Affirmed and Memorandum Opinion filed July 30, 2019.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-18-00516-CV

KEITH JANNISE, COWBOY’S MOBILE HOMES, INC., AND COWBOY’S
           MOBILE HOME MOVERS, INC., Appellants
                                       V.

   ENTERPRISE PRODUCTS OPERATING LLC, ENTERPRISE TX
PRODUCTS PIPELINE COMPANY LLC, AND GROVES RGP PIPELINE
                     LLC, Appellees

                   On Appeal from the 344th District Court
                         Chambers County, Texas
                      Trial Court Cause No. CV27447

                    MEMORANDUM OPINION

      After appellees Enterprise Products Operating LLC, Enterprise TX Products
Pipeline Company LLC, and Groves RGP Pipeline LLC (collectively, Enterprise)
obtained a temporary restraining order against appellants Keith Jannise, Cowboy’s
Mobile Homes, Inc., and Cowboy’s Mobile Home Movers, Inc. (collectively,
Jannise), Jannise countersued Enterprise for damages and claimed the temporary
restraining order was wrongful. Enterprise moved for traditional and no-evidence
summary judgment on all of Jannise’s claims, which the trial court granted.
Because we agree that Enterprise was entitled to a take-nothing judgment on
Jannise’s claims, we affirm the trial court’s judgment.

                                   Background

      Jannise owns slightly more than fifty acres of land in Wallisville, Chambers
County, approximately forty miles east of Houston. He constructed a warehouse
on the property, which he accesses by a concrete driveway. Enterprise owns
several easements that encumber Jannise’s land. Enterprise operates and maintains
four underground pipelines through the easements.

      Alleging that Jannise’s driveway and other construction activities potentially
posed a safety risk to the buried pipelines, Enterprise filed suit against Jannise in
2012. Enterprise alleged that Jannise: (1) constructed a driveway across the
easements and pipelines, and that Jannise continually crossed the easements with
dump trucks filled with dirt and dumped the dirt over the easements; (2) parked
trailers, modular buildings, and heavy equipment on the easements; (3) removed
the pipelines’ markers; and (4) used heavy machinery to remove topsoil from the
easements.

      Enterprise also alleged that Jannise had not notified Enterprise of the
construction prior to commencement and that Jannise, upon Enterprise’s request to
cease and desist activity over the easements due to potential safety issues, refused
to do so. Enterprise attached to its original petition affidavits from Enterprise
employees, who averred that Jannise had not made any “Texas One-Calls”
regarding the underground pipelines or Jannise’s surface activities. The so-called
“one-call” statute generally requires that any person intending to “excavate” give
notice to a central notification center before the date excavation is to begin. See
                                          2
Tex. Util. Code § 251.151(a); see also generally id. §§ 251.001-.203
(“Underground Facility Damage Prevention and Safety Act”).              In turn, the
notification center is required to transmit the information received from the
excavator to each member operator (such as a pipeline company) that may have
underground facilities in the vicinity of the proposed excavation operation. See id.
§ 251.153(c).    Enterprise sought an emergency temporary restraining order
(“TRO”), a temporary injunction, and a permanent injunction “to stop [Jannise’s]
construction of activities on [Enterprise’s] easements and rights of way, to cause
the removal of encroaching structure, and to prevent [Jannise] from placing trailers
and equipment over the easements and rights of way and from removing
[Enterprise’s] pipeline markers.” Enterprise also asserted claims for declaratory
relief, breach of contract, trespass, and a violation of Texas Health and Safety
Code section 756.124.

      The trial court signed an ex parte TRO against Jannise, which required
Jannise to “immediately remove (or take such actions to cause the removal of) . . .
the drive way and any appurtenances from the Easements” and to immediately
cease and desist from:

      (a) crossing the Easements with dump trucks filled with dirt;
      (b) dumping dirt over the Easements; (c) parking trailers, modular
      buildings, and heavy equipment across the Easements; (d) removing
      the Pipelines’ markers; (e) using heavy machinery to remove topsoil
      from across the Easements; and (f) conducting construction activities
      across the Easements or otherwise constructing any structures or other
      obstructions over the Easements.

      The order stated that it expired “no later than fourteen (14) days after the
date same is signed, unless within such fourteen (14) day period the temporary
restraining order is extended for a like period or [Jannise] consent[s] that it may be
extended for a longer period.”

                                          3
       A week after issuing the TRO, the trial court conducted a hearing on
Enterprise’s request for a temporary injunction. At the hearing, Jannise presented
evidence controverting Enterprise’s representation that Jannise had not made any
statutorily required one-calls before constructing a driveway. Jannise produced
evidence that he made several one-calls in 2011. At the end of the hearing,
Enterprise’s attorney stated that Enterprise did not “have any issue with [Jannise]
using the driveway in the interim,” but that Enterprise requested “some
information on the design of the driveway.” It is undisputed that Jannise never
removed the driveway. The trial court did not sign a temporary injunction, and the
TRO expired by its terms after fourteen days.

       Nearly two years later, Jannise asserted a number of counterclaims against
Enterprise. Jannise alleged that, prior to the TRO, he had “entered into a lucrative
agreement with a third-party to lease [Jannise’s warehouse] facility and to make
heavy-hauls for the third-party renter of the facility.” According to Jannise, when
he notified the third-party renter, Kurt Degueyter, of the restraining order,
Degueyter “canceled the agreement and took its business elsewhere,” because the
order “made access and therefore use of the property, as a practical matter,
impossible.”1 Jannise asserted claims against Enterprise for negligence,2 private
nuisance, breach of contract, tortious interference with existing contract, tortious
interference with prospective relations, and declaratory judgment. Jannise later
amended his pleading to add claims for wrongful injunction and malicious
prosecution. In his amended pleading, Jannise also asserted for the first time that
Enterprise had obtained the TRO on a false and misleading factual premise,

       1
         Jannise’s pleading emphasized the TRO’s effect on ingress and egress to the property.
Jannise did not complain of the TRO’s provisions temporarily restraining Jannise’s ongoing
construction activities.
       2
           Jannise also characterized his negligence-based claim as “abuse of easement.”

                                                 4
namely that Jannise had not notified Enterprise of the construction activities
through the statutory one-call system.3 Jannise sought to recover actual and special
damages, attorney’s fees, and punitive damages.

       Enterprise filed a combined traditional and no-evidence motion for summary
judgment as to all of Jannise’s counterclaims. Enterprise argued that Jannise could
produce no evidence to support various elements of his claims for declaratory
judgment, breach of contract, tortious interference, and negligence.4 Enterprise
also argued that Jannise’s wrongful injunction and malicious prosecution claims
failed as a matter of law.

       After considering Enterprise’s motion and Jannise’s response, the trial court
granted Enterprise’s motion for summary judgment and ordered that Jannise take
nothing in his claims against Enterprise. The judgment does not state the specific
grounds upon which the court relied in granting summary judgment.

       Jannise appeals.

                                  Standard of Review

       We review a grant of summary judgment under a de novo standard of
review. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). In reviewing the trial court’s summary judgment, “we apply
the familiar standard of review appropriate for each type of summary judgment,
taking as true all evidence favorable to the nonmovant, and indulging every
reasonable inference and resolving any doubts in the nonmovant’s favor.” Dias v.



       3
          After Jannise amended his pleading, Enterprise amended its petition and supporting
affidavits, removing any reference to Jannise’s failure to make one-calls.
       4
         Enterprise also argued that Jannise had no evidence to support his claim for private
nuisance, but Jannise later abandoned that claim and it is not at issue in this appeal.

                                             5
Goodman Mfg. Co., L.P., 214 S.W.3d 672, 675-76 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied).

      In reviewing a no-evidence summary judgment, we ascertain whether the
nonmovant pointed out summary judgment evidence raising a genuine issue of fact
as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer
& Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex. 2002). In our de novo review, we
consider all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could and disregarding
contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007) (per curiam).

      To prevail on a traditional motion for summary judgment, a movant must
establish that no genuine issue of material fact exists so that the movant is entitled
to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort, 289
S.W.3d at 848. Summary judgment is appropriate if the movant conclusively
negates at least one essential element of the plaintiff’s claim. Wyly v. Integrity Ins.
Sols., 502 S.W.3d 901, 905 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

                                      Analysis

      In two related issues, Jannise contends on appeal that the trial court erred in
granting summary judgment on his claims for declaratory judgment, breach of
contract, tortious interference, negligence, wrongful injunction, and malicious
prosecution. We address the trial court’s summary judgment with regard to each
of Jannise’s claims in turn.


                                          6
      1. Breach of contract

      Jannise asserted a claim for breach of contract. “To prevail on a breach of
contract claim, a party must establish the following elements: (1) a valid contract
existed between the plaintiff and the defendant; (2) the plaintiff tendered
performance or was excused from doing so; (3) the defendant breached the terms
of the contract; and (4) the plaintiff sustained damages as a result of the
defendant’s breach.” West v. Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex.
App.—Houston [14th Dist.] 2008, no pet.).

      In its motion for summary judgment, Enterprise argued that Jannise had no
evidence that Enterprise breached the easements relevant to the property or that
Jannise suffered any compensable injury as a result of any alleged breach. Jannise
responded that:

      the easement documents show that [Enterprise has] a right to use the
      easements to run pipelines underground and buried in such a manner
      as not to interfere with [Jannise’s] usage of the property. The
      easement was not a conveyance of the land itself and did not entitle
      [Enterprise] to interfere with [Jannise’s] right of access. By
      [Enterprise’s] submitting false affidavits under the circumstances to
      obtain a TRO requiring [Jannise] to remove the driveway and thereby
      prevent ingress and egress to the other portion of [Jannise’s] property,
      there is at least a question of fact for the jury as to whether
      [Enterprise] breached the easement agreement.
      The sole factual basis for Jannise’s breach of contract claim is that
Enterprise allegedly obtained a TRO based at least in part on the factually incorrect
premise that Jannise failed to make the required one-calls before proceeding with
the work. But accepting Jannise’s contention that Enterprise submitted partially
incorrect affidavits to secure a TRO, Jannise’s response is insufficient nonetheless.
Jannise fails to identify any easement provision that Enterprise allegedly breached
by securing this TRO. Jannise instead relies on a common law principle that an

                                         7
easement holder such as Enterprise breaches an easement by unreasonably
interfering with the property owner’s rights. See Lamar Cty. Elec. Coop. Ass’n v.
Bryant, 770 S.W.2d 921, 923 (Tex. App.—Texarkana 1989, no writ), overruled on
other grounds by Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449
S.W.3d 474 (Tex. 2014). In Lamar County Electric, the court stated that an
easement holder may not unreasonably interfere with the servient estate’s property
rights. Id. But when, as here, an easement is created by an express grant, the
scope of the easement holder’s rights must be determined by the terms of the grant,
not the common law. See DeWitt Cty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 103
(Tex. 1999); see also Phillips Nat. Gas Co. v. Cardiff, 823 S.W.2d 314, 317 (Tex.
App.—Houston [1st Dist.] 1991, writ denied) (holding that when a written
easement agreement contains an express provision, the agreement, and not the
common law, controls). Our case involves express easements and is substantively
different from the prescriptive easement at issue in Lamar County Electric.
Because Jannise has not identified any contractual provision Enterprise breached
by obtaining the TRO based in part on factually incorrect affidavits, he has not
created a genuine issue of material fact for trial on his breach of contract claim.

      Accordingly, the trial court did not err in granting no-evidence summary
judgment on this claim. See, e.g., Osborne v. Coldwell Banker United Realtors,
No. 01-00-00463-CV, 2002 WL 1480894, at *8 (Tex. App.—Houston [1st Dist.]
July 11, 2002, no pet.) (not designated for publication) (no-evidence summary
judgment properly granted on appellants’ breach of contract claim when appellants
did not identify any term of agreement that was breached); Garza v. Mut. of
Omaha Ins. Co., No. 05-98-01093-CV, 2001 WL 873613, at *6 (Tex. App.—
Dallas Aug. 3, 2001, no pet.) (op. on reh’g, not designated for publication) (same).



                                           8
      2. Tortious interference

      Jannise alleged that Enterprise tortiously interfered with an existing contract
with Degueyter or, alternatively, with a prospective business relationship with
Degueyter.

      Texas law protects both existing and prospective contracts from interference.
See Primrose Drilling Ventures Ltd. v. Nealwell Drilling Ltd., No. 14-98-00618-
CV, 2000 WL 890622, at *3 (Tex. App.—Houston [14th Dist.] July 6, 2000, no
pet.) (not designated for publication) (citing Juliette Fowler Homes, Inc. v. Welch
Assocs., Inc., 793 S.W.2d 660, 665 (Tex. 1990), superseded by statute on other
grounds as stated in Prop. Tax Assocs., Inc. v. Staffeldt, 800 S.W.2d 349, 350
(Tex. App.—El Paso 1990, writ denied)). The principal difference between the
two causes of action involves the requirement of a contract as opposed to a
potential for a contract. Id. The elements of tortious interference with a contract
are: (1) the existence of a contract subject to interference; (2) a willful and
intentional act of interference; (3) the act was a proximate cause of damages; and
(4) actual damages or loss occurred. Moore v. Bushman, 559 S.W.3d 645, 651
(Tex. App.—Houston [14th Dist.] 2018, no pet.). A party asserting a claim for
tortious interference with a prospective business relationship must prove: (1) a
reasonable probability that there would have been a contractual relationship; (2) an
“independently tortious or unlawful” act by the interfering party that prevented the
relationship from occurring; (3) the interfering party did such act with a conscious
desire to prevent the relationship from occurring or knew that the interference was
certain or substantially certain to occur as a result of his conduct; and (4) the
claimant suffered actual harm or damage as a result of the interference. Wal-Mart
Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex. 2001); Faucette v. Chantos, 322
S.W.3d 901, 914 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

                                         9
      Common to both torts is the element concerning intent. Primrose Drilling,
2000 WL 890622, at *3. “There must be some direct evidence of a willful act of
interference.” Id. To this end, a claimant must demonstrate that the interfering
party knew of the existence of a contract or prospective contract between the
plaintiff and a third party or had knowledge of facts that would lead a reasonable
person to conclude that a contract or prospective contract existed. Id.

      In its motion for summary judgment, Enterprise argued among other things
that Jannise had no evidence that Enterprise knew about any alleged contract or
potential contract and willfully and intentionally sought to interfere with any such
contract or potential contract. Jannise responded that “it is obvious from the
circumstances of the activities on [Jannise’s] property that a reasonable person
would be lead [sic] to believe there was a contract in which [Jannise] had an
interest because the property owned by [Jannise] which was accessible only
crossing over the easement is an active commercial enterprise.” This assertion
does not constitute specific, competent summary judgment evidence that
Enterprise knew of a contract or prospective contract between Jannise and
Degueyter, nor does it constitute evidence that Enterprise had actual knowledge
“‘of facts and circumstances that would lead a reasonable person to believe in the
existence of the contract or business relationship.’” Moore, 559 S.W.3d at 652
(quoting Steinmetz & Assocs., Inc. v. Crow, 700 S.W.2d 276, 278 (Tex. App.—San
Antonio 1985, writ ref’d n.r.e.)). In fact, Jannise does not point to any evidence at
all regarding Enterprise’s knowledge. At most, Jannise speculates that Enterprise
should have suspected that a contractual or prospective business relationship
existed between Jannise and a third party, because Enterprise’s “own admissions
. . . show that they were award of the extensive commercial activity that was going
on the property.” But there is nothing to suggest that the facts and circumstances,


                                         10
as admitted by Enterprise, indicated that Jannise was contracting with a third party,
as opposed to utilizing his property himself. Moreover, suspicion “does not rise to
a level sufficient to create a fact issue” as to Enterprise’s knowledge. Primrose
Drilling, 2000 WL 890622, at *5. If Enterprise did not know of an existing or
reasonably likely contract with a third party, then it could not have intended to
interfere with those relationships. Id. at *3.

      Because no evidence raises a fact issue regarding the “intentional
interference” element of Jannise’s causes of action for tortious interference with a
contract or tortious interference with a prospective contract, the trial court correctly
granted summary judgment in Enterprise’s favor on these claims. See id. at *3, 5.

      3. Negligence

      Jannise asserted a negligence claim, which he alternatively referred to as
“abuse of easement.” Jannise alleged that Enterprise, as the easement holder, had a
duty to use ordinary care regarding the use of the four easements and that
Enterprise breached that duty by obtaining the TRO. To prevail on a common law
negligence claim, a plaintiff must prove three elements: (1) a legal duty owed by
one person to another; (2) a breach of that duty; and (3) damage proximately
caused by the breach. Taylor v. Louis, 349 S.W.3d 729, 734 (Tex. App.—Houston
[14th Dist.] 2011, no pet.).

      In its motion for summary judgment, Enterprise argued that there was no
evidence that Enterprise breached any duty, separate and apart from any
contractual obligations under the easements, no evidence that any such alleged
breach proximately caused Jannise injury, and no evidence to support Jannise’s
claim for damages. Jannise responded that “the evidence shows that by virtue of
the easement agreements, [Enterprise] had a duty to act reasonably regarding
[Jannise’s] property rights.” (Emphasis added).
                                          11
      The acts of a party may breach duties in tort or contract or simultaneously in
both. Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494-95 (Tex. 1991). If the
defendant’s conduct would give rise to liability independent of the fact that a
contract exists between the parties, the plaintiff’s claim may sound in tort. DeWitt
Cty. Elec. Coop., 1 S.W.3d at 105; DeLanney, 809 S.W.2d at 494. Conversely, if
the defendant’s conduct would give rise to liability only because it breaches the
parties’ agreement, the plaintiff’s claim ordinarily sounds only in contract. DeWitt
Cty. Elec. Coop., 1 S.W.3d at 105.

      To determine whether a claim sounds in tort or contract, we focus on the
substance of the cause of action and not simply on the manner in which it was
pleaded. Clark v. PFPP Ltd. P’ship, 455 S.W.3d 283, 288 (Tex. App.—Dallas
2015, no pet.). “[A] party states a tort claim when the duty allegedly breached is
independent of the contractual undertaking and the harm suffered is not merely the
economic loss of a contractual benefit.” Chapman Custom Homes, Inc. v. Dallas
Plumbing Co., 445 S.W.3d 716, 718 (Tex. 2014) (per curiam); Clark, 455 S.W.3d
at 288. For a contracting party to be held liable under a tort theory, the liability
must arise independently of the existence of a contract between the parties; the
defendant must breach a duty imposed by law rather than by the contract. See
DeLanney, 809 S.W.2d at 494.

      In support of his negligence claim, Jannise has not identified a tort duty that
Enterprise owed and that exists independently of the easements. Jannise conceded
in the trial court that his complaint arose under the easement agreements, not the
common law. Therefore, he cannot maintain a negligence claim in addition to his
contract claim that is based on duties arising from the contractual relationship. See
DeWitt Cty. Elec. Coop., 1 S.W.3d at 105 (party could not maintain a negligence
claim independently of contract claim when contract governed dispute). Jannise’s

                                         12
argument amounts essentially to a claim that Enterprise negligently breached the
easements. But no such claim exists and any allegation that Enterprise failed to
comply with the easement terms sounds only in contract. See Mooney v. Sw. Bell
Media, Inc., No. 05-90-00786-CV, 1991 WL 200214, at *5 (Tex. App.—Dallas
Oct. 8, 1991, writ denied) (not designated for publication) (rejecting argument that
party “negligently breached” contract) (citing DeLanney, 809 S.W.2d at 495).

      The trial court did not err in granting summary judgment on Jannise’s
negligence claim.

      4. Wrongful injunction and malicious prosecution

      Jannise asserted claims for both wrongful injunction and malicious
prosecution.

      A party who wrongfully obtains injunctive restraint against another is liable
for damages caused by the issuance of the injunction. See Parks v. O’Connor, 8
S.W. 104, 107 (Tex. 1888). An injunction is wrongful if its issuance was wrongful
at its inception or if it was continued in effect due to some wrong on the part of the
proponent. Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 167
(Tex. App.—Houston [14th Dist.] 2017, no pet.); I.P. Farms v. Exxon Pipeline
Co., 646 S.W.2d 544, 545 (Tex. App.—Houston [1st Dist.] 1982, no writ). A
claim for wrongful injunction can be predicated upon the wrongful issuance of a
TRO. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 685-86 (Tex. 1990). Texas
recognizes two separate causes of action for wrongful injunction, one upon the
bond ordinarily filed to obtain the TRO or injunction, and the other for malicious
prosecution. Id. at 685. The two actions differ in the kind of wrong that must be
shown to establish liability and in the amount of recovery. Id.




                                         13
       A cause of action upon an injunction bond is predicated upon a breach of the
condition of the bond. Id. As pertinent to the case at hand, the claimant must
prove that the TRO was issued when it should not have been, and that it was later
dissolved. Id. at 685-86. The claimant need not prove that the TRO was obtained
maliciously or without probable cause. Id. at 686. The purpose of the bond is to
protect the defendant from the harm he may sustain as a result of temporary relief
granted upon the reduced showing required of the injunction plaintiff, pending full
consideration of all issues. Id. The damages under this claim are limited by the
amount of the bond. Id.

       A cause of action for malicious prosecution, on the other hand, requires that
the claimant prove the injunction suit was prosecuted maliciously and without
probable cause, and was terminated in his favor.                   Id.   In this instance, the
injunction defendant recovers the full amount of his damages. Id.

       Enterprise moved for traditional summary judgment on Jannise’s wrongful
injunction claim, arguing that, “[a]s pertinent to the case at hand, the claimant must
prove that the TRO . . . was later dissolved.” (Emphasis original). It is undisputed
that the TRO expired by its own terms and was not dissolved by the court. 5 The
expiration of an injunction is not a dissolution in one party’s favor, for purposes of

       5
          Jannise asserts in his appellant’s brief that “the TRO was vacated at Enterprise’s
request” during the injunction hearing and that “the TRO [was] resolved at the [injunction]
hearing where it was established that the one-calls had been made.” The record does not support
Jannise’s characterization of events. At the conclusion of the hearing, Enterprise’s counsel told
the judge that Enterprise “probably won’t have an issue with a driveway” if Enterprise received
confirmation that Jannise’s driveway conformed to Enterprise’s guidelines. Enterprise’s counsel
also asked the judge to “look when you get time to see when we can revisit this, and in the
interim, [Jannise’s counsel] and I will be getting together to see if we can resolve this matter and
not impose on the Court.” At most, this indicates that the parties may have reached an
agreement that Jannise need not remove the driveway, but there is no indication that the trial
court, on its own or on the parties’ agreement, acted to dissolve or vacate any part of the
injunction. Moreover, Jannise later acknowledges in his appellate brief that “the TRO expired by
its own terms 14 days after the TRO was signed.”

                                                14
obtaining damages for the wrongful issuance of the injunction. See, e.g., In re
Hong Kong Dajiang Innovation Tech. Co., No. 03-14-00053-CV, 2014 WL
641482, at *1 (Tex. App.—Austin Feb. 13, 2014, orig. proceeding) (mem. op.)
(holding that issue of whether TRO should be dissolved was moot, upon party’s
concession that the order had expired by its own terms); see also Nieto v.
Alvarado, No. 03-17-00387-CV, 2018 WL 1440459, at *1 (Tex. App.—Austin
Mar. 23, 2018, no pet.) (mem. op.) (although interlocutory appellate jurisdiction
lies when party appeals order that grants or overrules a motion to dissolve a
temporary injunction, court of appeals held it lacked jurisdiction because the order
being appealed “does not dissolve a temporary injunction but rather concludes that
the injunction expired on a particular date in the past”); Johnson v. Sunset Stores,
27 S.W.2d 644, 647 (Tex. App.—El Paso 1930, writ dism’d) (because TRO had
expired, trial judge’s subsequent order dissolving the TRO “was of no effect, there
being no restraining order in force for him to dissolve”).

      Enterprise also argued that Jannise’s claim for malicious prosecution was
“unfounded,” because he could not prove that the injunction suit was prosecuted
maliciously and without probable cause and that the TRO was terminated in
Jannise’s favor. See DeSantis, 793 S.W.2d at 686. Again, it is undisputed that the
TRO expired by its own terms and was not terminated in Jannise’s favor.

      For these reasons, Enterprise was entitled to judgment as a matter of law on
Jannise’s wrongful injunction and malicious prosecution claims.

      5. Declaratory judgment

      Jannise asserted a claim for declaratory relief. The critical requirement to
obtain a declaratory judgment is the existence of a justiciable controversy as to the
rights and status of the parties that the declaration sought will resolve. HMT Tank


                                         15
Serv. LLC v. Am. Tank & Vessel, Inc., 565 S.W.3d 799, 808 (Tex. App.—Houston
[14th Dist.] 2018, no pet.). In his live pleading, Jannise sought a declaration

      stating the rights, status, or legal relations of the parties so as to settle
      and to afford relief from uncertainty and insecurity with respect to the
      rights, statuses, and other legal relations with respect to the four
      easements [sic] agreements and [Enterprise’s] claims with respect to
      whether (1) [Jannise] may cross and use the four easements in the
      manner that [he has] done in the past, (2) [Jannise] may remove the
      pipelines markers placed by [Enterprise] on or near the easements, or
      (3) [Enterprise’s] so-called encroachment guidelines are binding on
      [Jannise]. [Jannise] seek[s] a declaration that [he] may cross and use
      the four easements in the manner that [he has] done in the past, that
      [he] may remove pipelines markers placed by [Enterprise] on or near
      the easements, and that [Enterprise’s] so-called encroachment
      guidelines do not apply to [Jannise].
      In its no-evidence motion for summary judgment, Enterprise characterized
Jannise’s claim incorrectly as a “request[] that the Court declare that Enterprise has
precluded, impaired[,] or interfered with [Jannise’s] rights in the subject property
and rights to business opportunities and profits from the subject contract.”
Enterprise argued that Jannise had no evidence that a contract ever existed for
which Enterprise may be blamed for precluding, impairing, or interfering with, and
no evidence that Jannise suffered any damages or loss in relation to any
complained-of action by Enterprise concerning the subject property, thus
precluding Jannise’s declaratory judgment claim.

      Enterprise’s motion sought summary judgment on grounds that were not the
basis of Jannise’s declaratory judgment claim, as pleaded. By dismissing Jannise’s
declaratory judgment claim in its entirety, the trial court erroneously granted more
relief than requested.    Ordinarily, when a trial court grants more relief than
requested or grants summary judgment on issues that were not raised in the
motion, we reverse and remand the case to the trial court.              See Brewer &

                                           16
Pritchard, 73 S.W.3d at 204; see also Villarreal v. Wells Fargo Brokerage Servs.,
LLC, 315 S.W.3d 109, 127 (Tex. App.—Houston [1st Dist.] 2010, no pet.)
(summary judgment cannot be properly granted on no-evidence motion when
movant mischaracterizes or misinterprets essential element of nonmovant’s cause
of action). However, on appeal, Jannise does not contend that the trial court
granted more relief than requested in Enterprise’s motion for summary judgment.
See Methodist Hosp. v. Zurich Am. Ins. Co., 329 S.W.3d 510, 514 n.3 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied) (recognizing that appellant must
raise issue on appeal that more relief than requested in motion was improperly
granted in summary judgment order). Instead, Jannise contends that he produced
sufficient evidence to defeat Enterprise’s motion—specifically, evidence of his
contract with Degueyter and of Jannise’s damages—even though this evidence is
not relevant to Jannise’s pleaded declaratory judgment claim. Because Jannise
does not complain that the trial court granted summary judgment on matters not
raised, we conclude that Jannise has not presented grounds warranting reversal of
the trial court’s ruling on his declaratory judgment claim as pleaded, and we affirm
that portion of the trial court’s judgment.

                                     Conclusion

      Because we conclude that the trial court did not err in granting Enterprise’s
motion for summary judgment on all of Jannise’s claims, we overrule Jannise’s
two issues on appeal and affirm the trial court’s take-nothing judgment.




                                        /s/    Kevin Jewell
                                               Justice

Panel consists of Justices Wise, Jewell, and Hassan.

                                          17
