Travis Grimes, Both Individually and D/B/A Lakehaven Marina v. Brown County and Texas Commission on Environmental Quality

Opinion filed April 10, 2008 Opinion filed April 10, 2008 In The Eleventh Court of Appeals __________ No. 11-06-00247-CV __________ TRAVIS GRIMES, BOTH INDIVIDUALLY AND D/B/A LAKEHAVEN MARINA, Appellant V. BROWN COUNTY AND TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellees On Appeal from the 35th District Court Brown County, Texas Trial Court Cause No. CV-0507348 M E M O R A N D U M   O P I N I O N This appeal arises from a contempt proceeding to enforce an injunction. The trial court determined that Travis Grimes, both individually and d/b/a Lakehaven Marina, violated a permanent injunction previously entered by the court. Appellant challenges the trial court=s contempt order in two issues. We dismiss for want of jurisdiction. Background Facts Brown County and the Texas Commission on Environmental Quality filed an application for injunctive relief on July 29, 2005, with respect to the operation of the Lakehaven Marina at Lake Brownwood. Appellees sought injunctive relief against several defendants in order to abate the public health nuisance they alleged existed at the marina. Specifically, appellees alleged that the marina rented out cabins that were not attached to an approved on-site sewage system. Appellees asserted that the defendants were at one point discharging human wastes and gray water from the cabins into open trenches located behind the cabins and then subsequently into an Aillegal holding tank@ system. After conducting a hearing on the appellees= application, the trial court entered an order on August 10, 2005, which provided in relevant part as follows: ORDERED that the Defendants 3'J=s Joint Venture, Travis Grimes, Josh Helbert and Justin Jones, should be, and they are hereby, Permanently Enjoined from directly or indirectly operating or causing to be operated any unapproved sewage disposal system located within or about the cabins or the restaurant at Lakehaven Marina, and from causing any public water supply to be attached to the cabins or restaurant at Lakehaven Marina. It is further ORDERED that this injunction shall remain in full force and effect until such time as Defendants have shown themselves to be fully in compliance with all rules, regulations, guidelines and laws for the operation of an approved sewage disposal system for the cabins and restaurant at Lakehaven Marina, at which time this injunction shall be dissolved without further order of the Court. The trial court=s order also assessed a civil penalty against the defendants in the amount of $3,100. However, the order suspended the imposition of the civil penalty until the first of the following events occurred: (1) the defendants complied with the applicable rules for operating an approved sewage disposal system for the cabins and restaurants at the marina, at which time the civil penalty would be waived or (2) the defendants violated the terms of the injunction. Appellees subsequently filed a motion to enforce the injunction on June 2, 2006. They alleged in the motion to enforce that ALakehaven Marina has in fact been renting cabins, yet still has not installed an approved and inspected sewage disposal system for the cabinsCall in direct violation of this Court=s order for permanent injunction.@ Appellees attached the affidavit of Lisa Taylor to the motion. She made the following statements in her affidavit: 1. On Wednesday, May 31, 2006 at approximately 4:00 p.m., I, Lisa Taylor, called the Lake Haven Marina inquiring about a cabin for the upcoming weekend (June 3-4, 2006).[1] 2. I was advised that the previous weekend (May 27-28, 2006) at Lake Haven Marina, there were approximately 100 people staying in the cabins on premises. 3. I was then advised that they only had 3 cabins left that were available for rent for this upcoming weekend (June 3-4, 2006). 4. Although Lake Haven Marina has obtained permits for and installed a septic system for its restaurant in compliance with County and TCEQ regulations, no effort whatsoever has been made to bring any of the cabins on Lake Haven Marina property into compliance regarding sewage disposal. After conducting a hearing on the motion to enforce the injunction on July 26, 2006, the trial court entered a written order on August 1, 2006, finding that appellant violated the permanent injunction.[2] The trial court assessed the $3,100 penalty provided for in the permanent injunction. The trial court also assessed an additional fine of $3,000 for contempt in the August 1, 2006 order. However, the order suspended the imposition of the fine for contempt for one year conditioned upon the following requirements: (a) appellant bringing the Lakehaven Marina into Afull compliance@ by installing a sewage disposal system specifically designed to accommodate the needs of the cabins at Lakehaven Marina; (b) appellant ceasing all use of the cabins until an approved sewage disposal system is installed; and (c) appellant complying with the permanent injunction Ain both letter and spirit.@ Analysis Appellant asserts in his first issue that the trial court erred in overruling his motion to quash the motion to enforce the permanent injunction. Specifically, appellant alleges that the motion to enforce failed to sufficiently allege a violation of the permanent injunction. In his second issue, appellant contends that the order of contempt is void because the permanent injunction is vague and ambiguous. As set forth below, we do not reach appellant=s issues because we lack jurisdiction to consider a direct appeal from a proceeding to enforce a permanent injunction. Proceedings for violation of an injunction are in the nature of a contempt proceeding. Tex. R. Civ. P. 692 (ADisobedience of an injunction may be punished by the court . . . as a contempt.@); see Estate of Korzekwa v. Prudential Ins. Co. of Am., 669 S.W.2d 775, 778 (Tex. App.CSan Antonio 1984, writ dism=d). Accordingly, appellant is attempting to appeal a contempt order entered by the trial court. A court of appeals lacks jurisdiction to review a contempt order on direct appeal. Tex. Animal Health Comm=n v. Nunley, 647 S.W.2d 951, 952 (Tex. 1983) (addressing a contempt order arising from a violation of an injunction). A contempt judgment is reviewable only via a petition for writ of habeas corpus (if the contemnor is confined) or a petition for writ of mandamus (if no confinement is involved). See In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Adams v. Bell, 94 S.W.3d 759, 762 (Tex. App.CEastland 2002, no pet.). Thus, we are without jurisdiction to review appellant=s complaints about the trial court=s contempt judgment. This Court=s Ruling We dismiss the appeal for want of jurisdiction. Appellant=s motion to strike portions of appellees= brief is dismissed as moot. TERRY McCALL JUSTICE April 10, 2008 Panel consists of: Wright, C.J., McCall, J., and Strange, J. [1]The spelling on the appeal bond is Lakehaven Marina. [2]The trial court noted in its August 1, 2006 order that appellant was the Aonly proper defendant@ to the enforcement action both in an individual capacity and in his capacity as manager/proprietor of Lakehaven Marina.