Tom Bennett, Jr., et al. v. Navarro County, et al.--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-96-098-CV

TOM BENNETT, JR., ET AL.,

Appellants

v.

NAVARRO COUNTY, ET AL.,

Appellees

From the 13th District Court

Navarro County, Texas

Trial Court # 96-00-06351-CV

O P I N I O N

The James B. Bonham Corporation and its president, Tom Bennett, Jr., (collectively "Bennett") sued Navarro County and the Navarro County Commissioner's Court (collectively "County") to enjoin the dismantling of a gate that he erected across a public road. Bennett sought a temporary injunction to keep the gate in place until the merits of his case could be heard. After the trial court denied the temporary injunction, this accelerated appeal followed. Tex. Civ. Prac. & Rem. Code Ann. 51.014 (Vernon Supp. 1997); Tex. R. App. P. 42. Because we find that the trial court did not abuse its discretion, we affirm.

Bennett owns real property on both sides of County Road 0220. Both parties concede that this road is as a third class road. Tex. Transp. Code Ann. 251.007 (Vernon 1997). Bennett claims that without a gate his pasture land on both sides of the road becomes useless. Thus, he erected a ten feet four inches wide gate on County Road 0220. The purpose of the gate is twofold. First, Bennett alleges that the gate is a necessity to keep cattle from leaving the property. Second, the gate keeps thieves and trash-dumpers off the property. After Bennett erected the gate, the County conducted a hearing to determine whether the gate was lawful and should be left in place. The County, after hearing testimony from interested parties, concluded that the gate was neither lawful or proper. Because the County had adopted a policy which prohibited County employees from going behind closed gates, it ordered Bennett to remove the gate or the County would remove it. Thereafter, Bennett brought suit to declare his rights and sought a temporary injunction to prevent the County from removing the gate. The trial court signed an order denying Bennett's request for a temporary injunction on April 25, 1996.

If the record or briefs are late, we may dismiss or affirm under Rule 60. Tex. R. App. P. 60; City of San Antonio v. Bynum, 933 S.W.2d 651, 652 (Tex. App. San Antonio 1996, n.w.h.); City of Beverly Hills v. Guevara, 886 S.W.2d 833, 835 (Tex. App. Waco 1994), rev'd on other grounds, 904 S.W.2d 655 (Tex. 1995). However, if the tardiness of the filing is reasonably explained, we may, in our discretion, consider the late-filed material. Tex. R. App. P. 42(a)(3); Bynum, 933 S.W.2d at 652; Spring v. Bollen, 928 S.W.2d 780, 781 (Tex. App. Waco 1996, n.w.h.); Guevara, 886 S.W.2d at 835. Bennett filed a Motion to Extend Time for Filing Statement of Facts and a Motion to Extend Time for Filing Brief. We denied both motions because Rule 42 provides no specific mechanism for extensions of time to file the record or the briefs in accelerated appeals. Id. Thereafter, Bennett filed his brief, which was due on May 27, 1996, on July 1, 1996. Bennett explained his tardiness was due to the court reporter giving birth to her first child during the week of April 22, 1996, and would not return to work until June 10, 1996. The court reporter told Bennett that she could not prepare the Statement of Facts until June 23, 1996. We find this a reasonable explanation for the tardiness of the record and Bennett's brief. Id. Using our discretion to consider the late-filed brief and Statement of Facts, we will review Bennett's appeal as to the denial of the temporary injunction.

Bennett's sole point of error complains that the trial court abused its discretion in denying his request for a temporary injunction because he is entitled to injunctive relief as a matter of law. Because an appeal of an order granting or denying a temporary injunction is an appeal from an interlocutory order, the merits of the applicant's case are not presented for appellate review. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978); Ichiban Records v. Rap-A-Lot Records, 933 S.W.2d 546, 551 (Tex. App. Houston [1st Dist.] 1996, no writ). Thus, appellate review is limited strictly to whether there has been a clear abuse of discretion in granting or denying the temporary injunction. Id. We may not substitute our judgment for that of the trial court, but may only determine whether the court's action was so arbitrary as to exceed the bounds of reasonable discretion. Davis, 571 S.W.2d at 862; Ichiban Records, 933 S.W.2d at 551. An abuse of discretion does not exist when the trial court bases its decisions on conflicting evidence. Id.

For a temporary injunction to be issued, a party must plead and prove a probable injury if temporary equitable relief is denied, and a probable right of recovery; the party need not establish final success in the litigation. Haq v. America's Favorite Chicken Co., 921 S.W.2d 728, 730 (Tex. App. Corpus Christi 1996, writ dism'd w.o.j.); TCA Bldg. Co. v. Northwestern Resources, 890 S.W.2d 175, 179 (Tex. App. Waco 1994, no writ). Probable injury subsumes the elements of imminent harm, irreparable injury, and no adequate remedy at law. Fasken v. Darby, 901 S.W.2d 591, 592 (Tex. App. El Paso 1995, no writ). The showing of an irreparable injury requires proof that the injury is of such a nature that the injured party cannot be adequately compensated for it in damages. Haq, 921 S.W.2d at 730. An applicant for a temporary injunction may prove irreparable injury by showing that damages cannot be measured by any certain pecuniary standard. Id. For purposes of injunctive relief, no adequate remedy at law exists if damages are incapable of calculation or if the defendant is incapable of responding in damages. Id. Thus, a legal remedy is not adequate unless it provides the injured party relief that is clear, full, practical, and efficient. TCA Bldg. Co., 890 S.W.2d at 179.

Bennett claimed that he would suffer an irreparable injury if the County removed the gate because then his only alternative would be to build a fence parallel to the road on each side with two gates constructed on either side accessing the property. Because there is no confinement on the road, Bennett would be required to hire people to stand on each side of these gates each time he moved his cattle to keep them from escaping. He admitted that it would cost approximately $5,000 to build a fence down both sides of the road and dig additional stock tanks. We find Bennett failed to establish that he would suffer irreparable injury by the removal of the gate. Haq, 921 S.W.2d at 730; TCA Bldg. Co., 890 S.W.2d at 179. Moreover, this evidence demonstrated that an adequate legal remedy existed for any potential damage to Bennett. Thus, the trial court did not abuse its discretion in determining that Bennett would not suffer an irreparable injury by the removal of the gate blocking County Road 0220. Davis, 571 S.W.2d at 861-62; Ichiban Records, 933 S.W.2d at 551.

We affirm the trial court's denial of the temporary injunction.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 26, 1997.

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