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Harley Channelview Properties, LLC v. Harley Marine Gulf, LLC
Case Number: 01-21-00547-CV
Judge: Sherry Radack
Court of Appeals
First District of Texas
On appeal from The 80th District Court
Harris County, Texas
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Defendant's Attorney: Walter Berger
Natalie L Arbaugh
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.
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.
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
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.
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.
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).
emergency relief, requesting a stay of the trial court’s order that ordered
Channelview to convey the property to HMG within 30 days.3
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.
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
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,
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
Outcome: We dismiss the appeal for lack of jurisdiction. We dismiss any pending
motions as moot.