Sienna Ranch Investments, LLC and Broadway Construction, LLC v. Waller Independent School District ( 2021 )

Motion to Review Further Orders Granted, Affirmed, and Memorandum
Opinion filed August 3, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00241-CV
SIENNA RANCH INVESTMENTS, LLC AND BROADWAY
CONSTRUCTION, LLC, Appellants
V.
WALLER INDEPENDENT SCHOOL DISTRICT, Appellee
On Appeal from the 506th Judicial District Court
Waller County, Texas
Trial Court Cause No. 20-03-26027
MEMORANDUM OPINION
Sienna Ranch Investments, LLC and Broadway Construction, LLC appeal a
temporary injunction enjoining them in part from continuing certain construction on
land adjoining property owned by Waller Independent School District. Appellants
began constructing an apartment complex on a tract of land neighboring an
elementary school. After the developer’s builder began filling and grading the
construction site, the school’s property became inundated with an accumulation of
standing water, depriving the school of the ability to use part of its property. As is
relevant to today’s case, the school district sought a temporary injunction to stop
construction. After a hearing at which appellants did not appear, the trial court
signed a temporary injunction, which has since been modified.
The property owner and builder filed this interlocutory appeal from the
temporary injunction. They contend the temporary injunction is void because:
(1) the school district failed to provide proper notice of the temporary injunction
hearing; and (2) the school district was not required to post a bond.1 We affirm.
Background
Appellee Waller Independent School District (“Waller ISD”) and appellant
Sienna Ranch Investments, LLC (“Sienna”) own neighboring tracts of land in Waller
County. Waller ISD’s tract is directly north of Sienna’s tract. We publish here a
map showing the relative locations of each tract, with Waller ISD’s tract marked
with the number 252607 and Sienna’s property marked with the number 10027:
1
During the pendency of this appeal, appellants filed a “Motion to Review Further Orders,”
in which they requested that we review the trial court’s April 6, 2020 order modifying the March
10, 2020 temporary injunction order. We carried that motion with the case and now grant it.
2
Waller ISD constructed an elementary school on its tract. Subsequently,
Sienna and appellant Broadway Construction, LLC (“Broadway”) began developing
and building an apartment complex on Sienna’s tract. According to Waller ISD,
until appellants’ development of Sienna’s land, surface water flowed across and
drained from Waller ISD’s tract in a northwest to southeast direction. However,
after appellants filled and graded Sienna’s tract, water began to accumulate on
Waller ISD’s property. According to the school district, appellants’ development
activities obstructed the natural or previously constructed drainage across Sienna’s
property, which caused Waller ISD’s property to flood. A corner of Waller ISD’s
property that was previously dry allegedly “has been permanently inundated with a
substantial accumulation of standing water, depriving Waller ISD of the use of that
portion of the . . . property and creating a health, safety, and property hazard.”
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After an unsuccessful attempt to resolve the drainage issue in October 2019,2
Waller ISD filed suit against appellants on March 4, 2020. Waller ISD asserted
claims under the Texas Water Code and for negligence, gross negligence, intentional
nuisance, and trespass. The school district also sought a temporary restraining order
(“TRO”) and temporary and permanent injunctions. The court clerk issued citation
on March 4, 2020.
The trial court granted Waller ISD’s request for a TRO on March 4 and set a
hearing for March 9 on the school district’s application for a temporary injunction.
The court clerk issued citation of the TRO on March 4. On March 5, Waller ISD
notified appellants of the lawsuit, TRO, and temporary injunction hearing by email
and certified mail. Appellants say they did not timely receive either attempt at notice
because the certified mail did not arrive until after the hearing, and the email was
not discovered until after the hearing because it was routed to a spam folder.
At the March 9 hearing, appellants did not appear. Waller ISD presented
evidence in support of its request for the temporary injunction. The trial court signed
a temporary injunction order on March 10 entitling Waller ISD to “send and receive
surface water on its property in the volume and manner which existed prior to
construction of improvements” on Sienna’s site. As well, the order enjoined
appellants “from constructing improvements on or otherwise modifying the land”
and from “impounding surface water upon their property and diverting it onto Waller
ISD’s . . . property.” Additionally, the order required appellants to construct, at
their “sole cost, a drainage ditch at or near the common boundary line of [the parties’
properties,] which is capable of adequately capturing surface water from [Waller
ISD’s property] and restoring the natural course by emptying the same onto a
2
Waller ISD notified appellants of the drainage issues by certified mail on October 15,
2019. Sienna responded on October 25 and denied liability.
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detention pond located on [appellants’] lot or discharging the water in the same
direction water previously flowed prior to [appellants’] construction of
improvements on the site.” The court set Waller ISD’s bond at “zero ($0.00)
dollars.”
Appellants acknowledge that they ultimately received a copy of the lawsuit
and TRO by regular mail on March 10. Additionally, they were personally served
with the lawsuit and the TRO on March 13.
On March 24, Waller ISD filed a motion for sanctions, alleging that appellants
were violating the temporary injunction. The next day, March 25, appellants filed a
“Motion to Vacate or Modify the Temporary Injunction.” They sought to vacate the
injunction because they had not been properly notified of the hearing and because
the court did not set a bond amount. Appellants alternatively sought to modify the
temporary injunction to enjoin them only from construction work that would impact
drainage on the worksite. They informed the trial court that the exterior buildings
were complete and the remaining work would not impact drainage. Appellants also
stated that preventing them from completing the apartment buildings could result in
a loss of rental income in excess of $4.7 million for the upcoming school year.
On the same day that appellants filed their motion to vacate or modify the
temporary injunction, they filed a motion to expedite its consideration on
submission. Specifically, appellants requested the court to either: (1) consider the
motion to vacate or modify before April 6 (which was the submission date of Waller
ISD’s motion for sanctions); or (2) modify the temporary injunction before April 6
to “allow [appellants] to do work that has no effect on drainage or the flow of surface
water.”
As these events developed, the COVID-19 pandemic began. On March 13,
2020, the Supreme Court of Texas issued its first in a series of emergency orders
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permitting courts, subject only to constitutional limitations, inter alia to modify or
suspend “all deadlines and procedures,” to conduct remote proceedings, and to
consider out of court sworn statements or testimony as evidence. See First
Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 265 (Tex.
2020). Pursuant to this order, the trial court issued its own emergency order on
March 26, which notified the parties that appellants’ motion to vacate or modify the
temporary injunction and Waller ISD’s motion for sanctions would be considered
by submission on April 6. No party was required to physically appear for oral
hearing. The court also ordered the parties to include in their submissions “any
testimonial affidavits, exhibits, and legal briefs they deem appropriate to the matters
at hand” prior to the date and time of submission.
Meanwhile, on March 30, appellants filed a notice of accelerated interlocutory
appeal of the trial court’s March 10 temporary injunction order.
In the days leading up to April 6, and in accordance with the trial court’s
emergency order, appellants filed two additional documents of relevance. First, on
April 2, appellants filed supplemental evidence in support of their motion to vacate
or modify the temporary injunction. Their supplemental evidence included two
additional declarations and two exhibits reflecting site plans. Appellants offered
these documents to “provide more detail regarding the status of the development of
the apartment complex.” One declaration was from a professional engineer, Hamid
Othman, who stated:
I am a licensed professional engineer. I have been retained by
[Broadway] to work on a project involving the construction of an
apartment complex comprised of nine housing buildings on land owned
by [Sienna]. I am familiar with the property owned by Sienna, and I
am familiar with Waller ISD’s property immediately to the north of
Sienna’s property, because I have visited Sienna’s property many times
in my role as an engineer on the project for development of Sienna’s
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property, and I have viewed and analyzed the topography of both
Sienna’s property and Waller ISD’s property.
Sienna’s land is directly to the south of an elementary school recently
constructed by Waller ISD. The natural flow of water in the area is
from northwest to the southeast. The design of Sienna’s apartment
project was done to accept water that flows from Waller ISD’s property.
However, water is accumulating in a depressed area of Waller ISD’s
property. If this water were to flow to Sienna’s property, Sienna’s
property would accept it. The plans for the development of Sienna’s
property did not raise the elevation at the border of Sienna’s property
and Waller ISD’s property. Near the border of the property, a ditch was
constructed that channels water eastward along the property border,
then southward along the east border of Sienna’s property.
The reason why water is accumulating at the school is not that Sienna’s
property will not accept it. Instead, the reason why the water is
accumulating is that the school’s property has a depression that is below
the elevation at the property boundary. The construction at Sienna’s
property did not cause or contribute to the depression at Waller ISD’s
property. If Waller ISD’s property had been designed to send water
southward, rather than accumulate in the depression, Sienna’s property
would accept it.
Second, appellants filed a supplemental brief on April 6. In that document,
appellants reiterated among other things their request “that the order be modified to
permit [appellants] to complete construction sufficiently in advance of the new
school year to permit [appellants] to lease their buildings to tenants.” They argued
that the only remaining work, if completed, would not affect drainage. Advising the
court that they had already filed a notice of interlocutory appeal, appellants reminded
the court that it retained jurisdiction to dissolve or modify the temporary injunction.
With all of these filings before it, the trial court denied the motion to vacate
but granted in part and denied in part appellants’ motion to modify the injunction.
The court signed a new order on April 6, which provided:
[Appellants] shall be allowed to conduct all work internal to the already
constructed buildings such as interior and exterior finishing, plumbing,
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HVAC, electrical, painting and all other work interior to the external
walls of the already constructed buildings on the project, necessary to
complete the buildings for their intended purposes; and
[Appellants] shall be allowed to construct any ditching, drainage, and
other waterflow improvements on the subject property designed to
remediate or relieve any flooding, or possible flooding, or water
invasion onto [Waller ISD’s] property from [appellants’] property, or
water that may migrate or travel across [appellants’] property.
[Appellants] shall be allowed to complete any paving of streets,
sidewalks, and other areas requiring either concrete or other paving
materials around or surrounding the already completed buildings and
any required entryway or access roads onto the [appellants’] property,
providing such paving does not impact any water migration or water
flow onto or across [Waller ISD’s] property. Such allowances provided
in this paragraph do not remove or affect the liability, if any, of
[appellants] pertaining to past, present, or future water migration or
flow of water onto [Waller ISD’s] property.
The trial court additionally abated Waller ISD’s motion for sanctions “during
the pendency of the COVID-19 crisis or further Order of this Court.” This order
further specified that the previous temporary injunction order, as modified, “shall
remain in effect and is hereby extended until this Court rules further on this matter.”
Issues Presented
In two issues, appellants contend the injunction is void and must be dissolved.
First, appellants assert that Waller ISD failed to provide notice of the hearing in
compliance with the rules of civil procedure. Second, appellants contend that the
court’s failure to set a bond amount renders the injunction void.
Standard of Review
A temporary injunction preserves the status quo of the litigation’s subject
matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198,
204 (Tex. 2002) (op. on reh’g). However, a temporary injunction is an extraordinary
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remedy that does not issue as a matter of right. Id. Instead, to obtain a temporary
injunction, the applicant must plead and prove: (1) a cause of action against the
defendant; (2) a probable right to the relief sought; and (3) a probable, imminent,
and irreparable injury in the interim. Id. A trial court has broad discretion to grant
or deny a request for a temporary injunction, and we will not reverse its ruling absent
a clear abuse of discretion. Wash. DC Party Shuttle, LLC v. Iguide Tours, 406
S.W.3d 723, 740 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (en banc).
We may not substitute our judgment for the trial court’s unless the trial court’s action
was so arbitrary that it exceeded the bounds of reasonable discretion. Id.A. Presuming the hearing notice was inadequate, the record shows
appellants received a meaningful opportunity to be heard.
In their first issue, appellants contend that it was improper for the trial court
to grant the temporary injunction because they were not served with process and did
not have notice of the temporary injunction hearing. They argue that the temporary
injunction is void because: (1) Waller ISD did not provide proper notice “in the
form of a writ issued by the clerk”; and (2) “an order rendered without notice on a
party affected by the order violates due process and renders the order void.” They
also generally assert that the trial court abused its discretion in issuing the temporary
injunction before they had an opportunity to present their defenses.
Rule of Civil Procedure 681 provides, “No temporary injunction shall be
issued without notice to the adverse party.” Tex. R. Civ. P. 681. One purpose of the
notice requirement is to ensure that the adverse party has a meaningful opportunity
to be heard. “The notice requirements of Rule 681 impliedly require that the adverse
party have the right to be heard.” RRE VIP Borrower, LLC v. Leisure Life Senior
Apartment Hous., Ltd., No. 14-09-00923-CV, 2011 WL 1643275, at *2 (Tex.
App.—Houston [14th Dist.] May 3, 2011, no pet.) (mem. op.); see Elliott v. Lewis,
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792 S.W.2d 853, 855 (Tex. App.—Dallas 1990, no writ); Kramer Trading Corp. of
Tex. v. Lyons, 740 S.W.2d 522, 524 (Tex. App.—Houston [1st Dist.] 1987, no writ);
City of Houston v. Houston Lighting & Power Co., 530 S.W.2d 866, 869 (Tex.
App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.). A trial court abuses its
discretion in issuing a temporary injunction against a party who was not notified of
the hearing. E.g., PILF Invs., Inc. v. Arlitt, 940 S.W.2d 255, 259-60 (Tex. App.—
San Antonio 1997, no writ).
Presuming without deciding that notice was inadequate, we need not reverse
if the record shows that appellant was unharmed by the lack of adequate notice.3
Here, appellants received a meaningful opportunity to be heard, with at least some
positive results in their favor. After being served with process, appellants filed an
answer and a motion to vacate or modify the temporary injunction. They asked that
their motion to vacate or modify be considered on an expedited basis, which the
court granted. They timely filed supporting evidence in compliance with the court’s
published submission notice, and they filed supplemental briefing. These documents
and evidence were filed before the submission date of April 6, and we presume the
court considered them. On April 6, the trial court modified the injunction and
permitted appellants to continue the work necessary on the apartment complex to
ready the apartments for leasing, so long as appellants refrained from impacting
water migration or water flow onto Waller ISD’s property. As well, the trial court
abated Waller ISD’s motion for sanctions “during the pendency of the COVID-19
crisis or further Order of this Court.”
3
Similarly, a party may waive a claim that it has not received a full and fair opportunity to
be heard before a temporary injunction. See Galtney v. Underwood Neuhaus & Co., 700 S.W.2d
602, 605 (Tex. App.—Houston [14th Dist.] 1985, no writ) (adverse party to a temporary injunction
can waive error by failing to timely object to the court’s action in limiting his opportunity to present
evidence and by further failing to obtain an affirmative ruling on his objection).
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Based on the above, we conclude appellants were afforded a meaningful
opportunity to be heard on their defenses to the temporary injunction and suffered
no harm from the presumed absence of adequate notice. See Amalgamated ACME
Affiliates, Inc. v. Minton, 33 S.W.3d 387, 396 (Tex. App.—Austin 2000, no pet.)
(lack of notice of temporary injunction hearing did not cause harm because party
rejected trial court’s offer for continuance of hearing); Tex. Alcoholic Beverage
Comm’n v. Amusement & Music Operators of Tex., Inc., 997 S.W.2d 651, 654-55
(Tex. App.—Austin 1999, pet. dism’d w.o.j.) (holding party had adequate
opportunity to be heard on temporary injunction issues because it briefed them to
court subsequent to hearing in response to amended petition, all of which were on
file at the time the court signed temporary injunction); cf., e.g., Martin v. Martin,
Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (explaining that the
failure to give notice of the submission date for a summary-judgment motion
constitutes error, but such error is rendered harmless when the trial court considers
the nonmovant’s response and reconfirms its ruling); Anambra State Cmty. in
Houston, Inc. (ANASCO) v. Ulasi, No. 14-16-01001-CV, 2018 WL 1611644, at *2-
3 (Tex. App.—Houston [14th Dist.] Apr. 3, 2018, no pet.) (mem. op.) (“Although
appellant was not provided with notice of the trial court’s intent to dismiss the case
for want of prosecution prior to the dismissal hearing, appellant was afforded its due
process rights because it did receive actual notice of the dismissal order in time to
file a motion to reinstate, and a hearing was held on that motion.”); Jimenez v.
Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—Houston [14th Dist.]
1999, no pet.). Appellants have not identified any matters or evidence that they
would have presented in response to Waller ISD’s injunction request but were unable
to present because of insufficient notice.
Under these circumstances, we conclude that appellants have not
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demonstrated reversible error. We overrule appellants’ first issue.
B. The temporary injunction is not void for failure to set a bond amount.
In their second issue, appellants assert that the temporary injunction issued by
the trial court is void because it does not require a bond.
Before granting a temporary injunction, the trial court must require the
applicant to post a bond in the sum fixed by the trial court payable to the adverse
party. Tex. R. Civ. P. 684. The bond’s purpose is to secure payment to the party
against whom the injunction is granted in the amount of damages the party would
suffer if the injunction is subsequently held to be wrongfully issued and is dissolved.
See Williard Capital Corp. v. Johnson, No. 14-16-00636-CV, 2017 WL 3567914, at
*4 (Tex. App.—Houston [14th Dist.] Aug. 17, 2017, no pet.) (mem. op.); Hsin-Chi-
Su v. Vantage Drilling Co., 474 S.W.3d 284, 304 (Tex. App.—Houston [14th Dist.]
2015, pet. denied). Setting the amount of a bond lies within the trial court’s sound
discretion and will not be disturbed on appeal absent an abuse of that discretion.
Williard Capital Corp., 2017 WL 3567914, at *4; Hsin-Chi-Su, 474 S.W.3d at 304.
The provisions of rule 684 are mandatory, and generally an injunction order
issued without a bond is void. Ex parte Lesher, 651 S.W.2d 734, 736 (Tex. 1983).
However, “[a] school district may institute and prosecute suits without giving
security for cost and may appeal from judgment without giving supersedeas or cost
bond.” Tex. Civ. Prac. & Rem. Code § 6.004. While section 6.004 does not facially
exempt a school district from posting a temporary injunction bond, this court has
construed a similar provision exempting various state departments and counties from
posting bonds for court costs or appeals as operating to also exempt them from
posting a temporary injunction bond. See Vibber v. Unauthorized Practice Comm.,
575 S.W.2d 88, 89 (Tex. App.—Houston [14th Dist.] 1978, no writ) (concluding
that Tex. Rev. Civ. Stat. art. 279a, now codified as Tex. Civ. Prac. & Rem. Code §
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6.001, exempted the appellee—a state agency—from posting a temporary injunction
bond); see also West v. Ellis County, 241 S.W.2d 344, 346 (Tex. App.—Waco 1951,
no writ) (county not required to post temporary injunction bond).
Under these circumstances, we cannot say the trial court abused its discretion
in setting the bond amount at $0.00. We overrule appellants’ second issue.
Conclusion
On the record before us, appellants have not shown the trial court clearly
abused its discretion in granting Waller ISD’s application for a temporary injunction.
Accordingly, we overrule appellants’ issues and affirm the trial court’s order.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Bourliot, and Hassan.
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