Ulysses Asset Sub I, LLC v. Sinclair Holdings, LLC ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00044-CV
___________________________
ULYSSES ASSET SUB I, LLC, Appellant
V.
SINCLAIR HOLDINGS, LLC, Appellee
On Appeal from the 352nd District Court
Tarrant County, Texas
Trial Court No. 352-300659-18
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This is an interlocutory appeal from the dissolution of an agreed temporary
injunction. Appellee Sinclair Holdings, LLC owns a ninety-year-old sixteen-story
building (the Sinclair Building) in downtown Fort Worth on which it has spent tens of
millions of dollars on renovations to transform the building into a hotel. Appellant
Ulysses Asset Sub I, LLC holds an easement that allows its lessees to place antennas
for wireless communication on the roof of the Sinclair Building. The parties agreed
to a temporary injunction after Ulysses sued claiming that Sinclair’s construction plans
would interfere with Ulysses’ rights to utilize the roof and would disrupt the ability of
the existing antennas on the roof to transmit emergency calls. That agreed temporary
injunction permitted certain construction activities on the roof to go forward but
prohibited the construction of a rooftop bar.
After several events occurred, including the relocation of a large air-
conditioning cooling tower from the roof to an alley and the relocation of the
antennas (of the only entity that had antennas located on the roof) on the parapet wall
surrounding the roof, Sinclair moved to dissolve the temporary injunction. Ulysses
objected to Sinclair’s efforts to dissolve the agreed temporary injunction. The trial
court conducted an evidentiary hearing, found that the circumstances existing at the
time of the entry of the temporary injunction had changed, and dissolved the
temporary injunction.
2
Ulysses raises two issues challenging that decision. We hold that based on the
facts developed at the hearing, the trial court acted within its discretion to dissolve the
temporary injunction. We therefore affirm.
II. Factual and Procedural Background
A. Sinclair’s plans to renovate the Sinclair Building were met with opposition
from Ulysses.
As alluded to above, the dispute involves the roof of the Sinclair Building.
Sinclair acquired title to the building in 2013. Sinclair’s predecessor-in-title had
granted a party affiliated with Ulysses a “wireless communication easement and
assignment agreement” (the Easement Agreement) over the “building portion of the
Property.” The Easement Agreement also conveyed use as necessary for Ulysses to
comply with its obligations under two preexisting leases. AT&T is a lessee under one
of the preexisting leases.
In 2017, after a two-and-a-half-year approval process, Sinclair began renovating
the Sinclair Building to transform it into a hotel. The renovation included structural
and safety work on the roof, as well as plans for the construction of a rooftop bar. In
2018, Sinclair negotiated with Ulysses and proposed relocating AT&T’s equipment so
that Sinclair could construct the rooftop bar. Ulysses rejected the proposal, citing
various sections of the Easement Agreement. Sinclair responded by informing
Ulysses that it was going to shut down power to the Sinclair Building and proceed
with construction anyway. Ulysses sent Sinclair a letter stating that this action would
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constitute a breach of the Easement Agreement. Despite Ulysses’ letter, Sinclair went
forward with shutting down power to the Sinclair Building and with removing a
portion of AT&T’s equipment from the roof.
Ulysses responded by suing Sinclair for breach of the Easement Agreement.
Ulysses sought a temporary restraining order (TRO) and injunctive relief, arguing that
a TRO was necessary to prevent the interruption of emergency 911 calls and first-
responder and rescue services.
B. The trial court entered an agreed temporary injunction.
The trial court granted the TRO and scheduled a temporary-injunction hearing.
Before the temporary-injunction hearing occurred, the parties filed a joint motion for
the trial court to enter an agreed temporary injunction. In accordance with the joint
motion, on July 18, 2018, the trial court signed a temporary injunction that initially
recited the nature of the irreparable injury that it claimed would result from Sinclair’s
construction of the proposed rooftop bar:
[Ulysses] and [Sinclair] are parties to a Wireless Communication
Easement and Assignment Agreement (the “Easement Agreement”) that
is the subject of this dispute. [Ulysses] has alleged that immediate and
irreparable injury, loss[,] and damage will result to [Ulysses] if [Sinclair] is
allowed to proceed with certain construction on the Premises prior to a
final adjudication of [Ulysses’] rights under the Easement Agreement.
[Ulysses] alleges that such damage includes, without limitation, the
potential interruption of telecommunications services that could, in turn,
affect emergency 911 calls, first[-]responder and rescue services, and
damage to customer relationships and destruction of leasing
opportunities.
4
The temporary injunction then described how it would protect Ulysses and recited, in
part, that the removal of the AT&T equipment could interrupt emergency 911 calls
and first-responder and rescue services:
Only the entry of a Temporary Injunction will serve to adequately
protect [Ulysses’] alleged rights under the Easement and prevent
imminent and irreparable injury that [Ulysses] alleges may arise in the
event the people using AT&T wireless services in and around downtown
Fort Worth are unable to place 911 emergency calls and receive first[-]
responder and rescue services, such as local police, fire[,] and ambulance
services.
The temporary injunction further stated that although Sinclair denied Ulysses’
allegations,
the parties have sought to resolve the immediate issue in such a manner
that would allow necessary construction rooftop work to be performed
without any interruption in cellular transmission service and/or to satisfy
[Ulysses] that there will be no harm to [Ulysses’] alleged Easement
Agreement rights. Following the issuance of the TRO, the parties
continued these discussions, and the Court understands that the parties
have come to an agreement on the terms of a limited injuncti[on] [that]
protects [Ulysses’] interests while allowing [Sinclair] to perform certain
rooftop construction efforts. Accordingly, the parties request that the
Court enter a limited injunction, and the Court finds that such a limited
injunction is appropriate[.]
Thus, the trial court enjoined Sinclair from constructing the rooftop bar (with the
exception of constructing certain drains) while specifically allowing Sinclair to
(1) temporarily relocate AT&T’s antennas at Sinclair’s cost; (2) complete structural
steel work on the roof; (3) replace the roof membrane; and (4) complete other work
related to the safety, repair, and maintenance of the roof.
5
The temporary injunction set the case for trial during the week of May 13,
2019, and concluded with the statement, “Nothing in this agreement shall bar either
party from seeking rescission or modification of this order.”
C. Sinclair moved to dissolve the temporary injunction.
Several months after the temporary injunction was signed, Sinclair filed a
motion to dissolve it. Sinclair argued that since the entry of the temporary injunction,
two things had occurred. First, the motion recounted the work that had been done:
It has been more than three months since the Court issued the
Temporary Injunction. In that time[,] Sinclair has performed much
work on the roof, which has involved dozens of construction works
performing extensive steelwork to reinforce the structure. . . . Sinclair
also relocated the mechanical HVAC units from the roof to newly-
constructed platforms in the alley next to the Property. . . . Additionally,
Sinclair worked with AT&T to move the cellular antennas a few feet on
the exterior of the roof’s parapet wall[] and moved a rack of
telecommunication equipment to the interior easement space on the
eighth floor of the Property. . . . None of this work damaged
AT&T’s equipment or interfered with AT&T’s cellular network.
Indeed, there has been no indication that anyone—let alone first
responders in emergencies—experienced any interruption in cellular
service as a result of this construction.
Second, the motion stated, “Since the Temporary Injunction was issued, Sinclair has
been able to examine the AT&T Lease more closely. This document confirms that
AT&T is the only wireless provider whose equipment could be on the roof of the
Property until 2032—at the earliest.” In other words, further study of a document—
which Sinclair apparently had in its possession before agreeing to the injunction—
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produced this revelation. Thus, according to Sinclair, the two bases for the temporary
injunction were no longer an issue.
D. The trial court held an evidentiary hearing on Sinclair’s motion to dissolve.
The trial court conducted an evidentiary hearing on Sinclair’s motion to
dissolve and heard testimony from a representative of each party.
The relocation of AT&T’s antennas and of other equipment previously located
on the roof was one focus of the testimony. The evidence demonstrated that the
antennas had been relocated to the parapet wall surrounding the roof. The antennas
were relocated by a contractor for AT&T after the temporary injunction was entered.
Units powering the antennas had also been moved with the approval of AT&T. The
antennas and the units powering them were apparently the only equipment that
AT&T and Ulysses were utilizing at the time of the hearing.
Sinclair’s witness also traced the history of equipment and structures located on
the roof and explained what Sinclair had planned to put on the roof if the temporary
injunction were dissolved. The witness described the preexisting situation as follows:
We had a massive chill water cooler, which is [a] pretty large structure,
and a bunch of steel pipe, a big 12-inch steel pipe, that brought chill
water and supply in return, and several fans, exhaust fans, that served
bathrooms in the building. So, the roof was cluttered with a lot of this
mechanical equipment.
A diagram of the preconstruction state of the roof, including the position of AT&T’s
antennas, was admitted into evidence, and it is reproduced below (with the antennas
shown by boxes appearing around the perimeter of the roof):
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According to Sinclair’s representative, neither AT&T nor Ulysses had ever
complained about the preexisting presence of the air-conditioning equipment on the
roof. It appears that the antennas placed on the building under the original lease with
AT&T had occupied the same basic positions since 1996. The following is a diagram
of the locations of the antennas from that lease with the position of the antennas
apparently hand-drawn on the diagram:
8
Next, Sinclair introduced a diagram of its plans for the roof that apparently
depicted the completion of the work permitted under the temporary injunction, the
relocated AT&T antennas, and the proposed location of the rooftop bar. That
diagram is reproduced below:
9
As explained above, Sinclair relocated the large air-conditioning cooling tower from
the roof to a structure built in an alley between the Sinclair Building and an adjoining
building.
Ulysses offered the testimony of its regional director of operations, whose
region included the Sinclair Building. On direct, this witness testified that Ulysses had
the right under the Easement Agreement to lease the roof not only to wireless-
telephone providers but also to other types of wireless-communication providers.
10
Ulysses’ witness explained that accommodating other users might require different
utilization of the roof than had occurred in the past. He also noted that antennas
produce RF waves,1 which create potential health problems for people who are
exposed to the waves.
On cross-examination, Ulysses’ witness clarified that the AT&T antennas were
directional antennas that were focused away from the building and were not pointed
toward the proposed rooftop bar. Ulysses’ representative was unaware of where
AT&T had relocated its antennas and was unaware of what steps had been taken to
move AT&T’s antennas. Though the antennas had been knocked offline by
construction activities the prior summer (during the time frame when the temporary
injunction was entered), the witness was unaware of any issues since that time. The
witness was also unaware of any situation in which a person had made a 911 call and
was unable to reach an operator.
Finally, Ulysses’ representative had the following exchange with Sinclair’s
counsel about whether Ulysses had any existing plans to place additional antennas on
the roof or had ever had plans to utilize the space to be occupied by the proposed
rooftop bar:
Q. Since the time it has been within your purview, has . . . Ulysses ever
proposed to put an antenna of any sort in the area where the bar is
shown in Exhibit 3?
1
This term “RF waves” was not defined in the record.
11
A. I’m unaware.
Q. Are you aware of any intent at present time to place any
antennas other -- on the rooftop of the Sinclair, other than those that are
shown on Exhibit 3 [the diagram showing the bar’s planned location]
that are being currently used by AT&T?
A. Again, unaware.
E. The trial court expressed concern that the circumstances warranting the
temporary injunction had changed and then made its ruling.
When the testimony ended, the trial court asked whether one of the initial
allegations in the request for temporary injunctive relief “was . . . that 911 service
could be knocked down” and further asked, “And haven’t we now heard evidence
that that’s not the case? So, isn’t that a substantial change?” Ulysses’ counsel
responded that the temporary injunction was based on several types of irreparable
harm, that the signal had been interrupted once, and that it could happen again.
When asked if 911 service had gone down, Ulysses’ counsel responded “no”
but emphasized a need for redundancy in the 911 system. Ulysses’ counsel then
focused his argument on what he contended was the sole basis for Sinclair’s motion:
So, the only thing that they claim is [that] AT&T is the only entity that
can be on top of the roof that would have -- would need these services.
We know that’s not the case. That’s not the case from looking at the
documents. That’s not the case because we know that people have been
-- were on the roof even at the time they bought the property. I mean,
it’s just clearly not the case. That’s the sole argument they made for
changed circumstance[,] and that’s just wrong.
Sinclair responded that the antennas had been amicably moved and that there was no
longer a threat to 911 services. Sinclair’s counsel also argued that Ulysses had a duty
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as the easement holder not to interfere with Sinclair’s rights and that the rooftop bar
could be constructed because the renovation efforts had relocated the equipment that
had been on the roof and that the parties had coexisted with for years:
For years they have used the rooftop for air-conditioning purposes and
storage purposes without any objection whatsoever. Now, at their own
great expense, they moved all that off so they can replace that space with
a rooftop bar[,] and suddenly it becomes an issue.
Sinclair described any harm that might result from constructing the rooftop bar as
hypothetical and explained that if it did not prevail on final trial, then the bar would
have to be torn down.
The trial court ruled from the bench that it was going to grant the motion to
dissolve, stating, “As it relates to the injunction, I do not find that there is a risk of
imminent harm, so I will dissolve the temporary injunction.” The trial court then
signed an order dissolving the temporary injunction; the order included a finding that
“conditions have changed since the temporary injunction was first entered such that
the injunction is no longer necessary or proper.” Ulysses’ interlocutory appeal
followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4).
III. Standard of Review
A. The general standard of review is abuse of discretion.
“Our review of the trial court’s order of dissolution is limited to the narrow
question of whether the trial court’s action in dissolving the injunction constituted a
clear abuse of discretion.” Murphy v. McDaniel, 20 S.W.3d 873, 877 (Tex. App.—
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Dallas 2000, no pet.). The tests to determine whether a trial court has acted within its
discretion vary depending on whether we are reviewing that court’s factual or legal
determinations:
With respect to factual matters, a trial court abuses its discretion if,
under the record, it reasonably could have reached only one decision,
and it failed to do so. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992) (orig. proceeding). With respect to the application of the law, a
trial judge has no discretion in determining what the law is or in applying
the law to the undisputed facts, and a clear failure by the court to
correctly analyze or apply the law will constitute an abuse of discretion.
See id.
Tex. Voices for Reason & Justice, Inc. v. City of Argyle, No. 02-16-00052-CV, 2017 WL
1173837, at *2 (Tex. App.—Fort Worth Mar. 30, 2017, no pet.) (mem. op.); see also
Health Care Serv. Corp. v. E. Tex. Med. Ctr., 495 S.W.3d 333, 338 (Tex. App.—Tyler
2016, no pet.) (op. on reh’g) (“The trial court does not abuse its discretion if some
evidence reasonably supports the trial court’s decision. More specifically, the trial
court does not abuse its discretion when it bases its decision on conflicting evidence,
or when some evidence of substantive and probative character exists to support its
decision.” (citation omitted)).
Here, the parties expend considerable effort arguing which of two legal
standards the trial court should have applied in determining whether to dissolve the
temporary injunction. As we discuss below, the standard applied by the trial court
was the more strenuous of its options. We conclude that the trial court’s
determination under the more strenuous standard has sufficient factual support to
14
warrant the trial court’s exercise of its discretion. Thus, Ulysses cannot complain
about the trial court’s legal determination of which standard to apply because that
court placed a higher burden on Sinclair and chose the standard that Ulysses
advocates. We will discuss but not belabor the disagreement about which standard
applies; after doing so, we conclude that the facts before the trial court support its
determination that a change of circumstances had occurred.
B. The open question is whether a trial court retains broad discretion to
dissolve a temporary injunction simply because it is an interlocutory order or
whether the party seeking to dissolve the temporary injunction must show a
change of circumstances.
A temporary injunction is a specific type of interlocutory order that acts “to
preserve the status quo of the litigation’s subject matter pending a trial on the merits.”
Savering v. City of Mansfield, 505 S.W.3d 33, 39 (Tex. App.—Fort Worth 2016, pet.
denied) (op. on en banc reconsideration) (citing Butnaru v. Ford Motor Co., 84 S.W.3d
198, 204 (Tex. 2002) (op. on reh’g)). The conflict of which standard applies to the
dissolution of a temporary injunction arises from the following clash: whether the
general rule—that a trial court has broad discretion to alter its interlocutory orders—
applies or whether a more tailored rule—which requires a showing of a change of
circumstances between the time of the entry of the temporary injunction and a
motion seeking its dissolution—should apply in the unique context of temporary
injunctions.
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Those advocating for a rule that vests the trial court with broad discretion to
control its interlocutory orders often cite the Austin court’s opinion in Tober v. Turner,
668 S.W.2d 831, 836 (Tex. App.—Austin 1984, no writ). Tober has nuggets that both
sides of the debate can highlight. The opinion includes statements that seem contrary
to a view that a trial court has unbridled discretion to dissolve a temporary injunction.
One such statement is that the purpose of a motion to dissolve is “to provide a means
to show changed circumstances or changes in the law that require modification or
dissolution of the injunction; the purpose is not to give an unsuccessful party an
opportunity to relitigate the propriety of the original grant.” Id. But after articulating
why a motion to dissolve should not be used to relitigate the original grant of a
temporary injunction, Tober pivots in a different direction and states, “We should not
be understood to say that a trial court lacks the authority to reverse its prior
temporary[-]injunction order absent a showing of changed conditions; it does have
that power.” Id. at 835.
Some courts appear to view the last-quoted statement as holding that a trial
court has broad authority to dissolve an injunction. See, e.g., Roberts v. Roberts, No. 10-
05-00134-CV, 2006 WL 301099, at *3 n.5 (Tex. App.—Waco Feb. 8, 2006, pet.
denied) (mem. op.) (“A trial court also retains the inherent authority to dissolve an
injunction absent a showing of changed circumstances.” (citing Tober)). Other courts
view Tober in its context of dealing with whether a party waives its right to seek
dissolution of a temporary injunction by not appealing the original grant of the
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injunction. See, e.g., BS & B Safety Sys., Inc. v. Fritts, No. 01-98-00957-CV, 1999 WL
447605, at *2 (Tex. App.—Houston [1st Dist.] June 17, 1999, no pet.) (not designated
for publication) (op. on reh’g). In BS & B Safety’s view, Tober states a rule that a trial
court has no duty to reconsider the granting of a temporary injunction absent a
showing of changed circumstances, but Tober “did not impose a per se rule that a trial
court abuses its discretion if it chooses to reconsider the granting of a temporary
injunction absent a showing [of] a changed circumstance[].” Id.
A third view focuses on the authority cited in Tober for its broad
pronouncement that a trial court may reverse a prior interlocutory order absent
changed circumstances and challenges whether that authority supports the broad
reading that Tober gave it. See, e.g., Murphy, 20 S.W.3d at 877. Tober relied on City of
Hudson v. Ivie, 592 S.W.2d 658 (Tex. App.—Beaumont 1979, no writ), and as the
Dallas court in Murphy noted, Ivie involved a situation in which the appellate court had
the jurisdiction to review the original grant of the temporary injunction, and “[t]he
court of appeals’[s] determination that the trial court had the authority to dissolve its
previously granted temporary injunction was, in reality, a determination that the
temporary injunction had been improperly granted.” 20 S.W.3d at 879. Murphy then
held that if the appellate court lacks the jurisdiction to review the original grant of the
temporary injunction, a temporary injunction should remain in effect unless a party
shows a change in circumstances:
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We do not have jurisdiction to consider the propriety of the trial court’s
decision to grant the temporary injunction. Rather, we must presume
the trial court’s initial decision to grant the temporary injunction was
proper. See Tober, 668 S.W.2d at 834. Because we must recognize the
trial court properly granted the temporary injunction, we conclude that,
absent changed circumstances, the temporary injunction should remain
in effect until a final disposition of the parties’ claims.
Id.; see Roberts, 2006 WL 301099, at *4 (Gray, C.J., concurring and dissenting)
(analyzing Tober and Murphy and noting that “[t]he law applicable to the dissolution of
a temporary injunction is not entirely clear”); see also Jackson v. Cox, No. 03-17-00846-
CV, 2018 WL 3677888, at *2 (Tex. App.—Austin Aug. 3, 2018, no pet.) (mem. op.)
(citing Tober for the general proposition that “[t]he trial court is authorized to dissolve
a temporary injunction upon a showing of changed circumstances”).
Here, the trial court did not wade off into the controversy of how to interpret
Tober but instead based its decision on a finding of changed circumstances. As set
forth above, the trial court specifically noted that it was dissolving the temporary
injunction because it found “that conditions have changed since the temporary
injunction was first entered such that the injunction is no longer necessary or proper.”
Because we hold that the trial court did not abuse its discretion by finding changed
circumstances existed, we need not choose between the various interpretations of
Tober’s scope.
C. A party can establish a change of circumstances in a variety of ways.
A number of cases define the changed circumstances that permit the
dissolution of a temporary injunction as “conditions that altered the status quo after
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the temporary injunction was granted or made the injunction unnecessary or
improper.” See In re Estate of Cobb, No. 09-13-00348-CV, 2013 WL 6705991, at *2
(Tex. App.—Beaumont Dec. 19, 2013, no pet.) (mem. op.); see also In re Guardianship of
Stokley, No. 05-10-01660-CV, 2011 WL 4600428, at *3 (Tex. App.—Dallas Oct. 6,
2011, no pet.) (mem. op.) (same); In re Graybar Elec. Co., Nos. 13-08-00073-CV, 13-08-
00294-CV, 13-08-00333-CV, 13-08-00341-CV, 2008 WL 3970865, at *14 (Tex.
App.—Corpus Christi–Edinburg Aug. 26, 2008, orig. proceeding) (mem. op.) (same);
Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717, 721 (Tex. App.—Corpus
Christi–Edinburg 1999, pet. dism’d w.o.j.) (same), abrogated on other grounds by Tex.
Wrecker Serv. v. Resendez, Nos. 13-16-00515-CV, 13-16-00698-CR, 2017 WL 711642, at
*4–5 (Tex. App.—Corpus Christi–Edinburg Feb. 23, 2017, no pet.) (mem. op.).
Stated another way, “[a] motion to dissolve a temporary injunction is a way to
show changed circumstances, changes in the law, or fundamental error [that] has
occurred in the issuance of the injunction.” Reiss v. Hanson, No. 05-18-00923-CV,
2019 WL 1760360, at *2 (Tex. App.—Dallas Apr. 22, 2019, no pet.) (mem. op.).
Amplifying on what constitutes a changed circumstance, another court described the
requirement as necessitating “newly revealed facts.” See Sewell v. Hardriders, Inc., No.
14-12-00541-CV, 2013 WL 3326798, at *2 (Tex. App.—Houston [14th Dist.] June 27,
2013, no pet.) (mem. op.).
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IV. Analysis
In two issues, Ulysses argues (1) that the trial court abused its discretion by
dissolving the temporary injunction because Sinclair failed to present evidence of
changed circumstances to justify dissolving the temporary injunction and (2) that the
trial court abused its discretion by allowing Sinclair to relitigate the propriety of the
original grant of the temporary injunction through Sinclair’s attack of the elements of
irreparable harm and encroachment on Ulysses’ easement rights. Because both issues
challenge the propriety of the trial court’s order dissolving the temporary injunction,
we discuss them together along with the various arguments raised within the two
issues.
A. We conclude that the facts permitted the trial court to exercise its discretion
and to dissolve the temporary injunction.
Ulysses argues that Sinclair’s motion to dissolve was an attempt to wriggle out
of a compromise that it no longer wanted to abide by. Ulysses’ specific challenges to
the trial court’s ruling include that no newly discovered facts were introduced and that
testimony was so scant that even if new facts were hinted at, they were not fully
developed in this record. We agree that the record is thin. But we disagree that not
enough facts were developed to permit the trial court to exercise its discretion and to
dissolve the temporary injunction. As we noted in our initial discussion of the
standard of review, we are not dealing with a legal question of what standard to apply;
the trial court applied the standard that Ulysses advocated. Instead, we deal with the
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question of whether the factual record is so lacking that we must conclude that the
trial court abused its discretion, i.e., “if, under the record, [the trial court] reasonably
could have reached only one decision, and it failed to do so.” See Tex. Voices for Reason
& Justice, Inc., 2017 WL 1173837, at *2.
The sole question before the trial court was whether the evolving conditions
had altered the status quo after the temporary injunction was granted or had made the
temporary injunction unnecessary or improper. Here, the trial court had a mix of
facts that in some instances melded assumptions about what might occur with what
later became reality. It was undisputed that AT&T had moved its antennas and that
no one knew of any disruption in 911 calls that had occurred after the antennas were
moved.2 Ulysses’ representative was careful not to say that no disruption had
occurred, but it was a fair inference by the trial court that Ulysses’ representative
would know if any disruptions had occurred. Admittedly, the temporary injunction
explicitly contemplated moving the antennas. Were the only alleged changed
circumstance the successful relocation of AT&T’s antennas, we might hesitate to
conclude that this in and of itself was a newly revealed fact supporting a finding of a
change in circumstances.
But on top of the successful relocation of AT&T’s antennas, the record also
establishes that the trial court heard for the first time that Sinclair’s work on the roof
See, e.g., Frey v. DeCordova Bend Estates Owners Ass’n, 647 S.W.2d 246, 248 (Tex.
2
1983) (stating that an actual—not conjectural or speculative—irreparable injury was
necessary to support the granting of injunctive relief).
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and its plan to install a rooftop bar left the roof no more crowded with structures than
it had been historically. Specifically, the drawings dating from the original installation
of the AT&T antennas, the configuration of the roof structures before renovation
began, and the configuration of the proposed rooftop bar supported an inference that
if the roof were developed as Sinclair had planned, the construction of the rooftop
bar would not alter the status quo of the physical configuration of the roof as it had
previously existed—apparently for decades—before Ulysses filed its lawsuit. In
essence, the testimony at the hearing on Sinclair’s motion to dissolve the temporary
injunction revealed that Sinclair’s roof renovations, which were partially implemented
after the entry of the temporary injunction, had traded the space previously occupied
by air-conditioning equipment for space to be used by the rooftop bar.
And on top of this, Ulysses’ representative answered that he knew of no plans
to install any additional antennas on the roof. Based on his job title, it is a reasonable
inference that if such plans had existed, he would have known of them. Thus, the
record supports the trial court’s decision that as the situation had evolved, the changes
implemented and contemplated to the roof had not materially changed its
configuration and did not disrupt any existing use that Ulysses presently had for the
easement.
With the record that we have before us, the trial court had a factual basis to
conclude that the irreparable injuries envisioned by the temporary injunction had not
come to pass and that it was not reasonable to conclude that they would occur before
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a final trial of this matter. Overall, the AT&T antennas, after being relocated,
functioned without any reported disruptions to 911 calls, as reported by the two
entities that it is reasonable to assume would have heard of them. AT&T’s antennas
had occupied the same relative position for decades, and Ulysses would continue to
have approximately the same amount of space that had previously existed to service
AT&T as its present lessee. Certainly, there might be future lessees, but at the time of
the hearing on the motion to dissolve, Ulysses was unaware of any plans to install any
additional antennas.
A final trial may produce the result that the rooftop bar conflicts with Ulysses’
easement rights, and Sinclair acknowledged that a final decision in this case might go
against it and require removal of the bar. That is Sinclair’s gamble. But the question
before the trial court and this court is whether the facts that had evolved since the
entry of the temporary injunction had altered the status quo and had made the
temporary injunction unnecessary. That evolution supported a view that the two
injuries that the temporary injunction was designed to prevent would not occur
between the time of the hearing on the motion to dissolve and the final trial. The
record supports a decision that 911 calls were not being disrupted after the antennas’
relocation and that the roof, even with the proposed rooftop bar, provided Ulysses
with the same amount of space that had previously been available to it should a need
arise for additional space to accommodate new antennas (even though there were no
plans to locate any additional antennas on the roof at the time of the hearing).
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Perhaps some of these consequences were envisioned at the time of the entry of the
temporary injunction, but the overall picture of the effect of the rooftop bar’s planned
construction had been created since the entry of the temporary injunction.
And to reiterate, our holding has no prognosticative effect on the final hearing
in this matter. The limited temporal effect of our ruling and of the trial court’s ruling
on the motion to dissolve causes us to reject Ulysses’ argument about the dire
consequences of allowing construction of the rooftop bar to proceed. Ulysses
certainly challenges this view and argues that
[b]y allowing the bar to be constructed, at best, the easement has been
reduced in size and, at wors[t], the opportunity created by and paid for
under the terms of the easement has been permanently lost. Certainly
leasing opportunities have been lost, which is the exact harm the Agreed
TI was intended to protect against.
But based on the record, there are two sides of the coin. The facts adduced at
the hearing show that the roof renovations that have been completed have not
resulted in the anticipated harm to 911 services and have not overtaken Ulysses’
easement because the rooftop bar would occupy the space previously occupied by the
air-conditioning cooling tower that has been relocated. From its perspective, Ulysses
argues that this state of affairs presents a side of the coin that shows dire
consequences from the dissolution of the injunction. The trial court saw another side
of the coin: as events had evolved since the entry of the injunction, the consequences
of constructing the rooftop bar placed Ulysses in no more dire a condition than had
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long existed. The trial court chose a side of the coin that Ulysses disagrees with, but
the existence of the choice placed the decision within the discretion of the trial court.
B. The parties make additional arguments that we reject or do not reach.
The basis for our holding—that the facts adduced at the hearing provided a
factual basis for the trial court to exercise its discretion and to dissolve the temporary
injunction—is narrow. The parties make a number of arguments that are not
pertinent to our narrow holding, but for the sake of thoroughness, we address them.
We conclude that the parties’ remaining arguments are either unpersuasive or go
beyond what we can and should decide in an interlocutory appeal with only the thin
record before us. Stated briefly, our view of the parties’ remaining arguments is as
follows:
• Ulysses spends a large portion of its brief challenging Sinclair’s claim that a
changed circumstance is the discovery of the limitations of Ulysses’ leasing
rights because AT&T has exclusive rights until 2032. We agree with Ulysses
but do not find its argument dispositive. Sinclair had long had access to the
lease that was in its chain of title and acknowledges that the parties had been
negotiating for months before litigation commenced. Under the facts
presented here, a newly-discovered interpretation made by further
contemplation of long-held documents does not constitute a changed
circumstance. But as set forth above, the record presents other changed
circumstances.
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• Sinclair relies on the concluding phrase of the temporary injunction—
“[n]othing in this agreement shall bar either party from seeking rescission or
modification of this order”—to argue that this language gave the trial court
carte blanche to dissolve the temporary injunction. That argument reads
too much into the language. The clause does not convey that the parties
agreed to adopt any other standard than what the law otherwise requires
when a party seeks to dissolve a temporary injunction, nor does the clause
give the trial court the discretion to dissolve the injunction under any
circumstance. We decline to adopt Sinclair’s broad reading of this clause.
• Both parties appear to seek some guidance from this court about their
correlative rights created by the Easement Agreement or as holders of the
dominant and servient estates under the easement. We will not make an
advanced ruling on the construction of the documents in this case or the
disputes that should receive a full examination at a final hearing. As noted
above, we have before us only tens of pages of testimony, a few pictures
and diagrams, and the Easement Agreement and a few of its underlying
documents. Our review of any ruling on the extent of the easement should
be based on a more complete record than we have in this interlocutory
appeal. See Dall./Fort Worth Int’l Airport Bd. v. Ass’n of Taxicab Operators,
USA, 335 S.W.3d 361, 364 (Tex. App.—Dallas 2010, no pet.) (“[A] party
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may not use an appeal of a temporary injunction ruling to get an advance
ruling on the merits.”).
Because further analysis of the above arguments is not necessary to our disposition of
the appeal, we do not address them further. See Tex. R. App. P. 47.1.
C. We dispose of both issues simultaneously.
Because we have held that the record supports a finding of changed
circumstances and that the trial court therefore did not abuse its discretion by
dissolving the temporary injunction, we overrule Ulysses’ two issues.
V. Conclusion
Having overruled Ulysses’ two issues, we affirm the trial court’s order
dissolving the temporary injunction.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: October 10, 2019
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