                                                   OPINION
                                              No. 04-12-00102-CV

           CAMP MYSTIC, INC.; Richard G. Eastland; Natural Fountains Properties, Inc.,
                                       Appellants

                                                          v.

                            S. Stacy EASTLAND and Nancy Eastland Leaton,
                                            Appellees

                        From the 198th District Court, McCulloch County, Texas
                                       Trial Court No. 2011122
                               Honorable David Peeples, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: October 17, 2012

REVERSED AND REMANDED

           This is an appeal from an order entered in favor of appellees, Stacy Eastland and Nancy

Leaton that (1) granted a temporary injunction, (2) appointed an “agent” for one of the

appellants, and (3) denied appellants’ motion to compel arbitration. 1 We reverse the trial court’s



1
  Although the three rulings challenged on appeal were all contained within a single order, appellants filed three
separate notices of accelerated appeal in the Austin Court of Appeals. All three appeals were later transferred to this
court and the three appeals were consolidated into a single cause number. On July 20, 2012, the trial court issued an
order modifying the temporary injunction and appointing agent. This new order concerns the same subject matter
and supplants the original order.
                                                                                             04-12-00102-CV


order, dissolve the temporary injunction, and remand this case to the trial court for further

proceedings.

                                     FACTUAL BACKGROUND

        Camp Mystic is a summer camp for girls in Hunt, Texas. Until June of 1998, it was a

family owned and operated company named Camp Mystic, Inc. (“Old CM”). In 1998, the family

restructured Old CM when they created a new company, Camp Mystic, Inc. (“CMI”) and

changed Old CM’s name to Natural Fountain Properties, Inc. (“NFP”). After the restructure,

NFP continued to own the real estate where the camp was located and leased it to CMI. Richard

Eastland (“Dick”) and his wife Willetta Eastland (“Tweety”) are the sole owners of CMI and

they run the Camp Mystic operations. NFP currently has five shareholders: Dick (majority –

52%), Stacy Eastland (22%), Nancy Leaton (22%), George Stacy (2%), and Philip Stacy (2%). 2

The current board of NFP is composed of three members: Richard Capps (president), Rob

Frazer, and George Stacy.

        Several years after the 1998 reorganization, a dispute arose between NFP’s minority

shareholders and Dick regarding the amount of rent CMI paid to NFP under a lease executed in

1998 (“1998 lease”). Eastland v. Camp Mystic, Inc., Nos. 04-08-00675-CV, 04-08-00741-CV,

2009 WL 260523, at * 1 (Tex. App.—San Antonio Feb. 4, 2009, pet. denied) (mem. op., not

designated for publication). Dick, Tweety, and CMI filed a declaratory judgment action against

NFP and some of the individual shareholders of NFP, seeking a declaration of CMI’s rights

under the 1998 lease. Id. Stacy Eastland and Nancy Leaton (hereinafter “appellees”) also

brought various counterclaims against Dick, Tweety, and CMI, individually and derivatively on

behalf of NFP as minority shareholders. Id. Among other things, appellees asserted breach of


2
 Dick, Stacy Eastland, and Nancy Leaton are siblings. George Stacy and Philip Stacy are cousins of Dick, Stacy
Eastland, and Nancy Leaton.

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fiduciary duty and shareholder oppression claims against Dick. Id. They alleged that Dick’s

control as the majority shareholder of NFP, the landlord, and as the owner of CMI, the tenant,

had resulted in a leasing arrangement that benefitted CMI to NFP’s detriment. Id. On February

10, 2011, a jury in Kerr County found in favor of Dick, Tweety, and CMI on all claims asserted

by appellees, including shareholder oppression and breach of fiduciary duty.

         Several months after the trial, the trial court partially vacated the jury’s verdict and

granted a new trial on appellees’ claims against Dick, Tweety, and CMI for breach of fiduciary

duty and shareholder oppression. 3           The court entered a final judgment on the jury’s other

findings in favor of Dick, Tweety, and CMI, then severed the shareholder oppression and breach

of fiduciary duty claims into a new cause and transferred the case to McCulloch County.

         After the trial court realigned the parties, appellees (now plaintiffs) filed their amended

petition, re-alleging shareholder oppression and breach of fiduciary duty claims against Dick,

CMI, and NFP (hereinafter “appellants”). At this time, an amended lease executed in 2008

(“Second Amendment”) was set to expire on September 30, 2011.                             To avoid operational

instability and to ensure the continued operation of the summer camp, CMI negotiated the Third

Amendment, a two-year lease to extend the 2008 lease from October 1, 2011, until September 1,

2013. However, on August 18, 2011, appellees sought a temporary restraining order (“TRO”) to

prevent execution of the Third Amendment, which was on NFP’s agenda to be voted-on at an



3
  On August 6, 2011, the trial court signed a “Statement of Reasons for Granting Partial New Trial.” On September
28, 2011, this court denied appellants’ petition for writ of mandamus, holding we did not have the authority under In
re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204 (Tex. 2009) (orig. proceeding), to provide a merit-based
review on mandamus of the trial court’s reasons for granting a new trial. In re Camp Mystic, Inc., No. 04-11-00694-
CV, 2011 WL 4591194, at *1 (Tex. App.—San Antonio October 5, 2011, orig. proceeding) (per curiam).
Appellants have since filed a petition for writ of mandamus with the Texas Supreme Court arguing that the trial
court’s reasons for granting the new trial are not valid and this abuse of the trial court’s discretion should be
reviewed and corrected by mandamus. On February 17, 2012, the supreme court stayed all trial court proceedings
(including the April 23, 2012 new trial). The court requested a response, which was filed on March 1, 2012.


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August 28, 2011 board meeting. The trial court denied the TRO and a majority of the NFP board

approved the Third Amendment at the board meeting.

       After the NFP board’s approval of the Third Amendment, appellees supplemented their

petition and application for equitable relief. They alleged Dick had committed shareholder

oppression by improperly influencing the NFP board and causing the board to enter into the

Third Amendment, which they claimed (1) provided less than half the rent the NFP property

would draw in a true arms-length transaction; (2) gave CMI control of more than 500 acres of

land not necessary to camp operations, which deprived NFP of the chance to pursue lucrative

transactions with the camp’s neighbors; and (3) unreasonably restricted the NFP minority

shareholders’ recreational use “of their own property, including the property not needed for camp

operations.” Appellees also sought a “special advisor or receiver” to act in NFP’s best interest

by “setting a fair rent for the camp property and maximizing the return to NFP from the non-

camp property.” The petition also alleged that Dick had violated his fiduciary duty to NFP,

resulting in lost rent damages from September 1, 2010, through the date of trial.            In the

supplemental application for equitable relief, appellees asked for a temporary injunction to

rescind the Third Amendment and for the appointment of a receiver to negotiate a short-term

lease with CMI (until the trial on the merits) that would provide “fair” rent and preserve

appellees’ recreational rights.

       Prior to the court’s ruling on appellees’ supplemental application for equitable relief, a

dispute between the parties arose concerning the recreational access restrictions contained in the

Recreational Use Addendum to the Third Amendment.              The Recreational Use Addendum

requires alternative dispute resolution to resolve such matters, but appellees filed a motion asking

the trial court to determine the reasonableness of certain conditions contained in the Recreational



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Use Addendum and that the agent be authorized to formulate reasonable rules for hunting and

recreational access for future hunting seasons. In response, appellants filed a motion to stay the

litigation and to compel arbitration pursuant to the terms of the Recreational Use Addendum.

           After the hearings on appellees’ supplemental application for equitable relief and

appellants’ motion to compel arbitration, the court enjoined the last eleven months of the twenty-

three month Third Amendment. 4 The arbitration provision contained in the Recreational Use

Addendum, however, was enjoined “for the remainder of the first year.” Additionally, the court

crafted and modified rules for recreational access during the first year of the Third Amendment

(the period not enjoined). 5 The trial court’s order also appoints an “Agent” to act in NFP’s best

interest, authorizing “the Agent” to negotiate a new lease (either with CMI or a new lessee) or a

sale of all or part of the leased property. The order forbids NFP’s board from undermining or

contradicting “the Agent’s” efforts. Appellants initiated this appeal following the trial court’s

order. 6

                                       TEMPORARY INJUNCTION

           On appeal, appellants assert the trial court abused its discretion in issuing the temporary

injunction because there is no evidence of a probable right to relief and no evidence of imminent

and irreparable harm. A temporary injunction is an extraordinary remedy that does not issue as a


4
  The court’s reasoning for issuing the injunction for the last eleven months, as opposed to the entire twenty-three
months of the Third Amendment, was “[t]o ensure [that] Camp Mystic has a location for camp [this] summer.” As a
result, the Third Amendment is enjoined from October 1, 2012, through September 1, 2013.
5
  The court’s order modifies the recreational access rules during the period from September 17, 2011, through May
31, 2012. This order also states that “In the Spring of 2012, before the beginning of camp, the Court will address the
issue of recreational access by minority shareholders during the 2012 camp session.” As a result, on July 20, 2012,
the court signed another order modifying the temporary injunction and setting additional recreational access rules
during the period from May 25, 2012, through August 18, 2012.
6
 On appeal, NFP joins and adopts CMI and Dick’s appeal addressing the temporary injunction and appointment of
an “Agent.” NFP does not join CMI and Dick’s appeal challenging the trial court’s refusal to refer recreational
access disputes to arbitration.

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                                                                                        04-12-00102-CV


matter of right. Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). A temporary injunction

serves to preserve the status quo of the litigation’s subject matter pending trial on the merits.

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). At the hearing for a temporary

injunction, the applicant is not required to establish that it will prevail on final trial. Walling, 863

S.W.2d at 58. However, a temporary injunction should only issue if the applicant establishes (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 if the injunction is not granted.

Butnaru, 84 S.W.3d at 204.

A. Probable Right to Relief

        To prevail on a request for a temporary injunction, a movant must demonstrate a probable

right to recover at the trial on the merits and probable injury in the interim if the injunction is not

granted. Walling, 863 S.W.2d at 57; Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968).

An injunction is not improper merely because the evidence presented below conflicted; instead,

the evidence need only reasonably support the movant’s complaints.               Miller Paper Co. v.

Roberts Paper Co., 901 S.W.2d 593, 598 (Tex. App.—Amarillo 1995, no writ). To establish a

probable right to recover, a movant must have a cause of action for which it may be granted

relief. Walling, 863 S.W.2d at 58.

       Here, we will assume without deciding that appellees properly demonstrated a probable

right to relief because we believe appellees have not adequately demonstrated the remaining

element necessary for the issuance of a temporary injunction—imminent and irreparable harm.

B.     Imminent and Irreparable Harm

       Probable injury is established by tendering evidence of imminent harm, irreparable

injury, and an inadequate legal remedy. Miller Paper Co., 901 S.W.2d at 597. An irreparable



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                                                                                      04-12-00102-CV


injury is defined as an injury for which compensation cannot be made, or for which

compensation cannot be measured by any certain pecuniary standard. Tri-Star Petroleum Co. v.

Tipperary Corp., 101 S.W.3d 583, 591 (Tex. App.—El Paso 2003, pet. denied). An adequate

remedy at law is one that is as practical, complete, and efficient to the swift administration of

justice as is equitable relief. Id.

    In the order, the trial court found “that [the Third Amendment] will cause imminent and

irreparable harm in at least three ways”:

        (1) Rent – “[T]he rent under the lease is significantly less than the rent NFP
        would probably receive in a true arm’s-length transaction. Potential lessees other
        than Camp Mystic were not seriously sought out or considered . . .”

        (2) Access – “[T]he [Third] Amendment unreasonably restricts the minority
        shareholders’ recreational access, especially during the off-season.”

        (3) Impact on Court’s Equity Powers – “[T]he [Third] Amendment could limit
        this Court’s ability to grant permanent equitable relief after trial. The Court has
        not yet determined whether to grant equitable relief, or what equitable relief might
        be appropriate, but a two-year lease would frustrate the Court’s ability to use its
        equitable powers in this case to rectify a dysfunctional situation and perhaps help
        keep this family out of the courthouse in the future.”

        Appellants first argue that lost-rent revenue does not constitute irreparable harm because

appellees have an adequate remedy at law for money damages. Next, appellants contend that

restricted access to the leased property does not constitute imminent and irreparable harm. Last,

appellants assert that the temporary injunction is not necessary to preserve the trial court’s ability

to grant permanent equitable relief.

        1.      Rent

        The trial court determined the harm from the rent CMI paid to NFP under the Third

Amendment was imminent and irreparable because

        [t]o recover lost rent revenue would require the minority shareholders to sue the
        majority NFP directors and seek the lost rent as damages. It is preferable to have

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                                                                                     04-12-00102-CV


       the rent negotiated by an independent agent acting for NFP than to try to rectify
       the matter afterward with a suit for damages.

Appellants, however, complain that the injury is not irreparable because appellees are still able to

secure a potential money judgment—even if it is not “preferable”—for any damages incurred if a

jury later determines NFP should have received a higher rent from CMI. Thus, appellants

contend appellees have an adequate remedy at law for any lost-rent revenue. Appellees counter

that a court can grant a temporary injunction to prevent a multiplicity of suits arising from the

same subject matter.

       Generally, a temporary injunction is not available to secure a potential money judgment

when a party has other existing legal remedies. See Barnstone v. Robinson, 678 S.W.2d 562, 563

(Tex. App.—Houston [14th Dist.] 1984, writ dism’d); Home Sav. Assoc. v. Ramirez, 600 S.W.2d

911, 913 (Tex. Civ. App.—Corpus Christi 1980, writ ref’d n.r.e.). We recognize appellees’

contention that, although other legal remedies may exist, “[i]t is certainly the rule in this state

that equity will take cognizance of a controversy to determine the rights of all of the parties, and

grant the relief required to meet the ends of justice in order to prevent a multiplicity of suits.”

Rogers v. Daniel Oil & Royalty Co., 130 Tex. 386, 110 S.W.2d 891, 895-96 (1937). However,

in the record before this court, there is no evidence of a threat of additional lawsuits involving

identical claims or defenses. Instead, we believe appellees’ claim for lost-rent can be resolved in

the underlying pending suit and without “a multiplicity of suits.” Cf. id. at 895 (noting that

without the injunction, “this company would have to pay these taxes under protest every month,

and then file suit in Travis county within ninety days after each of such payments. It would

follow that the company would probably have to file a number of suits involving the same

[subject matter] in order to protect its rights.”); Galveston, H. & S.A. Ry. Co. v. Dowe, 70 Tex. 5,

7 S.W. 368, 371 (1888) (granting injunction where party threatened to file separate lawsuits on

                                                -8-
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thirty identical and unassigned claims “in order to vex and harass the appellant by a multiplicity

of actions”).

        Accordingly, we conclude that any lost-rent damages does not amount to irreparable

injury because an adequate remedy at law—a claim for damages in the underlying suit—is

available for any potential lost rent. See Houck v. Kroger Co., 555 S.W.2d 803, 806 (Tex. Civ.

App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.) (“Such monetary harm, however, would not

constitute irreparable injury, and an adequate remedy at law for damages does exist.”). 7

        2.       Access

        The trial court determined that the harm from the provisions contained in the

Recreational Use Addendum was imminent and irreparable because access to the property could

not be replaced. The trial court based this in part on testimony from Stacy Eastland, one of the

appellees and a minority shareholder, who testified that he has cancer and is not sure “how much

time he has left to enjoy his grandchildren on the NFP property.” The court determined that

“[d]epriving him and Nancy [Leaton] of reasonable recreational access for two years would

cause irreparable harm.” Appellants argue that the trial court’s decision is improper because

appellees have not produced evidence they will be irreparably harmed nor do the minority

shareholders have a legal right to access the land.

        At the hearing on the temporary injunction, the minority shareholders testified to the

following injuries. George Stacy (“George”) testified that, prior to Richard Capps’s appointment

as president of the NFP board, he had made requests for access and was denied without any

explanation. Nonetheless, he did not expand on how and when he was denied access. When

questioned about the Recreational Use Addendum’s allowance that “Landlord Parties will have

7
 Appellees also argue that the Third Amendment does not guarantee shareholder dividends, resulting in substantial
economic hardship for those minority shareholders who financially depend on the dividends. Again, we conclude
minority shareholders could recover possible lost dividends in a suit for damages. See Houck, 555 S.W.2d at 806.

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unfettered access to the Guadalupe River through Holcomb Fields, and reasonable access to Goat

Hill,” George testified he did not feel that was “a reasonable accommodation for the minority

shareholders’ access to the Guadalupe [River]” because “[i]t’s just a very small piece . . . [i]t

floods” and “you would have to have a . . . brush cutter to go in there and try to access [it].”

Nancy Leaton testified she has not had “access out there like [she] expected.” However, based

on her testimony, it appears she was not denied access to the property, but was instead, on three

occasions over a two-month period, denied the ability to stay overnight in the cabins and

buildings on the property. Leaton testified she was denied the overnight stay in these buildings

because someone else was using them. Stacy Eastland testified he was denied access when given

a gate code that “turned out not to be the gate code.” However, Eastland testified he was allowed

access “two hours later [when he finally] got the [correct] gate code.” Eastland also testified that

he is sixty-three years old and has cancer and he does not want to spend two years of his life

“with Dick having complete control over [h]is use of [the] property during camp for two years.”

Philip Stacy testified he had recently hunted on the NFP property. However, he testified he

received Dick’s proposed hunting rules and he “read where he had to [hunt] in a blind, and that

definitely turned [him] off.” He also testified the hunting rules “are extremely restrictive” and

“if [he] had to comply with the rules proposed by Dick in order to hunt at NFP . . . [he didn’t]

think [he] would enjoy it, so [he] would probably abstain.”

       Generally, temporary injunctive relief is not available if the injury is one of convenience.

Long v. Long, 814 S.W.2d 227, 228-29 (Tex. App.—San Antonio 1991, no writ); Arledge v.

Ricks, No. 04-08-00020-CV, 2008 WL 1882806, at *2 (Tex. App.—San Antonio Apr. 30, 2008,

no pet.) (mem. op., not designated for publication) (“While inconvenient, [appellants] have at

least limited access to their property during the pendency of their lawsuit.         Because their



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                                                                                    04-12-00102-CV


infrequent use will not be entirely prohibited in the interim, we cannot conclude the trial court

abused its discretion in denying the temporary injunction.”); Trada Partners VI, LP v. Vogt, No.

04-06-00723-CV, 2007 WL 163181, at *2 (Tex. App.—San Antonio Jan. 24, 2007, no pet.)

(mem. op., not designated for publication) (Vogt could access his one-acre parcel of land through

his twenty-acre parcel; therefore, injury was only one of inconvenience); cf. Garcia v. Gonzalez,

No. 04-95-00971-CV, 1996 WL 425995, at * 4 (Tex. App.—San Antonio July 31, 1996, no pet.)

(mem. op., not designated for publication) (determining appellee “will not be merely

inconvenienced if the temporary injunction is lifted; she will be completely cut off from her

property”). In this case, while it is inconvenient for appellees to access or hunt on the property,

we conclude they are not denied use of the property under the Recreational Use Addendum

provisions.

       Appellees argue that a potential denial of access to the property is not a mere

inconvenience because they have enjoyed unrestricted access for more than fifty years.

Appellees also assert that the Recreational Use Addendum will give Dick and CMI complete

control to restrict access at the end of the Third Amendment’s term because access rules “will

start with a clean slate and shall be subject to the further agreement of the Tenant [(CMI)].”

However, Texas law is clear that a tenant “has the possession of the premises for a fixed time

exclusive of the landlord.” See Brown v. Johnson, 118 Tex. 143, 12 S.W.2d 543, 545 (1929)

(“During the term of his lease, the owners of the fee had no right of entry thereon; the exclusive

right of possession being in the [tenant].”). Also, the court’s order regarding the Recreational

Use Addendum never states that access is completely denied and will be denied in the future to

the minority shareholders—only that “depriving [Stacy] and Nancy of reasonable recreational

access for two years would cause irreparable harm.” However, “fear or apprehension of the



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possibility of injury is not sufficient; injunctive relief requires the plaintiff to prove the defendant

has attempted or intends to harm the plaintiff in the future.” Jones v. Jefferson Cnty., 15 S.W.3d

206, 213 (Tex. App.—Texarkana 2000, pet. denied).

        Importantly, no lease prior to the Recreational Use Addendum specifically detailed the

process for recreational access to minority shareholders. Richard Capps, appointed as President

of the NFP board in 2009, testified that, since he was appointed to the board, to his knowledge a

minority shareholder had never been denied access. He also believed Dick had been more

restrictive before the Third Amendment. Capps stated that under the Third Amendment, he was

“proud that [the NFP board was] able to get something negotiated to act as a floor, a minimum,

and for the first time within a lease there are written recreational privileges.” Prior to the Third

Amendment, access was granted on a gratuitous basis. Accordingly, the Recreational Use

Addendum was the first time NFP shareholders and immediate family members were specifically

granted recreational access subject to certain written conditions and terms.

        We conclude the record does not support a finding that access has been or will definitely

be denied to Stacy, Nancy, or any of the other minority shareholders during the Third

Amendment’s term. Instead, the Recreational Use Addendum sets up the parameters for access

to minority shareholders both in the camping and non-camping seasons.                 While obtaining

permission prior to access or observing the hunting restrictions may be considered burdensome

and inconvenient by appellees, they are still allowed access to the property. Therefore, we

conclude appellees failed to establish irreparable harm.

        3.      Equitable Remedy

        The trial court also determined imminent and irreparable harm would result because the

Third Amendment “would hinder the Court’s ability to fashion longer-term equitable remedies.”



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Appellants, however, argue that the temporary injunction is not necessary to preserve the trial

court’s ability to grant permanent equitable relief.

        In finding imminent and irreparable harm would result in the absence of the temporary

injunction, the trial court failed to specify how its ability to grant permanent equitable relief after

trial would be limited. See TEX. R. CIV. P. 683 (“Every order granting an injunction . . . shall set

forth the reasons for its issuance; shall be specific in terms . . .”). More importantly, Texas Rule

of Civil Procedure 683 requires every order granting an injunction to “set forth the reasons why

the court deems it proper to issue the writ to prevent injury to the applicant in the interim.”

Transp. Co. of Tex. v. Robertson Transps., Inc., 152 Tex. 551, 261 S.W.2d 549, 553 (1953)

(emphasis added); see also Fasken v. Darby, 901 S.W.2d 591, 593 (Tex. App.—El Paso 1995,

no writ) (“A valid injunction must identify the probable interim injury Appellees will suffer.”)

(emphasis added). Here, the alleged potential injury as stated by the trial court applies only to

the trial court, not to appellees.

        Further, the trial on the merits has not yet occurred; thus, the potential exists for a jury to

once again find in favor of Dick and CMI. While noble, the trial court’s desire “to rectify a

dysfunctional situation and perhaps help keep this family out of the courthouse in the future” is

not a legal basis for granting equitable relief. See State v. Morales, 869 S.W.2d 941, 942 (Tex.

1994) (“Equity jurisdiction does not flow merely from the alleged inadequacy of a remedy at

law, nor can it originate solely from a court’s good intentions to do what seems ‘just’ or

‘right.’”). We conclude the trial court’s potential inability to grant future equitable relief does

not constitute irreparable harm to appellees.




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       Because appellees have not demonstrated a probable injury will result if the Third

Amendment is not enjoined, we conclude the trial court erred in granting the temporary

injunction. Accordingly, the temporary injunction should be dissolved.

                        APPOINTMENT OF AN “AGENT” FOR NFP

       The appellees also filed an application for the appointment of a “special advisor” or

“receiver” for NFP. The court appointed Charles H. Jackson, a San Antonio attorney, “as agent

for NFP (‘Agent’)” and stated as follows:

       This Agent is not a receiver. He will not take possession of or acquire title to
       any of NFP’s property, although he will have access to NFP’s records as
       described below. The NFP board will remain in place and will decide all
       matters that are not delegated to the Agent hereunder, but it may not take any
       action that undermines or contradicts the Agent’s efforts to negotiate and
       determine reasonable rent for NFP and enter lease agreements.

       The trial court specifically authorized Mr. Jackson to: “negotiate a long-term (or short-or-

medium-term) lease” between NFP and Camp Mystic or any other potential tenant; (2) lease “all

or part of NFP’s property to one or more different tenants,” including, but not limited to NFP;

and (3) “negotiate with other parties concerning the sale, lease, restriction, or other transactions

affecting all or part of NFP’s property.” In addition, the trial court “suggested” Mr. Jackson

consider the following in any lease: (1) arbitration of disputes under the lease; (2) recreational

access for the NFP minority shareholders; and (3) “some mechanism to insure that the lease

binds everyone and is not easily modified, perhaps requiring consent by a super-majority of

NFP’s shareholders.”

       In appointing Mr. Jackson to act for NFP, the court found as follows: (1) “[b]ecause of all

the circumstances of this case, there is an overwhelming need for an agent to act for NFP who is

not subject to either removal or pressure from Dick,” (2) the close relationships between Capps,

Frazer, Dick, and Camp Mystic “make it difficult if not impossible for the NFP board to truly act

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                                                                                      04-12-00102-CV


independently and look out for only NFP’s best interests,” and (3) “NFP’s best interest will be

served by the appointment of an agent who has no relationship with Camp Mystic, its owners,

employees or their families, and no relationship with any of the plaintiffs, their families, or their

attorneys, and who can independently determine which transactions are in NFP’s best interests

and then pursue them.”

        On appeal, appellants assert the trial court erred because (1) the court improperly relied

on evidence from a previous trial that was not introduced at the hearing on the application for the

appointment of an agent, (2) there is no evidence to support the finding that NFP could not act

independently, and (3) there is no evidence of a threatened serious injury to the property.

A.      Evidence From Prior Trial

        A footnote to the section of the order entitled “Background and Context” states “[t]his

section is substantially copied from the court’s ‘Statement of Reasons for Granting Partial New

Trial.’” Appellants assert the trial court erred by relying on its Statement of Reasons because by

doing so the trial court improperly relied on evidence not introduced at the hearing. Appellees

counter that the court’s Statement of Reasons is a court record upon which the trial court could

rely.

        A trial court may generally take judicial notice of its own records in a case involving the

same subject matter between the same parties. Escamilla v. Estate of Escamilla, 921 S.W.2d

723, 726 (Tex. App.—Corpus Christi 1996, writ denied). However, the trial court cannot take

judicial notice of testimony from a previous proceeding at a subsequent proceeding unless the

testimony is admitted into evidence at the subsequent proceeding. Id.; Paradigm Oil, Inc. v.

Retamco Operating, Inc., 161 S.W.3d 531, 539-540 (Tex. App.—San Antonio 2004, pet.

denied). Accordingly, in order for testimony at a prior hearing or trial to be considered at a



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subsequent proceeding, the transcript of that testimony must be properly authenticated and

entered into evidence. Paradigm Oil, 161 S.W.3d at 540; Escamilla, 921 S.W.2d at 726.

        Also, a “trial judge’s own memory of what the witness may have said at the prior

proceeding is insufficient to substitute for an accurate and properly authenticated record of that

testimony. A fact is not capable of accurate and ready confirmation simply because a trial judge

remembers that a witness testified to it in trial. While a court may take judicial notice of the

existence of the testimony in [a prior] trial, . . . a court may not take judicial notice of the truth of

the factual content of that testimony because its accuracy can reasonably be questioned.” In re

C.L., 304 S.W.3d 512, 515 (Tex. App.—Waco 2009, no pet.).

        In this case, to the extent the trial court may have relied on its recollection of testimony

from the prior trial or from other prior hearings not associated with appellees’ request for

equitable relief, the trial court erred because that testimony was never offered or admitted into

evidence at this subsequent hearing.        Therefore, we must determine whether the evidence

produced at the hearings on appellees’ request for equitable relief—at which several witnesses

testified—supports the trial court’s findings.

B.      Did the Trial Court Abuse its Discretion

        Despite the trial court’s statement in its order that Mr. Jackson “is not a receiver,” on

appeal, appellants contend that he is a “receiver,” and, therefore, the court’s ruling is subject to

the higher burden of proof applicable to the appointment of receivers. Appellants argue that the

burden of proof is higher when appointing a receiver because a receiver should only be

appointed if there is some serious injury threatened to the applicant. See Gunther v. Dorff, 296

S.W.2d 638, 640 (Tex. Civ. App.—Waco 1956, writ dism’d).




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       We find no Texas authority, and appellees have not provided any authority, under which

a trial court may appoint an “agent” to act for a company under the circumstances presented

here. Generally, an agency is a consensual relationship: the agent consents to the control of

another, the principal, and the principal manifests consent that the agent shall act for the

principal. Republic Bankers Life Ins. Co. v. Wood, 792 S.W.2d 768, 778 (Tex. App.—Fort

Worth 1990, writ denied). Here, there is no evidence NFP consented—as the “principal”—to

having Mr. Jackson act as its “agent.” Also, the order appointing Mr. Jackson demonstrates NFP

had no control over Mr. Jackson. Instead, pursuant to the order, Mr. Jackson, subject to court

approval, controlled NFP’s sole asset, the land. Nevertheless, we need not decide whether Mr.

Jackson is an “agent” or a “receiver” because in either event we must review the evidence from

the hearing regarding his appointment to determine whether the trial court abused its discretion.

       In appointing Mr. Jackson, the trial court did not rely on any particular statute. Instead,

we believe the appointment was equitable in nature because the language of the order appointing

Mr. Jackson suggests that the purpose of the appointment was to protect the rights of the

minority shareholders and because the trial court believed “Dick has oppressed the minority

shareholders and breached his fiduciary duties.” As stated previously, to the extent the trial court

may have relied on its recollection of testimony from the prior trial or from other prior hearings

not associated with appellees’ request for equitable relief, the trial court erred. Thus, we must

examine the record from the hearing on appellees’ request for the appointment of a “special

advisor” or “receiver” to determine whether there was sufficient evidence adduced at the hearing

from which the trial court could infer that Capps and Frazer could not act independently of Dick

or that Dick’s alleged influence over Capps and Frazer amounted to oppression of the minority

shareholders.



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        Capps and George Stacy were the only two current NFP board members who testified.

Capps did not state he was “influenced” by Dick. Capps testified NFP hired an independent

appraiser to recommend a fair market rent. The appraiser recommended $485,000 per year.

Capps said he spoke to Dick about paying a higher rent amount, but the rent approved by the

board in the Third Amendment was $480,000, with $200,000 paid immediately to assist NFP

with cash flow problems. Capps said NFP is not insolvent, but has a negative cash flow. Capps

acknowledged the Recreational Use Addendum gave Dick 100% control of the appellees’ use of

the property during the camping season, but he believed getting the recreational rights in writing

(for the first time ever) was a step in the right direction.

        George testified he had been a member of the NFP “family” board since shortly after

1981 “until we were fired by Dick in 2007”; a new three-person board was elected, two of whom

were later “fired”; sometime in May 2009, he was asked to join the board again; and he has

“been fired and hired several times since then.” He did not explain why he believed Dick had

“fired” any board or board member.

        George also never testified he believed either Capps or Frazer was controlled or unduly

influenced by Dick. Instead, he testified that (1) the Third Amendment was not on the agenda

for the August 3 board meeting and he did not know about the amendment until the meeting; (2)

he made his comments regarding the amendment available to the board for the August 28

meeting; (3) he wanted to delay any vote on August 28 because the next day the trial court was

conducting another hearing, but Capps and Frazer voted in favor of the Third Amendment

anyway; (4) he was angered when he saw that, after the vote, the Third Amendment was

presented for signatures and it had already been signed by Dick; (5) he suggested a higher rent be

paid by CMI to NFP and other options were discussed at the August 28 meeting, but Capps did



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                                                                                  04-12-00102-CV


not think Dick would agree to those options; and (6) Capps and Frazer were not willing to

consider what other family-run camps were doing. George said he was authorized to find

another party to rent the property from NFP, but he was unable to do so because he did not have

time. On the issue of recreational access, George testified that before Capps came onto the

board, he had been denied access many times and NFP’s proposal that Dick could not

“unreasonably withhold” his permission for the minority shareholders to use the property during

camp season was rejected by Dick and, instead, more restrictive conditions were imposed under

the Recreational Use Addendum, including that during the camping season the minority

shareholders’ “access will be limited to the time and manner determined by Tenant [CMI] in its

discretion.”

       Cynthia Allen, who was an NFP board member from approximately August 2007 through

October 2009, was not asked about why her board, which consisted of herself, John Genung, and

George, was dissolved. Instead, she testified only about the rent the board wanted to receive

under the First Amendment to the 2008 lease. She said she, Genung, and George unanimously

agreed to authorize Genung to negotiate a rent in the range of $40,000 to $60,000 per month.

NFP and CMI eventually entered into the First Amendment which provided for a monthly rent of

$38,750. According to the trial court, the Allen-Genung-Stacy board was “dissolved” because

the board acted independently of Dick when the board “would not approve a lease that Dick

wanted . . . .” However, even if the Allen-Genung-Stacy board had been able to negotiate the

lease it wanted with a monthly rent of $40,000, yielding a yearly rental income of $480,000, we

note that this is the same amount of rent the trial court determined was “significantly less than

the rent NFP would probably receive in a true arm’s-length transaction.”




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       We conclude the evidence adduced at the hearing shows there is a significant difference

of opinion among the NFP directors and the minority shareholders over the amount of rent CMI

should pay to NFP. However, there is no indication in the record that this difference of opinion

impeded NFP’s ability to conduct its business or that Capps and Frazer could not act

independently of Dick or that Dick’s alleged influence over Capps and Frazer amounted to

oppression of the minority shareholders. In its order, the trial court found that “since the rent

dispute arose, Dick (acting as majority owner of NFP) has removed two sets of NFP board

members after his negotiations with them (while he was acting as owner of Camp Mystic) were

unsuccessful.” Although George said he had been “fired” and other board members were

“fired,” there is no evidence in this record for the reasons behind any alleged firing. Therefore,

we conclude there is not sufficient evidence in this record to justify the trial court’s appointment

of Mr. Jackson to act for NFP.

                                  RIGHT TO ARBITRATION

       The Recreational Use Addendum to the Third Amendment contains the following clause:

                In the event of a dispute regarding Recreation Use, in no event shall any party,
       including Landlord, Tenant and any Landlord Party commence litigation. The parties,
       including Landlord, Tenant, and any Landlord Party (i) will negotiate in good faith to
       resolve the dispute and (ii) shall resolve any continued dispute by mediation followed
       by binding arbitration, with the goal of the mediation/arbitration to (a) act in the best
       interest     of the camping operations               and    safety/security of the
       campers/counselors/employees; (b) follow best practices for the camp, and (c)
       reconcile the parties.

       In its order, the trial court, “set aside[] and enjoin[ed] the mediation/arbitration provision

in the Lease Amendment for the remainder of the first year.” The trial court ordered that any

dispute be brought to its attention and it would “schedule an immediate conference call.” One of

the explanations offered for doing so was that the trial court believed the clause was “not the

result of an arm’s-length negotiation by the NFP board majority.” The trial court believed


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“Camp Mystic has singled out the minority shareholders by imposing onerous rules that are

imposed on no one else. . . . A truly disinterested NFP board acting in NFP’s interests and not

influenced by Dick’s two removals of predecessor boards, would not have done this.” We note

that these are among the same reasons the trial court appointed Mr. Jackson and enjoined the

Third Amendment.

         As we stated above, there is not sufficient evidence in this record to support a finding that

Capps and Frazer could not act independently of Dick or that Dick’s alleged influence over

Capps and Frazer amounted to oppression of the minority shareholders; therefore, the trial

court’s order denying the motion to compel must be reversed. 8 Because the trial court’s decision

to enjoin the arbitration clause is so closely intertwined with its reasons for granting the

temporary injunction, we remand for further proceedings on this issue, rather than direct the trial

court to compel arbitration.

                                                CONCLUSION

         For the reasons stated above, we reverse the trial court’s order granting a temporary

injunction, appointing an “Agent” for NFP, and setting aside the arbitration agreement. We

remand this case to the trial court for further proceedings.



                                                                 Sandee Bryan Marion, Justice




8
  We also note that at the hearing, appellees’ counsel stated that if the court was inclined to take up the merits of
whether the minority shareholders, as nonsignatories, were bound by the agreement, they would want to address that
issue “at a later time.” On appeal, appellees concede the trial court did not base its ruling on any such finding.
Whether an arbitration agreement is binding on a nonparty is a gateway matter to be determined by the trial court.
In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005). With no determination by the trial court here, the
issue of whether appellees are bound by the agreement to arbitrate because they are non-signatories is not before this
court.

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