Thomas Rhone, Individually and D/B/A Rhone Investments v. the City of Texas City, Texas ( 2022 )

Affirmed and Majority Opinion filed December 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00854-CV
THOMAS EDISON RHONE, INDIVIDUALLY AND D/B/A RHONE
INVESTMENTS, Appellant
V.
THE CITY OF TEXAS CITY, TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 20-CV-1621
M A J O R I T Y O P I N I O N1
In this interlocutory appeal, an apartment project owner appeals the trial
court’s order granting a temporary injunction in an action by a municipality based
on the alleged violation of municipal ordinances. Because the owner has not shown
that the trial court erred, we affirm.
1
Justice Hassan concurs without opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Thomas Rhone owns real property in Texas City, Texas on which buildings
have been constructed that contain apartment units (the “Property”).
Appellee/plaintiff the City of Texas City, Texas (the “City”) filed a civil action
under chapter 54, subchapter B of the Local Government Code against
appellant/defendant Thomas Edison Rhone d/b/a Rhone Investments (“Rhone”).2
The City sought injunctive relief against Rhone under Local Government Code
section 54.016 based on the alleged violation of City ordinances, including an
ordinance that adopts section 111.1 of the 2015 edition of the International
Building Code (“Section 111.1”). Section 111.1 provides that a building shall not
be used or occupied until the building official has issued a certificate of occupancy
for the building.
The City requested a temporary injunction, and the trial court held a hearing
on this request, at which the City’s Fire Marshal, the City’s Code Enforcement
Officer, Rhone, and an expert retained by Rhone all testified. The trial court signed
an order granting a temporary injunction (“Original Order”). Rhone timely
perfected this interlocutory appeal from the Original Order.3
After Rhone perfected appeal, HomeTown Bank, N.A. (the “Bank”), the
holder of a deed-of-trust lien to some of the Property, filed a plea in intervention
and a motion to dissolve the temporary injunction that the trial court had issued.
The City filed a motion to strike the Bank’s Plea in Intervention. On the same day,
the trial court signed an order denying the Bank’s motion to dissolve the temporary
injunction and signed another order granting the City’s motion to strike. The Bank
filed a notice of appeal attempting to appeal from these two orders, and that case is
2
See Tex. Loc. Gov’t Code Ann. § 54.012 (West, Westlaw through 2021 C.S.).
3
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West, Westlaw through 2021 C.S.).
2
pending in a separate appeal in this court.4
The trial court signed a series of amended orders granting temporary
injunction, the last of which was the “Fifth Amended Order Granting Temporary
Injunction,” signed on May 20, 2021 (the “Fifth Amended Order”). Under Texas
Rule of Appellate Procedure 27.3, this court must treat this appeal as from the Fifth
Amended Order, and we also treat actions relating to the appeal of the Original
Order as relating to the appeal of the Fifth Amended Order. See Tex. R. App. P.
27.3.
In the Fifth Amended Order, the trial court stated that to be entitled to a
temporary injunction, the City only had to prove a valid claim and a probable right
to relief. The trial court noted that one of the City’s Ordinances adopts the 2015
edition of the International Building Code (“IBC”) and that under Section 111.1 of
that code, a building shall not be used or occupied until the building official has
issued a certificate of occupancy for the building.5 The trial court found that the
City proved that Rhone “is leasing/renting and/or allowing the apartment units
located on the [Property] to be occupied without a certificate of occupancy.” The
trial court ordered that until the date of trial Rhone is ordered to cease and desist
from leasing or renting the apartment units on the Property or allowing them to be
occupied by any person unless and until Rhone obtains a certificate of occupancy.
The trial court ordered that (1) within five days of the entry of the Fifth Amended
4
See Hometown Bank, N.A. v. The City of Texas City, Texas, Cause No. 14-21-00043-CV.
5
Though Rhone testified at the temporary-injunction hearing that the apartment buildings on the
Property were built in the “mid-1960s,” Rhone has not asserted any defense or exception to the
application of Section 111.1, such as section 102.6.2 of the 2015 edition of the International
Building Code, which provides that “[t]he legal occupancy of any building existing on the date
of adoption of this code shall be permitted to continue without change, except as otherwise
specifically provided in this code, the International Fire Code, or International Property
Maintenance Code, or as is deemed necessary by the building official for the general safety and
welfare of the occupants and the public.” International Building Code § 102.6.2 (2015 ed.).
3
Order, Rhone must provide written notice to all people inhabiting or residing in an
apartment unit on the Property to vacate the apartment unit; and (2) once all of the
apartment units on the Property are vacated, Rhone must “immediately secure the
Real Property to ensure that there is no unauthorized entry to the extent that it
could be entered or used by vagrant(s) or other uninvited person(s) as a place of
harborage or could be entered or used by children.” The trial court also ordered the
City to provide housing options to any person currently inhabiting or residing in
any apartment unit on the Property. The trial court decreed that any such person
who elects to accept a housing option provided by the City must be given a $250
rent assistance voucher that can be used to offset the rent for the first month.
II. ISSUES AND ANALYSIS
On appeal and before his brief was due, Rhone filed in this case an opposed
motion to consolidate this appeal with the Bank’s appeal in Hometown Bank, N.A.
v. The City of Texas City, Texas, Cause No. 14-21-00043-CV. Before this court
ruled on the motion, Rhone’s brief came due, and he filed in this case the
“Combined Brief of Appellants Thomas Rhone and Hometown Bank N.A.” Even
though the Bank is not a party in this appeal, the cover page of this brief bears the
styles of both appeals, and the brief purports to be the brief of both Rhone and the
Bank. Counsel for each party signed the brief. The first two appellate issues in the
brief seek relief pertaining to Hometown Bank, and the third, fourth, and fifth
issues seek relief pertaining to Rhone. The same brief was filed in Cause No. 14-
21-00043-CV. This court later denied the motion to consolidate. In this context, we
construe the brief filed in this appeal to contain two issues presented by the Bank
in Cause No. 14-21-00043-CV (the first two issues), and three issues presented by
Rhone in this appeal. In today’s case, we address the three issues presented by
Rhone. Because the Bank is not a party in this appeal, we do not address the first
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two issues, which we leave to the determination of this court in Cause No. 14-21-
00043-CV.
A. Did the trial court abuse its discretion by issuing the temporary
injunction?
In his third issue, Rhone asserts that the trial court abused its discretion in
issuing the temporary injunction. The purpose of a temporary injunction is to
preserve the status quo pending a trial on the merits. See Butnaru v. Ford Motor
Co., 84 S.W.3d 198, 204 (Tex. 2002); 8100 North Freeway Ltd. v. City of Houston,
329 S.W.3d 858, 861 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Generally,
to obtain a temporary injunction, the applicant must prove a valid claim against the
defendant, a probable right to relief, and imminent, irreparable injury in the
interim. See Butnaru, 84 S.W.3d at 204; 8100 North Freeway Ltd., 329 S.W.3d at
861. However, when the applicant has shown a violation of a statute that authorizes
injunctive relief, it need not prove imminent, irreparable injury. See Butnaru, 84
S.W.3d at 210; 8100 North Freeway Ltd., 329 S.W.3d at 861. Further, the merits of
the suit are not issues for appellate review. See 8100 North Freeway Ltd., 329
S.W.3d at 861. We review the trial court’s decision on a temporary injunction
request for an abuse of discretion. See Butnaru, 84 S.W.3d at 204; 8100 North
Freeway Ltd., 329 S.W.3d at 861. We must not substitute our judgment for the trial
court’s judgment and may not reverse unless the trial court’s action was so
arbitrary that it exceeded the bounds of reasonableness. See Butnaru, 84 S.W.3d at
204; 8100 North Freeway Ltd., 329 S.W.3d at 861.
The City sought a temporary and permanent injunction under Local
Government Code section 54.016, which provides that “[o]n a showing of
substantial danger of injury or an adverse health impact to any person or to the
property of any person other than the defendant, the municipality may obtain
against the owner . . . an injunction that: (1) prohibits specific conduct that violates
5
the ordinance; and (2) requires specific conduct that is necessary for compliance
with the ordinance.” Tex. Civ. Prac. & Rem. Code Ann. § 54.016(a) (West,
Westlaw through 2021 C.S.).
At the temporary-injunction hearing, Dennis Harris, the City’s Fire Marshal,
testified as follows:
• The Property “was in poor maintenance and did not have a
certificate of occupancy.”
• There are seven buildings on the Property, including four
apartment buildings that have approximately 22 apartment units.
• The City received complaints of no smoke detectors in the
apartments and the Property not being maintained.
• In response, Harris, the assistant fire marshal, and the code
enforcement officer conducted a site inspection in January 2020.
• “Prior to going to the [Property], we looked to see if they had a
certificate of occupancy, which our records indicated they did not.
That was the first thing we established. We didn’t have a certificate
of occupancy.”
• “When we arrived at the [Property], conducted our investigation,
we found a number of violations. We felt the property was unsafe
for dwelling.”
• They were able to see that the means of egress from the second
story, which are walkway balconies, are all “leaning and sagging,
not supported.” According to Harris, they are in disrepair, and the
concrete is cracked.
• The railing is too low, rusted through, and not attached to the
frame properly. On the stairs leading to the upstairs, the steps, the
metal framing, is rusted completely through in many places. The
concrete for the steps is cracked. The wood framing is rotten.
• The soffits have rotted wood. They found that “Hardiplank-type
material” had been placed on top of rotten wood. Rotten wood had
been painted over.
• There were cracks, holes and penetrations in some of the units
which have void areas that needed to be sealed off.
6
• In many of the second story units, the floors were “sagging or
sloping . . . in certain directions, which means there’s some
support issues within that separation from the first floor to the
second floor.”
• Rhone was given written notice of these issues.
• Rhone applied for building permits eight days before the
temporary-injunction hearing, but at the time of the hearing no
permits had been issued.
• A party would apply for a certificate of occupancy after the
necessary work is approved, permits to do the work are issued, and
the work is completed.
• Rhone has not applied for a certificate of occupancy.
• The condition of these apartments is similar to the condition of the
Park Street Apartments where there was a fire in July of 2020 and
one of the residents died.
• There never was an occupancy certificate.
• It was conveyed to Rhone that an inspection showed that the
buildings have many hazards, present an undue risk to the public,
and are unsafe and substandard.
Rhone testified that he has never applied for a certificate of occupancy and that it
was his understanding that he had a certificate of occupancy because he passed the
last inspection of the Property in 2013.
Rhone contends that the evidence at the temporary-injunction hearing fell far
short of showing a substantial danger of injury or an adverse health impact to any
person or to the property of any person other than the defendant, as required by
section 54.016(a). Tex. Civ. Prac. & Rem. Code Ann. § 54.016(a). Based on the
above evidence, we conclude that the trial court reasonably could have found that
the evidence showed such a substantial danger. See id. Based on the evidence at
the hearing, the trial court reasonably could have found that the City had shown a
valid claim for injunctive relief against Rhone under Local Government Code
7
section 54.016 and had proven a probable right to that injunctive relief. See Tex.
Civ. Prac. & Rem. Code Ann. § 54.016(a); 8100 North Freeway Ltd., 329 S.W.3d
at 861, 863–65.
Rhone asserts that the Fifth Amended Order is a mandatory injunction that
would only be proper in cases of extreme hardship or a clear and compelling
showing of extreme necessity. Presuming, without deciding, that under general
equitable principles, a party may not obtain a temporary mandatory injunction
without a showing of extreme hardship or necessity, that requirement would not
apply to injunctive relief based on section 54.016(a) of the Local Government
Code. See Tex. Civ. Prac. & Rem. Code Ann. § 54.016(a). Under the plain text of
that statute, a party may obtain mandatory injunctive relief without showing
extreme hardship, extreme necessity, or irreparable injury. See id. (stating that
“[o]n a showing of substantial danger of injury or an adverse health impact to any
person or to the property of any person other than the defendant, the municipality
may obtain against the owner . . . an injunction that . . . requires specific conduct
that is necessary for compliance with the ordinance”) (emphasis added); Butnaru,
84 S.W.3d at 210; 8100 North Freeway Ltd., 329 S.W.3d at 861. Thus, the City did
not have to show extreme hardship or necessity. See Tex. Civ. Prac. & Rem. Code
Ann. § 54.016(a); Butnaru, 84 S.W.3d at 210; 8100 North Freeway Ltd., 329
S.W.3d at 861.
Rhone asserts that the City did not show that the tenants on the Property
could not be relocated to other apartment units on the Property. Rhone cites no
authority requiring the City to make this showing to be entitled to a temporary
injunction, and we conclude that no such showing is required. See Tex. Civ. Prac.
& Rem. Code Ann. § 54.016(a); 8100 North Freeway Ltd., 329 S.W.3d at 861,
863–65.
8
Rhone contends that the City failed to show that Rhone never had a
certificate of occupancy. We disagree. Harris testified that the Property “did not
have a certificate of occupancy.” According to Harris, the City’s records indicated
that the Property had no certificate of occupancy. Harris testified that the first thing
that the inspection team6 established was that “We didn’t have a certificate of
occupancy.” On redirect examination, the City’s counsel asked Harris if there was
ever an occupancy certificate, and he answered, “No.” Harris also indicated that
there was no mention of a certificate of occupancy in Plaintiff’s Exhibit 5 and that
there would have been a mention if a certificate of occupancy had been issued for
the Property. Rhone relies upon an inspection of the Property in 2013 by the City’s
Fire Department. The Fire Department gave Rhone’s representative a form
document with various boxes that could be checked. The inspector only checked
one box for “NO VIOLATIONS AT THIS TIME.” One of the unchecked boxes
was a box for “NO CERTIFICATE OF OCCUPANCY.” Rhone’s counsel asked
Harris if the failure to check this box meant that a certificate of occupancy existed
in 2013. Harris responded in the negative and said that the failure to check the box
means that the inspector did not research whether there was a certificate of
occupancy. There was evidence at the temporary-injunction hearing showing that
Rhone never had a certificate of occupancy.
Rhone asserts on appeal that “Harris’ testimony falls short of the specificity
required by Tex. R. Evid. 803(7) to demonstrate the absence of a ‘CO’ in the
City’s record.” Rhone waived this complaint by failing to preserve error in the trial
court. See White v. Fritz, No. 05-10-01249-CV, 2011 WL 5067698, at *3 (Tex.
App.—Dallas Oct. 26, 2011, no pet.) (mem. op.).
6
The three people who inspected the Property in January 2020 were Fire Marshal Harris,
Assistant Fire Marshal Shonna Bellow and Code Enforcement Officer Marylin Logan.
9
Rhone also asserts that the trial court “erred in overruling Rhone’s objection
to the admission of what purported to be a business or regular record of the City.”
Rhone does not specify the exhibit to which he refers or describe the objection in
question. Rhone has not provided any argument, analysis, citations to the record, or
citations to legal authority in support of this assertion. Even construing Rhone’s
brief liberally, we cannot conclude that Rhone adequately briefed this point, and so
we find briefing waiver. See Tex. R. App. P. 38.1(i); Marathon Petroleum Co. v.
Cherry Moving Co., 550 S.W.3d 791, 798 (Tex. App.—Houston [14th Dist.] 2018,
no pet.).
Rhone also asserts various complaints against a provision in earlier versions
of the temporary-injunction order, under which Rhone was responsible for paying
half of the rent assistance voucher. Because the Fifth Amended Order does not
contain any such provision, these complaints are moot, and we do not address
them. See Youboty v. Youboty, No. 14-20-00557-CV, 2022 WL 1548535, at *4
(Tex. App.—Houston [14th Dist.] May 17, 2022, no pet.). (mem. op.).
Because Rhone has not shown that the trial court abused its discretion in
issuing the temporary injunction in any of the arguments under Rhone’s third issue,
we overrule that issue.
B. Has Rhone shown that the Fifth Amended Order is overly broad?
In his fourth issue, Rhone asserts that the trial court abused its discretion by
issuing an overly broad injunction which did not sufficiently describe the specific
acts or forbearance required. Under this issue, Rhone asserts that although a
temporary injunction should be broad enough to safeguard the plaintiff’s
protectable interests pending a trial on the merits, the injunction should not be so
broad that it prohibits the restrained party from engaging in lawful activities that
are a proper exercise of its rights. See Cooper Valves, LLC v. ValvTechnologies,
10
Inc., 531 S.W.3d 254, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
According to Rhone, because the violation asserted by the City was the absence of
any certificate of occupancy, the City’s protected interest was at most no more than
to bring about repairs sufficient to warrant a certificate of occupancy. But, under
Local Government Code section 54.016, the City’s protected interest includes the
substantial danger of injury or an adverse health impact to any person or to the
property of any person other than the defendant. See Tex. Civ. Prac. & Rem. Code
Ann. § 54.016(a). Rhone has not shown that the Fifth Amended Order goes beyond
the safeguarding of the City’s protectable interests pending a trial on the merits or
that the Fifth Amended Order prohibits Rhone from engaging in lawful activities
that are a proper exercise of his rights. See id.; Ron v. Ron, , 576–77 (Tex. App.—
Houston [14th Dist.] 2020, no pet.).
Under the fourth issue, Rhone also asserts that Texas Rule of Civil
Procedure 683 requires that a temporary injunction must (1) contain the reasons for
its issuance, (2) be specific in its terms, (3) describe in reasonable detail the acts
restrained by the order without reference to any other document, and (4) inform the
party of the acts he is restrained from doing without requiring inferences or
conclusions about which persons might disagree and which might require
additional court hearings. Rhone then states in a conclusory manner that the trial
court’s temporary-injunction order “thoroughly violate[s] the standards described
above.” Rhone has not provided any argument or analysis as to how the trial
court’s temporary-injunction order allegedly violates these requirements. Even
construing Rhone’s brief liberally, we cannot conclude that Rhone adequately
briefed this point, and so we find briefing waiver. See Tex. R. App. P. 38.1(i);
Marathon Petroleum Co., 550 S.W.3d at 798.
Under his fourth issue, Rhone also complains that a provision in earlier
11
versions of the temporary-injunction order requires Rhone to cause all inhabitants
or residents of the apartments to vacate the Property within 20 days, even though
Rhone asserts that this may be legally impossible because Rhone allegedly needs
30 days to force the tenants to leave the apartments. The Fifth Amended Order
does not contain any provision requiring Rhone to cause the inhabitants or
residents of the apartments to vacate the Property. Instead, under the Fifth
Amended Order, Rhone must provide written notice to all people inhabiting or
residing in an apartment unit on the Property to vacate their apartment within five
days of the entry of the order. Thus, Rhone’s complaint against the provision
requiring Rhone to cause the inhabitants or residents of the apartments to vacate
the Property is moot, and we do not address this complaint. See Youboty, 2022 WL
1548535, at *4. Having addressed all the points under the fourth issue, we overrule
the issue.
C. Has Rhone preserved error on his fifth issue?
In his fifth issue, Rhone asserts that the trial court abused its discretion by
arbitrarily limiting the time allowed to Rhone to present his evidence. The record
reflects that the trial court imposed a time limit on the parties during the
temporary-injunction hearing. Rhone cites several discussions his counsel had with
the trial court as to the time limit. Rhone does not cite and the record does not
contain any objection raised by Rhone at the hearing to this time limit.
To complain on appeal that the time limit was arbitrary or unreasonable, it
was incumbent upon Rhone to object on this basis when the trial court imposed the
time limit. See State v. Reina, 218 S.W.3d 247, 254 (Tex. App.—Houston [14th
Dist.] 2007, no pet.); Schwartz v. Forest Pharms., Inc., 127 S.W.3d 118, 126–27
(Tex. App.—Houston [1st Dist.] 2003, pet. denied). To complain on appeal that
subsequent events at the hearing made the trial court’s time limit arbitrary or
12
unreasonable, Rhone was required to object when events at the hearing allegedly
made the time limit arbitrary or unreasonable. See Reina, 218 S.W.3d at 254;
Schwartz, 127 S.W.3d at 126–27. To complain that the trial court administered the
time limit in an arbitrary or unreasonable manner, it was incumbent upon Rhone to
object when the trial court allegedly did so during the hearing. See Reina, 218
S.W.3d at 254; Schwartz, 127 S.W.3d at 126–27. By not voicing any objection
regarding the trial court’s time limit during the temporary-injunction hearing,
Rhone failed to preserve error and waived any complaint regarding the time limit.
See Reina, 218 S.W.3d at 254; Schwartz, 127 S.W.3d at 126–27. Therefore, we
overrule the fifth issue.
D. Has Rhone briefed an argument that the trial court erred in denying his
motion for continuance?
At the beginning of the temporary-injunction hearing, the trial court denied
Rhone’s motion for continuance. In the factual background section of his brief
Rhone mentions this ruling. In his summary of argument, Rhone states that the trial
court erred in denying his motion for continuance. Rhone does not mention his
motion for continuance in any of his issues presented or in the argument section of
his brief. Rhone has not provided any argument, analysis, or citations to legal
authority in support of the proposition that the trial court erred in denying his
motion for continuance. Even construing Rhone’s brief liberally, we cannot
conclude that Rhone adequately briefed this point, and so we find briefing waiver.
See Tex. R. App. P. 38.1(i); Marathon Petroleum Co., 550 S.W.3d at 798.
III. CONCLUSION
Rhone has not shown that the trial court abused its discretion in issuing the
temporary injunction. Rhone has not shown that the trial court abused its discretion
by issuing an overly broad temporary injunction. Rhone failed to preserve error in
13
the trial court as to any complaint regarding the trial court’s time limit during the
temporary-injunction hearing. Even construing Rhone’s brief liberally, we cannot
conclude that Rhone adequately briefed an argument that the trial court erred in
denying his motion for continuance. Having overruled all of Rhone’s issues, we
affirm the Fifth Amended Order.
/s/ Randy Wilson
Justice
Panel consists of Justices Wise, Hassan, and Wilson (Hassan, J., concurring
without opinion).
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