      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00463-CV



                        David Holubec and Mary Holubec, Appellants

                                                 v.

      Carl Brandenberger, Individually and as Next Friend of Payton Brandenberger,
      Carson Brandenberger, and McKenna Brandenberger; Kathy Brandenberger;
                           and First Mason II, Ltd., Appellees


 FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT
        NO. 1998084, HONORABLE EMIL KARL PROHL, JUDGE PRESIDING



                             CONCURRING OPINION


               While I agree with the majority’s holding that the injunction at issue in this case is

not overly broad, I write separately to note that I do not join in the majority’s discussion of the

trial court’s factual determination, or lack thereof, regarding the level of pre-November 1996

sheep farming. Because our holding regarding the breadth of the injunction necessarily disposes of

this appeal, I would not further address the issue of whether the trial court resolved conflicting

evidence in favor of the Brandenbergers.

               Setting aside the fact that we need not address this issue, I also decline to join the

majority’s discussion because I consider the terms of the injunction requiring the Holubecs to:


       1.      Move all feeders in the approximately Ten (10) acre feedlot adjacent to
               Plaintiffs’ Land to the locations they occupied prior to November, 1996 and
               limit the number of feeders to that existing prior to November, 1996;
        2.      Remove all sheds and water troughs, that did not exist prior to November
                1996, from the pens in the approximately Ten (10) acre feedlot adjacent to
                Plaintiffs’ Land;

        [and]

        3.      Remove the wire fencing and feedlot pens that did not exist prior to
                November, 1996, in the approximately Ten (10) acre feedlot adjacent to
                Plaintiffs’ land;


to be sufficiently clear, specific, and unambiguous to apprise the Holubecs of the actions required of

them. See Ex parte Hudson, 917 S.W.2d 24, 26 (Tex. 1996) (holding that injunction requiring party

to maintain land “in a sightly condition” was sufficiently specific to apprise party of actions required

of him); Drew v. Unauthorized Practice of Law Comm’n, 970 S.W.2d 152, 156 (Tex. App.—Austin

1998, pet. denied) (holding that injunction was not void for ambiguity where it “sufficiently and

clearly informs” party of actions he cannot take).




                                                ___________________________________________

                                                Diane M. Henson, Justice

Before Justices Puryear, Waldrop and Henson

Filed: December 31, 2009




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