Opinion
No. 05-08-01617-CV
Opinion issued January 5, 2009.
Original Proceeding from the 162nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 08-13292.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
Opinion by Justice BRIDGES.
MEMORANDUM OPINION
In this original proceeding relators John T. and Teresa A. Amend seek a writ of injunction to prevent real parties Jim Watson and Kay Watson from beginning construction of a wastewater main pending resolution of the interlocutory appeal filed by relators. Relators assert that if real parties begin construction of the water main, the appeal will become moot. Real parties responded that they do not oppose granting temporary relief during the pendency of the appeal. Real parties ask, however, that the appeal be expedited and that relators be required to post a $20,000 bond as security for any injunctive relief granted to relators. We grant injunctive relief to protect our jurisdiction over the interlocutory appeal.
Background
Relators applied for a temporary injunction prohibiting real parties from beginning construction of a wastewater main within an easement underneath relators' property. The application was denied, and relators filed an interlocutory appeal. That appeal has been docketed as cause no. 05-08-01585-CV, styled John T. and Teresa A. Amend v. Jim and Kay Watson. The clerk's record has been filed in the appeal, but the reporter's record has not yet been filed. The appeal is an accelerated appeal. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(4) (Vernon 2008); Tex. R. App. P. 28.1(a). Therefore, it will be governed by the timetables relevant to accelerated appeals, subject to any reasonable extension requests the Court determines to grant. See Tex. R. App. P. 35.1(b), 35.3, 38.6(a), (d).
As appellants, relators filed a motion in the interlocutory appeal seeking the same relief now sought in this original proceeding. That motion was denied on November 26, 2008.
The court reporter was granted an extension until January 12, 2009 to file the record.
Analysis
A court of appeals may issue a writ of mandamus and all other writs necessary to enforce its jurisdiction. See Tex. Gov't Code Ann. § 22.221(a) (Vernon 2004). Further, a court of appeals may issue such a writ to prevent an appeal from becoming moot. In re Shields, 190 S.W.3d 717, 719 (Tex.App.-Dallas 2005, orig. proceeding).
Relators' notice of appeal states it is from the trial court's order denying the petition for writ of injunction. If this Court should conclude on the merits of the interlocutory appeal that the trial court abused its discretion by denying the temporary injunction, installation of the wastewater main before our decision on the merits would prevent the effective operation of any judgment this Court would render. See id. In that case, this Court's judgment would be a nullity. Id. Therefore, we conclude an injunction should be granted to preserve our jurisdiction over the subject of the pending interlocutory appeal while we decide its merits. Id. We grant relators' petition for injunctive relief. We issue a writ of injunction enjoining Jim and Kay Watson from beginning construction of a wastewater main within the easement underneath relators' property at 4101 West Lawther Drive, Dallas, Texas pending final disposition of the interlocutory appeal in cause no. 05-08-01585-CV, or pending further order of this Court. We further order that the writ of injunction be effective immediately and that no bond or other security be required of relators. We further order that this original proceeding be consolidated into the interlocutory appeal for final disposition at such time as the interlocutory appeal is finally disposed of.
Nothing in this opinion should be construed as a decision or comment on the merits of the pending interlocutory appeal.