### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-07-00463- CV

David Holu bec and Mary Holubec, Appellan ts

v. Carl Brandenberger , Ind ividu ally and as Next F riend of P ayton Brandenb erge r, Carson Brandenb erge r, and McK enna Brand enberger ; K athy Brandenb erge r;

and First M ason II, L td., Appellees

F ROM TH E DISTRI CT COURT O F MCCULLO CH COUNTY , 198 TH JUDICI AL DISTRICT

NO. 199 8084 , H ONO RAB LE EMI L KARL P ROH L, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
The issue in this appea l is the scope of a perma nent injuncti o n re straining the Holubecs’ sheep- far

ming activi t i es. Appellee s Carl Br andenbe rg er (individually and as 1 next friend of Pay

ton Br andenbe rg er, Carson Br andenbe rg er an d M cK enna Br andenbe rg er) , Kathy Br andenbe rg er, and First Mason I I , L t d

. s ued appellants David and Mary Holubec for nuisance , neg lige nce, and trespass s temming from the Holubecs’ operation of a sheep fee dlot in close proximit y

to the Br andenbe rg ers’ home. Following the Supreme Court’s opinion in Holubec I , the t ri al court enter ed a perma nent injunction that prohibited the Holubecs from eng ag ing in sheep far ming activiti es

Detailed versions of the fac tual and proce dural history of the underly ing lawsuit are 1 av ai lable at Holubec v. Brandenberge r , 111 S.W .3d 32 (Tex. 2003) (“ Holubec I

”), and Holub ec v. Brandenbe rger , 214 S.W .3d 650 (Tex. App.—Austin 2006, no pet.) (“ Holubec I I ”).withi n 1,000 fee t of t he boundary line with the Brande nberg ers’ proper ty
. See generally Holubec

v. Brandenberge r , 111 S.W .3d 32 (Tex. 2003). In addition, the Hol ub ecs wer e instructed to take af fi rm at i ve action to remove all fee ders, pens, sheds, water troug hs, wire fenc ing, and overhe ad lights fr om the ten-a cre fee dlot area in dispute. In Holubec II

, this Court found the languag e of the trial court’s perma nent injunction to be over ly

broad, a nd we issued instructions to the trial cour t to refor m the injunction:
consistent with the evidence ad du ce d at trial in a manner that (1) does not enjoin appellants from constructing and operating a fee dlot in the northwest corne r of their proper ty in an are a that the part i es did not dispute at trial would constitute an acc eptable site, and (2 ) does not require appellants to take aff irmative action that would amount to curta iling pre- November 1996 levels of sheep far ming activity on the ten-a cre fee dlot sit e.
Holubec v . Brandenberge r , 214 S.W .3d 650, 659 (Tex. App.—Austin 2006, no pet.).

On rema nd, the trial court enter ed an injunction identical to the injunction at issue in Holubec I I , except that (1) the tr ial court a dded the f ollowing languag e: Provided, howeve r, that reg ardle ss of the 1000 ft. limit ation, descr ibed above, this injunction shall not enjoin the Def endants from constructing and operating a fee dlot in the Northwe st corne r of Def endants’ proper

ty in an are a that the parties did not dispute at trial would constitute an a cce ptable site[;] and (2) the t rial court amende d its aff irmative i nstructions as to the ten-a crefee dlot sit e to re quire

remova l of all fee ders, pens, sheds, water troug hs, wire fenc ing, an d o v erhead lights only to the extent that thos e items did not ex ist prior to November 1996.

2The Holubecs argue that, even with the add i tion of this limit ing languag e, the

perma nent injunction remai n s o v er ly broad and, moreove r, that the prohibitory provisions now conflict with the trial court’s aff irmative instructions. Acc ording to th e Holubecs, the amende d injunction require [s] an excessive remo v al of fee ders and pens that preve nt[ s] the Holubecs from maintaining pre- 1996 sheep far ming levels, and sever ely limit [s] the Holubecs’ discretion in re locatingthe fe edlot.

In response , the Br andenbe rger s ar gu e t h at the injunction is not overly broad but, rathe r, ref lects the trial court’s resolution of disputed fac tu al i ssues, including the dispute as to what preNovember 1996 levels of sheep- far ming activities wer e. Be ca u s e we find that the injunction, as written, is c onsistent with the languag e set out in Holubec II , see id. , we hold that the injunction is not overly

broad. Contrary to the Br andenbe rg ers’ asser tions, howeve r, the trial court made no fac tual deter mination a s to the level of pre- 1996 sheep- far ming activities conducte d on the ten-a cre trac t. Rather, in its first order , following rema nd by the Supreme Court in Holubec I , the trial court enter ed

a broad injunction prohibiting all s h ee p-fa rming activities on cer

tain are as of the Holubecs’ land, including are as not at i s s u e in the lawsuit. In the trial court’s second order , following rema nd by this Court in Holubec II

, althoug h the trial court added languag e that would purportedly allow preNovember

1996 levels of she ep fa

rming , it made no deter

mination as to what those levels we re. In support o f t h eir contention that the amende d injunction resolves the disputed fac tual issues, the Br andenbe rg ers point to:

3that portion of t he trial court’s judgment which prohibits the operation of a fee dlot

and the confine ment of animals in what u s ed to be the Br ushy Trap in g reater numbers than can sustain themselves on the crops and fora g e produce d in such are a in the normal g rowing season [and] does not curta il Appellants’ pre- November 1996 levels of she ep fa

rmingactivity

on the 10 ac res in question.
Ac co rding to the Br andenbe rg ers, this prohibition amounted to a finding , in the exercis e o f t h e trial court’s discretion, that they —the Br andenbe rg ers—we re telling the truth in light of conflicting evidenc e. The Br andenbe rg ers prese nted evidenc e that, prior to 1996, the are a in question was not used as a fee dlot. Rather, it was a brushy patch with mesquite and ag arita on which neighbors would

occa sionally see sheep. The Holubecs prese nted evidenc e, throug h the testimony of David Holubec, that, prior to 1996, they had 2 7 fe eder s on the ten-a cre site that would acc ommodate 100 to 120 head of sheep eac h. The evidenc e prese nted, the Br andenbe rg ers contend, cre ated a conflict that the trial court resolved throug h its prohibition on sheep “in g reater numbers than can sustain themselves on the cr ops and for ag e produc ed in such a rea in the normal growingseason.” Howeve r, even acc epting the Br andenbe rg ers’ asser tion that the trial court did not find David Holubec’ s testimony cre dible and that “[t] he evidenc e supports a deter mination that prior to November , 1996, the Br ushy Trap was used as pasture land for sheep and was not a fee dlot,” there is neither evidenc e nor a finding as to how or in what quantities sheep wer e kept on the disputed tenacr e are a prior to November 1996. Evidence that the ten-a cre are a was not used as a fee dlot or that neig hbors only

occa sionally saw sheep does not suppor t a deter mination that, prior to 1996, sheep

wer e sustained only

on “the c rops and f

orag e produc ed in the norma l gr owingseason.” Although we hold that the injunction, as written, is consi stent with the languag e set out in Holubec II

, see id. , we note that the l evel of pre- November 1996 sheep farming that the
4Holubecs conducte d on the approximately ten-a cre trac t adjac ent to the Br andenbe rg ers’ land is an

evidentiar y issue that has not y et been deter mined in the first instance by the trial court. Our ruling in this case is with respe ct to the complaint that the am en d ed injunction is overly broad or selfref ere ntially i n co n s i s tent. We express no opinion in this case as to any other aspec t of the injunction’s enfor cea

bility

. See, e.g. , Ex parte MacCallum , 807 S.W .2d 729, 730 (Tex

. 1991) (to be enfor cea

ble by contempt, the terms of injunction must be clea r, specific , and unambiguous, and set out in rea sonable detail the duties and obligations imposed); Ex parte Balsingame , 748 S.W .2d 444, 446-47 (Tex. 1988) (same) ; IAC, Ltd. v. Bell Helicopter Textron, Inc. , 160 S.W .3d 191, 201-02 (Tex. App.—For

t Worth 2005, no pet.) (same)

. Affir med.

__________________________________________ G. Alan Waldrop, Just ice Be fore J ustices Pury ear , Waldrop and He nson; ConcurringOpinion by

J ustice He nson Affir med Filed: De cembe r 31, 2009

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