
broad. Id. at 375.
26
Although the disputed portion of the injunction in United Food Maryland is
the same as the language in the injunction challenged in this appeal, see id. at
361, we do not read this language to expressly or implicitly allow activities that
are unrelated to shopping but continue to be within Walmart’s limited business
invitation. The labor organizations’ example is an apt one. Entering a Walmart
store to apply for a job—a lawful activity that would fall within Walmart’s limited
business invitation to the public—would be unrelated and not incidental to a
shopping or purchasing purpose and, thus, would be barred by the injunction as
worded. We believe Walmart’s formal notice to the labor organizations of the
limits of its business invitation got it exactly right. Walmart did not include in its
business invitation any “non-shopping, labor-related activity” on its private
properties.
We do not agree with Walmart that any change to the wording of
paragraph “c.” would create a “loophole” for the labor organizations to “exploit.”
See San Antonio Bar, 291 S.W.2d at 702 (holding injunction may be crafted to
avoid conduct that would be calculated to circumvent a narrower injunction). In
the trial court, the labor organizations relied on Walmart’s formal notices to argue
that the scope of any injunction should be limited to the activities complained of
in those notices. As we have pointed out, one of Walmart’s formal notices
specified that “non-shopping, labor-related” activities by the labor organizations
were outside Walmart’s limited business invitation and constituted trespass. In
27
moving for summary judgment, the labor organizations recognized that Walmart’s
trespass claim was based on the labor-organizations’ “labor-related activities.”
We conclude paragraph “c.” of the permanent injunction applied to bar
lawful activities within Walmart’s limited business invitation, which renders that
paragraph overly broad and an abuse of discretion. See, e.g., Holubec,
214 S.W.3d at 657–58; Computek Comput. & Office Supplies, 156 S.W.3d 217,
223 (Tex. App.—Dallas 2005, no pet.); Tex. Tech Univ. Health Sci. Ctr. v. Rao,
105 S.W.3d 763, 770 (Tex. App.—Amarillo 2003, pet. dism’d); accord Gasaway
v. Borderland Coal Corp., 278 F. 56, 64–65 (7th Cir. 1921); Doe v. Phillips,
259 S.W.3d 34, 38 (Mo. Ct. App. 2008); cf. People v. Toomey, 203 Cal. Rptr.
642, 655 (Cal. Ct. App. 1984) (concluding injunction not overly broad in scope
because “challenged provisions of the permanent injunction are necessary to the
objective of preventing future violations”). We sustain issue four.
V. CONCLUSION
Walmart’s claims raised in the trial court focused on the location of the
demonstrations and did not call upon the trial court to consider whether the
challenged conduct interfered with employee rights under the Act; thus,
Walmart’s claims were not preempted. Based on the largely undisputed
summary-judgment record, the trial court did not err by granting Walmart
judgment as a matter of law on its claims for trespass and for interference
causing nuisance injuries. We affirm the trial court’s summary judgment in favor
of Walmart. See Tex. R. App. P. 43.2(a).
28
Although the trial court did not abuse its discretion in granting Walmart
permanent injunctive relief based on its claims that were established as a matter
of law, the scope of paragraph “c.” was overly broad so as to prohibit lawful
activities within Walmart’s limited business invitation to the public. Therefore, we
modify paragraph “c.” of the permanent injunction to state that the following
conduct is enjoined:
Entering on Walmart’s private property at any store or facility in the
State of Texas that is owned or controlled by Wal-Mart Stores, Inc.,
Wal-Mart Real Estate Business Trust, Wal-Mart Realty Company,
Wal-Mart Stores Texas, LLC, Wal-Mart Stores East, LP, Sam’s East,
Inc., or any of their subsidiaries, affiliates, or operating entities for
any non-shopping, labor-related purpose.
See Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573, 583 (Tex. App.―San Antonio
1998, pet. denied) (en banc op. on reh’g) (modifying overly broad permanent
injunction). As modified, we affirm the trial court’s permanent injunction.
See Tex. R. App. P. 43.2(b).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: MEIER and GABRIEL, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).
DELIVERED: October 27, 2016
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