101 Lexington Tower, LLC v. 830 N. St. Mary's Hotel, Ltd.

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101 LEXINGTON TOWER, LLC and Lex Avenue Hotel, LLC, Appellants v. 830 N. ST. MARY'S HOTEL, LTD. and Phoenix Hospitality Riverwalk, LLC, Appellees

No. 04-23-00242-CV

Court of Appeals of Texas, Fourth District, San Antonio

August 2, 2023

From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2022CI09922 Honorable Mary Lou Alvarez, Judge Presiding

Patricia O. Alvarez, Justice Irene Rios, Justice Liza A Rodriguez, Justice

OPINION

Patricia O. Alvarez, Justice

AFFIRMED

This is an interlocutory appeal of the trial court's order granting a temporary injunction. Appellants argue the trial court abused its discretion in granting the temporary injunction because, inter alia, there was insufficient evidence to support each element.

Having reviewed the evidence under the appropriate standards, we cannot conclude that the trial court abused its discretion in granting the temporary injunction. We affirm the trial court's March 28, 2023 amended temporary injunction order.

Background

The underlying case is a dispute between the companies that operate two adjacent hotels on the San Antonio Riverwalk: the Thompson and the Indigo. We recite the relevant alleged facts from the parties' pleadings.^[1]

A. Wood-Fired Grill's Exhaust

When the Thompson San Antonio Riverwalk Hotel opened in 2021, it included Landrace, a restaurant which cooks some of its signature dishes on a wood-fired grill. The grill's exhaust, which included smoke, grease, and smells, discharged approximately thirty feet away from the Hotel Indigo San Antonio Riverwalk.

The Indigo's guests and staff complained about the smells as well as the smoke and grease accumulating on the building, in the hallways, and inside guest rooms; it had permeated the sheetrock, flooring, soft goods, and cased goods. The Indigo notified the Thompson of these adverse effects.

The Thompson contracted with an engineering firm to redesign the grill's exhaust system, including a five-stage filter and a relocated exhaust point. In February and March of 2022, the exhaust system was modified. The modifications greatly reduced the amount of smoke emitted.

Despite the exhaust system modifications, the smells and grease were still being emitted, and the Indigo's customer and staff complaints continued.

B. Indigo Sues Thompson

Plaintiffs 830 N. St. Mary's Hotel, Ltd. and Phoenix Hospitality Riverwalk, LLC (collectively the Indigo) sued 101 Lexington Tower, LLC and Lex Avenue Hotel, LLC (collectively the Thompson). The Indigo's causes of action against the Thompson include negligence, nuisance, and trespass to real property. The Indigo also sought temporary injunctive relief: It asked the trial court "to shut down [the Thompson's] kitchen grills or whatever other operations are generating and causing the smoke and odors to blow from the Thompson's exterior vents onto and into the Indigo, and to keep them shut down pending a trial on the merits."

C. Temporary Injunction Hearing

On March 2nd and 3rd, 2023, the trial court held a hearing on the Indigo's application.

The Indigo's parent company's vice-president of business development, Ian McClure, described how the grill's exhaust was affecting the Indigo, its guests, and its staff.

The next day, as the hearing continued, the Thompson's management company's development manager testified. He described how the redesigned exhaust system included a five-stage filter, which was serviced monthly, and which eliminated the smoke "the majority of the time." He added that the exhaust point was moved horizontally about 100 feet, and it was raised vertically to about 30-40 feet above ground, near the level of the gutters on the Indigo's roof.

The Thompson's general manager testified that they had not had any complaints about the grill's exhaust from any of their guests, either those on the fourth-floor pool deck, or from the residences that were on the 12th to the 19th floors. The Thompson's general manager and executive chef also testified about the importance of the wood-fired grill to the hotel's concept and the Landrace's menu, customers, and suppliers.

D. Temporary Injunction Orders

At the conclusion of the hearing, the trial court orally granted the Indigo's amended application for a temporary injunction, and it ordered the Thompson to "not operate the wood burning fire grill until the time of trial."

On March 10th, the trial court signed an order granting the Indigo's application for a temporary injunction.

On March 13th, the Thompson filed its notice of appeal, which challenged the March 10th temporary injunction.

On March 21st, because it was void on its face, we stayed the trial court's March 10th temporary injunction order.

On March 28th, to correct the defects in the March 10th order, the trial court signed an amended temporary injunction order, which granted the Indigo's amended verified application for temporary injunction.

Temporary Injunction Order to Review

Before we decide whether the trial court abused its discretion in granting a temporary injunction, we must first determine which order we are reviewing.

A. March 10th Order

The Thompson argues that the trial court's March 10th temporary injunction order was void for failing to comply with Rules 683 and 684.

We agree.

Rule 683 requires an order granting an injunction to set the cause for trial on the merits, and Rule 684 requires the order to set the amount of security. See Tex. R. Civ. P. 683, 684; Qwest Commc'ns Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex. 2000).

The March 10th order did neither; it was void. See Qwest Commc'ns, 24 S.W.3d at 337; Grounds v. First GroundRock Royalties, LLC, 629 S.W.3d 674, 676 (Tex. App.-San Antonio 2021, no pet.).

B. March 28th Order

After the Thompson filed its notice of appeal and we stayed the March 10th order, the trial court signed its March 28th amended temporary injunction order.

The Thompson argues that our March 21st order-which stayed the trial court's March 10th temporary injunction order-"prohibited the trial court from amending its [March 10th] order."

We disagree.

Unlike Maldonado, on which the Thompson relies, our March 21st order stayed the trial court's March 10th order, it did not stay all proceedings. Cf. City of Corpus Christi v. Maldonado, 398 S.W.3d 266, 269 n.3 (Tex. App.-Corpus Christi-Edinburg 2011, no pet.) (deciding that a trial court's order rendered after the court of appeals "stayed proceedings in the trial court" was void).

Further, Rule 29.5 anticipates that a trial court may make further orders "while an appeal from an interlocutory order is pending." Tex.R.App.P. 29.5 ("While an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and unless prohibited by statute may make further orders, including one dissolving the order complained of on appeal.").

The trial court's "further orders" may include replacing an earlier, defective temporary injunction order with an amended order that corrects the earlier order's defects. Chin Tuo Chen v. Braxton, No. 06-09-00088-CV, 2010 WL 99064, at *1 (Tex. App.-Texarkana Jan. 13, 2010, no pet.) (mem. op.) ("We conclude that the trial court had authority to enter the amended temporary injunction correcting the Rule 683 deficiencies."); Tanguy v. Laux, 259 S.W.3d 851, 855 (Tex. App.-Houston [1st Dist.] 2008, no pet.) ("We conclude that the trial court's actions in dissolving the August Order and replacing it with the December Order do not interfere with or impair our jurisdiction or the effectiveness of the relief sought in the appeal because Tanguy's appellate challenges concerning the substance of the injunction remain alive, despite the trial court's orders, because the two injunctions are substantively the same."); Nexus Fuels, Inc. v. Hall, No. 05-98-02147-CV, 1999 WL 993929, at *2 (Tex. App.-Dallas Nov. 1, 1999, no pet.) (not designated for publication) ("The amended order does nothing more than bring the temporary injunction into compliance with rule 683 of the rules of civil procedure.").

Accordingly, we will review the trial court's March 28th amended temporary injunction order to determine whether the trial court abused its discretion in granting the order.

Standard of Review

"Whether to grant or deny a temporary injunction is within the trial court's sound discretion." Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); see Abbott v Anti-Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 916 (Tex. 2020) (per curiam).

On appeal, "the court of appeals cannot overrule the trial court's decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles." Butnaru, 84 S.W.3d at 211; see Argo Group US, Inc. v. Levinson, 468 S.W.3d 698, 700 (Tex. App.-San Antonio 2015, no pet.) (op. on reh'g). "The reviewing court must not substitute its judgment for the trial court's judgment unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion." Butnaru, 84 S.W.3d at 204; accord Washington v. Associated Builders & Contractors of S. Tex. Inc., 621 S.W.3d 305, 311 (Tex. App.-San Antonio 2021, no pet.).

"We review the evidence in the light most favorable to the trial court's order and indulge all reasonable inferences in favor of the decision." Argo Group, 468 S.W.3d at 700; accord Washington, 621 S.W.3d at 311. "In resolving evidentiary matters, a trial court does not abuse its discretion 'if some evidence reasonably supports the court's ruling.'" Anti-Defamation League, 610 S.W.3d at 916 (quoting Henry v. Cox, 520 S.W.3d 28, 34 (Tex. 2017)); accord Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978) ("An abuse of discretion does not exist...