                                                                                            ACCEPTED
                                                                                        04-15-00127-CV
                                                                            FOURTH COURT OF APPEALS
                                                                                 SAN ANTONIO, TEXAS
                                                                                   6/22/2015 7:45:02 AM
                                                                                         KEITH HOTTLE
                                                                                                 CLERK




                     No. 04-15-00127-CV                                FILED IN
                   __________________________________________   4th COURT OF APPEALS
                                                                 SAN ANTONIO, TEXAS
               IN THE COURT OF APPEALS OF TEXAS                 06/22/2015 7:45:02 AM
                   FOURTH JUDICIAL DISTRICT                         KEITH E. HOTTLE
                                                                         Clerk
                      SAN ANTONIO, TEXAS
                   __________________________________________


 EL CABALLERO RANCH, INC. and LAREDO MARINE,
                   L.L.C.,
                   Appellants/Defendants,
                                     vs.
             GRACE RIVER RANCH, L.L.C.,
                        Appellee/Plaintiff.
           __________________________________________
      FROM THE 218TH JUDICIAL DISTRICT, LA SALLE COUNTY,
   CAUSE NO. 13-04-00108-CVL, HON. STELLA SAXON, PRESIDING
           __________________________________________
APPELLANTS’ RESPONSE TO APPELLEE’S MOTION TO DISMISS




                                                Kimberly S. Keller
                                                SBN: 24014182
                                                Shane Stolarczyk
                                                SBN: 24033242
                                                KELLER STOLARCZYK PLLC
                                                234 West Bandera Rd #120
                                                Boerne, Texas 78006
                                                Tele: 830.981.5000
                                                Facs: 888.293.8580

                   Attorneys for Appellants




                                       1
   ARGUMENT OPPOSING MOTION TO DISMISS FOR LACK OF
                    JURISDICTION

     Appellants (Defendants below) El Caballero Ranch, Inc. and

Laredo Marine, LLC, file this response to the motion to dismiss filed

by Appellees (Plaintiff below) Grace River Ranch, L.L.C. This Court

should summarily deny the motion to dismiss for the following

reasons:

                             INTRODUCTION

         The appeal before this Court is a statutorily-authorized

interlocutory appeal of a temporary injunction granted against

Appellants.   1   In the underlying case, Grace River Ranch sued

Appellants claiming the existence of private and public easements

across Appellants’ ranches. App.A at 2. 2 In 2013, Grace River

moved for partial summary judgment as to the existence of an

easement (and as to some of Appellants’ affirmative defenses). Id.


1 ThisCourt has jurisdiction under TEX. GOV’T CODE ANN. § 51.014(a)(4): “A
person may appeal from an interlocutory order of a district court, county court
at law, statutory probate court, or county court that: (4) grants or refuses a
temporary injunction or grants or overrules a motion to dissolve a temporary
injunction as provided by Chapter 65.” See also Lightning Oil Company v.
Anadarko E & P Onshore, LLC, No. 04-14-00152-CV, 2014 WL 5463956 (Tex.
App. – San Antonio 2014, pet. filed) (affirming denial of temporary injunction
because party failed to prove imminent and irreparable injury).
2References to Appendices (“App.”) throughout this Response are references to

the Appendices attached to Appellant’s Brief and Appendix, filed with this
Court on April 29, 2015.
                                      2
Judge Saxon granted the partial summary judgment and ordered

that the ruling regarding the validity of the easements was

immediately enforceable. App.A at 2-3. Thus, Judge Saxon ordered

Appellants to give Grace River immediate access to their ranches so

Grace River could build a concrete bridge over the low water

crossing that passes between Appellants’ ranches. Id.

     Appellants sought mandamus relief from this Court. App.A

(this Court’s November 24, 2014 Mandamus Opinion). This Court

agreed with Appellants and held that Judge Saxon had abused her

discretion    by   making   an   interlocutory    ruling   immediately

enforceable. Id. at 5-6. This Court held it to be an abuse of

discretion to give Grace River immediate access to Appellants’ land

in light of the interlocutory nature of the partial summary judgment

order. Id. This Court held that Appellants’ would suffer an

irreparable   injury   because   immediate       enforcement   of   the

interlocutory ruling divested Appellants of their supersedeas rights

and allowing Grace River access would permanently change the

nature of Appellants’ land. Id. Judge Saxon complied with this

Court’s mandamus ruling and struck the “immediately enforceable”



                                  3
language from the partial summary judgment order on December 3,

2014.

     In 2014, Grace River filed a second motion for partial

summary judgment. This motion sought declarations related to

Appellants’ affirmative defense of adverse possession. Judge Saxon,

who was about to retire, presided over the summary judgment

hearing. Shortly before her retirement, she circulated a letter to the

parties stating that she was granting Grace River’s summary

judgment motion. App.F (Judge Saxon’s letter ruling).

     In January 2015, after Judge Saxon retired, Grace River filed a

motion to enter an order on its second partial summary judgment

motion. App.G. Judge Peeples assigned now-retired Judge Saxon to

preside over the case as a visiting judge. Appellants objected to

Judge Saxon. TEX. GOV’T CODE ANN. § 74.053(b) (objected-to visiting

judge “shall not hear the case”). Judge Saxon overruled Appellants’

objection and sat for the hearing.

     At the hearing on the entry of the summary judgment order,

Grace River sought new relief, i.e., a temporary injunction. App.G. at

Exh.B (Grace River’s proposed order, filed as an attachment to its

motion to enter, that seeks temporary injunctive relief in addition to

                                     4
summary judgment relief). Appellants objected to Grace River’s

newly-requested injunctive relief, arguing this request fell outside

the scope of the summary judgment proceeding presided over by

Judge Saxon pre-retirement. Judge Saxon overruled Appellants’

objection and granted Grace River temporary injunctive relief,

ordering Appellants to allow Grace River immediate access to

Appellants’ ranches. App.B.

     Since that ruling, La Salle County has filed an affirmative

pleading with Judge Saxon, contending that it was improper for her

to declare the existence of a public road absent participation in the

proceeding by the County. (5CR298) (complaining the summary

judgment recitals regarding the existence of a public road were

handed down without participation by the County and “thus the

pronouncement quoted above should be stricken”). La Salle County

has asked that Judge Saxon, at a minimum, strike the portion of

the summary judgment orders declaring the existence of a public

road. Id. Appellants filed an appeal to this Court to challenge Judge

Saxon’s temporary injunction ruling. App.H.

     After Appellants filed their interlocutory appeal to challenge

the trial court’s grant of a temporary injunction to Grace River,

                                 5
Grace River has asked the trial court to sever the summary

judgment motions (one of which contains the improperly granted

temporary injunction) into a separate cause from Grace River’s

unresolved claims for damages and attorney’s fees (all related to

Grace River’s contention that an easement exists across Appellant’s

ranches). (2SCR110). Also, Grace River has filed responsive briefing

to this Court in this interlocutory appeal and also filed a motion to

dismiss for lack of jurisdiction, claiming the injunction granted was

permanent, not temporary. This Court should summarily deny

Grace River’s request for dismissal for the following reasons:

 ARGUMENT OPPOSING GRACE RIVER’S MOTION TO DISMISS

     Grace River’s motion to dismiss is disingenuous. Grace River

specifically requested the trial court grant it a temporary injunction.

During the temporary injunction hearing (held on March 3, 2015),

Grace River argued to the trial court that it should grant it a

“temporary injunction” and cited to the trial court case law

regarding the grant of a temporary injunction. Then, after the trial

court listened to Grace River’s arguments and authority about

temporary injunctive relief, the trial court ruled from the bench that

it was giving Grace River “your injunctive relief.” (RR 20-21). For

                                  6
Grace River to now, in an attempt to avoid the jurisdiction of this

Court, relabel the granted injunction as permanent instead of

temporary is yet another example of Grace River’s continued playing

fast and loose with the judicial system in the underlying case.

A.     Grace River specifically asked for a temporary injunction
       at the temporary injunction hearing.

       To avoid the jurisdiction of this Court, Grace River contends

the injunction that was granted (and now challenged on appeal) is

permanent, as opposed to temporary. Mot. at 20-22. Yet, Grace

River’s own statements at the hearing belie this contention. At the

March 3, 2015 hearing, Grace River did not ask for a permanent

injunction. Instead, Grace River used only the term “temporary

injunction” when asking the trial court for injunctive relief:

      “So a temporary injunction is very appropriate to enforce the

       right to use that easement,” (RR 11);

      “And I have briefed that for the Court that – the cases that

       have some heartburn about issuing a temporary injunction

       with an easement all have to do with a case where there is no

       up or down determination by the court yet of the existence of

       easements,” (RR 12);


                                   7
 “But, even if that were true, then a temporary injunction

  would be appropriate according to the cases . . . ,” (RR 12);

 “One last authority, Your Honor, and that’s the AIMCO

  Properties L.P. versus Time Warner Entertainment, the exact

  situation we have here where a temporary injunction is

  sought to allow the use of the easement,” (RR 15);

 “The court went on to say that because Time Warner had

  demonstrated a probable right of an easement then the

  temporary injunction would be issued. The Court recognized,

  as [opposing counsel] does, that the purpose of a temporary

  injunction was to preserve the status quo. And the status quo

  the Court determined is, as we have all heard many times, the

  last   actual   peaceable,   non-contested    status   before   the

  controversy arose. . . . That’s exactly what we have here,” (RR

  15-16);

 “Well, injunctive relief is not a theory of recovery. It’s a remedy.

  So you don’t seek summary judgment to get a temporary

  injunction. You seek it on the remedy that you are proposing

  and then you get the remedy to enforce that right,” (RR 19).



                                 8
This language – Grace River’s language -- made clear to the trial

court and all parties that Grace River sought a temporary, not

permanent injunction.

      Indeed, the trial court is precluded from granting more than

the relief requested. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200

(Tex. 2001) (“A judgment that grants more relief than a party is

entitled to is subject to reversal”). Here, Grace River asked for a

temporary injunction and the trial court granted Grace River the

requested relief. To do otherwise would constitute reversible error.

Id.

B.    The authority cited by Grace River to the trial court
      regarded a temporary, not permanent, injunction.

      To the trial court (and to this Court, see Br. at 47), Grace River

cited AIMCO Props. L.P. v. Time Warner Entertainment-Advanced, No.

03-97-00340-CV, 1997 WL 590675 (Tex. App. – Austin 1997, no

writ) (unpublished). This case involves an appellate challenge to a

temporary injunction. Id. The appellate court considered the

elements of proof necessary to entitle a party to a temporary

injunction in a case involving a dispute about the existence of an

easement. Id. The appellate court sided with the requesting party


                                   9
and affirmed the trial court’s grant of a temporary injunction. Id.

Thus, once again, Grace River’s argument to the trial court and

citation of authority to the trial court belie its contention on appeal

that the injunction granted was permanent.

C.   The trial court ruled from the bench that she was
     granting Grace River “its injunctive relief.”

     After Grace River’s arguments, wherein Grace River argues to

the trial court that a temporary injunction was appropriate and

should be granted, the trial court issued its ruling from the bench.

Specifically, the trial court stated:

           And I’m going to go ahead and sign a judgment
           – partial summary judgment granting the relief
           requested. I’m going to give you your
           injunctive relief.

(RR 20-21). So, the record makes abundantly clear that Grace River

asked the trial court for a temporary injunction, and the trial court

obliged by granting Grace River the requested injunctive relief. Id.

D.   This Court’s mandamus ruling implies a holding that the
     injunction granted was temporary, not permanent.

     At the same time they filed this interlocutory appeal,

Appellants also filed an original proceeding. No. 04-15-00138-CV, In

re El Caballero Ranch, Inc. (filed March 12, 2015). In that original


                                    10
proceeding, Appellants contended mandamus relief was warranted

because the temporary injunction entered was void on its face.3

      Justices Barnard, Alvarez, and Pulliam presided over the

original proceeding and determined that mandamus relief was not

warranted. No. 04-15-00138-CV, Order of this Court, March 12,

2015. Appellants contend that this Court denied mandamus relief

because it held Appellants had an adequate remedy on appeal by

way   of   the   simultaneously-filed      interlocutory    appeal    of   the

temporary injunction. The denial of mandamus relief would not

have occurred if this Court determined the challenged order was a

permanent, not temporary. In fact, if the injunction entered was

permanent, then Appellants would not have a right to an

interlocutory appeal and mandamus relief would be warranted.

                               CONCLUSION

      Appellants respectfully request this Court deny Grace River’s

motion to dismiss. Appellants also ask this Court to reverse the

temporary injunction as void and order the trial court to dissolve it.

Alternatively, Appellants request this Court sustain their merits-

3In re M.A.V., 40 S.W.3d 581, 584 (Tex. App. – San Antonio 2001) (orig. proc.);
In re Torch Energy Marketing, Inc., 989 S.W.2d 20, 22 (Tex. App. – San Antonio
1998) (orig. proc.).


                                      11
based challenges and reverse the temporary injunction for those

reasons. Also, should this Court determine that, despite the

language used by the trial court, the injunctive relief granted in

relation to the public road constitutes a temporary, not permanent,

injunction, Appellants ask this Court set aside such injunctive relief

for the same reason it sets aside the temporary injunctive relief

granted related to the private easement. Additionally, Appellants

request this Court grant all other relief to which they are entitled to

under equity and law.

                                   Respectfully submitted,

                                   KELLER STOLARCZYK, PLLC
                                   234 West Bandera Road #120
                                   Boerne, Texas 78006
                                   Tele: 830.981.5000
                                   Facs: 888.293.8580
                                   /s/Kimberly S. Keller
                                   Kimberly S. Keller
                                   SBN: 24014182
                                   kim@kellsto.com

                                   Annalyn G. Smith
                                   SBN: 18532500
                                   asmith@sr-llp.com
                                   SCHMOYER REINHARD, LLP
                                   17806 IH 10 West,
                                   Suite 400
                                   San Antonio, Texas 78257
                                   Tele: 210.447.8033
                                   Facs: 210.4478033

                                  12
                                    COUNSEL FOR APPELLANTS

                    CERTIFICATE OF SERVICE

     I certify Appellants’ Response was served, on June 22, 2015,

on the following via e-service/email or first class mail:

                       Steven C. Haley
    MOORMAN, TATE, URQUHART, HALEY, UPCHURCH & YATES, L.L. P.
                     207 East Main Street
                        P. O. Box 1808
                 Brenham, Texas 77834-1808

                       John H. Patterson, Jr.
                        MONTEZ & PATTERSON
                        508 Thorton, Suite 4
                       Cotulla, Texas 78014
                    Counsel for Grace River Ranch

              Donato D. Ramos & Donato D Ramos, Jr.
                 LAW OFFICES OF DONATO D. RAMOS
                         6721 McPherson
                         P.O. Box 452009
                       Laredo, Texas 78045
                   Counsel for County of La Salle

                                    /s/Kimberly S. Keller
                                    Kimberly S. Keller
.




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