Reverse and Remand and Opinion Filed July 12, 2018




                                         Court of Appeals
                                                         S     In The


                                  Fifth District of Texas at Dallas
                                                     No. 05-17-01363-CV

                               4415 W LOVERS LANE, LLC, Appellant
                                              V.
                          SAM STANTON AND HEATHER STANTON, Appellee

                                On Appeal from the County Court at Law No. 1
                                            Dallas County, Texas
                                    Trial Court Cause No. CC-17-05704-A

                                         MEMORANDUM OPINION
                                    Before Justices Bridges, Myers, and Schenck
                                            Opinion by Justice Bridges
          4415 W Lovers Lane, LLC1 appeals from the trial court’s temporary restraining order

prohibiting 4415 from, among other things, removing a large elm tree (the Tree) that sits on the

property line between 4415’s property and the property of Sam and Heather Stanton. In a single

issue, 4415 argues the trial court abused its discretion in granting a temporary restraining order

because the Stantons failed to meet their burden on all the required elements of injunctive relief,

the order does not comply with rule of civil procedure 683, and the Stantons sought equitable relief

with unclean hands. We reverse the trial court’s order granting temporary injunctive relief,

dissolve the temporary injunction, and remand the case to the trial court for further proceedings.




     1
       The record shows the Stantons originally sued Bellomy Minerals, LLC. Ryan Bellomy testified he was one of the managers of 4415, and
4415 was the owner of the property next to the Stantons. For clarity, we refer to the defendant as “4415.”
       On October 26, 2017, the Stantons filed an application for temporary restraining order,

temporary injunction, and permanent injunction in which they argued their property shares a

property line next to 4415’s property, and the Tree sits on the shared property line, with part of the

trunk on the Stanton’s property. The Stantons asserted they were in the final stages of constructing

a residence on their property, and the design of their residence “was to include a large window to

look out on to the large elm tree.” The Stantons alleged 4415 recently began the process of

building a commercial building with an underground parking garage on their property and, as part

of the construction, removed several large trees on their property. On or about October 25, 2017,

4415’s counsel informed the Stantons that their contractor would immediately begin removing the

Tree. The Stantons informed 4415 that they did not consent to removal of the Tree, but 4415

began the process of removing the Tree by excessively trimming its branches. The Stantons

alleged they arrived at the property in time to stop the contractor’s work. The Stantons further

alleged removal of the Tree “would diminish the current market and intrinsic value” of their

property. Based on these allegations, the Stantons argued they were entitled to a temporary

restraining order to preserve the status quo and prevent immediate and irreparable injury. The

Stantons sought an order prohibiting 4415 from removing the Tree or further trimming or

excavating the tree roots without the consultation of an arborist.

       On October 27, 2017, the trial court signed an order restraining 4415 from removing the

Tree and enjoining either party from excavating the Tree’s roots without the consultation of an

agreed upon arborist to determine if such actions would potentially affect the life and sustainability

of the Tree. The order also set the matter for a hearing on the Stanton’s application for a temporary

injunction on November 2, 2017. On October 30, 2017, the trial court signed another Temporary

Restraining Order containing the same prohibitions and trial setting.




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       On November 2, 2017, the trial court conducted a hearing at which Sam Stanton testified

the construction on his property was “a week or two away from completion,” but he was

“undecided” whether he and his wife were going to live on the property. When his counsel asked

him how much of the tree sits on his lot, Sam answered “a fair amount” and testified “it’s a big

piece. And not only is it the trunk, it covers half of our home, canopy wise, for shade. And, you

know, the reason it’s there is for privacy. Who knows what’s going next door. We need that

there.” When shown a picture of the Tree, Sam agreed that a fifth of the Tree’s twenty-six-inch

diameter was on his property. Sam testified 4415 had recently cut down “a lot of branches.” When

asked about an arborist’s report the parties had jointly paid for, Sam testified the report showed

there was “some damage during construction,” but “the tree has a long life ahead.” When asked

about purchasing a new tree of the same size, Sam testified the neutral arborist “said it would be

about $15,000.” Sam testified the Tree was part of the “whole theme and the whole reason of

building the home,” and a “big window” looked out at the Tree. On cross-examination, Sam

confirmed his testimony that the canopy of the Tree “covers half” of his home. However, when

shown Defendant’s Exhibit 3, a picture of the Tree, and asked whether it was a true and accurate

depiction of the Tree, he responded, “Well, no. It’s all been completely chopped off on one side.

But . . . if you stood back a little bit further, you would see how it does cover more of the home

like the surveyor’s drawing.” 4415’s counsel asked Sam to read the following portion of the

arborist’s report: “The loss of the major roots on the north side are serious concerns that heighten

the risk of loss and must be considered when determining preference for preservation or removal.”

       Sam confirmed that his property was on the north side to which the report referred. Sam

confirmed that, during construction of his residence at the property, excavation for his foundation

and excavation for the electrical service, AC service, and drainage were conducted within five feet




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two inches of the tree. In response to questioning, Sam testified he was “sure there was some

damage caused by construction.”

        Ryan Bellomy, one of 4415’s managers, testified the Stanton’s construction, excavation,

and compaction harmed the health and structural integrity of the Tree which put “anybody that

would be on the property at risk of the tree falling, injuring them, killing them.” Bellomy testified

he did not think the risk could be eliminated without removing the Tree. Bellomy testified that,

due to the temporary restraining order, his excavation crew charged $3000 to stop work and he

had to pay $1300 for an additional survey and $250 for an arborist report. In addition, the general

contractor incurred $6800 in administrative expenses per month. Bellomy testified 4415 hired a

licensed landscape architect design a plan which was approved by the city of Dallas. The plan

called for fifty-three new trees on the property including ten trees in between 4415’s and the

Stanton’s property. In response to questioning from 4415’s counsel, Bellomy read the following

portion of the arborist’s report:

        The loss of the roots relatively close to the tree, as is the case with the assessed tree, can

also reduce structural integrity and in the case of partial or whole tree failure, could lead to property

damage and/or personal injury. Each tree owner must determine his/her own tolerance to risk,

however.

        On November 7, 2017, the trial court signed an order granting the Stanton’s application for

temporary injunction. The order contained the trial court’s findings that the Stantons (a) have

shown a probable injury and a probable right to relief regarding the tree and (b) have suffered and

will suffer imminent and irreparable harm if [4415] cuts down the tree and no remedy at law can

adequately address [the Stanton’s] harm. The order enjoined 4415 from (1) removing the large

elm tree that sits on the shared property line and (2) further trimming or excavating the tree roots

of the large elm tree. The order also required the Stantons to post a $15,000 bond. On November

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17, 2017, the trial court signed an amended order containing the same findings and prohibitions.

The amended order set the case for trial on November 13, 2018. This appeal followed.

       In a single issue, 4415 argues the trial court abused its discretion in granting a temporary

restraining order because the Stantons failed to meet their burden on all the required elements of

injunctive relief, the order does not comply with rule of civil procedure 683, and the Stantons

sought equitable relief with unclean hands.

       The purpose of a temporary injunction is to preserve the status quo of the subject matter of

a suit pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

A party asking for a temporary injunction seeks extraordinary equitable relief. Wilson N. Jones

Mem’l Hosp. v. Huff, 188 S.W.3d 215, 218 (Tex. App.—Dallas 2003, pet. denied).                  The

extraordinary equitable remedy of an injunction must be carefully regulated and confined to proper

cases. El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 743 (Tex. App.—Dallas 2011, no pet.).

The decision to grant or deny a temporary injunction lies in the sound discretion of the trial court,

and the court's grant or denial is subject to reversal only for a clear abuse of that discretion.

Butnaru, 84 S.W.3d at 204; Huff, 188 S.W.3d at 218.

       To be entitled to a temporary injunction, an applicant must plead and prove three specific

elements: (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. Butnaru, 84 S.W.3d at 204.

“Probable injury” includes the elements of imminent harm, irreparable injury, and no adequate

remedy at law. El Tacaso, 356 S.W.3d at 743. For purposes of a temporary injunction, an injury

is irreparable if the injured party cannot be adequately compensated in damages or if the damages

cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204; Huff, 188

S.W.3d at 218. In relevant part, rule of civil procedure 683 requires every order granting a

temporary injunction to state the reasons for its issuance, be specific in terms, and describe in

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reasonable detail and not by reference to the complaint or other document, the act or acts sought

to be restrained. TEX. R. CIV. P. 683; El Tacaso, 356 S.W.3d at 744. A trial court’s order stating

its reasons for granting a temporary injunction must be specific and legally sufficient on its face

and not merely conclusory. See TEX. R. CIV. P. 683; El Tacaso, 356 S.W.3d at 744. To comply

with rule 683, a trial court must set out in the temporary injunction order the reasons the court

deems it proper to issue the injunction, including the reasons why the applicant will suffer injury

if the injunctive relief is not ordered. El Tacaso, 356 S.W.3d at 744.

       The requirements of rule of civil procedure 683 are mandatory and must be strictly

followed. Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000) (per curiam);

El Tacaso, 356 S.W.3d at 744. If a temporary injunction order fails to comply with the mandatory

requirements of rule of civil procedure 683, it is void. Qwest Commc’ns Corp., 24 S.W.3d at 337;

El Tacaso, 356 S.W.3d at 744.

       Here, the trial court’s amended order granting a temporary injunction contained the trial

court’s findings that the Stantons (a) have shown a probable injury and a probable right to relief

regarding the tree and (b) have suffered and will suffer imminent and irreparable harm if [4415]

cuts down the tree and no remedy at law can adequately address [the Stanton’s] harm. The order

enjoined 4415 from (1) removing the large elm tree that sits on the shared property line and (2)

further trimming or excavating the tree roots of the large elm tree. The trial court's order does not

state or explain the probable, imminent, and irreparable harm the Stantons will suffer absent an

injunction. El Tacaso, 356 S.W.3d at 747. The trial court’s temporary injunction order simply

recites the conclusory statement that the Stantons have shown that they will suffer an irreparable

injury for which they have no other adequate legal remedy. See id. That conclusory statement

does not satisfy the rule 683 requirement that a temporary injunction order specify the reasons why




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the applicant will suffer irreparable harm for which there is no adequate remedy at law. See id.

We therefore conclude the trial court’s order is void. See id.

       Further, the Stantons have not proved a probable right to the relief sought. See Butnaru,

84 S.W.3d at 204. An injunction plaintiff need not establish the correctness of his claim to obtain

temporary relief, but must show only a likelihood of success on the merits. DeSantis v. Wackenhut

Corp., 793 S.W.2d 670, 686 (Tex. 1990). The record shows approximately five inches of the

Tree’s twenty-six-inch diameter is on the Stanton’s property. A photograph entered into evidence

shows that the Tree’s trunk leans toward 4415’s property such that, if all of the Tree on 4415’s

property were removed, a sliver of wood approximately five inches wide and about a foot tall

would be left on the Stanton’s property.




       The Stantons, in their brief, argue 4415 admits the Stantons have an ownership interest in

the Tree. On the contrary, 4415 argues that ownership is not shared with an adjacent property

owner just because a tree grows across a boundary line. Instead, 4415 argues, this becomes an

“invasion” of the adjacent property owner’s right of possession. See Gulf, C. & S.F. Ry. Co. v.

Oakes, 94 Tex. 155, 160–61, 58 S.W. 999, 1001 (1900) (“a tree and all its roots and branches

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belong to the owner of the soil upon which its trunk stands, and, when its roots and branches extend

upon the land of another, there is a direct invasion by the owner of the tree of the possession of

such land, and a use of it to maintain his property, which is a violation of the absolute right of the

adjacent owner to the exclusive possession and use of it.”); see also Love v. Klosky, 413 P.3d 1267,

1272 (Colo. 2108) (defining encroachment trees as trees that start life on one property and grow

onto a neighboring property and holding tree does not automatically become a boundary-line tree,

and thus joint property, merely by touching a property line). We agree. Accordingly, we sustain

4415’s single issue.

       We reverse the trial court’s order granting temporary injunctive relief, dissolve the

temporary injunction, and remand the case to the trial court for further proceedings.




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE



171363F.P05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 4415 W LOVERS LANE, LLC, Appellant                 On Appeal from the County Court at Law
                                                    No. 1, Dallas County, Texas
 No. 05-17-01363-CV         V.                      Trial Court Cause No. CC-17-05704-A.
                                                    Opinion delivered by Justice Bridges.
 SAM STANTON AND HEATHER                            Justices Myers and Schenck participating.
 STANTON, Appellees

        In accordance with this Court’s opinion of this date, the trial court’s order granting
temporary injunctive relief is REVERSED, the temporary injunction is DISSOLVED, and this
cause is REMANDED to the trial court for further proceedings consistent with this opinion.

       It is ORDERED that appellant 4415 W LOVERS LANE, LLC recover its costs of this
appeal from appellees SAM STANTON AND HEATHER STANTON.


Judgment entered July 12, 2018.




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