in Re Max Grossman ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00383-CV
IN RE MAX GROSSMAN
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FROM THE 384TH DISTRICT COURT OF EL PASO COUNTY
TRIAL COURT NO. 2017-DCV-2528
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MEMORANDUM OPINION1
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In Grossman v. City of El Paso, in trial court cause number 2017-DCV-
2528, Relator Max Grossman sought a declaratory judgment and injunctive relief
with regard to Real Party in Interest the City of El Paso’s compliance with natural
resources code requirements as to the City’s proposed demolition of several
historic buildings in the City’s downtown area. The City filed a plea to the
jurisdiction, which the trial court denied. The City filed an interlocutory appeal,
and Relator filed a motion for emergency relief and petition for writ of injunction in
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See Tex. R. App. P. 47.4.
the El Paso Court of Appeals to halt the demolition of the historic buildings while
the interlocutory appeal remained pending. The El Paso court granted temporary
emergency relief.
This original proceeding and the underlying interlocutory appeal, now
appellate cause numbers 02-17-00383-CV and 02-17-00384-CV, respectively,
were transferred to this court by order of the Supreme Court of Texas.2 See
Misc. Docket No. 17-9147 (Tex. Oct. 31, 2017, order) (transferring cause
numbers 08-17-00199-CV and 08-17-00200-CV).
An appellate court may issue all writs necessary to protect its own
jurisdiction. Tex. Gov’t Code Ann. § 22.221(a) (West Supp. 2017). Because
demolition of the historic buildings at issue would moot the underlying
interlocutory appeal, causing this court to lose jurisdiction, injunctive relief is
proper. See In re 1707 New York Ave., LLC, No. 02-14-00258-CV, 2014 WL
4946976, at *1 (Tex. App.—Fort Worth Oct. 2, 2014, orig. proceeding) (mem.
op.) (determining that demolition of apartment buildings would interfere with
court’s subject matter jurisdiction in the underlying appeal by rendering at least
one issue moot); see also In re Teague, No. 02-06-00033-CV, 2006 WL 302123,
at *2–3 (Tex. App.—Fort Worth Feb. 6, 2006, orig. proceeding) (mem. op.)
(“[D]emolition of the structure on the property before resolution of the appeal
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We immediately requested a status update from the parties upon
receiving the transfer of these cases. Issues related to the ancillary discovery
and contempt proceedings discussed by the parties in their updates to this court
remain pending under this cause number.
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would render the appeal moot.”); Pace v. McEwen, 604 S.W.2d 231, 233 (Tex.
Civ. App.—San Antonio 1980, orig. proceeding) (observing that because the
appellate court issues injunctions only for the limited purpose of protecting its
jurisdiction “and not for the purpose of protecting a litigant, [the court’s] exercise
of that power in no degree depends upon the rights of a litigant or the remedies
available to him”); cf. City of El Paso v. Caples Land Co., 408 S.W.3d 26, 29, 36
(Tex. App.—El Paso 2013, pet. denied) (distinguishing direct appeal of order
granting temporary injunction and denying plea to the jurisdiction from Teague
situation involving exclusive appellate jurisdiction under government code section
22.221).
Accordingly, we grant Relator’s petition for writ of injunction to preserve
this court’s jurisdiction over the subject matter of the pending interlocutory appeal
and order that the temporary injunction placed by the El Paso Court of Appeals
and then clarified in its second amended emergency order of September 12,
2017 shall remain in effect during the pendency of the interlocutory appeal. A
writ of injunction will issue only if the City fails to comply with the order of this
court set forth in this opinion.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
CHIEF JUSTICE
PANEL: SUDDERTH, C.J.; GABRIEL and PITTMAN, JJ.
DELIVERED: December 7, 2017
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