Warren Development, LLC v. Subway Real Estate, LLC; Double C Sub Co., LLC and Kristen Chandler

Opinion filed March 13, 2025

In The

Eleventh Court of Appeals
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No. 11-24-00161-CV
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WARREN DEVELOPMENT, LLC, Appellant
V.
SUBWAY REAL ESTATE, LLC; DOUBLE C SUB CO., LLC;
AND KRISTEN CHANDLER, Appellees

On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CV60766

MEMORANDUM OPINION
Appellant, Warren Development, LLC challenges the trial court’s denial of its
request for a temporary injunction to remove the access of Appellees, Subway Real
Estate, LLC; Double C Sub Co., LLC; and Kristen Chandler to their unit inside
Appellant’s commercial building. Appellant argues that the trial court abused its
discretion by refusing its request for a temporary injunction because it proved all
elements necessary for a temporary injunction to be granted. We affirm.
Factual and Procedural History
In its original petition, Appellant alleged that it leased commercial space to
Subway Real Estate to allow Double C Sub Co.—a single member LLC managed
by Chandler—to operate a Subway franchise. Appellant contended that Appellees
were habitually late with lease payments, but further, they caused damage through
“wild misuse of the water system,” thereby requiring Appellant to install a new
septic system. Appellant further complained of other problematic conduct in
violation of the lease, including, but not limited to, failing to provide insurance
information, installing a reverse osmosis (RO) water system, and impermissibly
disposing of trash.
Appellant requested and received a temporary restraining order (TRO) from
the trial court, which directed Appellees “to immediately cease and desist from
operations,” and that prohibited Appellees from entering the leased property. The
trial court set the matter for hearing and heard Appellant’s request for temporary
injunction.
At the hearing, the following evidence was introduced: Chandler, the sole
member of Double C Sub Co., subleases a commercial unit in “The Shops of
Greenwood” from Subway Real Estate, where Chandler operates a Subway
franchise (the franchise). Stephen Warren (Warren) is the president of Appellant, an
LLC that owns and operates The Shops of Greenwood. Warren explained that he
has encountered various issues with Appellees, including late lease payments,
excessive water usage, storing equipment in another unit without permission,
installing a reverse osmosis system, and personal conflict with Chandler. Appellant
maintained that the franchise’s water usage, which was confirmed through water
meter readings, led to the flooding of the septic system’s leach field, causing
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Appellant to have to spend $182,000 to repair the septic system and $31,985 to
frequently pump out the septic system. Comparing the franchise’s water usage to
that of other tenants in the building, the franchise allegedly used as much as 10,000
times more water.1 Warren and Lorna Miedema, Appellant’s employees, testified
that, after the trial court signed its TRO, Appellant had no further septic issues.
Appellant’s answers as to irreparable loss or damages was inconsistent. When
asked if he thought he could be compensated for his losses without the temporary
injunction, Warren initially answered, “Sure.” However, when asked again by his
counsel, Warren agreed that he could not be made whole through pecuniary damages,
but he did not explain why monetary damages would be insufficient.
Chandler testified that she never received notice that any rent payments were
late; rather, several rent payments were returned to her or went uncashed for several
months. Chandler did not know why the franchise’s water usage was much higher
than other tenants but stated that she did not intentionally leave water running.
Chandler explained that she installed the RO system to ameliorate poor water quality
from the shopping center’s well system and that Warren was aware of, and approved,
its installation. According to Chandler, the franchise made between $3,000 and
$3,500 in gross revenue per day, but it had been closed since the TRO was signed.
Although Chandler testified that she had not been back to the property, she did
acknowledge that her husband had placed a sign on the door, notifying customers
that the franchise was temporarily closed.
Albert Faychak, III is a water treatment specialist that installed the franchise’s
RO system. Faychak testified that the RO system only runs when there are demands
on it, such as from the ice machine or soda fountain; however, if something
connected to it is leaking, it will increase the demand. Faychak believed that the RO

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Although Appellant provided meter readings for a dry cleaner and a meat market, it did not provide
meter readings from other units in the building from which to compare the water usage.
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system was operating normally. Faychak explained that the RO system he installed
creates three and one-half gallons of waste for every one gallon of treated water
produced. Faychak opined that the water usage could not be attributed to the RO
system.
Gregory Kent Spencer, an environmental police officer for the Midland
County District Attorney’s Office, went to the shopping center to investigate a
flooded area that smelled like septic waste. Officer Spencer ultimately determined
that flooding occurred because the septic system was not a proper system; it was not
large enough for the businesses on site. Officer Spencer agreed that although Warren
was cited for a septic violation, the trial court dismissed his citation.
Johnny Saberance performed drain field aeration for Appellant to allow it to
suck up more water. He believed the area flooded because too much water was
entering the septic system. Saberance recommended changes to the septic system
that would help resolve its issues, including adding an aerobic system. Monica
Marentes, a public health inspector for the City of Midland, inspected all the
properties at the shopping center on August 21, 2023, after responding to a complaint
from one of the tenants regarding a water leak. Marentes did not discover any
“sewage problems” during her inspections.
The trial court denied Appellant’s request for a temporary injunction. This
accelerated interlocutory appeal ensued. See TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a)(4) (West Supp. 2024) (providing for accelerated appeal from an
interlocutory order refusing a temporary injunction).
Standard of Review & Applicable Law
A temporary injunction is an extraordinary remedy which serves the purpose
of preserving 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). A temporary
injunction does not issue as a matter of right. Id. The status quo is simply the “last,
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actual, peaceable, non-contested status which preceded the pending controversy.”
Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 555 (Tex. 2016) (quoting In re
Newton, 146 S.W.3d 648, 651 (Tex. 2004)). “To obtain a temporary injunction, the
applicant must plead and prove three specific elements: (1) a cause of action against
the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent,
and irreparable injury in the interim.” Butnaru, 84 S.W.3d at 204.
To establish a probable right to relief, a party must allege a cause of action
and present evidence tending to sustain it; the party need not prove that it will prevail
at trial. Savering v. City of Mansfield, 505 S.W.3d 33, 39 (Tex. App.—Fort Worth
2016, pet. denied). “An injury is irreparable if there is no adequate remedy at law;
if for example, a prevailing applicant could not be compensated adequately in
damages, or if damages cannot be measured by any certain pecuniary standard.”
Benefield v. State, 266 S.W.3d 25, 30 (Tex. App.—Houston [1st Dist.] 2008, no pet.)
(citing Butnaru, 84 S.W.3d at 204).
A trial court’s order granting or refusing a temporary injunction is reviewed
for abuse of discretion. Butnaru, 84 S.W.3d at 204. “We limit the scope of our
review to the validity of the order, without reviewing or deciding the underlying
merits, and will not disturb the order unless it is ‘so arbitrary that it exceed[s] the
bounds of reasonable discretion.’” Henry v. Cox, 520 S.W.3d 28, 33–34 (Tex. 2017)
(quoting Butnaru, 84 S.W.3d at 204) (internal footnote and citation omitted). “No
abuse of discretion exists if some evidence reasonably supports the [trial] court’s
ruling.” Id. at 34. “Under this standard, we draw all legitimate inferences from the
evidence in a manner most favorable to the trial court’s ruling.” Super Starr Int’l,
LLC v. Fresh Tex Produce, LLC, 531 S.W.3d 829, 838 (Tex. App.—Corpus Christi–
Edinburg 2017, no pet.). As the factfinder, the trial court is the sole judge of the
credibility of the witnesses and the weight to give their testimony; it may choose to

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believe one witness and disbelieve another. City of Keller v. Wilson, 168 S.W.3d
802, 819 (Tex. 2005).
Analysis
Appellant argues that the trial court abused its discretion by refusing its
request for a temporary injunction because it met all legal requirements for its
issuance. Because “some evidence reasonably supports the [trial] court’s ruling,”
we disagree. Henry, 520 S.W.3d at 34. First, Appellant fails to properly identify
the status quo. Here, the last, actual, peaceable, non-contested status between the
parties existed prior to the trial court’s TRO that prohibited Appellees from
entering the premises or operating the franchise. See Marquez, 487 S.W.3d at 555;
Tex. Ass’n of Bus. v. City of Austin, 565 S.W.3d 425, 437 (Tex. App.—Austin 2018,
pet. denied); see also Cliffs Prop. Owners’ Ass’n, Inc. v. Double Diamond, Inc.,
No. 11-22-00158-CV, 2022 WL 4099296, at *3 (Tex. App.—Eastland Sept. 8, 2022,
no pet.) (mem. op.) (concluding the trial court abused its discretion by granting a
temporary injunction that upset—rather than preserved—the status quo). It was not
until the controversy began that Appellees were precluded from entering the
property and operating the business. Accordingly, the trial court did not abuse its
discretion by refusing Appellant’s request for a temporary injunction, which would
have upset the status quo rather than preserve it. See Marquez, 487 S.W.3d at 555;
see also Cliffs Prop. Owners’ Ass’n, 2022 WL 4099296, at *3.
Additionally, although Warren provided conclusory testimony that he would
suffer irreparable harm that could not be cured through pecuniary damages if the
temporary injunction was refused, nothing in the record supports that conclusion.
See Benefield, 266 S.W.3d at 30. Indeed, Appellant’s only evidence regarding the
harm he has suffered and will likely suffer is continued financial losses from
pumping the leach field. Accordingly, the trial court could have readily concluded
that the evidence did not support Appellant’s claim of irreparable harm. See id.
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Having reviewed the record, we conclude that the trial court did not abuse its
discretion by refusing Appellant’s request for a temporary injunction. See Butnaru,
84 S.W.3d at 204. Appellant’s sole issue is overruled.
This Court’s Ruling
We affirm the order of the trial court.

W. BRUCE WILLIAMS
JUSTICE

March 13, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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