Michael Williams and Ollie Williams v. Wildwood Development Company, Inc., Independent American Construction, Inc., GDI and Associates, Inc.d/b/a Dietz Engineering, and Oak Leaf Estates, LLC

IN THE
TENTH COURT OF APPEALS
No. 10-22-00250-CV
MICHAEL WILLIAMS AND OLLIE WILLIAMS,
Appellant
v.
WILDWOOD DEVELOPMENT COMPANY, INC.,
INDEPENDENT AMERICAN CONSTRUCTION, INC.,
GDI AND ASSOCIATES, INC.D/B/A
DIETZ ENGINEERING, AND OAK LEAF ESTATES, LLC,
Appellees
From the 40th District Court
Ellis County, Texas
Trial Court No. 107519
MEMORANDUM OPINION
In one issue, appellants, Michael Williams and Ollie Williams, contend that the
trial court abused its discretion by granting a mandatory temporary injunction in favor
of appellee, Oak Leaf Estates, LLC (“OLE”). We affirm.
Background
This dispute involves stormwater drainage from a newer development to an older,
downhill development in Oak Leaf, Texas. The older development, Oak Leaf Farms
Phase Two, includes lots on both sides of Willow Bend Drive, which runs east and west.1
Each lot in Oak Leaf Farms Phase Two is encumbered by drainage easements on the outer
boundaries of the lot. These easements run north to south along the entire length of the
lot and are intended to take stormwater runoff away from the development to Red Oak
Creek. The Williamses own Lots 5 and 6 in the Oak Leaf Farms Phase Two development.
Lots 5 and 6 are adjacent to one another. Lot 5 is undeveloped, and Lot 6 contains a
residence.
The newer development, Oak Leaf Estates subdivision, is located on an
approximately 49-acre tract adjacent to Oak Leaf Farms Phase Two. The Oak Leaf Estates
development plan included a detention pond at the southern end of the project, adjacent
to the Williams’ lots. The detention pond is intended to hold water when it is raining but
does not hold water when it is not raining. Essentially, the detention pond functions to
slow the flow of water into adjoining properties.
After the detention pond was excavated, OLE constructed a stone retaining wall
at the southern end of the pond with three discharge openings. The three discharge
1 The testimony in this case establishes that the Oak Leaf Farms Phase Two development is situated
in a 100-year flood plain.
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 2
openings were designed as constructed weirs and sized to deliver reduced amounts of
water into the drainage easements on the Williamses’ properties. The testimony in this
case established that the reviewing engineer for the City of Oak Leaf reviewed the
drainage plan for Oak Leaf Estates eight times and approved it.
Despite OLE’s drainage plan, the Williamses asserted that stormwater flooded
their property and the properties of their neighbors. Michael apparently attempted to
persuade engineers with OLE, as well as city officials, to rectify the alleged flooding
problem. When neither OLE nor city officials responded, Michael engaged in self-help
by blocking the central discharge point with dirt and rock and filling in the swale that
had been created in the drainage easement between Lots 5 and 6. Michael also blocked
the eastern discharge point with dirt and rock to prevent stormwater from entering the
drainage easement between Lots 6 and 7. Michael did not obtain the consent of OLE to
block the two discharge points or fill in the swale in the drainage easement. Additionally,
Michael did not submit drawings or drainage plans to the City of Oak Leaf, nor did he
seek the City’s approval to alter OLE’s designed and approved drainage plan for the
property. Nevertheless, Michael alleges that his efforts prevented further flooding and
damage to Lots 5 and 6, as well as his neighbor’s properties to the east.
Later, the Williamses filed suit against Wildwood Development Company, Inc.,
Independent American Construction, Inc., GDI and Associates, Inc. d/b/a Dietz
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 3
Engineering, and the City of Oak Leaf.2 In their original petition, the Williamses asserted
trespass and negligence causes of action against the defendants, as well as an assertion
that the defendants created an ongoing nuisance that substantially impairs their ability
to use and protect their property. The Williamses complained not only about “an on-
going new and harmful water drainage pattern on to” their property, but also
“construction trash and debris from the on-going residential constructions” that
continues to “accumulate on the lower portion of the fifty-acre development and at the
Pond wall and collects on the perimeter fence of the Williams property and neighbor’s
yards.”
OLE filed a verified plea in intervention and application for injunctive relief. In
this filing, OLE asserted a trespass cause of action against the Williamses based on
Michael’s self-help actions, sought a declaration that the drainage easement on the
Williamses’ lots are for the benefit of OLE “to provide for the drainage of rainfall run-off
from Oak Leaf Estates across Oakleaf [sic] Farms Phase Two and into Red Oak Creek,”
and applied for a temporary and permanent injunction compelling the Williamses to
remove the “dirt and rubble” in the easements and prohibiting the Williamses from
taking any action to “delay, hinder, or obstruct the drainage of water from the detention
2 Wildwood Development Company, Inc., Independent American Construction, Inc., GDI
Associates, Inc. d/b/a Dietz Engineering, and the City of Oak Leaf are not parties to this appeal.
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 4
ponds on Lot 11 of Oak Leaf Estates into the drainage easements on the Williams’ [sic]
lots.”
The Williamses responded by filing a first amended petition asserting trespass and
negligence claims against OLE, as well as alleging that OLE has created an ongoing
nuisance that substantially impairs their ability to use and protect their property.
Thereafter, the trial court conducted a hearing on OLE’s verified application for
injunctive relief. After hearing testimony from several witnesses, the trial court
determined that OLE was entitled to a temporary injunction. Specifically, the trial court
concluded that,
the Court finds that the Williams have engaged in an ongoing active
trespass by placing dirt and rock along and over the common boundary
between the southern boundary of Lot 11 and the northern boundary Lots
4, 5, 6, and 7 of Oak Leaf Farms Phase Two, and have obstructed two of the
three discharge points from the detention pond on Lot 11 as shown on Sheet
No. C2.1 (Proposed Drainage Area Map) included in Exhibit 25 introduced
in evidence, and specifically in the area labeled “Discharge Point D
Detention Pond” on said drawing. The Court further finds that the
Williams have engaged in nonconforming activities in violation of OLE’s
easement rights in the drainage easements between Lots 4 and 5, between
Lots 5 and 6, and between Lots 6 and 7 of Oak Leaf Farms Phase Two by
placing dirt and rock that prevents storm water from discharging through
the weirs or cut-outs in the retaining wall on the southern side of the
detention pond and placing dirt in the drainage easements. The Court
further finds that unless a temporary injunction is granted, the Williams
will continue to maintain a dirt and rock dam or berm partially on Lot 11,
committing a continuing and active trespass, and will continue to obstruct
the drainage of water from the detention pond on Lot 11 into the drainage
easements on the Williams Lots. The Court further finds that such
unrestrained conduct by the Williams will cause OLE to suffer loss of rights
in real property and the use and enjoyment of Lot 11 will be destroyed; the
damage to OLE cannot be easily quantified; and money damages cannot
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 5
wholly compensate OLE for the loss. Accordingly, the Court finds that OLE
faces a probable, imminent, and irreparable injury if injunctive relief is not
granted and that OLE has no adequate remedy at law.
As a result, the trial court ordered the Williamses to remove the rock and dirt they had
placed on the property of OLE and to restore the drainage easements to the condition that
existed before they placed fill dirt and rock in the drainage easements. The trial court
also ordered the parties to split evenly the costs of removing the rock and dirt and
restoring the drainage easements. This accelerated, interlocutory appeal followed.
Standard of Review
“A temporary injunction is an extraordinary remedy and does not issue as a matter
of right.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v.
Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993)). The question before the trial court is whether the
applicant is entitled to preserve the status quo of the litigation’s subject matter pending
trial on the merits. Id.; see State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975) (defining
status quo as the “last, actual, peaceable, non-contested status that preceded the pending
controversy”); see also Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 882 (Tex. App.—
Dallas 2003, no pet.) (noting that the underlying merits of the controversy are not legal
issues pending before the trial court during a temporary-injunction hearing). “To be
entitled to a temporary injunction, the applicant must plead a cause of action and show a
probable right to recover on that action and a probable, imminent, and irreparable injury
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 6
in the interim.” Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 857 (Tex. App.—Fort
Worth 2003, no pet.) (citing Butnaru, 84 S.W.3d at 204).
We review a temporary injunction for an abuse of discretion. See Butnaru, 84
S.W.3d at 204. A trial court abuses its discretion when it acts unreasonably or in an
arbitrary manner or without reference to any guiding rules and principles. Id. at 211. We
will not disturb the trial court’s decision to grant injunctive relief absent a clear abuse of
discretion. Reagan Nat’l Advert. v. Vanderhoof Family Tr., 82 S.W.3d 366, 370 (Tex. App.—
Austin 2002, no pet.). Our scope of review is limited to the validity of the order granting
or denying the temporary injunction. See id. When reviewing the order, we view the
evidence in the light most favorable to the order, indulging every reasonable inference in
its favor, and “determine whether the order was so arbitrary that it exceeds the bounds
of reasonable discretion.” Fox, 121 S.W.3d at 857. “A trial court does not abuse its
discretion if it bases its decision on conflicting evidence and evidence in the record
reasonably supports the trial court’s decision.” Id.Analysis
In their sole issue on appeal, the Williamses contend that the trial court erred by
granting OLE’s request for injunctive relief because OLE failed to demonstrate imminent
and irreparable harm from Michael’s self-help actions and because the order granting
injunctive relief was overly broad. The Williamses also argue that the mandatory
temporary injunction is improper because the purpose of the injunction was not to
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 7
maintain the status quo, but rather revert to a state that existed only after OLE’s actions,
and because a trespass does not require a mandatory temporary injunction.
STATUS QUO
Temporary injunctions are either prohibitive or mandatory. Tri-Star Petroleum Co.
v. Tipperary Corp., 101 S.W.3d 583, 592 (Tex. App.—El Paso 2003, pet. denied). While “a
prohibitive injunction forbids conduct . . . a mandatory injunction requires it.” Id. (citing
Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 576 (Tex. App.—Austin 2000, no
pet.) (“A mandatory injunction requires conduct from a party, whereas a prohibitive
injunction forbids conduct.”)). Here, the trial court ordered the Williamses to remove the
dirt and rock blocking the two drainage points and filling OLE’s drainage easements;
thus, because the trial court’s temporary injunction requires conduct from a party, it takes
the form of a mandatory temporary injunction. See id.Among the Williamses’ many arguments is that the mandatory temporary
injunction is improper because the purpose of requiring the Williamses to remove the
dirt and rock blocking the two drainage points and filling the drainage easements was
not to maintain the status quo. In fact, the Williamses assert that the current condition,
after Michael’s self-help actions, is the status quo that existed since they purchased their
property. We disagree.
Temporary injunctions preserve the status quo pending trial on the merits. In re
M-I L.L.C., 505 S.W.3d 569, 576 (Tex. 2016) (orig. proceeding); see Clint Indep. Sch. Dist. v.
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 8
Marquez, 487 S.W.3d 538, 555-56 (Tex. 2016); Butnaru v. Ford Motor Co., 84 S.W.3d at 204.
And as noted earlier, the status quo is “‘the last, actual, peaceable, non[-]contested status
which preceded the pending controversy.’” Universal Health Servs., Inc. v. Thompson, 24S.W.3d 570, 577 (Tex. App.—Austin 2000, no pet.) (quoting Transp. Co. v. Robertson
Transps., Inc., 152 Tex. 551, 261 S.W.2d 549, 553-54 (1953)). “If an act of one party alters
the relationship between the party and another, and the latter contests the action, the
status quo cannot be the relationship as it exists after the action.” Benavides ISD v. Guerra,
681 S.W.2d 246, 249 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.); see Lifeguard Benefit
Servs. v. Direct Med. Network Solutions, Inc., 308 S.W.3d 102, 114 (Tex. App.—Fort Worth
2010, no pet.).
The record reflects that the Williamses and OLE both alleged trespass causes of
action. The Williamses’ trespass claim is premised on flooding purportedly caused by
OLE’s drainage plan. OLE’s trespass claim is premised on Michael’s self-help action of
blocking two discharge points and filling drainage easements with dirt and rock. The
testimony established that the last, actual, peaceable, non-contested status which
preceded the pending controversy was when OLE’s drainage plan was first effectuated,
but before the Williamses experienced flooding on their property. Indeed, in their live
pleading, the Williamses acknowledged that the OLE drainage plan was constructed
during the fall of 2019 through the spring of 2020, and that “[t]his action caused severe
flooding into the front, sides, and backyards of the Williams Properties ‘over Willow
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 9
Bend Drive’ and their neighbor’s backyards to the east. This flooding lasted until Mr.
Williams closed off drainage from the Pond (Outfall 2) at his own expense.” These
statements demonstrate that the controversy between the parties did not commence until
after the drainage plan was effectuated, flooding commenced, and Michael engaged in
self-help. In other words, the status quo is the condition of the drainage points and
easements prior to Michael’s self-help actions. See Lifeguard Benefit Servs., 308 S.W.3d at
114; see also Benavides Indep. Sch. Dist., 681 S.W.2d at 249.
OLE’S TRESPASS CAUSE OF ACTION
Next, the Williamses contend that the mandatory temporary injunction was
improper because OLE failed to demonstrate imminent and irreparable harm, and
because a trespass alone does not constitute an irreparable injury. Probable injury
includes the elements of imminent harm, irreparable injury, and no adequate remedy at
law. Shor v. Pelican Oil & Gas Mgmt., LLC, 405 S.W.3d 737, 750 (Tex. App.—Houston [1st
Dist.] 2013, no pet.). 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.
“Trespass to real property is an unauthorized entry upon the land of another, and
may occur when one enters—or causes something to enter—another’s property.” Barnes
v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011); see Env’t Processing Sys., L.C. v. FPL Farming
Ltd., 457 S.W.3d 414, 419 (Tex. 2015) (noting that the Texas Supreme Court “has
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 10
consistently defined a trespass as encompassing three elements: (1) entry (2) onto the
property of another (3) without the property owner’s consent or authorization”). “Every
unauthorized entry upon the land of another is a trespass even if no damage is done or
the injury is slight . . . .” McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex. Civ. App.—
Beaumont 1934, writ ref’d); see, e.g., Peter & Camella Scamardo, FLP v. 3D Farms, No. 10-15-
00163-CV, 2016 Tex. App. LEXIS 149, at *4 (Tex. App.—Waco Jan. 7, 2016, pet. denied)
(mem. op.) (same); Withrow v. Armstrong, No. 10-05-00320-CV, 2006 Tex. App. LEXIS
9994, at **2-3 (Tex. App.—Waco Nov. 15, 2006, pet. denied) (mem. op.) (same).
At the outset, we note that not every trespass constitutes an irreparable injury as a
matter of law. See Amend v. Watson, 333 S.W.3d 625, 629 (Tex. App.—Dallas 2009, no pet.)
(“Similarly, we decline to hold that every trespass constitutes irreparable injury as a
matter of law. Instead, applying well-settled Texas law, we conclude that the Amends
were required to submit evidence to demonstrate a probable, imminent, and irreparable
injury.” (citing Butnaru, 84 S.W.3d at 204; Matrix Network, Inc. v. Ginn, 211 S.W.3d 944, 948
(Tex. App.—Dallas 2007, no pet.))).
However, “[w]here a trespass invades the possession of a person’s land, or
destroys the use and enjoyment of the land, an injunction is a proper remedy.” Savering
v. City of Mansfield, 505 S.W.3d 33, 49 (Tex. App.—Fort Worth 2016, pet. denied) (citations
omitted); see Yarto v. Gilliland, 287 S.W.3d 83, 97 (Tex. App.—Corpus Christi 2009, no pet.)
(holding that the potential loss of rights in real property is probable, imminent, and
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 11
irreparable injury that qualifies a party for a temporary injunction); Rus-Ann Dev., Inc. v.
ECGC, Inc., 222 S.W.3d 921, 927 (Tex. App.—Tyler 2007, no pet.) (same); see also Seghers v.
Kormanik, No. 03-13-00104-CV, 2013 Tex. App. LEXIS 7759, at *14 (Tex. App.—Austin
June 26, 2013, no pet.) (mem. op.) (same). Moreover, “[a]n injunction is also a proper
remedy to restrain repeated or continuing trespasses where the remedy at law is
inadequate because of the nature of the injury or the multiplicity of actions necessary to
obtain re-dress.” Beathard Joint Venture v. W. Houston Airport Corp., 72 S.W.3d 426, 432
(Tex. App.—Texarkana 2002, no pet.).
OLE pleaded that the Williamses invaded the possession of OLE’s land by piling
significant volumes of dirt and rock and preventing OLE from enjoying the intended use
of that land. Furthermore, Jay Childs, a civil engineer licensed by the State of Texas and
the engineer who designed the drainage plan in question, testified that blocking two of
the discharge points channels all the outflow to a single discharge point and causes water
to sit in the detention pond longer. Chad Adams, the developer of this land, explained
that the longer water stays in the detention pond, silt builds up and the grass is killed.
Adams and Child also testified that Michael’s self-help actions also cause concern about:
(1) the potential for flooding neighboring properties; and (2) the potential for violations
of contractual obligations OLE has with the City of Oak Leaf to maintain the detention
pond. This is sufficient evidence of a “probable, imminent, and irreparable injury.” See
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 12
Savering, 505 S.W.3d at 49; Yarto, 287 S.W.3d at 97; Rus-Ann Dev., Inc., 222 S.W.3d at 927;
see also Seghers, 2013 Tex. App. LEXIS 7759, at *14.
THE BREADTH OF THE TEMPORARY-INJUNCTION ORDER
Finally, the Williamses complain that the trial court’s temporary-injunction order
is overly broad because it compels them to remove dirt from, not only OLE’s property,
but also their own properties. In other words, the Williamses characterize the trial court’s
temporary-injunction order as overly broad because it grants more relief to OLE than it
is entitled.
We have not located, and the Williamses have not pointed us to, any place in the
record before us where they raised their overbreadth objection to the mandatory
temporary injunction. The failure to raise an overbreadth complaint in the trial court
constitutes a waiver of that complaint on appeal. See Livingston v. Livingston, 537 S.W.3d
578, 598 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Hartwell v. Lone Star, PCA, 528
S.W.3d 750, 765-66 (Tex. App.—Texarkana 2017, pet. dism’d) (citations omitted) (same);
see also Martinez v. Mangrum, No. 02-17-00235-CV, 2018 Tex. App. LEXIS 2984, at **9-10
(Tex. App.—Fort Worth Apr. 26, 2018, no pet.) (mem. op.) (same); Ford v. Ruth, No. 03-
14-00460-CV, 2016 Tex. App. LEXIS 3367, at *8 (Tex. App.—Austin Mar. 31, 2016, pet.
denied) (mem. op.) (“There is nothing in the record indicating that
appellants . . . contended that the permanent injunction was overly broad in district
court. Instead, they make these complaints for the first time on appeal and have,
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 13
therefore, failed to preserve these issues for review.”). By failing to present their
overbreadth complaint to the trial court, the Williamses failed to preserve any error
regarding the terms of the mandatory temporary injunction. See TEX. R. APP. P. 33.1(a);
Livingston, 537 S.W.3d at 598; Hartwell, 528 S.W.3d at 765-66; see also Martinez, 2018 Tex.
App. LEXIS 2984, at **9-10; Ford, 2016 Tex. App. LEXIS 3367, at *8.
Based on the foregoing, we conclude that the trial court did not abuse its discretion
by granting the mandatory temporary injunction. See Butnaru, 84 S.W.3d at 204; see also
Fox, 121 S.W.3d at 857; Reagan Nat’l Advert., 82 S.W.3d at 370. Accordingly, we overrule
the Williamses’ sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
STEVE SMITH
Justice
Before Justice Johnson,
Justice Smith,
and Justice Rose3
Affirmed
Opinion delivered and filed March 15, 2023
[CV06]
The Honorable Jeff Rose, Senior Chief Justice (Retired) of the Third Court of Appeals, sitting by
3 3
assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE ANN. §§ 74.003, 75.002,
75.003.
Williams, et al. v. Wildwood Development Company, Inc., et al. Page 14