                              NUMBER 13-17-00527-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

JOHN WARDELL AND LOIS WARDELL,                                                 Appellants,

                                              v.

HENRY GEARHART, JYLAINE GEARHART,
AND ORION GEARHART,                                                             Appellees.


                    On appeal from the 206th District Court
                          of Hidalgo County, Texas.


                          MEMORANDUM OPINION
             Before Justices Contreras, Longoria, and Hinojosa
                Memorandum Opinion by Justice Contreras

       This is an appeal of a summary judgment granting injunctive relief in an easement

dispute. Appellants John and Lois Wardell contend that (1) the trial court’s order did not

comply with the rules of civil procedure, and (2) the trial court “did not consider or hear all
of the evidence” at the hearing on the summary judgment motion filed by appellees, Henry

Gearhart, Jylaine Gearhart, and Orion Gearhart. We affirm.

                                            I. BACKGROUND

        The Gearharts and the Wardells are owners of adjoining properties in Edinburg,

Texas. A portion of the Wardells’ land is burdened by an express easement granted to

the Gearharts to allow them access to their land. The Gearharts filed suit in 2013 alleging

that, in 2009, the Wardells built a brick fence or wall blocking the easement.1 The

Gearharts’ live petition requested a mandatory injunction compelling the Wardells to

remove the fence, as well as damages and attorney’s fees. The Wardells answered the

suit and alleged several affirmative defenses, including abandonment, impossibility,

adverse possession, and limitations.

        Both sides moved for summary judgment. The Wardells contended in their motion,

filed on May 21, 2014, that they were entitled to judgment as a matter of law based on

their defenses of abandonment, impossibility, and adverse possession.2 In their motion,

filed in June of 2014, the Gearharts argued that the Wardells “lack evidence as to one or

more essential elements of causes of action.” The Gearharts’ motion also argued that

their “request for a mandatory injunction should be granted as prayed as [the Wardells’]

conveyance document, and their chain of title of predecessors in interest, acquired

subject to the express Easement [sic].” On August 4, 2014, the trial court signed an order



        1   Between 2009 and 2013, the Gearharts were able to access their land via another route.
        2 The record in the instant appeal does not contain the Wardells’ motions for summary judgment.
However, the motions do appear in the record of the previous appeal arising out of this cause. See Gearhart
v. Wardell, 13-15-00096-CV, 2016 WL 7011402, at *1 (Tex. App.—Corpus Christi Dec. 1, 2016, no pet.).
We take judicial notice of that record. See TEX. R. EVID. 201; Estate of York, 934 S.W.2d 848, 851 (Tex.
App.—Corpus Christi 1996, writ denied) (holding that an appellate court may take judicial notice of its own
records in a case involving the same subject matter between the same parties).

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denying both motions.

       The Wardells then filed a second motion for summary judgment on August 19,

2014, contending that they are entitled to judgment as a matter of law on the issue of

limitations. The trial court granted this motion and dismissed the suit, and the Gearharts

appealed. We held that the trial court properly dismissed the Gearharts’ claims for

damages under the two-year statute of limitations, but that dismissal was improper as to

the Gearharts’ claims for injunctive relief, to which the ten-year statute of limitations

applied. Gearhart v. Wardell, No. 13-15-00096-CV, 2016 WL 7011402, at *1 (Tex. App.—

Corpus Christi Dec. 1, 2016, no pet.) (mem. op.).

       On remand, following the issuance of our mandate in February of 2017, the

Gearharts filed a motion to reconsider their 2014 summary judgment motion in light of our

decision in the first appeal.   The Wardells filed a response to the motion, and the

Gearharts filed a reply to the response. On June 19, 2017, the trial court granted the

Gearharts’ motion for reconsideration and their motion for summary judgment. The final

judgment, signed by the trial court on July 27, 2017, declares that the Wardells’ “claims”

of abandonment and adverse possession are “denied” and that the easement at issue is

“an operative easement in accordance with the Texas Civil Practice and Remedies Code

§ 37, and is in full force and effect.” The judgment also contains the legal description of

the easement and states that the Wardells

       have no right to impede the Easement, and are required to remove any and
       all impediments, which include but may not be limited to fences, concrete
       structures, driveway(s), trees, bushes and all other structures or any
       structures in, or impeding or frustrating the Easement, by no later than July
       31, 2017.

The judgment additionally awards attorney’s fees of $9,750 to the Gearharts. This appeal

followed.
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                                       II. DISCUSSION

       We review summary judgments de novo. Neely v. Wilson, 418 S.W.3d 52, 59

(Tex. 2013). In doing so, we view the evidence “in the light most favorable to the party

against whom the summary judgment was rendered, crediting evidence favorable to that

party if reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not.” Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,

848 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

       On appeal, the Wardells do not dispute the merits of the trial court’s judgment.

Instead, their appellate issues involve alleged technical and procedural deficiencies.

First, they contend that the judgment is void because it failed to meet the requirements of

rules 683 and 684 of the Texas Rules of Civil Procedure. In particular, the Wardells

complain that the judgment failed to:      (1) “state [the] reasons for its issuance”; (2)

“describe with particularities the irreparable nature of the harm to be prevented”; (3)

“contain in detail the act to be done without reference to pleadings or other documents”;

(4) “contain a date for trial setting”; and (5) set a bond amount.

       Rule 683 states in its entirety as follows:

       Every order granting an injunction and every restraining order shall set forth
       the reasons for its issuance; shall be specific in terms; shall describe in
       reasonable detail and not by reference to the complaint or other document,
       the act or acts sought to be restrained; and is binding only upon the parties
       to the action, their officers, agents, servants, employees, and attorneys, and
       upon those persons in active concert or participation with them who receive
       actual notice of the order by personal service or otherwise.

       Every order granting a temporary injunction shall include an order setting
       the cause for trial on the merits with respect to the ultimate relief sought.
       The appeal of a temporary injunction shall constitute no cause for delay of
       the trial.




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TEX. R. CIV. P. 683. Rule 684 states in relevant part that “[i]n the order granting any

temporary restraining order or temporary injunction, the court shall fix the amount of

security to be given by the applicant.” TEX. R. CIV. P. 684.

       The requirements that an order granting injunctive relief contain a trial date and

set a bond amount are applicable only to temporary injunctions. See TEX. R. CIV. P. 683,

684.   And to the extent an injunction order must “describe with particularities the

irreparable nature of the harm to be prevented,” that requirement is also applicable only

to temporary orders. See State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex. 1971)

(noting that, under Rule 683, a temporary injunction must “give the reasons why injury will

be suffered if the interlocutory relief is not ordered”).

       The judgment on appeal is a summary judgment granting a permanent mandatory

injunction. Therefore, its failure to set a trial date, set a bond amount, or to “describe with

particularities the irreparable nature of the harm to be prevented” do not render it improper

or void. Moreover, we conclude that the reasons for the judgment’s issuance and the

acts required of the Wardells are described independently and with sufficient particularity

in the judgment as set forth above. See TEX. R. CIV. P. 683. The Wardells’ first issue is

overruled.

       By their second issue, the Wardells contend that the trial court erred in granting

summary judgment without first considering the deposition testimony of Horatio Gonzalez,

the Wardells’ predecessor-in-interest. The record reflects that the Gearharts objected to

the taking of Gonzalez’s deposition, but the trial court ordered on May 25, 2017 that it be

taken, and it was taken by the Wardells’ counsel later that day. According to the Wardells,




                                               5
however, Gonzalez’s testimony was not transcribed and filed until June 21, 2017, which

was two days after the trial court granted the Gearharts’ motion.3

        As authority in support of their second issue, the Wardells cite only a pair of cases

generally providing that parties have the right to be heard before judgment is rendered

against them. See City of Houston v. Houston Lighting & Power Co., 530 S.W.2d 866,

869 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.) (reversing temporary

injunction order where judgment itself recited that defendants were “refused any

opportunity to present evidence”); Oertel v. Gulf States Abrasive Mfg. Inc., 429 S.W.2d

623, 624 (Tex. Civ. App.—Houston [1st Dist.] 1968, no writ) (reversing judgment where

“trial court refused to allow appellants to present any evidence at the trial and that

appellants duly objected to this action”). The Wardells do not cite any authority, and we

find none, establishing that a trial court necessarily errs by ruling on a summary judgment

motion without considering testimony from a deposition that it ordered.

        Here, it is undisputed that the Wardells were duly notified of the submission of the

Gearharts’ motion for summary judgment and had the opportunity to present evidence in

response thereto. The Wardells did not seek the court’s permission to present evidence

after the deadline provided by rule, nor did they move for continuance. See TEX. R. CIV.

P. 166(c) (“Except on leave of court, the adverse party, not later than seven days prior to

the day of hearing may file and serve opposing affidavits or other written response.”); see

also TEX. R. CIV. P. 270 (“When it clearly appears to be necessary to the due

administration of justice, the court may permit additional evidence to be offered at any




        3 On appeal, the Wardells direct us to a copy of Gonzalez’s deposition transcript in the record, but

they do not explain whether or how his testimony was relevant to the Gearharts’ claims.

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time; provided that in a jury case no evidence on a controversial matter shall be received

after the verdict of the jury.”).4 Under these circumstances, we cannot say that the trial

court erred by ruling prior to the filing of Gonzalez’s deposition transcript. We overrule

the Wardells’ second issue.

                                            III. CONCLUSION

        The trial court’s judgment is affirmed.


                                                                          DORI CONTRERAS
                                                                          Justice

Delivered and filed the
16th day of August, 2018.




        4 The Wardells did file a motion for new trial arguing that the ruling was “against the great weight
and preponderance of the evidence and is manifestly unjust” and mentioning, in part, that the trial court
“could not consider [Gonzalez]’s testimony because counsel did not receive the transcri[pt] until June 21,
2017.” The motion did not explain the content or relevance of Gonzalez’s testimony. In their brief on
appeal, the Wardells cite their new trial motion but do not explicitly contend that the trial court erred in
denying it.

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