NUMBER 13-21-00118-CV 

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

JOHN S. BULLINER JR., Appellant,

v.

EL CHICO GARCIA JR. AND 

TYSON GARCIA, Appellees.

 

On appeal from the 61st District Court 

of Harris County, Texas.

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Silva and Peña 

Memorandum Opinion by Justice Peña

Appellant John S. Bulliner Jr. appeals the trial court’s denial of his request for a 

temporary injunction requiring appellees El Chico Garcia Jr. and Tyson Garcia (the 

Garcias) to remove a residential structure that was inadvertently built on Bulliner’s land. 
2

In three issues, which we treat as one, Bulliner argues the trial court abused its discretion 

in denying his request because he established the required elements for temporary 

injunctive relief. We affirm.1

I. BACKGROUND

The Garcias retained Precision Surveyors, Inc. (Precision) to survey the 

boundaries of their property located in an unincorporated area of Harris County, Texas.

In 2016, the Garcias completed the construction of a home on the property, costing 

approximately $300,000. According to Precision’s survey, the home was located on Lots 

16–18, which were owned by the Garcias.

The Garcias later discovered that their home was actually built on Lots 13 and 14, 

which they did not own. John C. Mays owned Lot 13 and Bulliner owned Lot 14. Mays 

first discovered that the home was encroaching on Lot 13 when, in 2018, the appraised 

value of his land increased. On May 8, 2019, Mays sent the Garcias a letter demanding 

they remove the portion of their home encroaching on his property. 

A. The Garcias’ Suit and Mays’s Intervention

The Garcias sued Precision and its president, Barry D. White, for breach of 

contract, deceptive trade practices, negligence, and negligent supervision.

2 Precision 

answered and asserted a general denial. Mays then intervened, alleging claims of 

negligence, trespass, and nuisance against the Garcias. Mays sought damages and a 

temporary and permanent injunction requiring the Garcias to remove the part of their 

1 This case is before the Court on transfer from the First Court of Appeals pursuant to a docket 

equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.

2 Precision and White are not parties to this appeal.
3

house encroaching on Mays’s land. The Garcias answered and asserted the affirmative 

defenses of limitations, contributory negligence, estoppel, ratification, waiver, and “acts

or omissions of third parties.”

At the hearing on Mays’s application for a temporary injunction, El Chico3 testified 

that “we thought we were building on our own property” and that Mays did not claim the 

Garcias’ house was being built on his property during construction. El Chico stated there 

are no other structures on the property. He claimed it is impossible to move his home 

because it has a concrete foundation. El Chico maintained that he is currently paying 

property tax on the improvements to Lots 13 and 14.

Mays testified his father bought Lot 13—“[a]pproximately half an acre”—in the 

1960s, and he later acquired ownership after his parents passed away. Mays stated that

his property taxes increased in 2018. Mays then went to inspect the property, and he 

discovered a house partially encroaching on his land. Mays admitted he had not “been to 

the property for a while” before 2018. Prior to the home’s construction, Mays said the

property “was just raw land with trees.” On cross-examination, Mays conceded that he

“had done nothing with this property” and that it was evaluated to be worth “about $4,000”

before the home’s construction. Mays claimed he visited the property six times in the past 

four years. He represented that he has never listed the property for sale. Mays agreed 

that the Garcias’ house could not be moved without destroying it because it has a 

concrete slab foundation. At the conclusion of the hearing, the trial court denied the 

application for a temporary injunction. Mays did not seek an interlocutory appeal from this 

order.

3 We refer to parties that share a surname by their first name to avoid confusion.
4

B. Bulliner’s Intervention

Before the case proceeded to a final disposition, and more than four years after 

the Garcias built their home, Bulliner, the owner of Lot 14, intervened and asserted the

same claims for trespass, nuisance, and negligence against the Garcias. Like Mays, 

Bulliner sought damages and temporary and permanent injunctive relief requiring the 

removal of the Garcias’ home. Bulliner attached to his petition property tax records which 

showed that the assessed value of his lot increased from $4,089 to $32,712 since the 

home’s construction. He also attached correspondence from the Garcias in which they 

offered to purchase Bulliner’s property or swap deeds to their respective lots.

The trial court held a hearing on Bulliner’s application for temporary injunctive 

relief. After hearing the arguments of counsel, the trial court orally denied the application. 

It then permitted Bulliner to make an offer of proof. Bulliner’s counsel then stated that the 

evidence would show “an undisputed trespass by the Garcias.” He also claimed the lots 

the Garcias proposed to swap are “different lots that are closer to a planned road 

expansion” without connections for power. He claimed that those lots are subject to 

flooding. Finally, Bulliner’s counsel stated the Garcias’ lots were encumbered by two 

mortgages.

The trial court later signed an order denying Bulliner’s application for a temporary 

injunction. Bulliner brings this interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(4).
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II. DISCUSSION

A. Standard of Review & Applicable Law

We review the trial court’s ruling on a temporary injunction application for an abuse 

of discretion. Super Starr Int’l, LLC v. Fresh Tex Produce, LLC, 531 S.W.3d 829, 838 

(Tex. App.—Corpus Christi–Edinburg 2017, no pet.) (citing Butnaru v. Ford Motor Co., 84 

S.W.3d 198, 204 (Tex. 2002)). A trial court abuses its discretion when it acts “arbitrarily, 

unreasonably, without regard to guiding legal principles, or without supporting evidence.” 

Id. (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). “A temporary injunction’s 

purpose is to preserve the status quo of the litigation’s subject matter pending a trial on 

the merits.” Butnaru, 84 S.W.3d at 204. “The status quo is the last, actual, peaceable, 

noncontested status which preceded the pending controversy.” Tex. Ass’n of Bus. v. City 

of Austin, 565 S.W.3d 425, 437 (Tex. App.—Austin 2018, pet. denied) (internal quotations 

omitted); see Dyer v. Weedon, 769 S.W.2d 711, 715 (Tex. App.—Waco 1989, no writ) 

(“Status quo, in cases involving possession of real property, is the last actual, peaceable, 

non-contested status of the parties and real property which existed immediately prior to 

the pending lawsuit.”).

“Temporary injunctions are an extraordinary remedy and do not issue as a matter 

of right.” Clark v. Hastings Equity Partners, LLC, 651 S.W.3d 359, 366 (Tex. App.—

Houston [1st Dist.] 2022, no pet.) (citing Butnaru, 84 S.W.3d at 204). To obtain a 

temporary injunction, an applicant must establish the following: (1) a cause of action; (2) a 

probable right to relief; and (3) a probable, imminent, and irreparable injury in the interim. 

Id. (citing Butnaru, 84 S.W.3d at 204). In establishing a probable right to relief, “[t]he

applicant is not required to establish that he will finally prevail in the litigation.” Pharaoh 
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Oil & Gas, Inc. v. Ranchero Esperanza, Ltd., 343 S.W.3d 875, 880–81 (Tex. App.—El 

Paso 2011, no pet.). “An injury is irreparable if the injured party cannot be adequately 

compensated in damages or if the damages cannot be measured by any certain 

pecuniary standard.” Butnaru, 84 S.W.3d at 204 (citing Canteen Corp. v. Republic of Tex. 

Props., Inc., 773 S.W.2d 398, 401 (Tex. App.—Dallas 1989, no writ)).

“There are two general types of temporary injunctions: prohibitive and mandatory.”

Ranchero Esperanza, 343 S.W.3d at 882–83 (citing RP & R, Inc. v. Territo, 32 S.W.3d 

396, 400 (Tex. App.—Houston [14th Dist.] 2000, no pet.)). While a prohibitive injunction 

forbids conduct, a mandatory injunction requires it. Id. at 883 (citing Lifeguard Benefit 

Servs., Inc. v. Direct Med. Network Sols., Inc., 308 S.W.3d 102, 112 (Tex. App.—Fort 

Worth 2010, no pet.)). A temporary mandatory injunction generally changes the status 

quo and should be granted only in cases of extreme hardship. Id. (first citing Iranian 

Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex. 1981); and then citing RP 

& R, 32 S.W.3d at 401); see Boatman v. Lites, 888 S.W.2d 90, 92 (Tex. App.—Tyler 1994, 

no writ) (“It is only under exceptional circumstances that a mandatory injunction will be 

granted prior to a final hearing . . . .”).

“A request for injunctive relief invokes a court’s equity jurisdiction.” In re Gamble, 

71 S.W.3d 313, 317 (Tex. 2002) (orig. proceeding). “In considering an application for a 

temporary injunction, a trial court balances the equities between the parties as well as the 

resulting conveniences and hardships.” Burkholder v. Wilkins, 504 S.W.3d 485, 493 (Tex. 

App.—Corpus Christi–Edinburg 2016, no pet.) (citing Universal Health Servs., Inc. v. 

Thompson, 24 S.W.3d 570, 578 (Tex. App.—Austin 2000, no pet.)). “A trial court may 

consider whether significant or slight injury would result if the injunction were erroneously 
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denied, and whether significant or slight injury would result if the injunction were 

erroneously granted.” Id. (first citing T.F.W. Mgmt., Inc. v. Westwood Shores Prop. 

Owners Ass’n, 162 S.W.3d 564, 575 (Tex. App.—Houston [14th Dist.] 2004, no pet.); and 

then citing Coastal Marine Serv. of Tex., Inc. v. City of Port Neches, 11 S.W.3d 509, 515 

(Tex. App.—Beaumont 2000, no pet.)).

B. Analysis

Bulliner argues that he is entitled to a mandatory temporary injunction due to the 

Garcias’ undisputed trespass. The Garcias respond that temporary injunctive relief is 

improper because it would disrupt the status quo of the Garcias’ possession of the 

property. The Garcias further argue that Bulliner presented no evidence that he would 

suffer a probable, imminent, and irreparable injury absent the removal of the home or that 

he could not adequately be compensated by damages.

Permanent injunctive relief is an available remedy for a trespass that is created by 

an encroaching structure. See Allen v. Va. Hill Water Supply Corp., 609 S.W.2d 633, 636 

(Tex. App.—Tyler 1980, no writ) (explaining that a continuing encroachment is a trespass 

and that “[a]n owner whose land is subjected to an encroachment may seek equitable 

relief against further maintenance or to compel its removal”). But even in the context of a 

permanent injunction, courts must still examine the competing equities, while balancing 

the conveniences and hardships. See Triantaphyllis v. Gamble, 93 S.W.3d 398, 401 (Tex. 

App.—Houston [14th Dist.] 2002, pet. denied). As our sister court explained:

When one builds a structure on another’s property, the owner can either 

treat the encroachment as a permanent trespass, and sue for damages, or 

pray for an injunction compelling its removal. If the encroachment has been 

intentional and if the trespasser has been grossly negligent in ascertaining 

the correct property line, most courts will grant a mandatory injunction for 

removal. To the contrary, most courts will refuse an injunction when the 
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encroachment is slight and unintentional, the cost of removing it great and 

the corresponding benefit to the owner is small, or when full compensation 

can be given in damages.

Coleman v. Forister, 497 S.W.2d 530, 533 (Tex. App.—Austin 1973), rev’d on other 

grounds, 514 S.W.2d 899 (Tex. 1974); see Nolte Irr. Co. v. Willis, 180 S.W.2d 451, 455 

(Tex. App.—Amarillo 1944, writ ref’d w.o.m.) (“[T]he extraordinary remedy of permanent 

mandatory injunction compelling the alteration, destruction, or removal of property should 

be granted with great caution and should not be granted unless serious injury is being 

inflicted or, in all probability, will be inflicted.”).4

In this case, Bulliner must overcome an even greater burden because he is

seeking a mandatory injunction as a form of temporary relief. See Boatman, 888 S.W.2d 

at 92 (explaining that the general rule is that a temporary injunction may not be used to 

obtain all relief sought by the suit). In this context, Texas courts require the applicant to 

demonstrate “exceptional circumstances,” id., or “extreme hardship.” Ranchero

Esperanza, 343 S.W.3d at 883.

The record shows that prior to the home’s construction, Bulliner’s property was an 

unimproved lot. It is undisputed that the Garcias built their home without 

contemporaneous complaint. Bulliner does not occupy the land, and, as indicated by his 

delay in discovering the encroachment, he rarely visits. Bulliner cites only his temporary 

inability to sell his unimproved lot until a final determination on the merits as support for 

his injury. This is not an irreparable injury because it can be remedied by an award of 

4 Similarly, many jurisdictions recognize “an equitable ‘relative hardship’ doctrine to assess 

whether, regardless of a legal trespass, equity may yet preclude issuance of mandatory injunctive relief in 

favor of pecuniary damages at law in certain limited circumstances, thereby effecting an equitable easement 

in favor of an unintentional, non-negligent trespasser.” Davis v. Westphal, 405 P.3d 73, 87 n.10 (Mont. 

2017) (collecting cases); see RESTATEMENT (SECOND) OF TORTS § 941 cmts. c, d (AM. L. INST. 1979). 
9 

damages. See Butnaru, 84 S.W.3d at 204. On the other hand, we note that injunctive 

relief would result in the destruction of the Garcias’ $300,000 home, which they have lived 

in since 2016. Further, according to the evidence from the hearing on Mays’s temporary 

injunction, the Garcias’ alleged trespass was unintentional. They intended to build their 

home on their own land, and they commissioned a professional surveyor to ensure this 

happened. That the house was built partially on Bulliner’s property was the result of a 

surveying mistake. 

In examining the equities and considering the relative conveniences and 

hardships, the trial court could have reasonably concluded that only a slight injury would 

result if the injunction were erroneously denied, but a significant injury would result if the 

injunction were erroneously granted. See Burkholder, 504 S.W.3d at 493. Relatedly, the 

record supports the trial court’s implicit conclusions that Bulliner did not demonstrate an 

irreparable injury, much less the exceptional circumstances or extreme hardship required 

to support a temporary mandatory injunction. See Ranchero Esperanza, 343 S.W.3d at 

883; Boatman, 888 S.W.2d at 92. Therefore, we conclude that the trial court did not abuse 

its discretion in denying relief. See Super Starr, 531 S.W.3d at 838. We overrule Bulliner’s 

sole issue. 

III. CONCLUSION

We affirm the trial court’s judgment. 

L. ARON PEÑA

Justice

Delivered and filed on the 

6th day of April, 2023.