January 8, 2022
Dearly Beloved:
Table of Contents
Several holdings about the failure to object to a temporary injunction waiving certain complaints–which differs from a complaint that the temporary injunction does not comply with Rule 683, which first can be raised on appeal (Query: is this a distinction which might inform how we characterize our complaint/our opponent’s complaint concerning temporary injunctions?)
Temporary Injunction
Temporary Injunction
Temporary Injunction
A city can first raise on appeal the issue that it did not have constructive knowledge of a defect–but when a defendant first raises a jurisdictional argument on appeal, remand may be appropriate to afford the plaintiff the opportunity to address the jurisdictional argument
Constructive Knowledge
While I won’t profile them here, opinions for the last few weeks reaffirmed that you must make complaint about the following in the trial court
Affidavit
Mandate (Lack of)
Summary Judgment
Trial Brief
Blurbs
Several holdings about the failure to object to a temporary injunction waiving certain complaints–which differs from a complaint that the temporary injunction does not comply with Rule 683, and which first can be raised on appeal (Query: is this a distinction which might inform how we characterize our complaint/our opponent’s complaint) :
Temporary Injunction: “After the agreed TI was signed, the State filed an amended petition adding Boundary Ventures as a defendant and seeking permanent injunctive relief against all the defendants collectively, along with all other relief to which the State is entitled. About a month later, the three appellants other than Boundary Ventures filed their motion to modify the agreed TI, asking in part that the Commission be ordered to use Boundary’s surety money to work on the site. The State submitted a proposed modified TI that included Boundary as an enjoined defendant, and in the January 2020 hearing, after the State discussed Boundary Ventures’ Commission permit and associated bond and the parties discussed whether and how those funds could be used at the site, the trial court stated that it was signing the State’s order. At no point in the hearing or in any later filings did Boundary Ventures argue to the trial court that it could not be enjoined because the State had not formally made an application for a temporary injunction against it.” Polston v. State, No. 03-20-00130-CV, 2022 Tex. App. LEXIS 50, at *54-56 (Tex. App.—Austin Jan. 6, 2022)
Temporary Injunction: “As for the TI’s definitions of “waste” and “site,” those definitions are substantially similar in both the agreed TI and the modified TI….Appellants never objected to those definitions as overbroad before the trial court, either in response to the agreed TI or after the trial court signed the modified TI, and we note that appellants filed a proposed order modifying the agreed TI that did not seek to change those definitions. An argument that is not raised before the trial court is generally considered waived. See Tex. R. App. P. 33.1(a). This includes arguments related to the breadth of injunctive relief. See DHJB Dev., LLC v. Graham,, No. 03-18-00343-CV, 2018 Tex. App. LEXIS 9295, 2018 WL 5987150, at *4 (Tex. App.—Austin Nov. 15, 2018, pet. dism’d) (mem. op.) (party waived error where record did not show it “brought its complaints about the form of the temporary injunction to the trial court’s attention and obtained a ruling”); Ford v. Ruth, No. 03-14-00460—CV, 2016 Tex. App. LEXIS 3367, 2016 WL 1305209, at *2 (Tex. App.—Austin Mar. 31, 2016, pet. denied) (mem. op.) (“There is nothing in the record indicating that appellants contested venue or contended that the permanent injunction was overly broad in district court. Instead, they make these complaints for the first time on appeal and have, therefore, failed to preserve these issues for review.”); Emerson v. Fires Out, Inc., 735 S.W.2d 492, 494 (Tex. App.—Austin 1987, no writ) (“Although appellants did request the district court to reconsider the order, appellants did not raise the facial inadequacy of the order. Accordingly, appellants’ motion did not preserve the error.”). We hold that appellants waived any complaint related to the breadth of the TI’s definitions.” Polston v. State, No. 03-20-00130-CV, 2022 Tex. App. LEXIS 50, at *54-56 (Tex. App.—Austin Jan. 6, 2022)
Temporary Injunction: “Appellants similarly never complained to the trial court about the inclusion of Boundary Ventures in the TI. Moreover, there is no question that the trial court had jurisdiction over Boundary Ventures, the State specifically pled for permanent injunctive relief in its amended petition and included a plea for any other relief to which it was entitled, the State named Boundary Ventures as one of the enjoined defendants in its proposed order, and the water code and the natural resources codes specifically allow for permanent or temporary injunctive relief to address a party’s statutory violations. See Tex. Water Code § 7.032(d); Tex. Nat. Res. Code § 91.003(a). We therefore overrule appellants’ issue related to the inclusion of Boundary Ventures in the TI and overrule their sixth issue on appeal.” Polston v. State, No. 03-20-00130-CV, 2022 Tex. App. LEXIS 50, at *54-56 (Tex. App.—Austin Jan. 6, 2022)
A city can first raise on appeal the issue that it did not have constructive knowledge of a defect–but when a defendant first raises a jurisdictional argument on appeal, remand may be appropriate to afford the plaintiff the opportunity to address the jurisdictional argument :
Constructive Knowledge: “In addition, Furtado argues that the City did not challenge constructive knowledge in the proceedings below and may not advance this argument for the first time on appeal. See Tex. R. App. P. 33.1 (preservation rule). But the City replies that we may take up the argument because it implicates subject-matter jurisdiction. See, e.g., Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993) (“Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties.”). The City is correct: its constructive knowledge—whether it should have known of the alleged special defect—can be raised for the first time on appeal. However, “[w]hen a defendant raises a jurisdictional argument for the first time on appeal, remand may be appropriate to afford the plaintiff a ‘fair opportunity to address’ the jurisdictional argument.” Harris County v. Annab, 547 S.W.3d 609, 616 (Tex. 2018) (quoting Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012)).” City of Austin v. Furtado, No. 03-21-00083-CV, 2021 Tex. App. LEXIS 10250, at *15 n.3 (Tex. App.—Austin Dec. 31, 2021)
All for now. Y’all stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com