Intercontinental Terminals Company, LLC v. Vopak North America, Inc., Vopak Terminal Deer Park, Inc. and Port Terminal Railroad Association

Opinion issued September 22, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00323-CV

———————————

Intercontinental Terminals Company, LLC , Appellant

V.

Vopak North

America, INC., Vopak Terminal Deer Park, INC. , AND PORT TERMINAL RAILROAD

ASSOCIATION, Appellees

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Case No. 1066657

O P I N I O N

Intercontinental

Terminals Company LLC (ITC) appeals from a temporary injunction in favor of Vopak

North America, Inc. and Vopak Terminal Deer Park, Inc. (collectively, Vopak),

which allows Vopak certain use of ITC’s railroad track during the pendency of

this litigation. ITC challenges the trial court’s temporary injunction on the

grounds that it impermissibly alters the status quo and is not supported by

evidence of two elements essential to temporary injunctive relief: probable,

imminent, and irreparable harm and a probable right to recover. We conclude

that the trial court did not abuse its discretion in determining that its order

was necessary to preserve the status quo and that the order is supported by

evidence of probable, imminent, and irreparable harm and a probable right to

recover. We therefore affirm the trial court’s temporary injunction order.

Background

ITC and Vopak are neighbors and

competitors. [1]

These two storage and transport businesses each have a location in Deer Park,

Texas, alongside the Houston ship channel. The land on which they are located was

once a single property owned by Union Equity Cooperative Exchange, Inc. In

1972, Union Equity sold a parcel of its land to Robertson Land Company. At the

time of the sale, Union Equity and Robertson Land entered into a “lead trackage

agreement.” Under this agreement, Union Equity granted Robertson Land a right

to use its railway track, track 805, which traverses Union’s land and connects

to the Port Terminal Railway Association’s (PTRA) main rail line. In exchange, Robertson

Land agreed to share in track 805’s maintenance costs, proportionate to its track

usage. [2]

Vopak now owns the land sold to

Robertson Land and uses track 805 as Robertson Land’s successor under the lead

trackage agreement. ITC owns the land on which track 805 is located and is

Union Equity’s successor under the agreement. Railway transportation is an

important part of both ITC’s and Vopak’s storage and transport businesses.

Track 805 is their only rail access to the PTRA’s main line. Much of this

litigation centers on the following language in the agreement: “Any movement of

[Vopak’s] cars over [ITC’s] track shall be subject to the control of [ITC] so

as not to interfere with [ITC’s] use thereof.”

During the past decade, ITC, Vopak,

and a third party, Clear Harbors, have shared use of track 805. The number of

railcars inbound or outbound to ITC or Vopak varied widely on a day-to-day

basis. For example, over a four day period in 2009, Vopak received zero

railcars the first day, fifty-five railcars the next day, ten railcars the

third day, and fifty-seven railcars the fourth day. Every year for the past

three years, Vopak has received seventy railcars or more in a single day and

has also received zero railcars on some days. Vopak has received in excess of

100 railcars in a single day in the past. Vopak has invested more than $72

million in rail-related infrastructure.

Historically, ITC and Vopak transported

their materials via manifest trains, which are generally made up of railcars

holding different types of product from multiple customers. In 2010, Vopak

anticipated an increased demand for storage of ethanol and implemented a

business plan that would allow it to receive ethanol via unit trains. Unit

trains are considerably longer than manifest trains and generally transport

only a single product from a single customer. This new delivery method was

likely to result in an increase in the number of cars delivered to Vopak over

track 805. After learning of Vopak’s intentions, ITC attempted to limit Vopak’s

use of track 805 to a maximum of thirty-five railcars per day going into Vopak’s

facility and thirty-five railcars per day going out. In May 2010, ITC

communicated this limit to the PTRA, which handles rail deliveries to ITC’s and

Vopak’s Deer Park locations. In June 2010, ITC informed Vopak of its intended

limitation on Vopak’s use of the track. Vopak disputed ITC’s right to impose

the proposed limit on Vopak’s track use.

The PTRA was reluctant to take a

side in the dispute, and in early-October 2010, it filed a petition seeking a

declaration of ITC’s and Vopak’s rights relating to track 805. Vopak filed a

cross-action and sought to enjoin ITC from restricting or interfering with its

use of track 805, both during the pendency of the litigation and permanently.

After several evidentiary hearings, [3] the trial court entered a

temporary injunction order enjoining ITC from restricting Vopak’s use of the

track to less than seventy cars per day into Vopak’s facility and seventy cars

per day out of Vopak’s facility. That injunction is the subject of this

interlocutory appeal.

Standards

for Granting and

Reviewing

Temporary Injunction

A temporary injunction is an extraordinary remedy, the

purpose of which is 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). To

obtain a temporary injunction, an applicant must show: (1) a cause of action,

(2) a probable right to the relief sought, and (3) a probable, imminent, and

irreparable injury in the interim. Id. ; Mattox v. Jackson , 336 S.W.3d

759, 762 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The temporary

injunction applicant bears the burden of production—i.e., it must offer some

evidence of each of these elements. See In

re Tex. Natural Res. Conservation Comm’n , 85 S.W.3d 201, 204 (Tex. 2002)

(quoting Camp v. Shannon , 162 Tex.

515 , 348 S.W.2d 517, 519 (1961); D allas Anesthesiology Assocs., P.A. v. Tex.

Anesthesia Group, P.A. , 190 S.W.3d 891, 897 (Tex. App.—Dallas 2006,

no pet.).

The decision to grant or deny an injunction rests within the

trial court’s sound discretion. Butnaru , 84 S.W.3d at 204 . We will reverse the trial court’s ruling

only if it has abused that discretion. Id.

A trial court abuses its discretion only if it reaches a decision so

arbitrary and unreasonable that it amounts to a clear and prejudicial error of

law or if it clearly fails to correctly analyze or apply the law. In re

Olshan Found. Repair Co., LLC , 328 S.W.3d 883, 888 (Tex. 2010). We may not

substitute our judgment for the trial judge’s. New Process Steel Corp. v. Steel

Corp. of Tex. , 638

S.W.2d 522, 524 (Tex. App.—Houston [1st Dist.] 1982, no writ). We view the evidence submitted to the

trial court in the light most favorable to the court’s ruling, draw all

legitimate inferences from the evidence, and defer to the trial court’s

resolution of conflicting evidence. CRC-Evans Pipeline Int'l, Inc. v. Myers , 927 S.W.2d 259, 262 (Tex.

App.—Houston [1st Dist.] 1996, no pet.). Our review of the trial court’s

decision is limited to the validity of its temporary injunction order; we do

not consider the merits of the underlying case. Davis v. Huey , 571 S.W.2d 859 , 861–62 (Tex. 1978).

Temporary Injunction

A. The trial court’s temporary injunction

preserves the status quo

ITC contends that the only

permissible use of a temporary injunction is to preserve the status quo but that

the trial court’s temporary injunction changes, rather than preserves, the

status quo. According to ITC,

the circumstances that existed in June 2010 establish the status quo. ITC

points out that under the injunction’s seventy-railcars-per-day limit, Vopak

could receive as many as 2,100 railcars each month. By comparison, ITC asserts,

Vopak received an average of 692 railcars per month from January to June 2010

and has not received more than 1,000 railcars in any single month over the last

seven years.

Vopak rejects ITC’s framing of the status quo, contending

that the status quo is instead established by the circumstances that have

existed over the parties’ forty-year relationship. Vopak asserts that ITC has

never before placed any pre-determined limitation on the number of railcars inbound

or outbound to Vopak and that Vopak has often received seventy or more railcars

in a single day. Thus, Vopak contends that any alteration of the status quo in

the injunction favors ITC by placing a limit on the number of cars Vopak may

receive when no limit existed before this dispute.

In the injunction context, the status quo is “the last,

actual, peaceable, non-contested status that preceded the pending controversy.”

In re Newton, 146 S.W.3d 648, 651 (Tex. 2004). Here, we look to evidence

of the parties’ practices up until February 2010—before Vopak began

implementing its new business plan and before ITC began attempting to enforce a

pre-determined limitation on Vopak’s use of the track—to determine the status quo.

See Lifeguard Benefit Servs., Inc. v. Direct Med. Network Solutions, Inc. ,

308 S.W.3d 102, 114 (Tex. App.—Fort Worth 2010, no pet.) (noting that, if one

party takes action that alters relationship between parties, status quo is

relationship that existed before action) (citing Benavides Indep. Sch. Dist.

v. Guerra , 681 S.W.2d 246,

249 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.). We consider the parties’

historical use and operation of track 805 over the course of their relationship

under the track usage agreement. See

Pharaoh Oil & Gas, Inc. v. Ranchero Esperanza, Ltd. , 343 S.W.3d 875,

882 (Tex. App.—El Paso 2011, no pet. h.) (concluding that status quo was

circumstances that existed between parties from 1992 to 2004, when dispute

arose).

The evidence on the parties’ historical use of track 805

demonstrates that the average number of railcars Vopak has transported into or

out of its facility over track 805 on any given day is considerably less than

seventy. But that number varied widely

on a day-to-day basis and was sometimes well over seventy. The evidence also

shows that ITC has never, before this dispute, attempted to place a pre-determined

limitation on the number of railcars Vopak transports over track 805 on a

daily, monthly, or yearly basis. There is no evidence tending to demonstrate

that that ITC’s business operations will be disrupted if Vopak transports seventy

railcars into or out of its facility over track 805 in a single day.

Generally, “whe[n] the applicant for temporary relief proves

the probability of some easement right in the property of another, the status

quo is the applicant’s continued right to exercise such possession of the

property as the easement right carries with it.” Getz v. Boston Sea Party of

Houston, Inc. , 573 S.W.2d 836, 838 (Tex. Civ. App.—Houston [1st Dist.] 1978,

no writ); see also AIMCO Props., L.P. v. Time Warner Entm’t-Advanced/Newhouse

P’ship , No. 03-97-00340-CV, 1997 WL 590675 (Tex. App.—Austin Sept.

25, 1997, no pet.) (citing Getz for

this proposition). The parties agree that Vopak has some easement right to the

use of track 805. Their disagreement relates to the parameters of ITC’s right

to restrict Vopak’s use of the track under the track usage agreement.

The trial court could have reasonably concluded that its

seventy-railcars-per-day limit balanced the parties’ competing interests in the

status quo: Vopak’s interest in operating its business free from new

restrictions on its track usage and ITC’s interest in preventing Vopak from

expanding its track usage to a point that interferes with ITC’s own operations.

If Vopak wants to receive 100 railcars on one particular day, it will have to

reallocate those deliveries to comply with the trial court’s injunction, even

though it has received more than 100 railcars in a single day in the past

without incident. Correspondently, if Vopak transports the maximum number of

railcars permitted under the injunction each day, Vopak’s track usage under the

injunction will far exceed its historical track usage. But the trial court was

not required to presume that Vopak will abuse the injunctive relief granted. ITC

is free to seek modification of the trial court’s injunction if Vopak’s use of the track under the injunction

is so excessive as to interfere with ITC’s own use of the track.

Under these circumstances, we hold that the trial court did

not abuse its discretion in its efforts to preserve the status quo in its

temporary injunction. Butnaru ,

84 S.W.3d at 204 .

B. Vopak

presented evidence of probable, imminent, and irreparable harm

ITC next contends that Vopak did

not present evidence that it would suffer probable, imminent, and irreparable

harm if the temporary injunction was not granted. ITC asserts that Vopak’s

evidence of harm is too dated to show imminent harm because most of its evidence

was presented at the first temporary injunction hearing, which occurred over

five months before the trial court granted the temporary injunction now on

appeal. ITC also argues that Vopak could compensate for restrictions on its

track usage by using other means of transportation into and out of its facility,

and that Vopak’s customer contracts do not prevent Vopak from using other means

of transportation. ITC points out that Vopak did not prove that it actually

lost any customers as a result of the restrictions ITC imposed on its track 805

usage. Finally, ITC argues that Vopak’s asserted harm is monetarily compensable

and therefore not irreparable.

With respect to its first

complaint, ITC cites no authority for its contention that a finding of imminent

harm cannot be based on evidence from an earlier temporary injunction hearing. Evidence

from more than five months earlier may be outdated but is not necessarily so.

ITC does not identify any specific evidence from the trial court’s earlier

hearings that it contends was no longer accurate or applicable at the time of

the trial court’s temporary injunction order. Much of Vopak’s evidence at the

first hearing in October tended to show factual circumstances of an enduring nature.

For example, Vopak presented evidence of the nature of its business and the “pivotal”

role that rail transport plays in its integrated transportation operations.

Absent a change in these facts, Vopak was not required to re-present this same evidence at the trial

court’s subsequent hearings.

It is true that, in many

situations, harm that is imminent in October and December will no longer be

imminent the following April — the threat

having either been realized or passed. But the harm Vopak asserts here is of a

continuing nature: interference with its ongoing business operations and the

ramifications of the disruption caused by that interference. During the October

27, 2010 temporary injunction hearing, Vopak presented evidence that ITC’s

35-railcars-per-day restriction on Vopak would result in a backlog of

Vopak-bound railcars at the PTRA’s facility, as well as evidence of the effects

that backlog would have on Vopak’s customer-relations. At the April 13, 2011

temporary injunction hearing, Vopak presented evidence that such backlogs had

in fact occurred and were so severe that, a few weeks earlier, the PTRA had placed

an embargo on Vopak, prohibiting Vopak from allowing its customers to send it

deliveries by rail. Vopak submitted communications showing that the PTRA agreed

to lift the embargo only after ITC agreed to allow delivery of up to seventy

railcars per day to Vopak’s facility. Vopak’s evidence at the April 2011

hearing also included communications reflecting costs, delays, and customer

complaints relating to ITC’s restriction on Vopak’s use of track 805.

Viewing the evidence in the light most favorable to the

court’s ruling and deferring to the trial court’s resolution of conflicting

evidence, see CRC-Evans Pipeline ,

927 S.W.2d at 262 , we hold that the trial court did not abuse its discretion in

concluding that the harm to Vopak was imminent “because [ITC’s] car

restrictions are continuing and an embargo, one of which has already been

entered preventing Vopak’s customers from shipping cars to Vopak, will likely

occur again.”

ITC asserts that Vopak failed to present evidence

that it was unable to compensate for restrictions on its track usage through

use of other means of transportation, such as barges. Vopak, however, presented

testimonial evidence that the various means of transportation used by Vopak to

transport material into and out of its facility operate in conjunction with

each other and are interdependent on each other such that when rail transport was interrupted, it had a “domino effect”

in delays on the other means of transportation. Vopak also introduced evidence

that the customer, rather than Vopak, typically dictates the means of

transportation utilized to transport materials from the customer to Vopak’s

facility. Vopak’s Gulf Coast General Manager specifically testified that Vopak

could not fulfill its customer obligations by using barge transportation in the

place of railway transportation. His testimony also indicated that the loss of railways

as a means of transportation would be devastating to Vopak’s Deer Park operations,

that not allowing customers the option of delivery by railway would be

detrimental to Vopak’s customer relations not only at the Deer Park facility

but globally, [4]

that two customers had threatened to pull their business if Vopak remained

under ITC’s thirty-five-railcars-per-day restriction, [5] and that the track 805

restriction and backlog issues were impairing Vopak’s reputation.

This testimony supports the trial

court’s conclusion that “ITC’s restrictions threaten to cause and will probably

cause at least the following harm to Vopak: business disruption, loss of

goodwill, loss of reputation in the marketplace, customer uncertainty, delays

in servicing dock/sea customers, backlog costs, [and] demurrage fees[.]” While

ITC attempted to controvert this evidence, the trial court was free to choose

which evidence to credit and which evidence to discredit, and we must view the

evidence in the light most favorable to the trial court’s ruling. See

CRC-Evans Pipeline, Int'l , 927 S.W.2d at 262 .

Finally, we conclude that there is

evidence in the record to support the trial court’s conclusion that “at least

some of the harm being suffered by Vopak cannot be remedied with the recovery

of money.” An injury is irreparable if it cannot be adequately remedied at law — i.e., if the injunction applicant cannot be

adequately compensated in damages or if damages are very difficult to measure

by any certain pecuniary standard. See Butnaru , 84 S.W.3d at 204 ; Ahmed v. Shimi

Ventures, L.P. , 99 S.W.3d

682, 692 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see also Lifeguard Benefit

Servs., Inc. v. Direct Med. Network Solutions, Inc. , 308 S.W.3d 102,

111 (Tex. App.—Fort Worth 2010, no pet.). “An adequate remedy at law is one

that is as complete, practical, and efficient to the prompt administration of

justice as is equitable relief.” Cardinal

Health Staffing Network Inc. v. Bower , 106 S.W.3d 230, 235 (Tex.

App.—Houston [1st Dist.] 2003, no pet.); see

Dallas Anesthesiology Assocs. ,

190 S.W.3d at 897 (same). Thus, if damages do not provide as complete,

practical and efficient a remedy as may be had by injunctive relief, the trial

court does not err in granting temporary injunction so long as the other

elements of injunctive relief are satisfied.

The harm found by the trial court

includes loss of goodwill and reputation in the marketplace. Threatened injury

to a business’s reputation and good will with customers is frequently the basis

for temporary injunctive relief. E.g. , Lifeguard Benefit Servs. , 308 S.W.3d at 118 ; Frequent Flyer Depot, Inc. v. Am.

Airlines, Inc. , 281 S.W.3d 215, 228 (Tex. App.—Fort Worth 2009), cert.

denied, 130 S. Ct. 2061 , 176 L. Ed. 2d 414 (U.S. 2010); T-N-T

Motorsports, Inc. v. Hennessey Motorsports, Inc. , 965 S.W.2d 18, 24 (Tex.

App.—Houston [1st Dist.] 1998, pet. dism’d); Townson v. Liming , No. 06-10-00027-CV, 2010 WL 2767984 , at *2–3

(Tex. App.—Texarkana July 14, 2010, no pet.) (mem. op.); Lionheart Co., Inc. v. PGS Onshore,

Inc. , No. 10-06-00303-CV,

2007 WL 1704906 , at *2 (Tex. App.—Waco June 13, 2007, no pet.) (mem. op.); RenewData

Corp. v. Strickler , No. 03-05-00273-CV, 2006 WL 504998 , at *15–16 (Tex.

App.—Austin Mar. 3, 2006, no pet.) (mem. op.). While such injuries are not

categorically irreparable, the irreparable injury requirement is satisfied when

injuries of this nature are difficult to

calculate or monetize. See, e.g. , Frequent Flyer Depot , 281 S.W.3d at 228

(“Disruption to a business can be irreparable harm. Moreover, assigning a

dollar amount to such intangibles as a company’s loss of clientele, goodwill,

marketing techniques, and office stability, among others, is not easy.”)

(internal citations omitted); T-N-T Motorsports , 965 S.W.2d at 24

(affirming temporary injunction based on testimony that lost goodwill would be

“immeasurable”); Townson , 2010 WL

2767984 , at *3 (“ The

value of lost patients, lost business contacts and collaborations, and lost

hospital privileges are anything but fixed, settled, and indisputable. Rather,

by their very nature, it is likely that Liming might never even be aware of

specific patients and business contacts lost.”); RenewData , 2006 WL 504998 , at *16 (“ Because

it is difficult to assign a dollar value to loss of customer goodwill and

clientele, it constitutes an irreparable injury.”) (citing Graham v. Mary

Kay, Inc. , 25 S.W.3d 749,

753 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); David v. Bache

Halsey Stuart Shields, Inc. ,

630 S.W.2d 754, 757 (Tex. App.—Houston [1st Dist.] 1982, no writ).

The testimony from Vopak’s Gulf Coast General Manager

supports the trial court’s conclusion that the loss of reputation and goodwill

threatened here would be “very difficult to calculate.” He further testified

that it would be “extremely difficult” to calculate the value of the Vopak

brand in order to determine the fiscal impact of its reputational injury.

Although ITC’s damage expert indicated that he could calculate the value of a

brand, he testified on cross-examination that it would be “rank speculation” to

try to determine how much, if any, future business Vopak would lose if a

customer terminated its relationship with Vopak due to rail transport issues. Moreover,

the trial court was free to credit Vopak’s evidence on this issue and

discredit ITC’s contrary evidence. Viewing the evidence in the light most

favorable to the trial court’s ruling, it supports the trial court’s conclusion

that the threatened injury to Vopak could not be adequately remedied at law. See

Lifeguard Benefit Servs. ,

308 S.W.3d at 113 ; Frequent Flyer Depot ,

281 S.W.3d at 228 ; T-N-T Motorsports , 965 S.W.2d at 24 ; Townson , 2010 WL 2767984 , at *3 ; RenewData ,

2006 WL 504998 , at *16.

Because there is evidence to support it, the trial court did

not abuse its discretion in determining that Vopak would suffer probable,

imminent, and irreparable harm in the absence of injunctive relief. Cf. Butnaru , 84 S.W.3d at 211–12

(holding that the trial court did not abuse its discretion when there was

evidence to support its decision).

C. Vopak

presented evidence of a probable right to recover

ITC’s final contention on appeal is

that Vopak failed to established a probable right to recover on the merits,

noting that the trial court struck through the portion of Vopak’s proposed

order containing an express finding of probable right to recover. We conclude

that Vopak presented sufficient evidence of a probable right to recover on its

declaratory judgment action against ITC and that the trial court’s order was

not required to include a finding of probable right to recover. [6]

We recognize that courts are often

particularly careful when it comes to the element of “probable right of

recovery,” sometimes referred to as “likelihood of success on the merits,”

because, by its plain language, this element seems to infringe upon two

well-engrained judicial prohibitions: against advisory opinions and against

forming opinions about the merits of the case before the conclusion of the

evidence. But the phrase “probable right of recovery” is a term of art in the

injunction context. Glattly

v. Air Starter Components, Inc. , 332 S.W.3d 620, 638 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied). To show a probable right to recover, an applicant need not show

that it will prevail at trial. Butnaru ,

84 S.W.3d at 211 (citing Sun Oil Co. v.

Whitaker , 424 S.W.2d 216, 218 (Tex. 1968)). Nor does a finding of probable

right of recovery indicate a trial court’s evaluation of the probability that

the applicant will prevail at trial. Anderson Oaks (Phase I) Ltd. P'ship v.

Anderson Mill Oaks, Ltd. , 734 S.W.2d 42 , 44 n.1 (Tex. App.—Austin 1987, no

writ) (observing that probable right to recover “does not imply that the

applicant for temporary injunction must offer evidence and persuade the judge

to find from that evidence the adjudicative facts necessary for the applicant

to prevail on the merits, based on probabilities. . . . The hearing on

temporary injunction does not constitute a mini trial, in

advance, wherein the judge predicts the applicant’s chances of success at the

real trial, based upon the judge’s estimate of where the truth probably lies

concerning the adjudicative facts and the law made applicable thereto by the

pleadings in the case.”). Consequently, a finding of probable right to recover

has no precedential effect on the case at the trial stage. See Glattly , 332

S.W.3d at 638 (quoting 183/620 Group Joint Venture v. SPF Joint Venture , 765 S.W.2d 901, 904 (Tex.

App.—Austin 1989, writ dism’d w.o.j.) for proposition that finding of probable

right to recover “does not imply any kind of determination that becomes the law

of the case.”) ; see also Anderson Oaks , 734 S.W.2d at 44

n.1.

Instead, to show a probable right of recovery, the applicant

must plead a cause of action and present some evidence that tends to sustain

it. Camp v. Shannon , 348 S.W.2d 517, 519 (Tex. 1961); T-N-T

Motorsports , 965 S.W.2d at 23–24. The evidence must be sufficient to raise

“a bona fide issue [] as to [the applicant’s] right to ultimate relief.” 183/620

Group Joint Venture , 765

S.W.2d at 904 ; see also Nw. Bank v. Garrison , 874 S.W.2d

278, 281 (Tex. App.—Houston [1st Dist.] 1994, no writ); Rapid Settlements, Ltd. v.

Symetra Life Ins. Co. , 234 S.W.3d 788, 797 (Tex. App.—Tyler 2007, no

pet.). Vopak has met this burden by (1) pleading a declaratory judgment action seeking

certain declarations regarding its right to use track 805 under the track usage

agreement and at law and (2) presenting some evidence tending to support its alleged

rights relating to use of track 805.

Initially, the parties dispute the nature of Vopak’s

declaratory judgment action. ITC frames Vopak’s action as asserting that

Vopak’s right to use track 805 cannot be restricted in any way under any

circumstances, and asserts that Vopak has not presented evidence to support its

allegation of such unfettered use. Vopak frames its declaratory judgment action

as asserting that it has a right to use track 805 free from ITC’s

thirty-five-railcars-per-day restriction based on historical practices and because

Vopak’s use did not interfere with ITC’s use of the track. While Vopak’s

pleadings do contain assertions that ITC cannot interfere with its use of track

805, they also contain allegations that ITC may not terminate Vopak’s right to

use of track 805 or limit its use of the track to thirty-five railcars per day.

Because neither party requested formal findings of fact and conclusions of law,

we will uphold the trial court’s order if any of these legal theories are

supported by the record. Frequent Flyer

Depot , 281 S.W.3d at 220 .

The trial court has broad discretion in determining whether

the pleadings and evidence support a temporary injunction. Recon

Exploration, Inc. v. Hodges ,

798 S.W.2d 848, 851 (Tex. App.—Dallas 1990, no writ); Pub. Util. Comm’n of

Tex. v. Gen. Tel. Co. of the Sw. , 777 S.W.2d 827, 829 (Tex. App.—Austin

1989, writ dism’d). Vopak’s evidence regarding a right to use track 805 includes

the track usage agreement and a related easement grant from Union Equity to

Robertson Land. On its face, the track usage agreement grants Vopak, as

successor to Robertson Land, the right to use track 805 to transport materials

from Vopak’s property, across ITC’s property, to the PTRA’s main rail line. The

agreement does not contain an express provision for termination of this right.

The agreement does expressly subject Vopak’s use of the track to ITC’s control “so as not to interfere with

[ITC’s] use [of the track.]” But Vopak introduced some evidence indicating that

its use of the track was not interfering with ITC’s own use of the track and

that, despite long-term awareness of the track usage agreement, ITC had never

before attempted to restrict Vopak’s track use. Vopak also presented documentation

of ITC’s purchase of its property subject to the Robertson Land easement, extensive

evidence of long-term use of track 805

by Vopak and its predecessors, and testimony indicating that ITC has never

before complained about Vopak’s track use, even when it exceeded 100 railcars

in a single day. Viewing this evidence in the light most favorable to the trial

court’s injunction order, see CRC-Evans Pipeline, Int'l , 927 S.W.2d at 262 , Vopak put forth

some evidence tending to support at least one of the legal theories on which it

seeks a declaratory judgment. Based on Vopak’s allegations and this evidence,

the trial court could have reasonably concluded that Vopak had a probable right

of recovery. See Butnaru , 84 S.W.3d

at 211 .

The trial court entered the proposed temporary injunction

order submitted by Vopak but made various delineations and alterations to the

order. Among the trial court’s changes, it struck-through and initialed a

paragraph relating to Vopak’s probable right of recovery:

In connection with its challenge to

the evidence of a probable right of recovery, ITC points out the trial court’s

strike-through of this paragraph, asserting that it indicates that the trial

court did not find a probable right of recovery. [7]

Rule 683 requires that an

injunctive order “set forth the reasons for its issuance.” Tex. R. Civ.

P. 683. In the temporary injunction context, this Court has held that

failure to comply with Rule 683 renders an injunction void. City of Navasota v. Nationstar Mortg., LLC ,

No. 01-08-00915-CV, 2009 WL 103510 , at *1 (Tex. App.—Houston [1st Dist.] Jan.

9, 2009, no pet.) (mem. op.); see also Indep.

Capital Mgmt., LLC v. Collins , 261 S.W.3d 792, 795 (Tex. App.—Dallas 2008, no pet.); AutoNation, Inc. v. Hatfield , 186 S.W.3d 576, 581 (Tex.

App.—Houston [14th Dist.] 2005, no pet.). But we do not read Rule 683 as

mandating that an injunctive order include a finding regarding

the injunction applicant’s probable right to recover in the injunctive order. See Tex. R. Civ. P. 683.

The Texas Supreme Court has held

that Rule 683 mandates that a trial court granting a temporary injunction must

explain in the order its reasons for believing that the applicant has shown

that it will suffer injury if interlocutory relief is not granted but does not

require the trial court to provide reasons for believing that the applicant has

shown a probable right to final relief. State

v. Cook United, Inc. , 464 S.W.2d 105, 106 (Tex. 1971); Transport Co. of Tex. v. Robertson Transports Inc. , 261 S.W.2d 549,

556 (Tex. 1953); see also, e.g., Moreno v. Baker Tools, Inc. , 808 S.W.2d 208, 210 (Tex.

App.—Houston [1st Dist.] 1991, no writ). An explanation of the pending harm to

the temporary injunction applicant, along with a specific recitation of the

conduct enjoined, is all that is necessary to achieve Rule 683’s purpose: “to

inform a party just what he is enjoined from doing and the reasons why he is so

enjoined.” Transport Co. of Tex. , 261

S.W.2d at 552 . For these reasons, we hold that Rule 683 does not mandate that

the trial court’s order expressly state that the trial court found a probable

right of recovery. We decline to make any inferences from the trial court’s

decision not to include unnecessary language in its order.

Conclusion

We hold that the trial court did not abuse its discretion in

entering the temporary injunction order. The order does not impermissibly alter

the status quo and is supported by sufficient evidence of probable, imminent,

and irreparable harm and a probable right of recovery. We therefore affirm the

temporary injunction order.

Harvey

Brown

Justice

Panel

consists of Justices Jennings, Brown, and Huddle.

[1] ITC

states that it is in the petrochemical storage and transfer business. Vopak

states that it provides storage and transport services for bulk liquid

chemicals and commodities.

[2] Union

also granted Robertson an easement for the construction of a spur track to

connect track 805 to Robertson’s property.

[3]

After a hearing on October 27,

2010, the trial court denied Vopak’s initial request for temporary injunction.

On December 2, 2010, the trial court entered a temporary restraining order

against ITC. On December 13, 2010, the trial court held a second hearing. On

March 31, 2011, the trial court entered a second temporary restraining order.

The trial court held a third evidentiary hearing on April 13, 2011, and entered

the temporary injunction at issue in this appeal on April 20, 2011.

[4] ITC

argues that Vopak’s contracts do not mandate delivery by railcar, such that

Vopak could use other means of transportation without violating their

contractual obligations. But ITC cites to only one contract for this

proposition. Even if we were to accept ITC’s contention that the cited contract

does not require delivery by rail, it does not conclusively rebut the testimony

offered by Vopak that it has many contracts with customers that cannot be

fulfilled if Vopak does not have adequate access to railway transportation.

[5] ITC

complains that Vopak did not prove that any customers actually did pull their

business, but evidence of customers threatening to take their business

elsewhere is some evidence of probable harm even if the customers have not yet

executed the threat.

[6]

Vopak has asserted other

cross-claims against ITC, including tortious interference with existing and

prospective business relationships, unfair competition, antitrust violations,

breach of contract, and suit to quiet title. Because an applicant is required

only to plead and present evidence to support one cause of action to establish

a probable right of recovery, we need not reach whether Vopak has presented

evidence to support these additional causes of action. See Butnaru , 84 S.W.3d at 211 .

[7]

We requested supplemental

briefing on this issue, which the parties provided.