Harley Channelview Properties, LLC v. Harley Marine Gulf, LLC

Houston, TX – Real Estate lawyer represented Appellant with appealing a Lease Agreement and Moorage Agreement with appellee.

On January 31, 2011, Channelview, as landlord, entered into a Consolidated

Lease Agreement and Moorage Agreement with appellee, HMG, as tenant,

covering a maritime facility along the Houston Ship Channel.

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As part of the lease

agreement, the parties agreed that HMG had an option to purchase the property and

obligated Channelview to convey the property in Channelview, Texas, for a fixed

sum of $2.5 million. The option to purchase further stated that HMG could

exercise its option "during the Lease Term or any Renewal Term.” The lease

agreement also referenced a separate Option to Purchase Agreement, which was

executed on January 31, 2011. After entering into the lease agreement, the parties

executed a number of amendments to the lease.

On September 15, 2020, HMG provided notice to Channelview of HMG's

intent to exercise the purchase option. After Channelview disputed the

1 The initial lease was between Holland Real Estate, LLC, as landlord and HMG as

tenant. On December 20, 2012, Holland sold the properties subject to the lease to

Channelview pursuant to a Real Estate Purchase and Sale Agreement dated

December 20, 2012. Holland and Channelview also entered into an Assignment

and Assumption Agreement on December 28, 2012.

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enforceability of the option agreement and did not attend closing, HMG sued

Channelview for breach of the option agreement, and HMG sought specific

performance of the option agreement. On February 10, 2021, HMG moved for

partial summary judgment on its claim for breach of the option agreement and

specific performance. Channelview answered the suit and responded to the motion

for partial summary judgment, arguing that the fixed-price option to purchase was

extinguished by HMG's failure to exercise its right of first refusal before the

property was sold by the previous owner. Channelview further argued that the trial

court should deny the motion for partial summary judgment because of

Channelview's affirmative defenses of mutual mistake, unilateral mistake,

unconscionability, and repudiation.

On September 2, 2021, Channelview filed its original counterclaims, seeking

declaratory relief, reformation/mutual mistake, rescission/mutual mistake, and

promissory estoppel.

After a hearing, the trial court signed a September 20, 2021 order, granting

HMG's motion for partial summary judgment, finding that Channelview breached

the Option to Purchase Commercial Real Estate Agreement and that HMG

performed all obligations required to be entitled to relief. The trial court further

granted HMG specific performance, ordering the sale of the Purchase Option

Property to include (a) commercial property at 239 & 311 Lakeside Dr.

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Channelview, Texas, (b) all adjacent water use authorizations, rights, license or

lease to the adjacent Houston Ship Channel, and (c) all improvements located at

and/or made upon the foregoing. The trial court ordered the parties to close within

30 days and required HMG to deposit the full purchase price into the title

company's escrow account, where it would remain until final judgment. The trial

court's order stated that it was interlocutory and that additional HMG claims

remained pending, including attorney's fees and HMG's entitlement to offset the

rent it had paid since exercising its purchase option.

Channelview filed an emergency motion for rehearing and reconsideration

of the trial court's September 20, 2021 order, arguing that the order constituted a

temporary mandatory injunction. HMG filed a response to the emergency motion

for rehearing and noted that Channelview's counterclaims were improper. After

another hearing, trial court signed an October 8, 2021 order, denying

Channelview's motion for rehearing and reconsideration.

On October 12, 2021, Channelview filed an interlocutory appeal, No. 01-21-

00547-CV, challenging the trial court's order on motion for partial summary

judgment as a temporary injunction.

2

Channelview also filed a motion for

2 See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4) (permitting interlocutory appeal

of order granting temporary injunction).

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emergency relief, requesting a stay of the trial court's order that ordered

Channelview to convey the property to HMG within 30 days.3



Temporary Injunction

In this proceeding, Channelview contends that the trial court's order on

partial summary judgment granted a temporary injunction. Channelview thus

contends that we have interlocutory jurisdiction pursuant to section 51.014(a)(4).

See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4). HMG disagrees, arguing that

the trial court's partial summary judgment order granted relief on the merits and is

final, permanent relief.

Generally, an appeal may be taken only from a final judgment disposing of

all parties and all claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.

2001). In section 51.014(a)(4) of the Civil Practice and Remedies Code, the

Legislature provides that "a person may appeal from an interlocutory order of a . . .

district court . . . that . . . grants or refuses a temporary injunction.” See TEX. CIV.

PRAC. & REM. CODE § 51.014(a)(4). We base our determination as to whether the

3 On October 12, 2021, Channelview filed a petition for writ of mandamus, No. 01-

21-00548-CV, arguing that the trial court abused its discretion in compelling

specific performance of an expired option contract and that if the partial summary

judgment order is not a temporary injunction, Channelview lacks an adequate

remedy by appeal. Channelview also filed a motion for emergency relief, seeking

a stay of the trial court's order, directing it to convey the property to HMG within

30 days. On October 18, 2021, this Court granted Channelview's motion to stay

on the condition that Channelview file a good and sufficient bond in compliance

with Rule 24. See TEX. R. APP. P. 24, 52.10(b). On November 17, 2021,

Channelview informed this Court that it had complied with our order by filing a

bond for the full amount requested by HMG.

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trial court granted or refused a temporary injunction in an order on the substance,

character, and function of the order, not on its form or title. See Del Valle ISD v.

Lopez, 845 S.W.2d 808, 809 (Tex. 1992); see also J.C. Matlock v. Data Processing

Sec., Inc., 618 S.W.2d 327, 328 (Tex. 1981) (stating that purpose of temporary

injunction is to preserve status quo pending trial on merits).

Here, HMG moved for partial summary judgment as a matter of law on the

merits of its breach-of-the-option-agreement claim. Channelview responded to the

motion for partial summary judgment, arguing that HMG's claims failed as a

matter of law. The trial court's September 20, 2021 order found that Channelview

breached the option agreement with HMG and granted specific performance,

ordering Channelview to convey the property within 30 days. The trial court's

order also stated that it was interlocutory, and that additional HMG claims

remained pending, including attorney's fees and HMG's entitlement to offset the

rent it had paid since exercising its purchase option. Notably, the trial court's

order did not leave the issue of whether Channelview breached the option

agreement as a remaining issue.

Although Channelview does not point to any part of the substance, character,

or form of the trial court's order on partial summary judgment to show that it is

temporary, see Del Valle ISD, 845 S.W.2d at 809, Channelview implies the

temporary nature of the order when it states, "This order commands prejudgment

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action and governs the parties' conduct 'until Final Judgment'” and the order

"governs the parties' conduct only 'until Final Judgment.'” We disagree with

Channelview's interpretation of the trial court's order on partial summary

judgment. Nothing about the trial court's order indicates that its decision finding

in favor of HMG on the breach-of-the-option agreement is of a temporary nature

that will eventually change upon final judgment. Likewise, HMG neither sought a

temporary injunction, nor did it seek temporary relief. Instead, it sought permanent

relief on its breach-of-the-option-agreement claim and the trial court agreed,

finding in HMG's favor and ordering specific performance. Accordingly, we

conclude that the order grants permanent relief to HMG on its breach-of-theoption-agreement claim and does not constitute an order granting a temporary

injunction. See L Series, L.L.C. v. Holt, 571 S.W.3d 864, 870 (Tex. App.—Fort

Worth 2019, pet. denied) (holding that trial court's order did not grant temporary

injunction because it granted "complete relief on . . . breach of contract claim” and

"the order [did] not contemplate any further action on the merits of that claim”); El

Caballero Ranch, Inc. v. Grace River Ranch, LLC, No. 04-15-00127-CV, 2015

WL 6163221, at *3 (Tex. App.—San Antonio Oct. 21, 2015, no pet.) (mem. op.)

(holding that, "[u]nlike a temporary injunction,” the injunction in that case served

"to implement the trial court's ultimate determination on the merits”); Young v.

Golfing Green Homeowners Ass'n, Inc., No. 05-12-00651-CV, 2012 WL 6685472,

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at *2 (Tex. App.—Dallas Dec. 21, 2012, no pet.) (mem. op.) (concluding that

partial summary judgment granting permanent injunctive relief was not appealable

as temporary injunction). Because we conclude that the trial court's order on

partial summary judgment cannot be construed as an order granting a temporary

injunction, we lack interlocutory jurisdiction.4

We dismiss the appeal for lack of jurisdiction. We dismiss any pending

motions as moot.