CITY OF WILMER, Appellant v. NORTHWIND PROPERTIES, LTD., Appellee

REVERSE, VACATE, and REMAND; Opinion issued December 22, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00309-CV
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CITY OF WILMER, Appellant
V.
NORTHWIND PROPERTIES, LTD., Appellee
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On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. 10-01692-J
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MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Francis
        This is an interlocutory appeal from a temporary injunction. The City of Wilmer notified Northwind Properties, Ltd., owner of a manufactured home community, that it would no longer read the individual water meters of Northwind's tenants but would instead read the master meter and bill Northwind for the entire community. The trial court enjoined the City from ceasing its current practice of reading and billing individual tenants.
        The City appealed and argues, among other things, the trial court abused its discretion in granting the injunction because Northwind did not establish a probable right of recovery. We agree. We reverse the trial court's order granting the temporary injunction, vacate the temporary injunction, and remand for further proceedings.         In September 1984, the City of Wilmer entered into a utility and public service agreement with the owner of the property at issue, River Oaks M.H.C., a 276-lot manufactured home park located in the City. Under the agreement, the owner agreed to pay for, install, and maintain individual meters on each lot, and the City agreed to read the individual meters and bill each tenant. Either party could cancel the agreement on thirty days' written notice and revert back to commercial billings from the master meter. The agreement provided it was binding upon the parties and their “respective successors and assigns.”
        When Northwind purchased the property in 1996, the City was reading the individual meters and billing tenants for water service in River Oaks. But, in late December 2009, the City advised Northwind that it would cease reading the individual meters and would instead bill the single master meter owned by the City. Northwind filed a petition for declaratory and injunctive relief to stop the City's action.
        John Bovone, Northwind's general partner, was the sole witness at the temporary injunction hearing. He testified that when Northwind purchased River Oaks, the prior owner did not tell him about the 1984 agreement. Bovone testified Northwind would incur substantial costs to “take on [the] task” of reading the meters and billing the residents and said he believed Northwind would have to “get licensed through a State agency to bill residents for water and do monthly testing.” Bovone said Northwind was not currently staffed to read meters. He also testified that the written leases with tenants did not provide for payments to Northwind for water service.
        Bovone also testified that the City said it would continue the service for $4,000 a month. Bovone testified he owned other manufactured home communities. In some of those communities, the tenants were individually billed while in others water was billed at the master meter. Bovone did not identify where these communities were located or whether they were even in the City nor did he offer any testimony as to how water services were provided to persons similarly situated in the City. After a brief evidentiary hearing, the trial court granted the temporary injunction.
        We review the trial court's granting of a temporary injunction for an abuse of discretion. See Bank of Tex., N.A. v. Gaubert, 286 S.W.3d 546, 552 (Tex. App.-Dallas 2009, pet. dism'd w.o.j.). A trial court abuses its discretion in granting an injunction when it misapplies the law to established facts or when the evidence does not reasonably support the determination of the existence of a probable right of recovery or probably injury. Id. We draw all legitimate inferences from the evidence in the light most favorable to the trial court's order. Id.
        To obtain a temporary injunction, the applicant must plead and prove (1) a cause of action against the defendant, (2) a probable right to the relief sought, and (3) a probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2004). We do not reach the merits of the dispute on interlocutory appeal and will not assume the evidence presented at the temporary injunction hearing will be the same evidence developed at a full trial on the merits. See Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 884-85 (Tex. App.-Dallas 2003, no pet.).
        The City argues, among other things, that Northwind failed to show a probable right to relief because the City lawfully terminated an existing contract. As it did below, Northwind counters that “the proposed cessation of water service to the individual tenants of River Oaks illegally discriminates against those residents,” even if Northwind is subject to the contract. In response, the City asserts that Northwind failed to produce any evidence of discrimination.
        Below and on appeal, Northwind argued the City is required by law to provide individual water service, relying on City of Galveston v. Kenner, 111 Tex. 484, 240 S.W. 894 (Tex. 1922). In Kenner, the plaintiff was the owner of a two-story building; the lower floor housed five or six storehouses or shops while the upper floor was rented as a hotel. Kenner, 240 S.W. at 486. The stores and hotel were supplied with water through one meter. Id. Kenner and his tenants requested the city to install separate and distinct meters and water service for each of the stores and for the hotel. Id. The city refused, relying on an ordinance that, among other things, prohibited the installation of more than one service line and one meter for any house or building and made the owner responsible to the city for the payment by the tenant for all waters furnished and supplied to him. Id. at 486-87. The court explained the obligation of a water supplier, whether that be a municipality or public service corporation:
 
It is the duty of the organization supplying the water to supply same impartially to all reasonably within the reach of its pipes and mains. This service must be given without discrimination between persons similarly situated or under circumstances substantially the same. Water must be furnished to all who apply therefor, offer to pay the rates, and abide by such reasonable rules and regulations as may be made a condition for rendering the service.
 
Id. at 488.
 
        The court ultimately concluded that the effect of the ordinance was to deny a tenant the right to water in the city unless he was in possession of an entire building and the ordinance was therefore unreasonable and discriminatory. Id. at 489. Moreover, the court concluded the ordinance “denied the right of anyone to erect or own buildings” in the city for rental purposes unless the owner assumed the additional obligation of paying the water rents of his tenants. Id.
        We have reviewed the record and have found no evidence the City is unlawfully treating River Oaks manufactured home community any differently than other persons similarly situated or under circumstances substantially the same. In fact, no evidence was presented at all regarding the City's practice with respect to reading meters and billing its residents. The only evidence presented was that the City planned to bill River Oaks from the master meter but had offered to continue to individually read the meters and bill the tenants for a fee. Northwind acknowledged at oral argument that it presented no evidence of discrimination because it had not had time to develop the evidence. Given the record in this case and the absence of evidence to support Northwind's claim of discrimination, we conclude Northwind failed to establish a probable right to relief and the trial court abused its discretion in granting the temporary injunction. To the extent Northwind separately argues the Texas Water Code provides “persuasive” evidence of legislative intent on this issue, we likewise reject that claim given the record before us.
        We reverse the trial court's order granting the temporary injunction, vacate the temporary injunction, and remand the cause to the trial court for further proceedings.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
100309F.P05