Right-Way Sand Co. A/K/A Right Way Sand, Inc., RPRS Investments, Ltd. and Adloy, LLC v. South Texas Pipelines LLC and HSC Pipeline Partnership LLC ( 2024 )

Opinion issued April 30, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00573-CV
———————————
RIGHT-WAY SAND CO. A/K/A RIGHT WAY SAND, INC., RPRS
INVESTMENTS, LTD., AND ADLOY, LLC, Appellants
V.
SOUTH TEXAS PIPELINES LLC, Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1162308
MEMORANDUM OPINION
Texas law permits private entities that are “common carriers” to exercise the
right and power of eminent domain, or condemnation. See TEX. NAT. RES. CODE
§ 111.019(a); TEX. BUS. ORGS. CODE § 2.105. In this case, appellee South Texas
Pipelines LLC (“STX”) sued the appellants, Right-Way Sand Co., a/k/a Right Way
Sand, Inc., RPRS Investments, Ltd., and Adloy, LLC (collectively, “appellants” or
“landowners”), to exercise a statutory power of eminent domain in connection with
the construction of a new pipeline. STX alleged that the pipeline would be a
common carrier of polymer grade propylene (“PGP”), and it sought an easement
over appellants’ property for the pipeline.
In the trial court, the appellants filed a plea to the jurisdiction, in which they
argued that STX had not satisfied the statutory requirements for exercising the
power of eminent domain. The appellants also moved for a temporary and
permanent injunction. In response to the plea to the jurisdiction, STX filed a
traditional and no-evidence motion for partial summary judgment on the question
of whether it had satisfied the statutory requirements for exercising the power of
eminent domain.
The trial court considered the motions, the plea to the jurisdiction and
responses, and the request for injunction. The court granted partial summary
judgment in favor of STX, and it denied the appellants’ plea to the jurisdiction and
request for injunction. The appellants filed this interlocutory appeal from the order
denying their request for injunctive relief.
The appellants argue that the trial court erred in its determination that STX is
a common carrier and that the court abused its discretion by denying their request
for an injunction. STX asserts that it satisfies the statutory requirements for
2
exercising the power of eminent domain, and, therefore, the trial court did not
abuse its discretion by denying the request for an injunction. STX has also filed a
motion to dismiss this appeal, arguing that it is an improper attempt to seek
interlocutory review of the trial court’s partial summary judgment, which is not an
appealable interlocutory order.
We deny the motion to dismiss. Because we conclude that the appellants did
not demonstrate their entitlement to a temporary injunction, we hold that the trial
court did not abuse its discretion by denying injunctive relief. We affirm the trial
court’s order.
Background
STX is a wholly-owned subsidiary of Enterprise Products Partners L.P.
(“Enterprise”). The appellants in this case are the corporate owners of adjacent
properties, where STX wanted to situate a new pipeline to carry PGP from
Enterprise’s Mont Belvieu facility in Harris County to another Enterprise facility.
In December 2020, STX filed original petitions for condemnation against each of
the appellants. The appellants have common ownership and representation, and the
cases were later consolidated in the trial court.
STX alleged that it was expanding its “common carrier pipeline system” by
adding a “new common carrier pipeline” for transporting “liquefied mineral
derived from oil and, or gas through refining, processing or other methods, and
3
including without limitation . . . propylene . . . or mixtures [of hydrocarbons] . . . .
STX alleged that the new pipeline would pass “on, over, across and through
Chambers and Harris Counties.” STX alleged that the new pipeline would
transport hydrocarbons “owned by others for a fee on, over, across, and through”
Chambers and Harris counties. It also said that “[s]hippers on the [new pipeline]
will retain title to the [hydrocarbons] in the [new pipeline] and will pay [STX] a
transportation fee.” Finally, STX alleged:
[STX], as the owner[] of the Pipeline[] [is a] common carrier[] as
defined in the Texas Business Organizations Code, the Texas Natural
Resources Code, and the common law, and as such, ha[s] the right and
power, in either and, or both capacities, to enter on, condemn, and
appropriate land, rights-of-way, easements, and other property of any
person or corporation as may be necessary for the construction,
maintenance, or operation of the Pipeline[].
The appellants answered with a general denial and a plea to the jurisdiction.
They argued that the trial court lacked jurisdiction because STX had no right to
condemn, there was no public necessity for the project, the project was not for a
public purpose, STX was not a common carrier, and STX could not condemn for
the product to be transported in the pipelines.
In response to the plea to the jurisdiction, STX filed a combined traditional
and no-evidence motion for summary judgment. STX asserted that it was entitled
to exercise the power of eminent domain as a matter of law and that the only issue
4
to be resolved was the amount of compensation.1 Relying on a Texas Supreme
Court opinion, STX argued that it was a common carrier because the product to be
transported in the new pipeline, PGP, was an oil product for the purpose of section
2.105 of the Business Organizations Code.2 STX also argued that it was entitled to
1
STX attached the following summary-judgment evidence to its motion:
• An affidavit from Thomas McNeely, who was, among other things, the
custodian of the records of STX;
• Texas Railroad Commission permit applications and pipeline operating
permits, which were issued to Enterprise Products, as operator, (“T-4
permits”), and which show the new pipeline and indicate that the pipeline is
a common carrier;
• An assignment of an existing transportation services agreement (“TSA”)
between Equistar Chemicals, LP (“Equistar”) and Enterprise Products
Operating LLC (“EPO”), a company affiliated with STX but not the actual
TSA;
• A tariff for intrastate transportation of propylene from Mont Belvieu, Texas
to Webster, Texas, filed on July 1, 2022;
• A printout from the Texas Comptroller’s Online Eminent Domain Database
stating that STX “has reported to the Comptroller that it possesses eminent
domain authority” under several statutes including the Texas Business
Organizations Code section 2.105 and The Texas Natural Resources Code
section 111.002; and
• STX’s “Second Amended Written Consent of the Board of Directors in
Lieu of an Organizational Meeting,” in which the board of directors
“determined that a public use and purpose” as well as “a necessity” exist for
the “acquisition, by acquire by negotiation or condemnation” easements or
other property interests in the appellants’ properties for the new pipeline.
2
See Hlavinka v. HSC Pipeline P’ship, LLC, 650 S.W.3d 483, 488 (Tex. 2022)
(holding that Texas Business Organizations Code section 2.105 “grants common-
carrier eminent domain authority for the construction and use of a polymer-grade
propylene pipeline”). To show that the pipeline would serve the public, STX relied
5
a no-evidence summary judgment because the landowners had no evidence to
support a possible affirmative defense that STX’s determinations of public use and
necessity were arbitrary and capricious, an abuse of discretion, or fraudulent.
On March 27, 2023, the appellants filed a supplemental plea to the
jurisdiction and, for the first time in the litigation, an application for a temporary
and a permanent injunction.
Regarding the supplemental plea, the appellants again argued that the PGP
to be transported in the new pipeline was not an oil product. They maintained that,
while PGP can be produced by processing refinery grade propylene, which itself is
a product of crude oil, it can also be produced by other means, like the
dehydrogenation of propane. They argued that the propane used in the
dehydrogenation process could come from a refinery, as a product of crude oil, or
it could come from a natural gas well. They contended that the PGP to be
transported by the new pipeline would come from dehydrogenation of propane that
might have come from a natural gas well as opposed to being a byproduct of oil
refining. Thus, they argued that the PGP to be transported was not among the
on the planned use of the new pipeline to show that shipping of PGP belonging to
an unaffiliated company, Equistar, would account for 27% of pipeline capacity
under an existing TSA, with an additional 35% of pipeline capacity to be used by
uncommitted entities, and 49% of pipeline capacity to be used by companies
affiliated with STX. Finally, it asserted that necessity for the new pipeline was
presumed absent pleading and proof of fraud, bad faith, abuse of discretion, or
arbitrary and capricious action. STX also argued that it was a common carrier
under section 111.002(1) of the Natural Resources Code because PGP is derived
from crude petroleum.
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substances for which section 2.105 of the Business Organizations Code authorizes
the exercise of the power of eminent domain.3
Regarding the request for injunctive relief, the appellants requested that the
trial court issue an injunction against STX in the event that it granted the plea to
the jurisdiction and dismissed the appeal.
....
27. [STX] should be enjoined from any work on the site,
transporting any product on or over the site, and it should be required
to remove any equipment or pipeline on the site. If Plaintiff has no
right to take, and the case is dismissed, then an injunction is proper
and should issue.
28. [Appellants] ask this Court to enter as quickly and timely as
possible a Temporary Injunction (“TI”) and after a trial on the merits a
Permanent Injunction (“PI”) to restrain [STX] from further use and
trespass on [appellants’] property.
29. Permanent Relief: [appellants] have plead for permanent relief
in the form of dismissal based on lack of jurisdiction.
30. Probable Right to Relief: [Appellants] have shown a probable
right of recovery as [STX] has no right to take and thus is improperly
on and using [appellants’] property.
31. Probable Injury: Unless [STX] is enjoined, [appellants] will
suffer probable injury and continue to suffer clear, immediate and
irreparable injury/harm as a result of unlawful and tortious conduct.
There is no adequate remedy at law for the use and damage at issue,
and to allow Plaintiff to continue to ignore its legal obligations and
[appellants’] legal rights (and profit by doing the same) is improper.
[STX] does not have the right to take.
3
The appellants also argued that the PGP in question would not be crude petroleum
under in the meaning of section 111.002(1) of the Natural Resources Code.
7
32. Tex. Civ. Prac. & Rem. Code 65.011(5): Additionally an
applicant seeking to prevent irreparable injury to real or personal
property does not have to prove or establish there is no adequate
remedy at law.
33. No Adequate Remedy and Irreparable Damage Satisfied as a
Matter of Law: The requirements of no adequate remedy and
irreparable damage are satisfied as Plaintiff does not have a right to
take, is trespassing and HSC’s [STX’s] current use invades
[appellants’] right of possession, use and enjoyment, and/or is trespass
which is repeating and continuing.
34. No Injury to Defendant [Appellants]: Greater injury will be
inflicted on [appellants] by t the denial of injunctive relief than would
be inflicted on Plaintiff by granting such relief as by granting the
relief requested, as Plaintiff has no right to use and enjoy the
[appellants’] property.
35. Injunctive Relief Requested: Defendants seek an injunction as
follows:
a) STX and its agents and affiliates are restrained from the
use of, invading and coming into physical contact with or
damaging [appellants’] property including but not limited
to the transportation of product through the [STX]
pipeline.
b) STX and its agents and affiliates shall remove all
pipelines and any other equipment from [appellants’]
property at HSC’s [STX’s] sole cost and expense.
c) STX shall not destroy, erase or otherwise making
unavailable for further proceedings, any records or
documents (including data or information maintained in
electric form, including computer media) in the
possession, custody or control of STX or STX’s counsel
concerning the [appellants’] property, or evidence of
costs incurred in the use or construction of the pipeline in
controversy or any other equipment on the property.
d) STX shall pay for all damages associated with the use of
the [appellants’] property, and restore the property to its
8
original condition or as close as possible at HSC’s
[STX’s] sole cost.
....
The application for injunction was not verified. The evidence attached to the
combined supplemental plea to the jurisdiction and application for an injunction
consisted of two court opinions and deposition excerpts from Steven Stephens and
Thomas McNeely, who testified about the processes and feedstocks used to make
the PGP that would be transported in the pipeline. The court did not hold an
evidentiary hearing on the request for temporary injunction. And at oral argument,
counsel for the appellants stated that there was no other evidence that they could
have submitted to the trial court relevant to the question of STX’s power to
condemn or the appellants’ request for injunctive relief.
The trial court granted STX’s combined motion for partial summary
judgment, denied the appellants’ plea to the jurisdiction, and denied the request
for injunctive relief.
Analysis
The appellants raise two issues on appeal. First, they argue that a product not
made from crude petroleum or oil does not allow an entity to exercise the power of
eminent domain under either section 2.105 of the Business Organizations Code or
section 111.002(1) of the Natural Resources Code. Second, they argue that the trial
9
court abused its discretion by denying their request for injunctive relief after
concluding that STX had the right to exercise the power of eminent domain.
STX has filed a motion to dismiss, arguing that this Court lacks jurisdiction
over this appeal, which, STX maintains, is an improper attempt to appeal the
interlocutory partial summary judgment.
I. Jurisdiction
A. Interlocutory appellate jurisdiction is strictly construed.
Whether we have jurisdiction is a question of law that we consider de novo.
Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 390
(Tex. 2020). “[T]he general rule, with a few mostly statutory exceptions, is that an
appeal may be taken only from a final judgment.” Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001). We strictly construe statutes authorizing
interlocutory appeals because they “‘are a narrow exception to the general rule’
that ‘appellate courts generally only have jurisdiction over final judgments.’”
Bonsmara Nat. Beef, 603 S.W.3d at 390 (quoting CMH Homes v. Perez, 340
S.W.3d 444, 447 (Tex. 2011)).
The Civil Practice and Remedies Code authorizes an interlocutory appeal of
an order that grants or refuses a temporary injunction, but it does not authorize an
interlocutory appeal of a partial summary judgment or a trial court’s ruling on a
plea to the jurisdiction, unless the plea was asserted by governmental unit.
10
Compare TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4), with id. § 51.014(a)(8).
We agree that we lack jurisdiction to review the trial court’s interlocutory, partial
summary judgment, but we conclude that we have jurisdiction to consider the trial
court’s denial of a temporary injunction. We deny STX’s motion to dismiss this
appeal.
B. Subject-matter jurisdiction may be raised at any time.
The appellants did not seek a permissive appeal or file a petition for writ of
mandamus challenging the trial court’s ruling on their plea to the jurisdiction. In
this Court, however, the appellants argue that STX is not a common carrier. We
construe this to be an argument about whether the trial court has subject-matter
jurisdiction. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (admonishing
courts of appeals to construe appellate briefs “reasonably, yet liberally,” to avoid
waiver and reach the merits of appeal “whenever reasonably possible”); Crawford
Fam. Farm P’ship v. TransCanada Keystone Pipeline, L.P., 409 S.W.3d 908, 913–
14 (Tex. App.—Texarkana 2013, pet. denied) (noting that subject-matter
jurisdiction depended on pipeline’s status as common carrier under Texas law).
Thus, although we lack a statutory grant of interlocutory jurisdiction to review the
trial court’s summary judgment, we may consider de novo the appellants’
arguments about subject-matter jurisdiction that are raised in this appeal. See
11
Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (holding that subject-matter
jurisdiction cannot be waived and can be raised at any time).
C. Common carriers have a statutory right to use the power of
eminent domain to condemn property.
Both the Texas Natural Resources Code and the Texas Business
Organizations Code regulate hydrocarbon pipelines serving as common carriers.
The following provisions are relevant to this case.
The Natural Resources Code states: “Common carriers have the right and
power of eminent domain.” TEX. NAT. RES. CODE § 111.019(a). “In the exercise of
the power of eminent domain granted under the provisions of Subsection (a) of this
section, a common carrier may enter on and condemn the land, rights-of-way,
easements, and property of any person or corporation necessary for the
construction, maintenance, or operation of the common carrier pipeline.” Id.
§ 111.019(b). A person is a common carrier under the Natural Resources Code if
he “owns, operates, or manages a pipeline or any part of a pipeline in the State of
Texas for the transportation of crude petroleum to or for the public for hire, or
engages in the business of transporting crude petroleum by pipeline.” Id.
§ 111.002(1). “Crude petroleum” may include natural gas liquids. See Hlavinka v.
HSC Pipeline P’ship, LLC, 650 S.W.3d 483, 493–94 n. 29 (Tex. 2022).4
4
Footnote 29 in Hlavinka provides:
12
The Natural Resources Code defines “oil” to include “crude petroleum oil.”
TEX. NAT. RES. CODE § 115.001(5). “Petroleum product” is defined to include . . .
“any other liquid petroleum product or byproduct derived from crude petroleum oil
or gas.” Id. § 115.001(7)(X). And “gas” is defined to include “. . . gas produced
from an oil or gas well.” Id. § 115.001(3).
The Business Organizations Code authorizes business entities to use the
power of eminent domain as well:
In addition to the powers provided by the other sections of this
subchapter, a corporation, general partnership, limited partnership,
limited liability company, or other combination of those entities
engaged as a common carrier in the pipeline business for the purpose
of transporting oil, oil products, gas, carbon dioxide, salt brine,
fuller’s earth, sand, clay, liquefied minerals, or other mineral solutions
has all the rights and powers conferred on a common carrier by
Sections 111.019–111.022, Natural Resources Code.
TEX. BUS. ORGS. CODE § 2.105.
Natural gas liquids are liquid hydrocarbons that fall under the
umbrella of crude petroleum. U.S. Energy Information
Administration, Hydrocarbon gas liquids explained: Where do
hydrocarbon gas liquids come from? Basics,
https://www.eia.gov/energyexplained/hydrocarbon-gas-
liquids/where-do-hydrocarbon-gas-liquids-come-from-in-depth.php
(Oct. 26, 2021); see also U.S. Dep’t of Energy, Natural Gas Liquids
Primer, 5 (2018),
https://www.energy.gov/sites/prod/files/2018/07/f54/NGL_Primer.p
df (categorizing propane as a natural gas liquid and stating that
“NGLs are hydrocarbons—in the same family of molecules as
natural gas and crude oil, composed exclusively of carbon and
hydrogen”).
13
“The power of eminent domain is substantial but constitutionally
circumscribed.” Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex.,
LLC, 363 S.W.3d 192, 197 (Tex. 2012) (Texas Rice I). The Texas Constitution
prohibits the taking of private property for public use without adequate
compensation.5 TEX. CONST. art. I, § 17. Considering these constitutional
protections, courts give “special scrutiny” to questions about a private entity’s
exercise of eminent domain. Texas Rice I, 363 S.W.3d at 197. A private entity
relying on the statutory power to exercise eminent domain must strictly comply
with all statutory requirements, and, when there is doubt as to the scope of the
power, the use of such power is construed in favor of the landowner. Id. at 198.
In Hlavinka, the Texas Supreme Court held that PGP is an oil product under
section 2.105 of the Business Organizations Code because it is derived from crude
oil. Hlavinka, 650 S.W.3d at 494. Under the definitions provided by section
115.001 of the Natural Resources Code, the PGP produced by processing gas from
a gas well through a dehydrogenation facility would be a “liquid . . . derived from
. . . gas,” and it would be a “petroleum product.” See TEX. NAT. RES. CODE
§§ 115.001(3), 115.001(5), 115.001(7)(X). Since “oil” includes, but is not limited
5
“[E]vidence establishing a reasonable probability that the pipeline will, at some
point after construction, serve even one customer unaffiliated with the pipeline
owner is substantial enough to satisfy [the] public use requirement.” Denbury
Green Pipeline-Tex., LLC v. Tex. Rice Land Partners, Ltd., 510 S.W.3d 909, 917
(Tex. 2017) (Texas Rice II) (citing Tex. Rice Land Partners, Ltd. v. Denbury
Green Pipeline-Tex., LLC, 363 S.W.3d 192, 202 (Tex. 2012) (Texas Rice I)).
14
to, “crude petroleum oil,” and PGP is a petroleum product, it would also
necessarily be an “oil product” under section 2.105 of the Business Organizations
Code. Thus, PGP is an oil product whether it is derived from the catalytic
fracturing and distillation of oil, as in Hlavinka, or from the dehydrogenation of
propane that might have come from a gas well, as is the situation here.
On appeal, the parties do not dispute whether the new pipeline will serve the
public. See Denbury Green Pipeline-Tex., LLC v. Tex. Rice Land Partners, Ltd.,
510 S.W.3d 909, 917 (Tex. 2017) (Texas Rice II) (citing Texas Rice I, 363 S.W.3d
at 202) (“[E]vidence establishing a reasonable probability that the pipeline will, at
some point after construction, serve even one customer unaffiliated with the
pipeline owner is substantial enough to satisfy [the] public use requirement.”).
Therefore, based on our analysis, we conclude that STX is a common carrier. As a
common carrier, it has the right to exercise the power of eminent domain and to
condemn the appellants’ property in the absence of an agreement between the
parties. Thus, we conclude that the trial court has subject-matter jurisdiction in this
case.
II. Temporary injunction
The appellants argue that the trial court abused its discretion by denying
their request for injunctive relief by misapplying the law to the facts regarding
STX’s right to exercise the power of eminent domain. We have already concluded
15
that STX has the right to exercise the power of eminent domain, so this argument
is unavailing. There are several additional reasons why the court did not abuse its
discretion by denying the request for injunctive relief.
A. A temporary injunction is an extraordinary remedy that serves a
limited purpose.
The purpose of a temporary injunction is “to preserve the status quo of the
litigation’s subject matter pending a trial on the merits.” Clint Indep. Sch. Dist. v.
Marquez, 487 S.W.3d 538, 555 (Tex. 2016) (quoting Butnaru v. Ford Motor Co.,
84 S.W.3d 198, 204 (Tex. 2002)). The “status quo” is the “last, actual, peaceable,
non-contested status which preceded the pending controversy.” Id. (quoting In re
Newton, 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding)). A “temporary
injunction is an extraordinary remedy and does not issue as a matter of right.”
Patel v. St. Luke’s Sugar Land P’ship, L.L.P., 445 S.W.3d 413, 419 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied) (quoting Walling v. Metcalfe, 863 S.W.2d
56, 57 (Tex. 1993) (per curiam)).
A party seeking an injunction also has the burden of proof. See Butnaru, 84
S.W.3d at 204; Patel, 445 S.W.3d at 419. A temporary injunction is an
extraordinary remedy that does not issue unless the party seeking relief pleads and
proves three specific elements: (1) a cause of action; (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; Patel, 445 S.W.3d at 419. “An injury is irreparable if
16
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. The applicant need not establish that he will prevail at trial; rather, “the only
question before the trial court is whether the applicant is entitled to preservation of
the status quo of the subject matter of the suit pending trial on the merits.” Davis v.
Huey, 571 S.W.2d 859, 862 (Tex. 1978); Patel, 445 S.W.3d at 419.
B. We review a trial court’s order on a request for a temporary
injunction for an abuse of discretion.
Appellate courts review a trial court’s ruling on an application for a
temporary injunction for a clear abuse of discretion. Henry v. Cox, 520 S.W.3d 28,
33 (Tex. 2017); Patel, 445 S.W.3d at 419. Our review is limited to the validity of
the order; we do not consider or determine the underlying merits. Henry, 520
S.W.3d at 33–34; Patel, 445 S.W.3d at 420. We review the evidence before the
trial court in the light most favorable to its ruling, drawing all legitimate inferences
from the evidence, and deferring to the trial court’s resolution of conflicting
evidence. Patel, 445 S.W.3d at 419–20. We will only overturn an order if it is “so
arbitrary that it exceeds the bounds of reasonable discretion.” Henry, 520 S.W.3d
at 34 (quoting Butnaru, 84 S.W.3d at 204). There is no abuse of discretion if the
trial court’s ruling is reasonably supported by some evidence even if the ruling is
based on conflicting evidence. Id.; see Patel, 445 S.W.3d at 419.
17
Special procedural rules apply to a request for injunctive relief. See TEX. R.
CIV. P. 681–693A. “No writ of injunction shall be granted unless the applicant
therefor shall present his petition to the judge verified by his affidavit and
containing a plain and intelligible statement of the grounds for such relief.” TEX. R.
CIV. P. 682. “A verified petition for injunctive relief is not required to grant a
temporary injunction, however, when a full evidentiary hearing on evidence
independent of the petition has been held.” Mattox v. Jackson, 336 S.W.3d 759,
763 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Georgiades v. Di
Ferrante, 871 S.W.2d 878, 882 (Tex. App.—Houston [14th Dist.] 1994, writ
denied)).
C. The trial court did not abuse its discretion by denying the request
for injunctive relief.
Several reasons support the trial court’s denial of the application for a
temporary injunction. First, as we have already explained, the court has subject-
matter jurisdiction in this case because STX is a common carrier and entitled to
exercise the power of eminent domain to condemn the appellants’ property under
the relevant statutes.
Second, the appellants failed to comply with formal requirements for
obtaining a temporary injunction. The application for a temporary injunction was
not verified, and the trial court did not hold an evidentiary hearing on the matter.
Moreover, at oral argument, counsel for the appellants informed the Court that
18
there was no additional evidence that it could have presented at such a hearing to
convince the trial court to grant the temporary injunction.
Third, the purpose of a temporary injunction is to preserve the status quo
until a full trial on the merits can be made. But here, the appellants waited 27
months after STX filed its original petition for condemnation to seek a temporary
injunction. Counsel for the parties informed this Court at oral argument that the
pipeline in question was built and installed on the appellants’ property between the
filing of this suit and the application for injunctive relief. Appellants have not
demonstrated what status quo they were trying to preserve because the status quo
immediately preceding the request for injunctive relief was the existence of the
pipeline on the appellants’ property.
Fourth, the appellants have not shown the existence of a probable, imminent,
and irreparable injury. See Butnaru, 84 S.W.3d at 204. Under Texas law, an
irreparable injury is one that cannot be “adequately compensated in damages or [ ]
the damages cannot be measured by any certain pecuniary standard.” Id. The Civil
Practice and Remedies Code provides that “[a] writ of injunction may be granted if
. . . (5) irreparable injury to real or personal property is threatened, irrespective of
any remedy at law.” TEX. CIV. PRAC. & REM. CODE § 65.011(5). The appellants
argue that they were not required to demonstrate the lack of an adequate remedy or
risk of irreparable harm. Appellants’ Br. 21–22. Under the plain language of
19
section 65.011(5), they did have an obligation to show that irreparable harm was
threatened. The appellants’ application for injunctive relief relied instead on
conclusory statements, and it asserted: “Unless [STX] is enjoined, [appellants] will
suffer probable injury and continue to suffer clear, immediate and irreparable
injury/harm as a result of unlawful and tortious conduct.” 2 Clerk’s R. 2095. The
evidence attached to the application for temporary injunction did not support a
conclusion that irreparable harm was threatened.
Considering the appellate record and our analysis, we conclude that the trial
court’s denial of the request for injunctive relief was reasonably supported by some
evidence and not an abuse of discretion. See Henry, 520 S.W.3d at 34; Patel, 445
S.W.3d at 419. We overrule both of appellants’ issues.
Conclusion
The appellee’s motion to dismiss is denied. The pending motion to abate is
dismissed as moot.
We affirm the order of the trial court.
Peter Kelly
Justice
Panel consists of Justices Kelly, Hightower, and Guerra.
20