Glenn D. Weatherby, Individually and d/b/a Southern Star Ranch, Don W. Weatherby, Individually and d/b/a Southern Star Ranch v. Cope Cemetery Association, et al.--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00043-CV

Glenn D. Weatherby, Individually

and d/b/a Southern Star Ranch,

Don W. Weatherby, Individually

and d/b/a Southern Star Ranch,

Appellants

v.

Cope  CemeteryAssociation et al.,

Appellees

From the 249th District Court

Johnson County, Texas

Trial Court No. C200300115

MEMORANDUM Opinion

This appeal concerns a suit to abate a nuisance. Weatherby, the operator of a motorcycle race track, appeals the trial court s granting of a temporary injunction in favor of Cope and several other owners of real property adjacent to the track. We affirm.

In Weatherby s first issue, he contends that some of the property owners did not present evidence of their injuries or right to recovery. Weatherby does not suggest how the failure of some property owners to present evidence of their entitlement to an injunction affects the injunction for the benefit of those who did present evidence. The trial court did not abuse its discretion. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam). We overrule Weatherby s first issue.

In Weatherby s second issue, he contends that the trial court erred in permitting Cope s expert witness to testify, over Weatherby s objection that Cope failed to disclose the witness in response to Weatherby s request for production. See Tex. R. Civ. P. 194.2. Cope disclosed the witness in its petitions and the witness accompanied Weatherby s witnesses when the latter took measurements. The trial court did not abuse its discretion in overruling Weatherby s objection. See Tex. R. Civ. P. 193.6; Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998). We overrule Weatherby s second issue.

In Weatherby s third issue, he contends that the trial court erred in rendering a temporary injunction that goes beyond maintaining the status quo. The injunction not only prohibits Weatherby s commercial motorcycle activities, but prohibits motorcycle riding by Weatherby s family and friends during funeral ceremonies on Cope s property. The trial court did not abuse its discretion. See In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding); Gen. Tire, 970 S.W.2d at 526. We overrule Weatherby s third issue.

In Weatherby s fourth issue, he contends that the trial court erred in rendering a temporary injunction that determined the merits of the suit. Weatherby cites Texas Foundaries, Inc. v. International Molders & Foundry Workers Union. See Tex. Foundaries, Inc. v. Int l Molders & Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460 (Tex. 1952). Texas Foundaries stands for the proposition that a trial court should not grant a temporary injunction without setting a timely trial on the merits. Id., 151 Tex. at 245, 248 S.W.2d at 464; see Tex. R. Civ. P. 683. The injunction is in effect until trial on the merits, and the trial court set the cause for trial. We overrule Weatherby s fourth issue.

Having overruled Weatherby s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurring with note)*

Affirmed

Opinion delivered and filed June 22, 2005

[CV06]

* (Justice Vance concurs with a note: The opinion in this case highlights the inattention we are giving to cases such as this by not discussing the terms of the temporary injunction in detail. The injunction speaks of a public motorcross practice facility, a term not used in the opinion. Although I concur in the judgment, I cannot join the opinion which contains no analysis of the details of the injunction, which Weatherby contends is overly broad.)