Opinion
02-20-00416-CV
06-17-2021
Charles Glen Hyde; Candace L. Hyde; Dreamships, Inc.; Hyde-Way, Inc.; and Texas Air Classics, Inc., Appellants v. Aero Valley Property Owners Association, Inc., Appellee
On Appeal from the 16th District Court Denton County, Texas Trial Court No. 20-6359-16
Before Sudderth, C.J.; Birdwell and Bassel, JJ.
MEMORANDUM OPINION
DABNEY BASSEL JUSTICE.
I. Introduction
We feel like a reader who has been dropped in the middle of a plot portraying a legal dispute as long and complicated as the litigation depicted in Dickens's Bleak House and who is then asked to sort out Bleak House's plot when most of the book's sixty-seven chapters have been ripped out. The plot in this case is centered on a conflict for control of a private airport development where the property owners in the development have access to the airport's runway and pay fees to maintain its common areas. The focus of the conflict has been who controls the airport's management and who has the right to collect the assessments charged to the property owners. This conflict has continued for over thirty-five years.
Many have been involved in the story over its history, but the plot has now evolved into a clash between two characters. The first character is Appellant Charles Glen Hyde. Hyde's role comes in part from the ownership of the airport's runway; he claims that he controls management of the airport's operation and that he has the right to collect assessments from the property owners in certain areas of the development in order to fund the airport's operation. The second character is Appellee Aero Valley Property Owners Association, Inc. (POA), which stands as Hyde's nemesis and which claims that it has the right to control the management of the airport and the right to assess and collect fees from the property owners. The plot's evolution has produced no clear winner because of the inconsistent restriction schemes that govern the various tracts in the airport development. A previous effort by the POA to impose order by amending the restriction schemes to make them uniform and to give the POA a clear right of control failed when our court held in an appeal from a prior suit that the new restrictions had not been properly adopted. See Hyde v. Nw. Reg'l Airport Prop. Owners Ass'n, 583 S.W.3d 644, 651 (Tex. App.-Fort Worth 2018, pet. denied).
Though there are other Appellants (Hyde's wife Candace L. Hyde and various entities owned by Hyde and his wife, including Dreamships, Inc.; Hyde-Way, Inc.; and Texas Air Classics, Inc.), their roles have little impact on the issues in this appeal.
We have limited insight into how the plot has evolved. The present interlocutory appeal is from a temporary-injunction order entered in a recently filed lawsuit that the POA brought to obtain a determination of its rights to manage the airport. All we know of the conflict's history comes from the testimony and a smattering of exhibits introduced during a short temporary-injunction hearing. Though the parties suggest that we should forecast how the story will end, we have neither the information, nor the need, to do so. Our role in refereeing the contest at its present stage is limited because all we decide in this interlocutory appeal from a temporary-injunction order is whether the trial court abused its discretion by imposing restraints on Hyde's actions until this matter reaches a resolution on the merits. We can resolve that question on more narrow grounds than testing the merits of the parties' contentions.
The trial court's temporary-injunction order generally restrains Hyde from interfering with (1) the POA's management of the airport, (2) efforts of the property owners or their contractors to repair or improve their properties, (3) attempts by the property owners to sell or market their properties (strictly prohibiting Hyde from entering the properties while they are being shown to prospective buyers), and (4) the POA's efforts to collect fees. The order also restrains Hyde from any attempt to collect fees under a Licensing Agreement that he claims gives him the power to make those collections. Finally, the order restrains Hyde from representing to anyone, including the Federal Aviation Administration (FAA), that he-or the entities that he controls-"has the authority to manage the airport."
Hyde raises five issues challenging the temporary-injunction order. The structure of his issues makes it difficult to give a short summary of each issue's resolution. The broad-brush summary of our resolution is that the concessions made by the POA on appeal, the implications of those concessions, and other aspects of the record cause us to invalidate most of the order's restraints. Indeed, of the six restraints contained in the temporary-injunction order, only one survives our review-the restraint prohibiting Hyde from interfering with repairs or improvements by the airport's property owners to common airport properties or to "areas governed by [the] property owners' easement rights."
II. Factual and Procedural Background
As we noted in the introduction, the POA lost a prior appeal after it tried to create a uniform set of restrictions governing the airport development and to solidify its claimed right to control the airport's management. Id. The prior appeal came to us with a more in-depth record and a broader scope of our review because it involved the review of a judgment on the merits. Id. at 645. Though the following quote contains facts beyond those found in the record before us, this extract from our prior opinion illustrates the chaotic state of the airport's restriction scheme and how that chaos has produced a long-running conflict:
Edna Whyte created the Airport in 1969. Thereafter, at different points in time, different individuals or entities developed and deed restricted different tracts of land surrounding the Airport. Important for purposes of this appeal, the deed restrictions did not employ a uniform procedure for assessing fees to maintain the Airport's common areas-the runway, taxiways, and access or ramp areas.
Whyte's company, the Aero Valley Development Company (AVDCO), developed the land generally located northeast of the Airport. The properties that AVDCO sold granted owners access to the Airport's common areas via an express easement. AVDCO also deed restricted its subdivisions. Of the eight sets of deed restrictions burdening the northeast properties, most call for an Architectural Control Committee (ACC) to collect a fee from the property owners to maintain the Airport's common areas. Seven of the deed restrictions can be amended when "an instrument signed by a majority of the then record owners of the property has been recorded."
Hyde-Way acquired the Airport in 1982 and is the current owner. Hyde-Way also acquired and partially developed a 119-acre tract generally located northwest of the Airport. Like AVDCO, Hyde-Way imposed deed restrictions on the properties it sold, but instead of conveying easements to access the Airport's common areas, Hyde-Way's
deed restrictions afforded property owners access to the common areas via a "Runway and Taxiway License." And instead of paying a fee to a committee to maintain the common areas, property owners with a license agreement paid Hyde-Way an annual license fee. But similar to the AVDCO restrictions, the Hyde-Way restrictions can be amended by "an instrument signed by a majority of the then property owners of record."
A number of third parties developed and deed restricted several areas generally located in the southern half of the Airport. According to the POA, by 2016, almost all of the lots located in that area were burdened by some form of Hyde-Way's deed restrictions.Id. at 645-46 (footnotes omitted).
The conflict at the heart of the prior appeal was the POA's effort to cement its right to control by having the owners within the various discrete tracts of the development adopt Integrated Deed Restrictions (IDRs) to establish once and for all the POA's "authority to assess fees and maintain the Airport's common areas in the POA." Id. at 645. That effort came to naught when this court held that the POA did not follow the appropriate procedure for the adoption of the IDRs, making those restrictions "invalid and unenforceable." Id. at 652.
Reverting to Plan B, the POA filed a new lawsuit against Hyde-the one that has resulted in this interlocutory appeal. The premise of the current suit is that the restriction scheme was more uniform than anyone had thought. The POA's brief outlines an eight-step process based on a theory that the airport is a "common interest community" and how various title documents vested a committee that was the POA's predecessor with the right to collect fees and to maintain the common areas in the development. The POA, at least impliedly, concedes a weakness in its theory because it may not apply to the northwest section of the development (the Hyde-Way portion of the development described in the third paragraph of the recitation above that was taken from our prior opinion). To fill this gap, the POA's president testified at the temporary-injunction hearing that the northwest section had, in the time since our prior opinion, adopted new restrictions that vested the POA with the powers of control that supplanted the ones that Hyde claims. Our record does not contain a copy of these new restrictions, nor does it have any details of the process by which the restrictions were adopted. Hyde challenged the POA's present theory; in his view, the restrictions that underlie the POA's present claim did not burden the title to various sections of the airport that form the basis of his claimed right to collect fees and to control the maintenance of the airport's common areas. Hyde also challenged the validity of the newly adopted restrictions in the northwest section of the development.
In our review of a temporary injunction, we will not address the validity of the POA's present theory or whether it can rely on that theory in the present suit. Instead, we focus on the POA's requests that the trial court restrain certain actions by Hyde until there is a hearing on the merits. The POA presented testimony through the POA's president that it had spent hundreds of thousands of dollars to repair the runway after the trial court ruled that the IDRs were valid and before we held that they were not. Apparently, after the repairs, drainage problems still threatened the physical integrity of the runway. The POA claimed that Hyde had impeded efforts to fix the drainage. Hyde acknowledged the POA's right to make the repairs but claimed that he had not done anything to impede the repairs that he did not have the time to do. The POA also claimed that Hyde was thwarting its effort to maintain the airport by challenging the POA's right to collect monies from property owners within the development and asserting his own right to collect monies. Finally, the POA was apparently generally frustrated by Hyde's interference with its claimed right to manage the airport. We will provide further detail below about Hyde's conduct that the POA found objectionable.
III. Analysis
A. We set forth our resolution of the issues that Hyde raises on appeal.
We overrule many of Hyde's five issues in whole or in part, but as noted, we conclude that the temporary-injunction order must be modified to remove all of its restraints, save one. The following summarizes our resolution:
• It is premature to deal with Hyde's contention in his second issue that res judicata or collateral estoppel bars the POA's present suit.
• The appellate record and the concessions made by the POA on appeal establish that five of the restraints contained in the temporary-injunction order are not supported by the record, and we modify the temporary-injunction order
to delete them; for this reason, we sustain much of Hyde's fifth and third issues and a part of his fourth issue.
• When appropriately narrowed, the temporary-injunction order is proper; concessions made by Hyde during the temporary-injunction hearing created a bona fide controversy on the questions of whether the POA should control repairs to the runway and whether the record warrants a restraint prohibiting Hyde from interfering with improvements or repairs. Further, the record supports the POA's contention that there is evidence that Hyde will interfere in those efforts. Thus, we overrule the portion of Hyde's third issue challenging this restraint.
• The temporary-injunction order adequately states the nature of the irreparable and imminent harm necessitating the restraint on Hyde's interference with repairs and maintenance. Thus, we overrule Hyde's first issue.
• We will not reach the remainder of Hyde's fourth issue to the extent that it challenges the validity of the POA's theory that underlies the present suit. The holdings that we have outlined permit us to resolve this appeal without having to delve into any question of whether the fundamental theory of the POA's suit has merit.
B. We set forth the standards that govern the issuance of a temporary-injunction order and our review of such an order.
We recently set out the principles that govern a trial court's exercise of its discretion to issue a temporary injunction and our review of that exercise:
"A temporary injunction is an extraordinary remedy and does not issue as a matter of right." Abbott v. Anti-Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 916 (Tex. 2020) (quoting Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993)). Such an injunction functions "to preserve the status quo of the litigation's subject matter pending a trial on the merits." Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (op. on reh'g) (citing Walling, 863 S.W.2d at 57). "To obtain a temporary injunction, the applicant must plead and prove three specific elements: (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." Id.
The trial court exercises its sound discretion in deciding whether to issue a temporary injunction, and we may reverse that decision only if we conclude that the trial court abused its discretion because its actions were "so arbitrary that [they] exceeded the bounds of reasonable discretion." Id. Our abuse-of-discretion review requires that we "view the evidence in the light most favorable to the trial court's order [and that we indulge] every reasonable inference in its favor." IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 196 (Tex. App.-Fort Worth 2005, no pet.). Thus, if the trial court must resolve a conflict in the evidence, its resolution of a fact issue is one to which we must defer. Wright v. Sport Supply Grp., Inc., 137 S.W.3d 289, 292 (Tex. App.- Beaumont 2004, no pet.). However, we review the trial court's application of the law to established facts and the resolution of pure legal questions de novo. Jelinis, LLC v. Hiran, 557 S.W.3d 159, 165 (Tex. App.-Houston [14th Dist.] 2018, pet. denied), cert. denied, 140 S.Ct. 244 (2019); Tom James of Dall., Inc. v. Cobb, 109 S.W.3d 877, 883 (Tex. App.- Dallas 2003, no pet.). . . .
Because the temporary injunction only preserves the status quo pending final trial, the trial court's determination regarding whether to issue the temporary injunction does not resolve the ultimate merits of the suit. Brooks v. Expo Chem. Co., 576 S.W.2d 369, 370 (Tex. 1979). The
assumption is that the evidence may well change between the preliminary temporary-injunction stage of the proceeding and a final trial on the merits. Burgess v. Denton Cty., 359 S.W.3d 351, 359 n.35 (Tex. App.-Fort Worth 2012, no pet.) (citing Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978)). Thus, the probability-of-success requirement does not require an applicant to show that it will prevail at final trial. Kim v. Oh, No. 05-19-00947-CV, 2020 WL 2315854, at *2 (Tex. App.-Dallas May 11, 2020, no pet.) (mem. op.). The requirement goes no further than necessitating that "the applicant [ ] present enough evidence to raise a bona fide issue as to its right to ultimate relief." Id.Hernandez v. Combined Ins. Co. of Am., No. 02-20-00225-CV, 2021 WL 520456, at *5-6 (Tex. App.-Fort Worth Feb. 11, 2021, pet. filed) (mem. op.).
C. Hyde's claim-that the present suit by the POA is precluded- raises affirmative defenses that are not appropriate to resolve in a temporary-injunction proceeding.
In the second issue in his opening brief, Hyde goes into elaborate detail regarding why defenses that preclude repetitive litigation-res judicata and collateral estoppel-should bar the POA's present suit. We address this issue first because we view it as potentially giving Hyde the most relief; to sustain this issue would preclude the present suit and any ancillary relief sought in it. Our simple summary of Hyde's detailed argument is that all the claims that the POA makes in its present suit were or could have been made in the suit that the POA brought previously and which was the subject of our prior opinion. The POA responds by noting that the preclusive doctrines that Hyde relies on are affirmative defenses, which should not be determined in the context of an interlocutory appeal from a temporary injunction but should be resolved when the issues may receive a fuller airing at a trial on the merits or in a motion for summary judgment. In his reply brief, Hyde does not challenge the principle that the POA invokes but argues the injustice of allowing a temporary injunction to be put in place if the present suit is inescapably precluded.
Under any circumstance, we would be reluctant to deal with an affirmative defense at this embryonic stage of the litigation. Beyond this reluctance, we reject the premise of Hyde's argument that the preclusive effect of the prior suit is inescapable. The POA's president testified to changes in the northwest section's restrictions that had been adopted since our prior opinion. The preclusive doctrines that Hyde relies on may not apply if a later suit is predicated on events that occurred after the prior suit. Perhaps the later event described by the POA has no relevance to Hyde's res judicata and collateral estoppel defenses, but at this point, we lack a record that enables us to resolve that question.
Res judicata and collateral estoppel are related doctrines that address a party's attempt to relitigate issues. As the Texas Supreme Court has explained,
Broadly speaking, res judicata is the generic term for a group of related concepts concerning the conclusive effects given final judgments. Puga v. Donna Fruit Co., 634 S.W.2d 677, 679 (Tex. 1982). Within this general doctrine, there are two principal categories: (1) claim preclusion (also known as res judicata); and (2) issue preclusion (also known as collateral estoppel). Res judicata, or claims preclusion, prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit. Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984); Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984). Issue preclusion, or collateral estoppel, prevents relitigation of particular issues already resolved in a prior suit. Bonniwell, 663 S.W.2d at 818.Barr v. Resolution Tr. Corp., 837 S.W.2d 627, 628-29 (Tex. 1992) (footnotes omitted).
The Corpus Christi-Edinburg Court of Appeals recently explained the principle that an affirmative defense should not be resolved in a temporary-injunction context, cataloged the cases making that holding, and stated its own holding that a trial court did not err by granting a temporary injunction without considering whether the suit was precluded by the defense of collateral estoppel. Magellan Terminal Holdings, L.P. v. Vargas, No. 13-19-00354-CV, 2021 WL 79351, at *3 (Tex. App.-Corpus Christi-Edinburg Jan. 7, 2021, no pet.) (mem. op.). The Corpus Christi-Edinburg Court's rationale and the cases supporting its rationale are as follows:
Collateral estoppel is an affirmative defense under Texas Rule of Civil Procedure 94 and should be treated as a plea in bar. Mestiza v. De Leon, 8 S.W.3d 770, 773 (Tex. App.-Corpus Christi-Edinburg 1999, no pet.). Because a plea in bar challenges the plaintiff's right to recover and reaches the merits of a case, the matter is typically disposed of following a trial or through summary[-]judgment proceedings. Martin v. Dosohs I, Ltd., Inc., 2 S.W.3d 350, 353 (Tex. App.-San Antonio 1999, pet. denied); see Mestiza, 8 S.W.3d at 773 ("A plea in bar may not properly be sustained at a preliminary hearing unless the parties agree to this procedure or summary[-]judgment procedure is utilized."). As such, the trial court "is not authorized to determine the merits of the plea in bar in a hearing on an application for a temporary injunction." DeVilbiss v. West, 600 S.W.2d 767, 768 (Tex. 1980); see Fuentes v. Union de Pasteurizadores de Juarez Sociedad Anonima de Capital Variable, 527 S.W.3d 492, 499 (Tex. App.-El Paso 2017, no pet.) (declining to address limitations defense in appeal from temporary injunction); Montgomery [Cty.] v. Fuqua, 22 S.W.3d 662, 668-69 (Tex. App.-Beaumont 2000, pet. denied) (same); Gannon v. Payne, 695 S.W.2d 741, 744 (Tex. App.-Dallas 1985), rev'd on other grounds, 706 S.W.2d 304 (Tex. 1986) (explaining that "the law is equally clear that a trial court is not authorized to determine the merits of a plea in bar in a hearing on an application for temporary injunction"); see also Williams v. Norwest Bank Mont[.], No. 09-99-096-CV, 1999 WL 651072, at *1 (Tex. App.-Beaumont Aug. 26, 1999, no pet.)
(mem. op.) (declining to address affirmative defenses of limitations and res judicata in appeal of temporary injunction).Id. We agree with the legal principle that the Corpus Christi-Edinburg Court detailed and add a practical one-our inability to rule on Hyde's defenses with the thin record we have before us.
Turning to Hyde's argument that it is unjust to allow a temporary injunction in a suit that is inescapably precluded, we again highlight the POA president's testimony that one group of property owners in the pivotal northwest section of the airport development had adopted new restrictions since our prior opinion. The POA claims that these new restrictions were adopted in accordance with our prior opinion's dictates on how new restrictions should be adopted. At this point, we have no idea what these restrictions actually say, nor do we have any details on how they were adopted. But "a judgment in one suit will not operate as res judicata to a subsequent suit on the same question between the same parties where, in the interval, facts have changed or new facts have occurred that may alter the parties' legal rights or relations." TRO-X, L.P. v. Eagle Oil & Gas Co., 608 S.W.3d 1, 12 (Tex. App.-Dallas 2018) (mem. op.), aff'd, 619 S.W.3d 699 (Tex. 2021). With so little detail about the events subsequent to the POA's prior suit, caution counsels that Hyde's affirmative defenses should be resolved at a stage of litigation that gives the parties an opportunity to develop a complete record on the question of whether those defenses apply.
We overrule Hyde's second issue.
D. We hold that the restraints in the temporary-injunction order are overly broad in many respects; we limit the order to restrain Hyde only from interfering with the POA's efforts to maintain the airport's runway.
1. We set forth the restraints contained in the temporary- injunction order.
The following paragraph in the injunction order enumerates the six restraints:
It is therefore ORDERED that a temporary injunction issue, operative until judgment is entered in this cause, enjoining Glen Hyde[;] Candace Hyde[;] Dreamships, Inc.[;] and Texas Air Classics, Inc. from:
a. Interfering with the POA's management of the airport;
b. Interfering with the property owners' and their contractors' repairs and/or improvements of their respective properties including their access to common airport properties and areas governed by property owners' easement rights;
c. Interfering with any property owner's attempts to market or sell their respective property by entering on another's property during any time such property is being shown to potential buyers by the property owner[] or a broker;
d. Interfering with the POA's collection of fees from its members;
e. Representing to any person or entity, including the FAA, that any [Appellant] has the authority to manage the airport; and
f. Collecting or attempting to collect fees from property owners and/or airport users under his purported License Agreement.
We structure our holdings by referring to the alphabetic designation of the subparagraphs, and we use parentheses around each alphabetic designation for ease of reading.
2. We modify the temporary-injunction order to delete the restraints in subparagraphs (d) and (e) because the POA concedes that these subparagraphs impose an unconstitutional prior restraint on speech.
In his fifth issue, Hyde attacks the temporary-injunction order's restraints, arguing that they constitute a prior restraint on his speech. Though less clearly articulated, Hyde also appears to attack the restraints because they improperly restrain his commercial speech. The POA concedes that Hyde's prior-restraint challenges invalidate subparagraphs (d) and (e) of the temporary-injunction order.
The Texas Constitution addresses speech rights by protecting persons in their liberty "to speak, write[, ] or publish [their] opinions on any subject." Tex. Const. art. I, § 8. When an administrative or judicial order forbids certain communications before they occur, a prior restraint on speech is imposed. Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 917 (Tex. App.-Dallas 2006, no pet.). Such a restraint is presumptively unconstitutional. Id. (citing Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992)). To justify a prior restraint on speech, the trial court "must make specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive the litigants of a just resolution of their dispute and . . . (2) the judicial action represents the least restrictive means to prevent that harm." Id. (citing Davenport, 834 S.W.2d at 10); Tex. Mut. Ins. Co. v. Surety Bank, N.A., 156 S.W.3d 125, 129 (Tex. App.-Fort Worth 2005, no pet.) (same). Appellate courts may modify a temporary injunction to delete restraints that are unconstitutional prior restraints on speech. Marketshare Telecom, 198 S.W.3d at 917.
Certain types of commercial speech, however, may be prohibited by injunction. Id. at 918. "But the courts may only restrain commercial speech that is false or misleading." Id. "Courts may take measures to prevent deception and confusion even if the speech is not inherently misleading but only potentially misleading." Id. That said, "misrepresentations in commercial speech can only be restrained if . . . the applicant first establishes that commercial speech that was false and misleading has actually been uttered." Id. at 919.
Hyde argues that many aspects of the temporary-injunction order's restraints are unconstitutional restraints on his speech. He attacks the order's explicit restraints prohibiting him from representing that he has the authority to manage the airport, and the implicit restraints on speech embedded in the restraints on his interference with attempts of property owners to sell their properties and the POA's efforts to collect fees from its members. He also attacks the restraints on his commercial speech because the record establishes that he has only handed out copies of our court's prior opinion and stated his opinion about its import; neither act is false or misleading in his view.
The POA concedes (and we commend its candor) that Hyde's argument is correct to a point. The POA limits its concession to subparagraphs (d) (prohibiting Hyde from interfering with the POA's collection of fees from its members) and (e) (prohibiting him from representing "to any person or entity, including the FAA, that any [Appellant] has the authority to manage the airport"). The POA acknowledges that
per the evidence cited at the temporary[-]injunction hearing, sub[paragraphs] (d) and (e) appear to revolve around Hyde's spoken contentions regarding the parties' legal rights at issue in this dispute. While Appellee profoundly disagrees with the position taken by Appellants on the merits of such issues, Texas law does not authorize a prior restraint on a party's merits-related opinion.
We agree with the POA's assessment of the state of the record and of the reason why the record cannot support the restraints found in subparagraphs (d) and (e) of the temporary-injunction order. Thus, we sustain that portion of Hyde's fifth issue that attacks these specific subparagraphs and modify the temporary-injunction order to delete them.
3. We modify the temporary-injunction order to delete the restraint contained in subparagraph (f), prohibiting Hyde from collecting or attempting to collect fees generated from the use of the airport.
a. The record does not support the restraint imposed on Hyde's ability to collect monies.
The injunction's subparagraph (f) restrains Hyde from "[c]ollecting or attempting to collect fees from property owners and/or airport users under his purported License Agreement." Hyde's third issue challenges this restraint as amounting "to a ruling on the merits" and argues that it is "completely unnecessary to maintain the status quo at issue." Further, he argues that he has not committed or threatened to commit the act that the subparagraph restrains him from doing. The POA's brief sidesteps an effort to justify the restraint. As we discuss below, we agree with Hyde that the record does not support the imposition of the restraint in subparagraph (f).
We also conclude that the concession made by the POA-that certain of the temporary-injunction order's restraints constitute a prior restraint on Hyde's speech- holds equal sway to invalidate subparagraph (f). The restraint in subparagraph (f) is predicated on the same speech by Hyde that the POA conceded could not be restrained by injunction.
b. The record lacks evidence that Hyde was attempting to collect fees under a purported license agreement.
The record does not contain sufficient evidence to support a restraint imposed in subparagraph (f). In an evidentiary challenge to a provision of a temporary injunction, "we view the evidence in the light most favorable to the trial court's order and indulge every reasonable inference in its favor." Hartwell v. Lone Star, PCA, 528 S.W.3d 750, 759 (Tex. App.-Texarkana 2017, pet. dism'd). But to properly exercise its discretion, there must be some evidence that reasonably supports the trial court's action. Id. (citing Butnaru, 84 S.W.3d at 211). We conclude that the evidence does not reasonably support a restraint on Hyde that prohibits him from collecting fees from property owners because there is no evidence that he is attempting to do so.
When asked about Hyde's actions, the president of the POA testified that he did not know of any recent efforts by Hyde to collect fees from property owners:
Q. [By the POA's counsel:] Now, you're aware, are you not, that Mr. Hyde claims the right to assess fees and to manage the airport?
A. Yes.
Q. Do you know if he's collected any fees from property owners?
A. To my knowledge, I don't know whether he's collected any since 2016.
On cross-examination, Hyde's counsel reinforced the point that Hyde had not attempted to collect fees, and the POA's president appeared to concede that he did not know of any effort but interjected an unspecified threat by Hyde to do so:
Q. . . . I think you mentioned, in response to [the POA's counsel's] question, that you don't believe Mr. Hyde has collected any license fees or any other assessments since 2016; is that correct?
A. That is pure speculation on my part.
Q. Do you have any knowledge that he's attempted to or tried to collect fees, any fees, since 2016?
A. I have knowledge that he's threatened to.
Hyde testified that he had not attempted to collect fees and would not do so pending a judicial resolution of the controversy with the POA:
Q. Okay. And with respect to license fees, I think you testified earlier. But in the event the [c]ourt somehow says you're not entitled to collect
any fees that you use[] to maintain and operate the airport, how much money would that preclude you from collecting in a year?
A. [$]40, 000 a year.
Q. And you have not been sending out invoices or attempting to collect that in the last year; is that correct?
A. That's correct.
Q. And that is mainly because of the dispute with the POA, correct?
A. That's correct.
. . . .
Q. But in any event, you haven't attempted to collect or assess [fees] during this lawsuit, correct?
A. That's correct.
Q. And going back months before, correct?
A. Three years before, yes, sir.
Q. Once this resolves one way or the other, after this is finally resolved, do you intend to resume collecting fees, assuming it's resolved, that you can resume collecting fees for the maintenance and operation of the airport?
A. Yes, sir.
It is a truism that there cannot be the imminent threat of harm that must underlie a restraint in a temporary injunction if there is no proof that the enjoined party has committed or intends to commit the act that is claimed to be imminently harmful. Succinctly stated,
As to the imminent harm requirement, an injunction will not be issued unless it is shown that the respondent will otherwise engage in the activity enjoined. State v. Morales, 869 S.W.2d 94[1], 946 (Tex. 1994); Frey v. DeCordova Bend Estates Owners Ass'n, 647 S.W.2d 246, 248 (Tex. 1983). Fear or apprehension of the possibility of injury is not sufficient; the applicant must prove the respondent has attempted or intends to harm the applicant. Jones v. Jefferson Cty., 15 S.W.3d 206, 213 (Tex. App.- Texarkana 2000, pet. denied).City of Palmview v. Agua Specialty Util. Dist., No. 13-18-00416-CV, 2019 WL 1066423, at *8 (Tex. App.-Corpus Christi-Edinburg Mar. 7, 2019, no pet.) (mem. op.).
Here, Hyde has asserted that he has not attempted to collect any fees, and the POA's president confirmed that he had no knowledge of any effort on Hyde's part to do so. All the POA's president could say was that Hyde had threatened to do so, but the POA's president did not specify when or how this alleged threat was made. Such a record presents no more than apprehension of a possibility that is not sufficient to sustain the imposition of the restraint in subparagraph (f) of the temporary-injunction order.
c. A restraint on Hyde's ability to collect fees alters the status quo.
The POA's lawsuit seeks to establish that it has the right to collect monies from the property owners in the airport development to fund the airport's maintenance and operation. Hyde has claimed for decades that he has the right to collect fees from the owners of one section of the airport's development. The POA claims that Hyde has lost that right because of a recent amendment to the restriction governing that section. Hyde challenges the validity of that action. A temporary injunction should preserve the status quo. Subparagraph (f) alters the equilibrium of the status quo because it checks one party in its ability to exercise rights it has claimed and exercised for decades based on events that only recently occurred while the validity of the recent act is being challenged.
As we have already noted, a temporary injunction is a preservative measure that freezes one party's ability to alter and renders ineffectual the other party's rights until the case can be resolved on the merits; it should not function as a short-form resolution of the merits. Hartwell, 528 S.W.3d at 759. Thus, a temporary injunction functions to preserve the status quo, which is defined in the context of a temporary injunction as "the last, actual, peaceable, non-contested status that preceded the pending controversy." Id. "If an act of one party alters the relationship between that party and another, and the latter contests the action, the status quo cannot be the relationship as it exists after the action." Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 577 (Tex. App.-Austin 2000, no pet.).
Again, the core of the parties' dispute is the restrictions governing different sections of property within the airport development, with Hyde basing his claim partially on the restriction scheme that has historically governed the northwest section of the airport development. The POA claims that Hyde no longer has the rights he claims under the northwest section's restrictions because that section has recently amended its restrictions. Hyde claims that the amendment was not permissible because it was prohibited by the terms of the preexisting restrictions.
The POA president testified how the recent act altered the previously existing scheme of restrictions and imposed a new scheme that altered Hyde's claims of control:
Q. Now, with regard to the part that you were being asked about with regard to the Court of Appeals . . . saying that the POA lacked authority, I believe you started to say it was taken out of context. What do you mean by that?
A. Well, when you read the Court of Appeals' opinion, it states, central to the dispute is the validity of the IDRs. If the IDRs are invalid, then obviously, the POA does not have the authority under the IDRs to assess and collect fees. If the IDRs are invalid, then the property would revert back to the deed restriction that applied to the property previously.
And in the case here, the deed restrictions that validly applied previously were the original Aero Valley deed restrictions where the ACC had an unequivocal right to assess and collect fees. And in the northwest development where the property owners re-amended the restrictions to authorize the POA to assess and collect fees and acknowledged it as the governing authority.
So with that accomplished and with the POA already the governing authority throughout the rest of the airport, the POA believes that it had achieved the authority to govern the airport in every development area.
Q. If the POA has the authority to govern the airport, can Mr. Hyde also have that same authority?
A. He cannot.
Q. Is it central to this litigation for a full and final resolution of who has the authority to govern the airport?
A. It is. [Emphasis added.]
This testimony demonstrates that the POA is not asking the trial court to preserve the status quo as it has existed historically but to preserve the paradigm shift that it argues has been implemented. Such a contention violates the principle that one cannot alter a relationship and then claim the new normal is the status quo that should be preserved by a temporary injunction. For this additional reason, we modify the temporary-injunction order to delete subparagraph (f).
d. The POA's concession-that it was improper to impose a prior restraint on Hyde's speech when he challenged the POA's ability to collect monies- applies with equal vigor to the restraint on Hyde's ability to claim that he could collect monies.
Again, the POA concedes that subparagraphs (d) and (e) of the temporary-injunction order were unlawful prior restraints on Hyde's speech. This concession also invalidates subparagraph (f) because it is a restraint on Hyde's right to speech that the POA acknowledges cannot be enjoined.
The POA president stated that he had personally observed the following conduct on the part of Hyde: "I've observed the documents that Mr. Hyde has left with property owners indicating -- or with a copy of the Court of Appeals' opinion and a copy of his license agreement that's got a line through it that says, draft."
On cross-examination, the POA's president described the extent of the acts that he contended constituted interference by Hyde in the POA's collection efforts:
Q. Is Mr. Hyde in any way preventing you from exercising your legal right to proceed with collection efforts against property owners?
A. Other than presenting the Court of Appeals' opinion and stating that we don't have authority.
Q. So other than him telling people you don't have authority and presenting a document which is an opinion from a Court of Appeals, is he in any other way preventing you from taking legal action to . . . assess or collect your dues?
A. Not to my knowledge.
Q. Okay. So are you asking the Court to enjoin Mr. Hyde from giving people a copy of the Court of Appeals' opinion and telling them that you don't have the authority to assess dues?
A. I think that -- the answer is yes. I think that is a misrepresentation.
Hyde described what he had told others as follows:
Q. Is it safe to say that with respect to the collection of fees and the transfer of properties out there, that all you've done is informed either potential purchasers or other property owners of your contentions with respect to the POA's authority to assess fees and whether or not they have active easements that don't require payment of a license fee?
A. That's correct.
Again, the POA conceded that "[a]s per the evidence cited at the temporary[-]injunction hearing, sub[paragraphs] (d) and (e) appear to revolve around Hyde's spoken contentions regarding the parties' legal rights at issue in this dispute." [Emphasis added.] And for this reason, the POA conceded that the referenced subparagraphs- restricting Hyde from interfering with the POA's collection efforts or representing that he had authority to manage the airport-are unconstitutional prior restraints on speech. Subparagraph (f) comes from a different direction and takes the tack of restraining an act on the part of Hyde, but it is predicated on the same acts of speech that the POA concedes cannot be restrained. Thus, subparagraph (f) is a backdoor restraint on Hyde's speech that the POA concedes cannot be imposed. Further, even a restraint on commercial speech must be grounded on the claim that a statement contains a misrepresentation. Marketshare Telecom, 198 S.W.3d at 917. The POA's concession in its brief at least impliedly acknowledges that Hyde's statements do not contain a misrepresentation that warrants a restraint on commercial speech based either on Hyde's contest of the POA's right to collect fees or on his own claim of his own right to do so. The effect of the POA's concession on appeal is thus an additional reason why we modify the temporary-injunction order to delete the restraint stated in subparagraph (f).
We sustain the portion of Hyde's third issue challenging the restraint found in subparagraph (f) of the temporary-injunction order and modify the order to delete that restraint. We also sustain Hyde's fifth issue that challenges unconstitutional restraints on his right to speak.
4. We modify the temporary-injunction order to delete the restraint contained in subparagraph (c) prohibiting Hyde from entering properties in the development while they are being shown for sale.
The temporary-injunction order's subparagraph (c) restrains Hyde from "[i]nterfering with any property owner's attempts to market or sell their respective property by entering on another's property during any time such property is being shown to potential buyers by the property owner[] or a broker." Because of objections made during the temporary-injunction hearing, the record lacks any evidence that Hyde has actually committed the act that the order restrains him from repeating. We construe Hyde's third issue as being broad enough to challenge this restraint. See Tex. R. App. P. 38.1(f) ("The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.").
On two occasions, the POA's president was asked about Hyde's interactions with property owners. The first effort was thwarted by an objection:
Q. Has Mr. Hyde taken any other steps that prevented the POA from doing what it needs to do?
A. As many property owners have told me, he has --
[By Hyde's counsel:] Objection, hearsay.
THE COURT: Sustain[ed].
The witness pretermitted the second effort by anticipating an objection:
Q. After this lawsuit was filed and you entered into the Rule 11 agreement, has Mr. Hyde breached this agreement in any way?
A. It appears so.
Q. What has he done to breach this agreement?
A. Well, I'm afraid what I'm saying is going to be hearsay from the perspective of what property owners have reported to me.
Q. What do you know yourself?
A. What I know myself is that we have got to be able to assess and collect the fees that we need, especially the overdue assessments. And we've got to be able to repair the runway. Or we've got to repair the drainage such that the runway is not compromised.
Later, the POA president testified that the POA wanted the court to impose a restraint on Hyde that was similar to the restraint included as subparagraph (c), but the testimony lacked a claim that Hyde had actually done that which the POA asked that he be restrained from doing:
Q. Okay. What specifically are you asking the [c]ourt to enjoin Mr. Hyde from doing?
A. Showing up on the property when the [r]ealtor is showing the property and imposing himself in the discussion and rendering his opinion on whether the hangar has the right to access the runway and so forth.
Q. So you don't want Mr. Hyde telling people, giving his opinion to other people about his rights or their rights with respect to access to the runway; is that correct?
A. Correct.
Hyde denied that he had interfered in any sales made by property owners in the airport development.
Without a record establishing that Hyde was actually interfering with the rights of property owners by entering their properties while they were being shown to potential buyers, we do not know whether Hyde has actually improperly trespassed or intermeddled or if the POA was merely apprehensive that he might do so.
As we have already explained, to sustain a restraint in a temporary-injunction order, there must be proof that the restrained party will commit the act that is the subject of the restraint. City of Palmview, 2019 WL 1066423, at *8. Here, perhaps Hyde has meddled in the property owners' efforts to sell their properties. But no owner offered this testimony at the temporary-injunction hearing, and the POA president's effort to testify that Hyde had done so was blocked by the rules of evidence. This leaves the record lacking the most fundamental requirement to restrain a party from committing an act-proof that the act has occurred or will occur. We modify the temporary-injunction order to delete the restraint stated in subparagraph (c).
5. We uphold the temporary-injunction order's restraint in subparagraph (b) that prohibits Hyde from interfering with the repair or maintenance of airport property.
After being pared down by our prior holdings, one restraint remains in the temporary-injunction order that prevents Hyde from "[i]nterfering with the property owners' and their contractors' repairs and/or improvements of their respective properties including their access to common airport properties and areas governed by property owners' easement rights." We conclude that this restraint survives Hyde's attacks in which he argues that the evidence failed to provide support for its imposition.
Hyde does not attack the restraint by claiming that it is overbroad because it restrains conduct interfering with actions beyond repairs to the runway. Thus, we do not address the question of whether the restraint is too broad.
The restraint in subparagraph (b) is challenged in two of Hyde's issues. In his fourth issue, Hyde attacks the temporary-injunction order because there was a lack of proof of a probable right to recovery. As we have noted, an essential element that must be proven to obtain a temporary injunction is that the applicant has a probable right to recovery. Hernandez, 2021 WL 520456, at *5-6. As we construe Hyde's argument on this issue, it is not directed at the issue of whether the POA had the right to maintain the runway but is primarily directed at the broader question of whether the POA has shown a probable right of recovery to support its overall claim of control. Later in this opinion, we explain why we do not reach that broader question.
To the extent that Hyde is challenging the POA's probable right to maintain the runway, Hyde's own testimony established that right as follows:
Q. So just so the Court is aware and just so we're clear here, with respect to today, . . . today is not about someone's right to actually come on the property and repair that runway, correct? You're not arguing with whether or not the POA can send somebody out there on their own dime and repair the runway, correct?
A. That's correct.
Thus, to the extent that Hyde's fourth issue may be construed as attacking whether the POA has established a probable right to repair the runway, we overrule that portion of his fourth issue.
As part of his third issue, Hyde also attacks the restraint prohibiting him from interfering with repairs, claiming that there has not been a showing of imminent or irreparable harm warranting the imposition of such a restraint. He asserts that there is no evidence that he will interfere with repairs. As we have noted, an injunction may not issue without proof of authentic fear that an injury will occur. Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 716-17 (Tex. App.-Corpus Christi-Edinburg 2001, no pet.) ("A prerequisite for injunctive relief is actual injury, the threat of imminent harm, or another's demonstrable intent to do that for which injunctive relief is sought.").
Hyde's argument is that the record establishes that he has no objection to repairs being made so long as he is given notice of when repairs will be made. He claims that he requires notice so that he can ensure airport operations are suspended during the repair process. He also claims that the POA cannot show the fear of an imminent injury because the POA has not sought to repair the runway since the suit began.
But the president of the POA testified that a temporary injunction was needed in order to repair drainage problems that jeopardize the integrity of the runway and described how the problem manifested itself. The POA president stated that the first step in the repair process was to have the property surveyed. A contractor who came out to bid the project was "ejected" by Hyde. When asked why Hyde had done so, the POA's president testified that Hyde had stated that he "did not acknowledge that the POA had any authority." The POA's president also testified that a Rule 11 agreement was entered into with Hyde when the lawsuit was filed. The POA's president felt that the Rule 11 agreement had been breached and that the runway could not be repaired unless Hyde was enjoined. No one entered the Rule 11 agreement into evidence, and we do not know how its terms impacted the POA's claimed right to make repairs.
The POA also presented testimony through a contractor who was hired by the POA and who had gone to the airport to take measurements to prepare a bid for repairs on one of the airport's taxiways. The witness described an encounter with Hyde as follows:
Q. Did you have an opportunity to meet with Mr. Hyde on June 8th of this year?
A. . . . June 8th was the day that he stopped me, yes.
Q. Tell the [c]ourt, if you would, what happened on June 8th when you met Mr. Hyde.
A. . . . I was on the far northwest part of the airport. I do not believe the road has a name, but it's the back road. I was there measuring and getting together a bid. And I was told I should not be there because that was . . . Mr. Hyde's property. And I could not be on that property, not my trucks, not me, nobody, without his permission to be there.
Q. Were you on Mr. Hyde's private property?
A. I was on the taxiway, the old taxiway.
Q. And who had asked you to be there?
A. The POA.
Q. And were you bidding some work? What were you doing out there?
A. I was measuring, getting a bid put together for that roadway so we could do repairs.
Q. What did you do when Mr. Hyde told you to leave the property?
A. I left.
Thus, there is evidence that Hyde has interfered with repairs.
Hyde stated that he had no objection to having someone repair the runway, but he also imposed conditions on his consent. The conditions that he imposed were described in the following exchange:
Q. The only thing you ask, and in fact, we had an agreement to that effect that expires today because we had to have this hearing. But you had an agreement with them where all they had to do was let you know who was coming, and they have plans and insurance, which means they're legitimate, and they indemnify you if something goes wrong while they're out there, and you had no problem, correct?
A. That's correct.
Q. That hasn't happened yet. No one has asked to come out there. But you still have no objection to that, do you?
A. I have no objection whatsoever.
Thus, the record establishes that the runway and associated taxiways need repairs and that Hyde has interfered with efforts to begin those repairs in the past and apparently will continue to do so as long as the conditions he imposes-such as receiving advance notice and indemnity-are not met. The record also contains evidence that though he now says that he acknowledges the POA's right to perform repairs, he has disputed that authority in the past. From this evidence, the record establishes that Hyde has a "demonstrable intent to do that for which injunctive relief is sought." See id. at 716. The trial court did not abuse its discretion by finding that the potential for Hyde to interfere with repairs was more than a mere threat or apprehension of injury.
As a final challenge, Hyde argues that if the runway does fail, the POA can be compensated by damages, and thus, there is no need for injunctive relief. This argument is unpersuasive. We cannot imagine a physical structure where good repair is more important than a runway. The trial court did not abuse its discretion by ensuring that the runway was maintained in a state of repair to avert a disaster while a plane is landing or taking off.
We overrule Hyde's fourth issue to the extent that it challenges the temporary-injunction order's restraint in subparagraph (b) prohibiting Hyde from interfering with improvements or repairs on airport property owners' "respective properties including their access to common airport properties and areas governed by property owners' easement rights." We overrule the portion of Hyde's third issue regarding whether the record contains sufficient evidence that he will interfere with airport repairs.
6. We modify the temporary-injunction order to delete the restraint in subparagraph (a) that generally restrains Hyde from "interfering" with airport management.
Subparagraph (a) of the temporary-injunction order restrains Hyde from "[i]nterfering with the POA's management of the airport." Hyde argues in another part of his third issue that this restraint is inherently vague because it fails to identify the acts that would constitute interference. If it were intended to restrain only the acts of interference more clearly defined in the order's more specific restraints, it fails to so specify. Further, the record shows that the POA considers a host of acts by Hyde to constitute "interference" with its management right. Some of those acts were not restrained by the order, and many that were have not survived our review or the POA's concessions. In light of its inherent vagueness and our holdings that many of the order's specific restraints do not survive our review, subparagraph (a) of the temporary-injunction order fails to satisfy the mandate of Rule 683 that an injunction order "shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained." See Tex. R. Civ. P. 683. We therefore sustain the portion of Hyde's third issue challenging the restraint in subparagraph (a), and we modify the temporary-injunction order to delete this restraint.
7. We modify the temporary-injunction order to delete additional restrained parties.
In a portion of his third issue, Hyde challenges the temporary-injunction order because it enjoins not only him but also Candace; Dreamships, Inc.; and Texas Air Classics, Inc. Hyde complains that there is no evidence that his wife and the named entities have threatened or have committed any conduct that would make them subject to the temporary injunction. We agree. We sustain this portion of Hyde's third issue and modify the temporary-injunction order to delete Candace; Dreamships, Inc.; and Texas Air Classics, Inc. as restrained parties. Hyde's argument does not challenge a restraint imposed on Hyde-Way, Inc.
E. The temporary-injunction order adequately specifies the irreparable and imminent harm necessitating its issuance for the restraint in subparagraph (b) that survives our review.
In his first issue, Hyde challenges the form of the temporary-injunction order, claiming it "wholly" failed to identify the nature of the harm that might occur should an injunction not issue. Hyde correctly states that an injunction order must contain a finding stating why irreparable harm will occur if the applicant is not granted injunctive relief. See id.; Smart Auto. Servs., Inc. v. Muir, No. 13-20-00338-CV, 2021 WL 1567503, at *3 (Tex. App.-Corpus Christi-Edinburg Apr. 22, 2021, no pet.) (mem. op.). His argument, however, overstates the level of detail that the finding must contain. The temporary-injunction order under review provides a sufficient level of detail.
Rule 683 controls the form of an injunction order, and an order that fails to follow its dictates is void. Smart Auto. Servs., 2021 WL 1567503, at *3. One of the rule's dictates is that "[e]very order granting an injunction and every restraining order shall set forth the reasons for its issuance." Tex.R.Civ.P. 683; Smart Auto. Servs., 2021 WL 1567503, at *3 (citing Qwest Commc'ns Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000)); InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986)).
"To comply with Rule 683, a temporary[-]injunction order must state the reasons why the applicant will suffer irreparable harm if the injunctive relief is not ordered." Smart Auto. Servs., 2021 WL 1567503, at *3. As this court has previously held in another case, a trial court in its finding of irreparable harm (1) need not "explain its reasons for believing that the applicant has shown a probable right to final relief," (2) "must give the reasons why injury will be suffered if the interlocutory relief is not ordered," and (3) should explain its reasoning in more than conclusory statements. Bell Helicopter Textron, Inc., 160 S.W.3d at 200-01. A finding is conclusory if it goes no further than making a "non-specific and factually unsupported recitation[]," i.e., it merely states that the injury will be irreparable without saying why. Smart Auto. Servs., 2021 WL 1567503, at *3 (collecting cases with holdings dealing with whether a finding of irreparable harm is conclusory).
Here, the trial court's temporary-injunction order recited that
[Appellants] have and intend to continue interfering with [Appellee's] management of the Aero Valley Airport by preventing contractors from providing necessary services to common areas[, ] and such denial jeopardizes the integrity of the runway and other common areas [that] may fail before trial may be had in this matter.
This finding goes beyond a bare-bones conclusory statement and is not, as Hyde claims, "wholly" lacking in detail. Hyde's actual argument is that it does not provide enough detail to explain the why behind the court's finding. His brief states, "The order claims the runway might fail[] but does not attempt to explain what that means or when that might occur." It seems clear to us what it means when one states that the integrity of a structure might fail: it might fall down or fall apart. We do not accept that the trial court had an obligation to give a potential date of the failure, and if it did have such an obligation, it fulfilled that duty by stating that the failure might occur before a trial could be had.
The temporary-injunction order, as limited by our prior holdings that reduce its scope, is not void for the failure to state why the POA will suffer irreparable harm if Hyde is not restrained from interfering with airport repairs. We overrule Hyde's first issue.
F. We do not reach the remainder of Hyde's fourth issue that, in essence, asks us to predict who will ultimately prevail in the battle for control of the airport.
The remainder of Hyde's fourth issue attacks whether the POA established a probable right to recovery; Hyde seeks a ruling on whether the restrictions historically burdening the airport development give the POA the right to the control that it seeks. We have already overruled a narrow slice of this issue on the question of whether the POA showed a probable right of recovery on the property owners' right to make improvements or repairs. We do not reach the broader challenge of Hyde's fourth issue that questions whether the POA presented adequate proof that the restrictions under which it based its claim of control cover all the properties that make up the airport development, that there was notice within the chain of title of the existence of the restrictions, and whether Hyde-as fee owner of the runway-is subject to the restrictions. Our paring down of the restraints contained in the temporary-injunction order obviates the need to address these merit-based questions or to give any forecast on the thorny legal questions that appear to be at the heart of the saga. To be clear, this opinion is in no way a forecast on who should ultimately prevail on the merits.
IV. Conclusion
Taken in their order of presentation, we dispose of Hyde's issues as follows:
• We overrule Hyde's first issue regarding whether the temporary-injunction order adequately explains why irreparable harm will result if Hyde is not restrained as specified in subparagraph (b) of the temporary-injunction order.
• We overrule Hyde's second issue that res judicata or collateral estoppel bars the POA's present suit because a determination of the preclusive effect of the POA's prior suit is premature.
• We sustain Hyde's third issue, which challenges the breadth of the temporary-injunction order's restraints, to the extent that we conclude that subparagraphs (a), (c), and (f) are overbroad. We also sustain the portion of his third issue challenging that the temporary-injunction order is overly broad because it imposes restraints on Candace; Dreamships, Inc.; and Texas Air Classics, Inc. We overrule the portion of Hyde's third issue as to the restraint in subparagraph (b), which prohibits Hyde from interfering with airport repairs and maintenance.
• We do not reach the portion of Hyde's fourth issue that challenges whether the POA's theory that the historical-restriction scheme of the airport's development establishes that it has a probable right to control the airport's management and to control the collection of fees and assessments from development property owners. We overrule Hyde's fourth issue only to the extent that it challenges the POA's probable right to recovery that supports the restraint contained in subparagraph (b) of the temporary-injunction order.
• We sustain Hyde's fifth issue, which asserts that the injunction order's subparagraphs (d) and (e) impose prior restraints on Hyde's right of speech, because of the concessions made by the POA and the effect of those concessions on the restraint in subparagraph (f) of the temporary-injunction order.
In summary, we hold that the trial court abused its discretion by imposing the restraints contained in subparagraphs (a), (c), (d), (e), and (f) of the temporary-injunction order and by including additional parties, and we modify the temporary-injunction order to delete the restraints contained in those subparagraphs and to delete Candace; Dreamships, Inc.; and Texas Air Classics, Inc. as restrained parties. However, because we hold that the trial court did not abuse its discretion by imposing the restraint in subparagraph (b), we affirm the trial court's temporary-injunction order with regard to that restraint.