                                 MEMORANDUM OPINION
                                         No. 04-11-00083-CV

                      SUNDANCE AT STONE OAK ASSOCIATION, INC.,
                                     Appellant

                                                   v.

 NORTHEAST INDEPENDENT SCHOOL DISTRICT and Pape-Dawson Engineers, LLC,
                           Appellees

                     From the 225th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011-CI-00127
                            Honorable Karen H. Pozza, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: May 18, 2011

AFFIRMED

           This is an accelerated appeal from the trial court’s interlocutory order denying Sundance

at Stone Oak Association, Inc.’s request for a temporary injunction against Northeast

Independent School District and Pape-Dawson Engineers, LLC (collectively “NEISD”). In its

sole issue, Sundance contends the trial court abused its discretion when it denied its application

for injunctive relief. Because Sundance failed to establish that it would suffer a probable,
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imminent, and irreparable injury in the absence of a temporary injunction, we affirm the trial

court’s order.

                                                 BACKGROUND

        The facts of this case are undisputed. Sundance is the homeowner’s association for the

Sundance at Stone Oak Subdivision, which is located in the Stone Oak area of San Antonio,

Texas. When KB Home Lone Star LP developed the Sundance at Stone Oak Subdivision, it

deeded a 6.448 acre tract of land to Sundance for the purpose of establishing a common area for

the Subdivision. Sundance has yet to develop the 6.448 acre tract, but has “been looking at

developing a tennis court [and] basketball court on the land.” The 6.448 acre tract KB Home

Lone Star LP deeded to Sundance is burdened by the Sitterle Easement, which grants NEISD an

easement and right-of-way for the “86’ roadway known as ‘Hardy Oak’” Boulevard.

        NEISD is in the process of extending Hardy Oak in order to connect it to a new

elementary school that is under construction near the Sundance Subdivision. 1 The extension of

Hardy Oak will cross a portion of Sundance’s 6.448 acre tract. Sundance opposes the extension

of Hardy Oak, asserting that the terms of the Sitterle Easement do not authorize NEISD to extend

Hardy Oak across the Subdivision’s proposed common area.                         Sundance also opposes the

extension project because it will allegedly alter surface water drainage on the 6.448 acre tract,

making Sundance’s property susceptible to flooding. 2

        Sundance filed an application for temporary injunction to stop NEISD’s extension of

Hardy Oak across its 6.448 acre common area. Following a hearing on Sundance’s application

for injunctive relief, the trial court denied Sundance’s request for a temporary injunction.

1
  Pape-Dawson is the civil engineer for the extension project and Yantis is the general contractor. Sundance has
non-suited Yantis from the underlying litigation.
2
  Sundance has yet to experience any flooding on its property because the Hardy Oak extension project has not
progressed to the stage involving the installation of the underground storm water pipes that will purportedly divert
surface water drainage onto Sundance’s property.

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Sundance subsequently brought this appeal, claiming the trial court abused its discretion when it

denied its application for injunctive relief.

                                       STANDARD OF REVIEW

        The decision to grant or deny a temporary injunction is within the trial court’s sound

discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). An appellate court will not

reverse a trial court’s decision to deny an application for a temporary injunction absent an abuse

of discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Walling, 863

S.W.2d at 58. “The reviewing court must not substitute its judgment for the trial court’s

judgment unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable

discretion.” Butnaru, 84 S.W.3d at 204. We review the evidence in the light most favorable to

the trial court’s order and indulge reasonable inferences in its favor. EMSL Analytical, Inc. v.

Younker, 154 S.W.3d 693, 696 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

                                     TEMPORARY INJUNCTIONS

        “A temporary injunction’s purpose is to preserve the status quo of the litigation’s subject

matter pending a trial on the merits.” Butnaru, 84 S.W.3d at 204. The term “status quo” is

defined as the last, actual, peaceable, non-contested status that preceded the pending controversy.

In re Newton, 146 S.W.3d 648, 651 (Tex. 2004). A temporary injunction is an extraordinary

remedy and will not issue as a matter of right. Butnaru, 84 S.W.3d at 204.

        To secure a temporary injunction, an applicant must plead and prove three 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. Id. “A probable right of recovery is shown by

alleging a cause of action and presenting evidence tending to sustain it.” Frequent Flyer Depot,

Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 220 (Tex. App.—Fort Worth 2009, pet. denied), cert.



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denied, 120 S.Ct. 2061 (2010).       “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. “That is, the applicant has to establish there is

no adequate remedy at law for damages.” Cardinal Health Staffing Network, Inc. v. Bowen, 106

S.W.3d 230, 235 (Tex. App.—Houston [1st Dist.] 2003, no pet.). “An existing remedy is

adequate if it ‘is as complete and as practical and efficient to the ends of justice and its prompt

administration as is equitable relief.’” Blackthorne v. Bellush, 61 S.W.3d 439, 444 (Tex. App.—

San Antonio 2001, no pet.) (citation omitted).

                                            DISCUSSION

       We focus our analysis on the third element of the temporary injunction test, which

requires the applicant to prove a probable, imminent, and irreparable injury. See Butnaru, 84

S.W.3d at 204. Sundance claims a temporary injunction is needed: (1) to prevent the possible

flooding of its property; and (2) to prevent it from incurring additional costs to develop the

recreational improvements it is considering for the 6.448 acre tract. Sundance’s reasons for

requesting a temporary injunction, however, are insufficient to sustain its burden of establishing

probable, imminent, and irreparable harm.

   A. Flooding

       Sundance argues an injunction is necessary because the underground storm water pipes

that contractors intend to install as part of the Hardy Oak extension project will make Sundance’s

property susceptible to flooding at some point in the future. At the temporary injunction hearing,

Sundance proffered David Quebedeaux, a licensed engineer, to testify about the alleged flooding.

Quebedeaux opined that the extension project will alter the drainage patterns on the 6.448 acre

tract. He stated that the combination of altered drainage patterns and future developments on the



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adjoining tracts could cause Sundance’s property to flood from the diversion of surface water

onto Sundance’s property. Quebedeaux, however, conceded at the hearing that he had no idea

when, if ever, the subject underground storm water pipes would be “connected to some other

construction project” that would result in a flooding event.       Quebedeaux’s testimony thus

establishes only a fear of possible injury by Sundance, and such theoretical possibility of harm is

insufficient to support the issuance of a temporary injunction. See Frey v. DeCordova Bend

Estates Owners Ass’n, 647 S.W.2d 246, 248 (Tex. 1983) (“[F]ear or apprehension of the

possibility of injury alone is not a basis for injunctive relief.”); Tex. Dep’t of Pub. Safety v.

Salazar, 304 S.W.3d 896, 908 (Tex. App.—Austin 2009, no pet.) (“Establishing probable,

imminent, and irreparable injury requires proof of an actual threatened injury, as opposed to a

speculative or purely conjectural one.”).

   B. Increased Construction Costs

       Sundance argues an injunction is necessary because it will incur significantly higher costs

to develop the recreational improvements it is considering making on the 6.448 acre tract if the

extension project continues. In support of this contention, Sundance relies on the testimony of

its president, Robert Colunga, showing that Sundance has “been looking at developing a tennis

court [and] basketball court” on the 6.448 acre tract. According to Colunga’s testimony, the

diversion of excess surface water onto the tract due to the extension project “will double [the]

cost” of Sundance’s proposed improvements. Colunga’s testimony, however, confirms that any

harm Sundance suffers as a result of the Hardy Oak extension project is not irreparable, but

capable of being remedied by a monetary damage award at the conclusion of a trial. See

McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984) (“A temporary injunction will not be

granted where there is a plain and adequate remedy at law.”).



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                                        CONCLUSION

       Viewing the evidence in the light most favorable to the trial court’s order, we conclude

Sundance has failed to sustain its burden of establishing probable, imminent, and irreparable

injury in the absence of a temporary injunction. Accordingly, we hold the trial court did not

abuse its discretion in denying Sundance’s application for a temporary injunction. We therefore

resolve Sundance’s sole issue against it and affirm the trial court’s order denying Sundance’s

request for a temporary injunction.


                                               Catherine Stone, Chief Justice




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