Opinion
No. 12-03-00378-CV.
Opinion delivered February 4, 2004.
Appeal from the Original Proceeding.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
MEMORANDUM OPINION
Relators Lakeside Realty, Inc. ("Lakeside") and Sunrise Construction, Inc. (now known as Nickolay Construction, Inc.) ("Sunrise") complain of an order finding them in contempt and imposing punishment. For the reasons set forth below, we conditionally grant the writ.
BACKGROUND
In the underlying lawsuit, real party in interest Life Scape Homeowners Association ("Homeowners") sued Sunrise for a declaratory judgment relating to the building by Sunrise of additional condominium units originally planned, but not initially constructed. On February 28, 2000, the trial court signed a final declaratory judgment (the "declaratory judgment") allowing the condominium units to be built. Homeowners appealed the declaratory judgment, and this court affirmed the trial court's judgment. Life Scape Homeowners Ass'n v. Sunrise Constr., Inc., No. 12-00-00131-CV (Tex. App.-Tyler February 7, 2001, no pet.) (not designated for publication).
In further proceedings for enforcement of the declaratory judgment, the trial court signed an order on January 17, 2003 (the "enforcement order") requiring Sunrise to remove the covered parking structures [to which Homeowners objected], remove the concrete poured over the objection of [Homeowners] and restore the area to an [sic] grass lawn area with sprinklers that are attached to the existing system WITHIN 90 DAYS AFTER THE DATE OF THE SIGNING OF THIS DECREE.
Lakeside, as Sunrise's successor in interest, sought clarification of the January 2003 order, and Homeowners sought sanctions for Sunrise's failure to comply with the order. On August 13, 2003, the trial court denied Lakeside's request for clarification, found Lakeside and Sunrise in contempt for violating the declaratory judgment and the January 2003 order, and imposed punishment. Specifically, the contempt order provides as follows:
IT IS THEREFORE ORDERED AND DECREED, THAT THIS COURT FINDS SUNRISE CONSTRUCTION, INC. AND LAKESIDE REALTY, INC. IN CONTEMPT OF THE ORDERS OF THIS COURT FOR THEIR FAILURE TO REMOVE THE COVERED PARKING STRUCTURES, FAILURE TO REMOVE THE CONCRETE POURED OVER THE OBJECTIONS OF PLAINTIFFS AND FAILURE TO RESTORE THE AREA TO A GRASS LAWN AREA WITH SPRINKLERS THAT ARE ATTACHED TO THE EXISTING SYSTEMS WITHIN 90 DAYS OF THE DATE OF THE SIGNING OF THE DECREE WHICH DECREE WAS SIGNED ON JANUARY 17, 2003 and THAT THIS COURT FINDS SUNRISE CONSTRUCTION, INC. AND LAKESIDE REALTY, INC. IN CONTEMPT OF THE ORDERS OF THIS COURT FOR THEIR FAILURE TO BUILD THE EIGHT UNITS SUNRISE CONSTRUCTION WAS ORDERED TO BUILD IN THE FINAL DECLAR[A]TORY JUDGMENT ENTERED IN THIS ACTION.
In this original proceeding, Lakeside and Sunrise request this court to issue a writ of mandamus requiring the trial court to vacate its contempt order.
PREREQUISITES TO MANDAMUS
Mandamus is "an extraordinary remedy, available only in limited circumstances." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Mandamus will issue to correct a clear abuse of discretion when there is no other adequate remedy at law. Id. A trial court abuses its discretion if it reaches a decision "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Id. at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). In other words, the relator must establish that the trial court could reasonably have reached only one decision. Id. Contempt orders are not appealable. Ex parte Rose, 704 S.W.2d 751, 752 n. 1 (Tex.Crim.App. 1984). Moreover, contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus. In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding). Consequently, the only possible relief is a writ of mandamus. Id. Therefore, the sole question for our determination is whether the contempt order constitutes an abuse of discretion.
ABUSE OF DISCRETION
It is well established that for a party to be held in contempt for disobeying a court order, the order must spell out the details of compliance in clear, specific, and unambiguous terms so that the party will readily know exactly what duties or obligations the order imposes. Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967). The judgment must also order the party to perform the required acts. Ex parte Brister, 801 S.W.2d 833, 834 (Tex. 1990). Interpretation of the provisions of the court order in question should not rest upon implication or conjecture. Ex parte Blasingame, 748 S.W.2d 444, 446 (Tex. 1988). The allegedly contemptuous acts must be directly contrary to the express terms of the court order. Id. On the other hand, the court order need not be "full of superfluous terms and specifications adequate to counter any flight of fancy a contemnor may imagine in order to declare it vague." Id. (citing Ex parte McManus, 589 S.W.2d 790, 793 (Tex.Civ.App.-Dallas 1979, no writ)). Moreover, the order allegedly violated must be strictly construed. Ex parte Jones, 160 Tex. 321, 324, 331 S.W.2d 202, 204 (1960). These general rules of law require us to balance the due process rights of those accused of contempt with the power of courts to enforce their orders. Id.
In their first issue, Lakeside and Sunrise argue that the (1) the declaratory judgment does not order Sunrise to construct the condominiums and that (2) the enforcement order is not sufficiently specific to be enforceable by contempt. We apply the above rules in addressing each of these arguments.
The Declaratory Judgment
The declaratory judgment provides, in part, as follows:
[W]ithin the site described as Building "E" at the Life Scape Condominiums in Henderson County, Texas, any building built by [Sunrise] must occur within the confines of the outline of the originally proposed Building "E" and such building must contain eight (8) units of size, architectural design and construction that is similar and complimentary [sic] to those units and building already in existence at Life Scape Condominiums. Any new units built by [Sunrise] must also assume any additional cost incurred by the condominium association as a result of their manner of construction, such including but not limited to additional maintenance costs, taxes, and insurance due beyond that which is normally due on the existing units. All damage to the common areas must be repaired at the completion of the construction and no common area currently used as parking may be obstructed or used by the builders. [Sunrise] shall have reasonable use of the driveways and streets during the construction.
The remaining portions of the declaratory judgment include recitals relating to submission of the case, appearances, the ruling of the trial court on whether a building interest exists, and the payment of costs. Nowhere does the declaratory judgment order Sunrise to build the condominiums. Therefore, Sunrise, by failing to construct the condominiums, has not violated an express term of the declaratory judgment. Accordingly, we conclude that the declaratory judgment cannot support the order of contempt. See Blasingame, 748 S.W.2d at 447 (injunction cannot support order of contempt where conduct does not violate injunction).
We express no opinion regarding whether the declaratory judgment is sufficiently specific to be enforceable by contempt.
The Enforcement Order
Lakeside and Sunrise cite Ex parte Reese, 701 S.W.2d 840 (Tex. 1986) in support of their argument that the enforcement order is not sufficiently specific to be enforceable by contempt.
In Reese, the relator, individually and as president of a real estate development corporation, entered into an agreed judgment with the landowners providing for the completion of a serviceable water system and road system. The landowners filed a motion for contempt based upon the relator's failure to perform according to the judgment. The trial court found the relator in contempt and ordered him confined until he purged himself by complying with the agreed judgment. Id. at 841.
The supreme court concluded that the order did not meet the specificity requirements of Slavin. The court noted that the judgment ordered the corporation to "take back" the water system, "begin to restore it to proper condition" so that all users have "approved water," and "ensure that the water quality meets the standards of the Texas Department of Health." However, the court also observed that the orders failed to adequately answer what the relator must do to "restore the water system," what is "approved water," and what "standards" of the Texas Department of Health were applicable. Id. at 842. Furthermore, the judgment ordered the corporation "to complete" the street according to the plats previously shown to property owners. However, no references to specific plats were included in the judgment nor was a copy of any plat attached to the judgment. Moreover, the judgment did not give any standards for the "proper" construction and maintenance of the roads, although road construction and maintenance was the relator's responsibility. Id. Consequently, the court held that the trial court's judgment lacked the requisite specificity to support a contempt order. Id.
The enforcement order in the case at hand has similar deficiencies. The order provides that, within ninety days after the order is signed, Lakeside and Sunrise are ordered to "remove such covered parking structures" as were objected to by Homeowners, "remove concrete poured over the objection of [Homeowners]," and "restore the area to a grass lawn area with sprinklers that are attached to the existing system." However, the order does not specifically identify which covered parking structures are to be removed, the location of the concrete that is to be removed, what area of the property is to be restored and how, or any specifications for the installation of the additional sprinklers. Therefore, we conclude that the enforcement order lacks the requisite specificity to be enforceable by contempt.
CONCLUSION
Lakeside and Sunrise have not violated the declaratory judgment by their failure to construct eight condominiums. Furthermore, the enforcement order is not sufficiently specific to support the challenged contempt order. Therefore, the trial court abused its discretion by finding Lakeside and Sunrise in contempt for failure to comply with those orders. Accordingly, we conditionally grant the writ of mandamus. The writ will issue only if the trial court does not modify its order signed on August 13, 2003 by deleting the provisions finding Lakeside and Sunrise in contempt and assessing punishment.
Lakeside and Sunrise raise five issues in their mandamus petition. Because the issues discussed above are dispositive, we need not discuss the remaining issues. See TEX. R. APP. P. 47.1.