           TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-02-00399-CV




                               Cold Spring Granite Company, Appellant

                                                     v.

                       Mark L. Karrasch and Dakota D. Karrasch, Appellees




          FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
             NO. 20299-A, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING




                  Cold Spring Granite Company appeals from the trial court=s order denying its application

for a temporary injunction to halt the construction of a house being built for Mark and Dakota Karrasch.

We will affirm.


                                  Factual and Procedural Background

                  Cold Spring=s application for an injunction against the Karrasches stems from ongoing

litigation.1 The underlying litigation arose because Wilderness Cove, which owns the surface and a one-half

granite interest in the property at issue, desired to develop approximately thirty acres fronting Lake LBJ

(Athe subdivision@). Cold Spring desired to have the same property available as part of its granite reserves

to quarry. These uses being incompatible, the trial court has set a partition trial to begin in December 2002.


   1
       The litigation has already resulted in this Court=s opinion in Wilderness Cove, Ltd. v. Cold Spring
                In August 2000, the trial court issued a temporary injunction ancillary to the underlying

litigation.2 This injunction acknowledged Cold Spring=s claim to the granite, Wilderness Cove=s surface and

mineral ownership, and Wilderness Cove=s development activities. The trial court refused to enjoin

Wilderness Cove from developing the property, but did enjoin Wilderness Cove from performing any

blasting or other development work that would cause deep cracking of the granite. The order allowed

Wilderness Cove to remove surface granite as necessary for certain purposes such as roadways with an

accounting for any granite removed. It also enjoined Cold Spring from conducting mining activities other

than taking core samples. In April of 2002, Cold Spring filed its application for a temporary injunction to

halt construction on Lot 33 of the subdivision, the lot owned by the Karrasches.



Granite Co., 62 S.W.3d 844 (Tex. App.CAustin 2001, no pet.). In Wilderness Cove, this Court
determined that Cold Spring owned a granite interest in an approximately 300-acre tract in Burnet County
and held that Cold Spring=s interest was a severable dominant mineral estate which gave Cold Spring the
right to enter the property and quarry the granite. Id. at 849.
   2
      After the September 2000 order, Cold Spring also sought to halt development in March 2001, August
2001, and April 2002. Relief was denied each time. None of the earlier orders were appealed. The
Karrasches note that at the time that Cold Spring requested the injunction against construction on their lot,
they had already constructed a boat dock with piers embedded in bedrock under the lake, boathouse, 250-
foot seawall, sidewalks, and poured the slab for the house.




                                                     2
                                                 Discussion

Temporary Injunction

                 To be entitled to a temporary injunction, the applicant must show a probable right of

recovery in a trial on the merits, and a probable injury in the interim. Walling v. Metcalfe, 863 S.W.2d 56,

57 (Tex. 1993). Probable injury includes the elements of imminent harm, irreparable injury, and no

adequate remedy at law. University of Tex. Med. Sch. v. Than, 834 S.W.2d 425, 428 (Tex.

App.CHouston [1st Dist.] 1992, no writ). The party seeking the injunction bears the burden of proving all

of these elements. Bridas Corp. v. Unocal Corp., 16 S.W.3d 887, 890 (Tex. App.CHouston [14th Dist.]

2000, pet. dism=d w.o.j.).

                 In an appeal from an order granting or denying a request for a temporary injunction, our

review is confined to the validity of the order that grants or denies the injunctive relief. Synergy Ctr., Ltd.

v. Lone Star Franchising, Inc., 63 S.W.3d 561, 564 (Tex. App.CAustin 2001, no pet.); Center for

Econ. Justice v. American Ins. Ass=n, 39 S.W.3d 337, 343-44 (Tex. App.CAustin 2001, no pet.). The

decision to grant or deny the injunction is within the sound discretion of the trial court, and we will not

reverse that decision absent a clear abuse of discretion. Walling, 863 S.W.2d at 57; Synergy, 63 S.W.3d

at 561. A trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to

guiding rules or principles, or when it misapplies the law to the established facts of the case. Beaumont

Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241 (Tex. 1985).



                                                      3
                 In deciding whether the trial court has abused its discretion in denying or granting a

temporary injunction request, the reviewing court may neither substitute its judgment for that of the trial court

nor consider the merits of the underlying lawsuit. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978);

Synergy, 63 S.W.3d at 564; Center for Econ. Justice, 39 S.W.3d at 344. It must review the evidence in

the light most favorable to the order and must indulge all reasonable inferences in favor of the decision.

Center for Econ. Justice, 39 S.W.3d at 344; Universal Health Servs., Inc. v. Thompson, 24 S.W.3d

570, 576 (Tex. App.CAustin 2000, no pet.).

                 In the absence of specific findings of fact and conclusions of law, the trial court=s order must

be upheld on any legal theory supported by the record. Davis, 571 S.W.2d at 862; Universal Health

Servs., 24 S.W.3d at 577. The reviewing court Acannot reverse a trial court=s order if the trial court was

presented with conflicting evidence and the record includes evidence that reasonably supports the trial

court=s decision.@ Universal Health Servs., 24 S.W.3d at 576 (citing CRC-Evans Pipeline Int=l, Inc. v.

Myers, 927 S.W.2d 259, 262 (Tex. App.CHouston [1st Dist.] 1996, no writ)); see Goldome Credit

Corp. v. University Square Apts., 828 S.W.2d 505, 508 (Tex. App.CAmarillo 1992, no writ).


The Application to Restrain the Karrasches

                 Cold Spring contends that the presence of a house on Lot 33 threatens its ability to exercise

its rights as the owner of the dominant mineral estate. Cold Spring acknowledges that it can physically

remove the structure, albeit at greater expense than if the property were unimproved. The real harm from




                                                       4
the improvements, it argues, is that the partition proceeding will be tainted because a jury would be

reluctant to partition the property in a way that would require the destruction of an existing house.

                 Cold Spring argues that any partition of the granite will have to treat Lot 33 as a discrete

unit because Wilderness Cove has conveyed all of its interest to the Karrasches. Therefore, Wilderness

Cove and the Karrasches no longer have any common interests in that lot. See First Nat=l Bank v. Texas

Fed. Sav. & Loan Ass=n, 628 S.W.2d 497, 498 (Tex. App.CTexarkana 1982, writ ref=d n.r.e.) (joint

ownership prerequisite to partition). Thus, it argues, the trial court will not be able to Aadjust the equities@

between Cold Spring and the Karrasches by awarding Cold Spring a granite interest in property owned by

someone other than the Karrasches. The Karrasches argue that Wilderness Cove and the various lot

owners are proceeding as a single entity and are not requesting a partition among themselves.

                 Cold Spring is both tardy and premature in its argument that the partition proceeding will be

tainted by the presence of the Karrasches= improvements on Lot 33: tardy in that an unappealed temporary

injunction is already in place setting out the terms and conditions of any future partition proceeding, and

premature in that the effective pleading before the trial court at the time of the temporary injunction hearing

did not take the same position regarding partition that Cold Spring now takes in this appeal.


Order Governing Partition

                 Cold Spring=s argument for relief depends on its position that as a matter of law, the granite

under Lot 33 must be partitioned between Cold Spring and the Karrasches because Wilderness Cove

divested itself of all of its interest. However, a temporary injunction was in place that set the terms under



                                                       5
which any sale occurred. The temporary injunction order of September 12, 2000, deals with four tracts in

the J.R. Johnson Survey No. 19 in Burnet County, Texas, totaling approximately 329.55 acres.3 It then

refers to the approximately thirty acres under development. In paragraph 4(e) the injunction states:


        that should Wilderness Cove proceed to develop the Property during the pendency of this
        litigation, any such development shall not be deemed to alter the current status quo or rights
        of the parties; it is the Court=s intent that if partition is reached, it be as of the status of the
        land unimproved.


Neither Wilderness Cove nor the Karrasches dispute that this order controls the partition of this property.

And, in its sixth amended petition, the live pleading at the time of the hearing on the application for

injunction, neither did Cold Spring.




   3
      The record and briefs contain varying descriptions of the land involved. This order refers to 329.55
acres. At times, the Karrasches refer to this land as 305 acres. They refer to the same tract of land.
Further, during these proceedings, Wilderness Cove acquired a granite interest in an additional 300 acres in
which Cold Spring owns an interest. The trial court has joined the tracts for purposes of the partition trial.
Cold Spring moved to sever; the trial court overruled that motion.




                                                         6
                 In its sixth amended petition, Cold Spring complains of the sale of certain lots, including that

of the Karrasches, after the trial court=s order of November 21, 2000, declaring Cold Spring=s rights in the

granite. In its cause of action for partition, however, Cold Spring first contends that Wilderness Cove=s

suggestion that partition be by sale is improper. It then pleads that partition in kind is appropriate and Aas

the Court has previously ruled, any such division must occur as if the property were undeveloped.@ Cold

Spring asserts that the recent purchases of lots in the thirty-acre development should be disregarded in

determining the partition because the defendants purchased with full knowledge of the prior orders of the

trial court.4


Application




   4
     It is only in its seventh amended petition, filed after the temporary injunction hearing, that for the first
time Cold Spring pleaded that each individual lot must be partitioned, as the ownership interests in each lot
vary, and Wilderness Cove no longer has an ownership interest in any individual lot that has been sold.
However, this pleading was not before the trial court at the time of the hearing on the temporary injunction
order from which this appeal arises.




                                                       7
                  The order denying the temporary injunction simply stated that the application was denied.

There were no specific findings of fact or conclusions of law requested or filed so we may uphold the order

on any legal theory supported by the record. Davis, 571 S.W.2d at 862. As factors in denying the

temporary injunction the trial court could have considered: an injunction controlling the manner of partition

was already in place; Cold Spring acknowledged in the live pleadings before the trial court that this order

was controlling; and Cold Spring requested a partition of, at the least, 183.9 acres, not merely Lot 33.5

The trial court could have concluded that Cold Spring had not met its burden to show any imminent harm or

irreparable injury from the continued construction of the Karrasches= house or a probable right to recover

granite from Lot 33. Further, the trial court did not have to accept as evidence Cold Spring=s speculation

about the mind-set of a future partition jury or its assumption that a future jury would be unable to follow the

trial court=s instructions.6




   5
     Cold Spring sought a partition in kind of the granite on the Asubject 183.594 acre tract which lies
above the 825 foot elevation contour (the normal shoreline of Lake LBJ).@ The 183.594 acres are part of a
278.941-acre tract, 95.347 acres of which are inundated by Lake LBJ. All are part of the 300-acre tract
covered by the court=s September 2000 order.
   6
       Cold Spring argues that a jury would never allow a partition that called for the destruction
of an existing house. However, on the facts of this case it seems equally likely that the Karrasches would
receive little sympathy from a jury. They were warned that any improvements might be destroyed. They
have been participants in this litigation and have never claimed a lack of notice.


                                                       8
                                                 Conclusion

                 There is evidence in the record to support the trial court=s decision. Accordingly, we hold

that the trial court did not abuse its discretion in denying Cold Spring=s application for temporary injunction

and affirm the trial court=s order.7




                                                   Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Affirmed

Filed: October 31, 2002

Publish




   7
     Cold Spring filed a motion for temporary relief ancillary to the filing of this interlocutory appeal. See
Tex. R. App. P. 29.3. We overrule the motion.


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