BCH Development, LLC and Blanchard Homes, LLC v. Lakeview Heights Addition Property Owners' Association and Barbara Wohlrabe ( 2015 )

DISMISS and Opinion Filed July 21, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00274-CV
BCH DEVELOPMENT, LLC AND BLANCHARD HOMES, LLC, Appellants
V.
LAKEVIEW HEIGHTS ADDITION PROPERTY OWNERS’ ASSOCIATION
AND BARBARA WOHLRABE, Appellees
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-13-05900-A
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Lang-Miers and Stoddart
Opinion by Chief Justice Wright
This Court questioned its jurisdiction over this appeal because the appealed order
granting a permanent injunction did not appear to be an appealable order. At the Court’s request,
the parties filed letter briefs addressing our jurisdictional concern.
Generally, this Court has jurisdiction only over appeals from final judgments and certain
interlocutory orders as permitted by statute. See Lehmann v. Har-Con Corp., 39 S.W.3d 191,
195 (Tex. 2001). A final judgment is one that disposes of all pending parties and claims. See id.
Temporary injunctions are immediately appealable interlocutory orders. See TEX. CIV. PRAC. &
REM. CODE ANN. § 51.014(a)(4).
Appellants initially appealed a temporary injunction prohibiting them from adding a
second level to a house. That appeal was docketed as appellate cause number 05-14-00003-CV.
While that appeal was pending, the trial court, on February 24, 2015, signed orders granting
appellees’ motion for partial summary judgment in part and granting a permanent injunction. As
a consequence of the trial court’s order granting a permanent injunction, this Court, on April 17,
2015, dismissed the appeal from the temporary injunction as moot.
Appellants appealed the trial court’s order granting a permanent injunction. In their
notice of appeal, appellants acknowledged that claims remained pending and referred to the
appealed order as a “mere modification of the temporary injunction signed by the trial court on
December 13, 2013, which order is currently on appeal.”
As for an award of injunctive relief, this Court has held that an interlocutory permanent
injunction granted following consideration of a motion for summary judgment is an unappealable
interlocutory order. See Aurora Loan Services v. Aurora Loan Services, LLC, No. 05-11-01362-
CV, 2013 WL 396275, at *1 (Tex. App.—Dallas Jan. 31, 2013, no pet.) (mem. op.); Young v.
Golfing Green Homeowners Association, Inc., No. 05012099561-CV, 2012 WL 6685472, *2
(Tex. App.—Dallas, Dec. 21, 2012, no pet.) (mem. op.); accord Aloe Vera of Am., Inc. v. CIC
Cosmetics Int’l Corp., 517 S.W.2d 433, 435-36 (Tex. App.—Dallas 1974, no writ). Appellants
argue the permanent injunction is actually a temporary injunction under the supreme court case
Qwest Communications Corp. v. AT&T Corp., 24 S.W.3d 334 (Tex. 2000) (per curiam). In
Qwest, the trial court entered an order restricting Qwest’s activities for a period of three years.
The court of appeals dismissed the appeal because the order did not meet the “traditional
requirements” of a temporary injunction - preserve the status quo, require a bond, set a trial date,
or limit the duration until further order of the court. Id. at 335. The supreme court reversed,
stating “[b]ecause the trial court’s order place[d] restrictions on Qwest and [was] made effective
immediately so that it operate[d] during the pendency of the suit, it function[ed] as a temporary
injunction. Id. at 337.
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Two facts distinguish this case from Qwest. First, the trial court entered a temporary
injunction and appellants timely appealed it. While that appeal was pending, the trial court
signed a permanent injunction order rendering that appeal moot. Second, the order in this appeal
followed a hearing on a motion for partial summary judgment and was not based on pleadings
seeking temporary injunctive relief. For these reasons, we conclude the holding in Qwest is
inapplicable to this case.
The appealed order is neither a final judgment nor an appealable interlocutory order.
Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
150274F.P05
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BCH DEVELOPMENT, LLC AND On Appeal from the County Court at Law
BLANCHARD HOMES, LLC, Appellants No. 1, Dallas County, Texas.
Trial Court Cause No. CC-13-05900-A.
No. 05-15-00274-CV V. Opinion delivered by Chief Justice Wright.
Justices Lang-Miers and Stoddart,
LAKEVIEW HEIGHTS ADDITION participating.
PROPERTY OWNERS’ ASSOCIATION
AND BARBARA WOHLRABE, Appellees
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellees LAKEVIEW HEIGHTS ADDITION PROPERTY
OWNERS’ ASSOCIATION AND BARBARA WOHLRABE recover their costs of this appeal
from appellants BCH DEVELOPMENT, LLC AND BLANCHARD HOMES, LLC.
Judgment entered July 21, 2015.
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