## I n the Court of Appeals Second Appellate Dist rict of Texas at Fort Worth

__________________________ No. 02

- 23

- 00056

- CV

___________________________

On Appeal from the 271st District Court Wise County, Texas Trial Court No. CV20

- 08

- 579

Before Kerr, Bassel, and Wallach, JJ. Memo randum Op inion b y Justice Bass el 

### WCJ A SSETS 

### , L TD



### . , Appellant

V



### .
US T RINITY 

### B RIDG EPORT 

### , LLC , Appellee2 MEMORANDUM OPINION

I

. In t roduction

A ppellant WCJ A ssets , L td. perfected this interlocutory appeal from the trial

court ’ s modified te mporary

- injunction order , which g ranted th e relief requested in a
temporary

- injunction applic at ion fil ed by Appellee US T rini ty B ridgeport , LLC (UST)

.
See T e x. Civ

. P rac. & Rem. Code Ann

. § 5 1.014 (a) (4 ) ( authorizing interlocutory appeal

from an order granting a temp orary injunction ). The tempora ry

- inj unction order

restrain s WCJ f r om executing w ith a t hi rd

- part y lessee a lea se that permit s mining operation s on a tract of land that W CJ ha d con veyed to UST . I n the conveyancing

documents , WCJ had reserved th e right to mine certain minerals from the convey ed

property

. UST has moved to dismiss the a p p e al a s moot. W e grant UST ’ s moti on.

O u r reasons for g ranting the moti on to dismiss are multi

- pronged :

• W CJ has now e xecuted an agreement with a different third party to mine

the property , and that eve nt produc e d a change in the status of the
parties tha t m oots t he ques ti on of whet he r the restraint in the t rial

court ’ s temporary

- injuncti on order require s in terlocutory review

.

• T he trial court has rendered an interlocutory summary judgment that moots the questi on of whether UST made a showing o f a probable r i g ht

o f recover y at the tem po rary

- injunction hearing a nd makes th e legal3 question now resolved by su mmar y judgment an issue p roper ly resolved

in an appeal on the merits

.

• W C J predicates it s appeal on the question s of wh ether the trial court

erred (1) by g r a n t ing th e injun ction with ou t a showing that execution of

the lease it is restrained from executing woul d irr eparably harm UST and (2) by failing to properly document that conclusion in its temporary

injunction o rder

. WCJ ’ s argument turn s primarily on the c o nten ti on that

no harm wou ld re sult to UST because the trial court could later

determi ne whether the lease at is sue was a bon a fide exercise of WCJ ’ s rights. Because we con clude that the trial court has now ef fectively

determin ed that the proposed lease w a s no t a bona fide exercise of WCJ ’ s rights , the quest ion of whet her UST f a iled to show ha rm because

the tria l court could later de termine the validity of the lease is no w moot

.

• We also reject WCJ’s argument , which was made in a pos t submission

brief , that t he temporary

- injunction order dissolved automatically because UST nonsuited any “cause of action” that challenged WCJ’s ability to execute the lease referenced in that order , but we do agree with its present position that appeal of the order is moot.4 I I. Fac tual and Procedural Bac kground

A. T he underl ying transaction betwe en the pa rties a nd the terms o f an Addendum that is at the center of the controversy WCJ conveyed an approximately 1,4 00

- acre tract of rural property to UST

. The underlying controv ersy in volves the construction of a Spe cial Warranty Deed and

a Special Pr ovi sio n s Addendu m ( the Addend u m) attached to the d eed that deals with

interests reserved by WCJ in the conveyance
.
Init ially, the parties executed a Farm and Ranch Contract governing the terms of the conveyance. Th at contrac t contained the followi ng prov isio n : “ R eservations: Any reservatio n for oil, gas, or other minerals, water , timber, or other i nterests is

m ade in accordance wit h an attached addendum.” Attached to the contract i s the

Addend um that is the epicenter of the dispute.

T he Adde ndum ’ s terms c arried forward int o the conveyance of the propert y
when the Addendum was attached an d inc orporated into the S p ecial Warranty Deed

. That deed specified that it was “ subject to

. . . the terms relating to the Aggre gate (as

defi n ed her ea fter) t hat run with t he land [as] contained in the Special Provisions Addendum to the Farm and Ranch Contract (the ‘ Contract ’ ). ” The n, the deed’s reservations that retained “all of the commercially recoverable sand, gravel, and

li mesto n e owned by Gra nt or” ref ere nced the Adden dum as the “C ontrac t.” The Addendum reserved to WCJ as the sell er the “commercially recov erable sand, gravel, and limestone [,] which may be located on, in, under [,] or produced from5 the s urface of the [p] rop e rty to a depth of 50 f eet below the surface o f the [ p] roperty [that] is owned by [WCJ] (collectively the ‘ Aggregate ’).” The Addendum contained

further reservations of rights of ingress and egress and o f reasonable use of t he [p]ropert y f o r
m inin g, ex plor ing, test i ng, operating, de velopi ng[,] or rem oving the Aggregate subject to the limitations contain ed [t] herein provided th at, in the exercise of such rights of ingress and egress and of reasonable use, [WCJ] shall use comme rc ially reasona b le eff o rts in a c cordance wit h customary indust ry sta ndards fo r mining of aggregate materials to minimize interference wi th [UST ’s] use of t he [p] roperty. Also included in the Addendum was a provision en titled “A ggregate

Contrac ts.” Tha t provi s ion cont a ined two tim e limits that have also been the focus of

the l itigation. The first time limit provided t hat WCJ and UST would have ninety days to “attempt to enter into a contract or contracts for the sale of the Aggrega te to a

third

- party p u rchase r. ” This n inety

- day period is defined as th e Mining Contract

Period. The Addendum th e n went on to define the parties’ d uties should the Mining Contract Period expire without a contract for the sale of the m inerals. Specifically,

this later pr ovisi on de alt wi th an Alternative Mining C ontract:

I n the event that [UST] and [WC J] do no t enter into the Mi ni ng Con tract within the Mining Contract Period, [WCJ] shall have the right to enter into a contract or contra cts for the mining, removal, transpo r tatio n[,] and sa le of the Aggregate with one or more third parties on terms and co ndition s satisfactory to [W CJ ] pro vided such con tract has a reclamation plan in accordance with industry standards (whether
one or more t he “Alternat [ iv

]e Minin g Contract ”), sub ject to [UST’s] Right o f First Refusal

. . . .6 If a Mining Contract, an Alte rnat ive Mining Contract , or a con trac t ent ered into wi th

UST as a result of its exercise of its right of first refusal were not entered int o “ within

three (3 ) years aft e r t he e xpi ration of t he Mining C o ntract Period, ” another provision

of the Addendum w oul d be triggered by which WCJ would become obligated to
“convey it [] s r ights, titles [,] and interests in the Aggregate by special warranty de ed to
[ UST , ] and [ WCJ wou ld] n o l onge r h ave any i nter est in th e Aggregate [,] including

without limitation executive a nd/or royalty rights provided tha t [WCJ would ] retain a
ten perc ent ( 10%) royalty interest in the Aggregate .”

B. A summary of t he li tigation focusing on whether a cr ushi ng - and

sc ree ning plan t co u ld be placed on the property and the temporary injunction at issue in this appeal

The ni nety

- day Mining Contr act Period specified in the A ddendum p assed

with out the creati on of a M ining C ontr act

. Eventuall y , W CJ s ued UST

. The lit i gatio n has centered on WCJ’s attempts to exercise its right to enter into an Alter native

M ining Contract with a third party for the mining of the Aggregate and more particularly has centered on whether t he rights that WCJ r eta ined pu rsu an t to the

Addendum allow ed the placement of a crushing

- and

- screening plant on the property

to process the min erals m ined from it. Indeed, WCJ’s original petition sought the following declaration: WCJ requests a declarat ion fr om the [c] ourt r ega rdin g t he part ie s’ r ights and oblig ations under the [d] eed and Addendum. Specifically, WCJ requests that the [c ] ourt gran t declaratory judgmen t that the provisions of the [d] eed, Addendum, and Texas law allow WCJ to utiliz e the [p] r operty to develop t h e a ggre gat e materia l fr om the [p] r oper ty [] and7 more specifically the right to operate a crushing [

- ] and [

- ] screening plant on the [ p

] roperty

. [Emphasis added. ]

UST countered with its own declaratory request . S pecifi cally, UST req uested

a declar a tio n fr om the [c] ou rt r eg arding t h e parties’ ri ghts and obligations under the Farm and Ranch Contract and the Special Provis ions Addendum. Specifical ly, [ US T] request [ed] that the [c] ourt grant declaratory judgment that the F arm and R anch Con tract and th e Speci a l Prov isions Ad d end um is vali d and enfor ceable and [sought] a declaration of its and WCJ’s obligations, rights [,] and duties und er the Farm and Ranch Contract and Special Provisions Addendum. [ 1 ]

The event th at brings the m atte r un der ou r review i s WC J’s ten der of a

pro po sed Second Rogers Lease

. That tender was inten ded to trigger UST ’s right of

first refusal as outlin ed in the provisions of the Addendu m. Instead, it tri gger ed

an other i n UST ’s serial req uests for i njunctive relief from the trial court predicated on
the claim that WCJ ’ s attempt ed exercise of its rights w as not bo na fide

. O n this

occasion , the request w as UST ’s “Application for Temporary Restraining Order and App l i cation for Temp orary a nd Perman ent Injunction .” The Application s pans more than twenty pages , but its introd uc tion f ocus es on
UST ’ s objection to the Se cond Rogers Lease because that lease permi ts a crushing

and

- scre ening plant to be l ocated o n the pr operty:

1 Al though in its counterclaim UST ob jected to the operation of a crus hing

- an d

screening p lant on the prop er ty, it also complain ed of a la undr y list of way s in which it contends WCJ ’ s purported Alternative Minin g Contracts exceed the Addendum

reserv ation ’ s sco pe of W CJ ’ s rights. In addition , UST complained that by neg otiating the Second Lease Agreement from Rog ers Group, In c. (Second Rogers Lea se ) , WCJ h ad brea ched t he parties ’ contract.8 [T]his [temp orary restraining order] is ne cessitated by WCJ ’s continued and persistent attempts to lease rights to thir d parties that WCJ simply does not possess and that go b eyond WCJ’s actu al rights that the parties bargained for and a gr eed t o in the purch ase agre ement and its ad dendum. W CJ, un der the guise of nonexistent right s, seeks to severely disrupt and destr oy [ U ST ’s ] property through the implemen tation of a destructi ve crushing [

- ] an d [

-

] screening facility [] and mining and manu fa ct uring operations on the real pr operty. Des pite fa ili ng to point to any l ist ed right in any agreement between the parties, WCJ has communica te d with and engaged several mining companies for the

co nstruction o f the aforementioned ope rations. [ Emphasis ad de d. ]

Becaus e the Se cond Roger s Lease al legedl y granted rig hts that UST argued that WCJ did not have the right to grant , UST fu rth er ar gue d that the contra ct was again not a

bo na fide offer that triggered US T ’s right

- of

- first

- refusal oblig at io ns un der the

Adden dum. The rep l y t hat UST file d in support o f i ts request for injunctive relief highlighted again its contention that t he Seco nd Rogers Lease co ntained rights outside

t he scope of the Addendum, including the right to manufact ur e aggre gate and to

operate a crushing

- and

- s creenin g pla nt o n the proper ty

. The trial court conducted a hearing on UST ’s temp orary

- injunction application

. The lion’s share of the tes timony presented at the hearing centered on the i ssue of

p la cing a crushing

- and

- screening plant o n th e prope rty. The trial court h ear d

evidence on the following topics :

• the parties’ negotiatio n s leading up to the executi on of t he contract for the

p roperty’s purchase and the Addendum and whether those n egotiati on s

envis ioned an on

- site pr ocessing facility for th e min ed m aterial ;9 • expert legal testimony a nd other expert testimony regar ding whether the language o f the Ad dendum’s r eservations included the right to operate a crushing

- and

- screening plant o n t h e pro perty ;

• the use o f water in t he p rocessing of t he mined material and wh ether WCJ

or UST held the water righ ts on th e property ;

• the physical characteristics of a crushing

- a nd

- scr eening plant ;

• t he dele teriou s effect s on the property of a crushi ng

- a n d

- sc reening plan t ;

• how long it would take before a crushing

- and

- screening plant might be

constructed o n the pr operty if t he Second Rogers Lease we re executed ;

• whether the ex pe r t witn esses kn e w of an aggre gat e operation where there

was not an on

- s it e c ru shing plant ; and

• the detrimental effects to each party should the trial court permit or no t permit the exec ution of the Seco nd Roger s Leas e with i t s correspond in g trigg er of the right of f irst ref usa l spe cified in th e Ad dendum

. No one challenged that t he Second Rogers Lease permitted the placement of a crushing

- and

- screening plant on the p roperty , and the proposed Second Ro gers L ease
introd uc ed in to evidence a t the injunctio n h eari ng contain ed su c h a provisi on
. 2

2 Secti on 1.5(b) o f the proposed S econd Rogers Lease provides , P rocessing Plant. Lessee shal l, at such time as Les se e may elect in its sole discr etion, e rect or otherwise place on the [p] roperty at least one pr oces sing p lan t fo r the purp oses of crushing o r other wis e proces sing Aggregate. The10 T he parties also clashed o n the question of whether the typ e of irreparable

har m necessary to support t he issu ance of a temporary injunction would o ccur if WCJ were permitted to exec ut e the S econ d Rogers L e as e
. UST argu ed that e xec ut ion o f

th e Second Rog er s L ease would cause immediate harm to th e property while WCJ argued that the process of permitting a mining operation on t he property would d elay

any po tential harm for years. The parties al so had differi ng view s o f w hat the status qu o w as tha t the trial court should protect and whether enjoin ing execution of the Second Rogers Lease

was necessary to prot ect UST or if that restraint w ould harm WCJ. In essen ce, UST

a rgued th at if the Seco nd Roge rs L e ase were execute d, i t might be forced to respond in the ten days that it had to exercise its righ t of first refusal before there was a legal ruling on whe ther the Second Roger s Lease was a bon a fide Al te rnati ve Mining

Contract under the terms o f the A ddend um

. UST ’s claim ed f e ar was that if it did not

pre dict correctly, its rights could be irr eparabl y harmed. WCJ countered that because of severa l factors that ha d occurred, the three

- year

p er io d for it to enter into a n Alte rnative Min i n g Con t rac t wou ld expire a fe w m onths

af t er the injunctio n hearing was scheduled to be held. To enjoin th e execution of the Second Rogers Lease and potentially allow the thre e

- year Alternative Mining C on tract

p eriod to laps e would needlessly put WCJ’s rights in pe ril bec ause the m ere executi o n

configuration, structure, specific ations [, ] and extent of such processin g pl an t(s) shall b e at the so le dis cretion of Le ssee.11 o f th e l ease would , according to WCJ, cause no harm to UST . As we understand the argument, WCJ contended that the lease could be executed and that the tr ial cour t

could l ater make the legal determin ation regarding whether the executed S econd

R ogers L ease w as a bon a fide ex erc ise of its ri ghts under the A ddendum . I f the trial

court later determined that the Second Rogers L e ase was not a b ona f ide exercise of

WC J ’ s rights, WCJ would los e its rights to argu e that the Second Rogers Lease wa s a
bon a fide Al tern ati ve Mining Co nt rac t that had trigger ed UST ’ s duties . We glean our

un der sta nding from th e following argument made by WCJ’s counsel: Well, I would argue tha t w e have a right, but we ’ re not exercising that right. There ’s no threat to d o a ny i nj ury t o thei r l and. And, i nd eed , I want to disagree completely with what co unsel j ust sa id. They have a clear remedy, and the [c] ourt just said it. We ’ re going to hav e a t rial

so me [] day, and y ou ’ re going to argue whether or not this co ntract has leg al

e nf orcea bilit y. That ’s the r em edy

. And i f they win, they win [ , ] and we can ’ t go for war d and mine.

But right now the status quo changes if the [c] ourt takes away from my c li ent the right t o sign a contract. There is no damage. We said it again, and I k no w

-- but it ma kes sense. I cou ld hand the contract to [WCJ’s representativ e] righ t n ow, and he could sign it and w e ’ d all sit here and look and say where ’ s the damage. An d we co uld sit here a nd wait and wait and wait and wait, and the re is no d amag e. Th at ’ s their bur den, [Y] our Ho nor

. [ Emph asis added. ] Later, WCJ ’s coun sel again reiter ated the argument regarding why enjoining execution of the lease injur ed W CJ but did not injure UST : Very simply, [Y] our Honor, [ UST ] cannot articul ate any ir repar able inju ry, a ny dama ge at all. I f we ’ re

-- if they ’ re right and we ’r e wrong , t here ’ s no h arm because they ’ ve lost nothing.12 To the flip side

-- and they cannot c ontradi ct this

-- i f this [c] ourt enjoins my clie nt from signing this lease, w e lo se

- - and t his April de adline is c omi ng

-- we lose this

-- it ’ s a real property ri ght

-- thi s reserv ation of tens or hundreds of millions of dollars of rock. We literally lo s e that

. So that ch anges the status quo.

The on ly way the status quo change s is if the [c] ourt sign s t he injunc ti on. If the [c] ourt does not sign the injunction , we ’ re st ill here

. And, again, if they ’ re right, if they win at trial, this is a complet e n ullity

. So there ’ s no d amage. We can sign 18 co ntracts to Sunday, and if th ey ha ve no lega l effect, th ere ’ s no le gal damage. [ Emphasis added

. ]

The trial cou rt eventually signe d a modified t emporary

- injunction order stating

that “WCJ is e njoined from executing th e Second

. . . Rogers Le ase.” 3 The irrepa rable

in jury ci t ed in th e modified o rd er was the f ollowing : WCJ’s threat to cau se direct damage t o [ UST’ s ] real property and pe rsonal property of devaluation and destruction

— as t he surf ace e state current ly houses over 1,000 wil d, domestic, and exotic anima ls on th e prope r ty and s erves as a r etr eat fo r Uni ted States Military veterans. Fu r ther, [ US T ] will be irrepar ably ha rm e d by W CJ’s threat to cause direct damages to [ UST’s ] re a l [

- ] prope rty rights, as conve yed an d maintained in the Farm and Ra nch Contract and Speci al Provi sions A ddendum, dated [] Nov em ber 1 2, 20 19. [ UST ] lacks any adequate remedy at law due to the th reat to [ U ST’s ] real and personal property as described herein

. If WCJ is not enjoined from execu ting the second proposed mining lease, tendered to [ U ST ] on o r about November 18, 2022, b et wee n WCJ a nd Non

- Party Rogers Group Inc., then [ UST] will

. . . exp erience im minen t and irreparable harm.

3 The modifi ed tempora ry

- inju ncti on or der diff ered f rom the ori ginal i n juncti on
o rder because it did not restrain WCJ “ from enforcing the provi sion entitled, ‘ Buyer ’ s Right of First Refus al ’ i n the S p ecial Provisions Addend um of the Farm a nd Ranch Co ntract executed on or about Novembe r 12, 201 9.”13 C. Th e sum mary - ju dgment orders entered by t he trial court that appear to reso lve the controvers y between the pa rties o n w hether the S e con d Rogers Lea s e was a b o na fid e exercise of the Alternative Min in g Co ntr act provi sion

After the temporary

- injunction heari ng , the partie s began the process o f

res olving the controversy th r ough summary judgment. WCJ filed a n amend ed peti ti on that repe at ed its declarat o ry

- judgment request asking the trial court to de c ide

th a t t h e A ddendum ’ s reserv ation included the rig ht to op er at e a crushi ng

- and

screening plan t on the property. WCJ also filed a motion f or parti al summ ary jud gm ent seeking re lie f to avoid the potential a dverse consequen ce that it had told the

tri a l court that it might suffer should it be enjoined f ro m exe cuting the Second Rogers

L ea se : WCJ asked the trial court to order that the three

- yea r de adline fo r an
agreement to an Alternative Mining Contract be t o lled until its appea l of the trial

c our t’s injunctive relie f w as final.

UST fil ed it s own motion for s ummary j udgment on W CJ ’ s claims . The

motion

— supported by twelve exhibit s

— raised two grou nds , on e of wh ic h focused on

t he much disputed crushing

- and

- scre e ning p lant and WCJ ’ s declarato r y

- judg men t

request focusing on the r ight to oper ate tha t type of plant on the property :
WC J as ser ts two claims

— (1) that it is entitled to a dec laration from the [c] our t that it can install a nd operate a massiv ely disruptive l imestone crushing [

- ] and [

- ] s creening plant on [

- ] site at the ranch, an d ( 2) that [ UST ] b reached the subject contract by pur portedly fa iling and refusing to cooperate with WCJ t o secure a mining contra ct within [ninety] da ys of closing. Each of t hese claims is without factual and lega l basis. [ UST ]
t herefore respe ctfully re que sts that the [c ] ourt grant summary judgment in fav or of [ U ST ] as to both claims.14 WCJ ’ s response

— s uppor ted by thi rteen exhibits

— clear ly challeng ed UST ’s

view of what the words in the A d dendum mean and w het her those wo rds permit the

pr ocess ing of m ined ro ck on th e pro p e rty :
What is the mea ning of “ develop and remove the Aggregate ” ? Those

ar e the operat ive w ords of th e part ies ’ contract tha t UST must pr ove only have one clear meaning as a ma tter of law th at does not include processing mined roc k int o salea ble aggr egate. UST has not and can not meet that burden. While UST attempts to argue wh at these wor ds do
not me an , UST w holly fails [to cite ] th e l egal standar d to prove what they do m e an. On the o ther hand, WCJ ’ s evidence proves exactly w hat thes e words mean in the context of both the pa rties ’ negotiations and the industry custom and norm: to process the mined rock into s a leable

a ggregates. At be st for UST , these words are ambiguous , thus

necess itat ing a t ria l on this is sue of fact. At wor st fo r UST , these w ords mean proce ssing the ro ck on

- site, which is frankly the only reasonable inte rpretation within the conte xt of t h e evid en ce before the [c] ourt. As

s uch, UST ’s [m] otion must b e denied.

UST filed a reply to WCJ’ s r espon se with an introduction that a gai n crystal ized the issue on summary judgment as bei ng the right to place a crushing

- a nd

- sc reening plan t on the property : [T ] he [c] ourt should apply the plain, ordinary, and gene r a lly a cce pted

m e anings of “developing” an d “re moving [ , ”] which does not incl ude the addi tional language of the right to construct a separate crushing [

- ] and [

- ] scre ening facili ty on the [p] roperty, a nd disregard the improper parol evide nce, which was introdu c ed for th e p urpose of creating an am big uity. There fore, the [c] ourt should gr a nt [ UST ’s ] Motion for Summary Judgment as the Contract is cl early unambiguous

as w ritte n.

The tri al court granted UST ’s motion with an order that stated the fo llowing :

O n Jan u a ry 23, 2023 [,] th e [ c] our t heard oral arguments of [WCJ] and [UST ] regarding the M otion and the relief sought therein [,] and [] having consid ered [U ST’s] T radi tiona l Motion for S umm ary Judgment (the15 “Motion”), all responses, replies, and the adm iss ible e v i dence in the

summa ry [

- ] jud gment r ecor d, and arguments of co unsel, th e [c] ourt finds that the Motion should be, in all thi ngs, GRANTED

. IT IS HEREBY ORDERE D th at [U ST’s] Traditio nal Motion for Summary Judgment is GRANTED

. Th e t rial c o urt signed this or d er three days b efor e it signed the modifi ed tempor ary

injuncti o n order that i s at issue in this appeal

. The trial court l ater de nied WC J’s

motio n for pa rtial sum mary judgment. 4

4 U S T also fi led a n o

- evidenc e motion fo r summary judgment that challenged a fraudulent

- in ducement claim pleade d by WCJ. T h e tria l court granted this mot ion. In addition, US T file d a “ Motio n f or D eterminat ion of Issues of L aw ” that chall enged issues r aised i n W CJ’s f ift h a m ended p etition

. Specifical ly, t he motion recit ed the foll owing :
2

. First, [WCJ’s] ne w caus es of action are barred by the Summary [

- ] Judgment O rder be cause [] ( 1) [WCJ] canno t am end its p leadi ngs to underm i n e the O rde r; (2) the Order bars subsequent cl aims that are based on issues a lready determined by the [ c] our t, and (3) [WCJ] waived its new ar guments by failing to raise them in its response to [ US T ’s ] Motion f or Summary Jud gmen t.
3

. Se cond, [WCJ] im p erm issi bly seeks a d eclaratory judgme nt that it s a bili ty to sec ure an Altern ative Minin g Plan within t hree (3) y ears ha s become impract icable due to the [c] ourt’s [t] emporary [

- ][i] njunction [o] rder. This fails for multiple reas ons, includin g tha t [] (1) d e cla rato ry relief is not available to resolve di spu tes already b efore the [c] ourt, and [ WCJ’s] impossi b ility requ est hin ges on the inter pretat ion of rights provided in the Contract, an issue the [c] o ur t has already resolved at

su mmar y judgmen t; (2 ) an affi r mat ive def ense canno t be used to supp ort a decl ara tory [

- ] judgme nt action; an d (3) impra cticability wo uld on ly ap ply
to excuse a party’s non

- p erformance of an obligation when it has been sued for not f ulfil ling that obligation [,] yet [WCJ] on ly ha s a right , no t an ob ligation, to secure a compl iant Alter nat ive Mining Pl an. The decl aratory req uest regarding impra ctica bility should be dismis sed.16 Shortly after the t rial co urt signe d its last summary

- j udg ment order, UST f ile d a notice of part ial nonsu it : [ UST ] hereby dismisses , witho ut prej udic e, it s br e ach [

- ] of [

- ] c ontract counterclaim. This non [] suit is in accordance wi th [ UST ’s ] oral

r epresentations in open court at the Ma rch 2, 2023 hearing i n this cas e. [ UST ] do es no t n onsuit its claim to attorne ys’ fees as a prevailing p arty in

a decl arat ory [

- ] jud gment acti on under Texas Civil Practice and Remedies Code § 37.009.

The trial court memorialized the nons uit in an order dismi ssing U ST ’ s bre ach

- of

contract claim.

D. The lit igation pivo t s to a n ew cont roversy

Shor tly after the trial court rendered the summary

- judgment order denyin g

W CJ’ s mo tion for partial summary judgment, UST filed a new application for

te mporar y r estra ining o rder and temporary and permanent in junction. T his

a pplicat ion s ough t to enjoin th e e xecution of some manner of mining agre ement
betw een WCJ an d a n en tity identified as Brazos Valley Co ntracting Company
(BVCC) ; the applicatio n d esc ri bed the agreement as the Second BVCC Lease

. The

4

. Third, [WCJ’s] mutual and unilateral mistake claims sh ou ld al so be dis missed. For t here to be a mutua l mistake , th e pa rti es must sh are the same mist aken belie f o r as sumption, which does n ot exist he re. Moreover, the u nilat eral mi stake of a party canno t alone support a claim for relief.

5

. Thus, [UST] re que sts tha t the [c] ourt find [WCJ ’s] request f or de clar a tory ju d gm ent based on an affirmative defe nse and [W CJ’ s] c laims und er mutua l and unilateral mistake a re u nactio nable

. [Foo tnotes omit ted.]

T he trial court granted the Motion for De termina tion of I ssues of Law

.17 trial court de ni ed US T ’ s applica tio n for injun cti ve relief to forestall the execution of

the Seco nd BVCC Lease

. The new controversy embo died in UST ’s denied injunction a p pl icati on

prom pted an inquiry from this c ourt . W e issued an order ask ing whether the Sec ond
Roger s Le ase that i s t he subj ect of the temporary

- injunction ord er on appeal remained

vi able in light of what i s apparently an agreement with another party to con d uc t

min ing ope rations on the property , i.e., whet her the existence of the Second BVCC

Lease moote d t he qu estion re gar ding th e validity of the trial court’s temporary

injunction orde r

. WCJ filed a response that attach ed an email from Rogers ’ s couns el clai m ing

that it still wished to execut e the Second R ogers L ease and represented th at “the

c ontractual off er des cribed as the ‘ Second

. . . Rogers Lease ’ in the trial court’s

Modif ied O rd er Gra nting [ UST ’s ] Application for T emporary and Perm anen t

I n junc tive Re lie f (signed January 27, 2023) remain [ed] an outsta nding o ffer from Rogers to lea se the pr operty at is sue on t he terms set forth in that offer.” WCJ, ho wever, did not dispute that it had entered into a n ag ree ment with

BV CC

— the entity referenced in UST ’s den ied i njunction applic ation

— but instead sough t t o mini mize the effect of that agreement :
T he Second BVC C Alternative Mining C ontract

— incor rectly referred to by [ UST ] as a “lease” (the “Secon d B VCC Lease”)

— is not a lease [ 5 ] and does not conflict with the Sec ond

. . . Roge rs Leas e. The S econd BVCC

5 We will hereinaft er refer to t his document as t h e BVCC agreement.18 Alt ern ative Min ing Contract [] . . . is a contract for only th e provision of mining ser vices a nd doe s not convey a property right to BVCC. If the modif ied temporar y i nj unc tion is vacated, it is WCJ’s intent to execu te the Second

. . . R ogers Lea se and then si mpl y not eng age BVCC’s mining services, as provided in the Second BVCC Alternative Mining Contra ct: “Work shall commence with [in] [si xty] days afte r W CJ issues

no ti ce to proc eed.” [Footnote omitted.]

Th ough carefully ph rased, WCJ appears to a cknowledge that it has now engaged an
entity to min e the prop erty on its beha lf

. WCJ’s response to ou r order also argued that the pa rti es ha ve cont inue d to litiga te and , thus, t h at th ere a re live co ntroversies betwee n the par ties demons tra tin g

t hat ou r mo ot ness concern s are unfounded : WCJ argued against mootness in i ts r esponse to [ UST ’ s ] motion to dismiss and in it s surreply in part bec aus e [ U ST ’ s ] first amended counterclaim remained unadjudicated. It was not the su bject of [ UST ’ s ]

non sui t, which non su ited on ly its b reach [

- ] of [

- ] contract counterclaim. Since then, [ UST ] filed a second amended counterclaim (attached as Exhibit 3 and s oon to b e inclu ded in a supplemental clerk’s record) , and the under lying case is now much fart her from be ing ad judicated t han whe n [ UST ] filed its mot ion to dismiss. [ Footnote omitted .]

W CJ has now provide d us with UST ’s lat est co un terclai m in a supplemental

cle rk’s record. But the counter claim indic ates th at the co ntroversy b etw een the

part ie s has s hifted f rom th e controversy central to the injunction that WCJ appea ls.

In the counte rcla im, UST now seek s to litigate the ef fec t o f the BVC C agreement that

was the subject of i ts denied injun ction appli cation:

1. This countercla im ari ses from WC J’s exe cution o f a vague an d overreaching third

- party mining lease with Bra zos Valley Contract ing Company (“BVCC”) (the “Second BVCC M ini ng Pr oposal” ) on [ UST’s ] land. The executed Seco nd BVCC Mining Proposal, W CJ’s fo urth19 impr oper lease sub mit ted to [U ST ] , circ umvents [ UST’s ] cont racted rights and was executed in violation of [ UST’s ] contractual righ t of first refus al.

2. The Second BV CC Mi ning Pr oposal does not qualify as an Alterna te Mining Propo sal as cont emplate d by the Contract an d A dde ndum. It i s a one

- page do cument missi ng a significant number of material terms, makin g it impossible for [ US T ] to evaluate f or purposes of meani ngf ull y exercis ing its [r] ight of [f] ir st [r] efusal. WCJ was oblig ated under the con tract to submit to [ US T ] a bona [ ] fid e written offer t hat qualifies under the terms of the contract. It has not d one so. Thus, [ U ST ] brings this counte rclaim against WCJ

.
In the most recent counterclai m, UST highlighte d the summa ry

- judg ment

ruli ng that w e hav e d etailed a bo ve

— th e one in which the trial court resolved the prior central controversy between the parties about whether WCJ had the right to gr ant the

ab ility t o construct a crushing

- and

- screenin g p l ant on the propert y . Its pleading reads

as follo ws: [U ST] Win s Summary Judgment on W CJ’ s Rights Under th e Contr act. On January 23, 2023, this [c] ourt [held a hearing] on [UST ’s ] Traditional Motion f or Summa ry Judg ment on WCJ’s dec laratory [

- ] judg ment cla im. WCJ sought a declaration that it had the rig h t to constru ct an on

- site crushing [

- ] a nd [

- ] screening facilit y and tha t [ UST ] did not cooperate with W CJ to secure a Mining Cont ra ct

. [ UST ] , on the ot her hand , prese nted evidence that [] (1) the Underlyi ng C ontract unambiguously did not contain the right t o cons truct a n on

- site crushing [

- ] an d [

- ] screening facility (nor t he right to convey that right); and ( [2] ) the Underlying Contrac t u nam biguously did not co ntain the ri ghts incidental and necessar y to cons truc t an on

- site facility. Tw o days later, on Januar y 25, 2023, t his [c] ou rt granted [ US T’s ] Traditional Motion for S um mary Ju dgment and dismissed [WCJ’s] dec laratory [

- ] judgment cl aim

. [ Footnotes omitt ed. ]20 Also attached to the lates t co unterclaim is corre sponden ce from WCJ’s counsel

t ha t de scribes the BV CC agreement as an A l ternative Minin g C o ntrac t. UST interpreted the correspondence as signal ing that WCJ wa s goin g f orwar d wit h

i mplementation of the BVCC agreement and tha t the agreement is operative as a n
Alternative M inin g Contr act becau se UST did not ex ercise its right of first re fusal

a fter receiving the BVCC agreement as an Alternative Mining Contrac t.

I II. Analysis

A. We set forth the e l emen ts necessary to obtain a temporary injunction , wh at is s ubject to revie w in the inter loc utory appeal of

a temporary injunctio n , an d when mootness impacts our review. The appeal of an order granti ng a tempo rary in junction focuses o n w h ether the

trial cou rt abused its di scretion by finding that an appli ca nt h a s esta blis hed t he

elements ne ces sary f or the court to protect the status q uo pending a determination on
the merits : [A tem porary ] inj unction fun cti ons “ to pres erve the stat us qu o o f the litigation ’ s subject matter pe nding a trial on the merits.” B u tn aru v . Ford Motor Co

. , 84 S.W.3d 1 98, 204 (Tex. 2002) (op. on reh ’ g) (citing Wal ling [ v. Me t calfe ] , 863 S.W.2d [56,] 57 [ (Tex. 1993)] ). “To obtain a te mpora ry inju nct ion, the applic ant must plead and prove thr ee specific elements: (1) a cause of action a gain s t the defendant ; (2) a pr obab le right to the relief sought; and (3) a probable, imminent, and irreparable in jury in the interim.” Id

. Hernande z v . Com bined I ns. C o. o f Am. , No . 0 2

- 20

- 00225

- CV, 2 021 WL 5204 56, at * 5 (Tex. App.

— Fort Worth Feb. 11, 2 02 1, p e t. den ied) (mem

. op.).21 The in ter locutory appeal of a temporary

- injunction order is not a vehicle to preview w hat an appellate court’s ruling wil l b e in an ap pe al fr om a judgment on t he

merits. Fu entes v. Union de Pasteur izadores de Juarez So ciedad An onim a de Ca pital Var iable , 527 S.W .3d 492, 498 (Tex. App.

— El Paso 2017, no pet.) (“[A] party may not use an appeal of a temporary [

- ] injunction ruling to get an adva nce rul ing on the mer its. ” (quoting B abu v. Zeeck , 478 S.W.3d 85 2, 855 (Tex. App.

— Eas tland 2 0 15, no pet .) ) ).

In deed, whatever le gal determi nations are made to justify the issuance of a temporary

injunction order do not survive to impact ou r d eterm ination of the merits

. G lat tly v.

Air S tart er Comp onents, Inc. , 332 S.W.3d 620 , 637 (Tex. App.

— H ou s to n [1st D ist.]

201 0, pet. denied ) ( “Furthermore, Texas law is clear that, generally, a trial court’s ruling on a te mporary injunction (or other int erl ocuto ry judg ment) do es not sup por t

the defens e of res ju dicata.”). Nor are the cons equences before us o f a w rongfu l , but

no w mo o t , tempor ary

- injunction order

. Matott v. Matott , No. 11

- 22

- 0036 2

- CV, 2023 WL 2415279, at *1 (Te x. App.

— Eastland Mar. 9, 202 3, no pe t.) (pe r curiam) ( mem.

op .) (holding appeal mo ot even when “a justi ciable controversy still exist [e d] w i t h

res pect to w het her the tem por ary injunction was wrongfully granted and whe ther Ap pellants were damaged”).

And b e cause a temporary

- injunction ord er is an int erlocutory or der, eve nts that

continu e to occur in the case as it progress es may make a te mp orar y

- inju n cti on ord er

moot. The T e x as Supreme Court has stated why this c our t cannot decide mo o t22 controvers ies and how th e passage of e vents m ay mo ot the a ppeal o f a temporar y

inju nct ion order : Appel late courts are proh ibited from deciding moot cont rov ersies

. See Camarena v. Tex [

. ] Emp [

. ] Comm ’ n , 754 S.W.2d 149 , 151 (Tex. 1 988). This prohibition is rooted in the separation [

- ] of [

- ] powers doc trine i n the T exas an d United States Co ns tit utions th at proh ibits courts from render ing advisory opinions. See T e x . C o n st

. a r t. II, § 1; see also Te x [

. ] As s ’

n of Bus. v. Air Control Bd. , 852 S. W.2d 440, 444 (Tex. 1993); Firemen ’ s Ins. Co. [ of Newark, N

. J

. ]

. . . v . Bur ch , 442 S.W.2 d 331, 333 (Te x. 1968). A case becomes m oot if at any stage there ceases to be an act ual

con troversy betwee n t he pa rties. Se e Cama rena , 754 S.W. 2d at 151. When a temporary injunctio n becomes in operative due to a change in status of the part ies or the passag e of ti me, th e issue of its validity is also
moot. Se e Parr v. Stockwell , . . . 322 S.W. 2d 615, 616 ( [T ex. ] 195 9); Tex [

. ] E d uc. Agency v. Dal l [

. ] Indep. Sc h. Dist. , 797 S.W.2d 367, 369 (Tex. Ap p.

— Austin 1990, no writ). An appella te [

- ] cou rt deci sion about a te mpora ry injunction ’ s validity under suc h circu mstances would constitute an impermiss ible advisory o pinio n. See ge nerally B u r c h , 442 S.W. 2d at 333; Tex [

. ] Ed uc. Agency , 797 S.W.2d at 369.

Nat ’ l Collegiate Athletic Ass ’ n v. J one s , 1 S.W.3d 83, 86 (Tex. 1999) ; s ee al so Elec

. Reliability

Council of Tex. , Inc. v. Panda Power Generation Infr a structure Fund, LLC , 61 9 S.W.3 d 628,

6 3 4

– 3 5 (Tex. 202 1) ( stating that a case becomes moot when (1) a justici able

controv ersy no longer exists be tween the pa rties, (2) the partie s n o lo nger ha ve a legally cognizable int erest in the case ’ s outcome, (3) the c ourt can no lon ger g ran t the

r equested relie f or ot h e rwi se affect the parties ’ rights or interests, or (4) a ny decision

would constitute an i mpe rmiss ible ad visory opinion )

.
T he en tr y of ju dgment on the legal issues at p l ay in a temporary

- injunction

order may moot t he qu estio n o f the v alidity o f such an i nju nct ion

. The Beaumont23 Court of Appeals summarized the aut hority o n the question of wheth er a sub sequent judgment moots the a ppe al of a t emporary injunction :
When a t ria l court renders a final judgment wh ile an app eal o f an ord er gran ting or d enying a t e mpo rar y in juncti on is pending, the temporary [

- ] injunction order become s moot. See Richard s v . Men a , 820 S.W.2d 372 [, 372 ] (Tex . 1 991); Isuani v. Man ske

– Sheffield Radiology G rp., P. A. , 802 S.W.2d 235, 236 ( Tex. 1991) [(order)]

. In this case, th e tempo rary inju nction and the s u mmary jud gment (which includes a permanent injunction) address the same partie s, s ame i ssues, and same pr ope rty. Accordingly, becau se the interlocutory appeal is now moot , we dismiss the appeal of the temporary inj u ncti on in caus e number 09

- 16

- 00393

- CV f o r lack of subjec t

- matter jurisdiction. See, e.g. , BCH De v., LLC v. L akeview H eigh ts Ad dition Prop. Owner s ’ Ass ’ n, No. 05

- 14

- 00003

- CV , 2015 WL 1756100, [at *1] (T ex. App.

— Dallas Apr. 1 7, 2015, no pet .) (mem. op.); L iving sto n v. Ar rington , No. 03

- 11

- 0026 6

- C V, 2012 WL 1499490, [at *1] (Tex. App.

— Austin Apr. 25, 2012, no pet.) (mem. op .). Ridg epoint Re n tals, L L C v . McGrath , No s
. 09

- 16

- 00393

- CV, 09

- 17

- 00006

- CV, 2 017 WL
6062290, at * 5 (Tex. App.

— Beaumont D ec. 7, 2017, pet. denied) (mem. op.) ; see also

Pan da Pow e r , 619 S. W.3d at 63 5 ( “ For example, a final judgment grantin g a permane nt

i njun ction typica lly moots a p end ing interlocutory appeal fro m a prio r order granting a temporary inj unction

. ” )

.
B

. A change in the status of the parties has mooted th is appea l.

T h e princip le that a chan ge in the status of the parties may moo t t he

controv e rsy over the va lidity of a t emp orary injunct ion pro mpted our inq u iry to the parties that we discussed ab ove
. We asked whether WCJ ’ s tender of the BVCC

agreement moo ted the injun c t ion’s res train t on exec uti on of the S e co nd Rogers Lease

.24 Based primar ily o n th e sta tements contained in US T ’ s l a test in junction application a nd

the fac t that the application had been deni ed, we made the following inquiries : Specifically, do es t he e x isten c e of the later BVCC [ag ree ment] refere n ce d in the ap plication indicate that Rog ers i s no lo nger seeking to lease the propert y? If Rogers is no lon ger seekin g a lease, does this also moot the injunctive relief granted in the injunctive order being a pp ealed ? F urthe r, if the prop ert y that Rogers s ou ght to leas e has been leased to BVCC , why is the appealed inj unc tive order n ot moot ?

As noted , WCJ responded tha t it s t ill wishes to exec ute the Second Rogers

Lease and ra ised the di stin c tio n tha t the BVCC agr eem ent “ is no t a lease a nd does not

conflict with th e [S e cond Rogers Lease ]

. ” B ut in its re sponse , W CJ r efe rence d UST ’ s
second amended co unterclaim and then provided us a supplemental clerk ’ s re cord

contai ning that pleading. WC J t o ld us tha t this plead ing demonstrate s that “ the

unde rlyin g case is now much farther f rom bei ng adjudicated than when [ US T ] filed it s

motion to dismiss ” for mootn ess
. But the second a mende d counter claim s ho ws two things. First , i t shows tha t a
controversy s till exists between W CJ a nd US T but t hat the focus o f the co ntr oversy
has shifte d to whether the BV CC agreement qualifies “ as an Alter nate Mining Proposal as contemplated by the Contr act a nd Adde ndum. ” S econd , and c r itically, an
email attached to the counter clai m wri tten by WCJ ’ s counsel t o UST ’ s counsel

in d icates that WCJ has take n the position that the BVCC a greement is the exer cise of

i ts rights under the Addendum :
S ince UST did no t exercis e it s rig ht of fi rst refusal pe r the below correspondence sent on Marc h 3, 2023, W CJ has pr oceeded in executing25 the attached Alternative Mining Co ntract with Brazos Valley Contrac ting Co . (“B VCC”). We will let you know when BVCC wi ll begin mining

. In the int erim, we a ssu me UST will want a double ga te installed for acce ss
o ff Hi ghway 3 8 0. Plea se let us know if UST wants to install it [] or prefers that WCJ does that.

Also attached is an em ail fro m WCJ ’ s counsel t o UST ’ s counsel sta ting , “ Pl ease see

t he attached correspondence fr om [WCJ ’ s counsel] and prop osed co ntrac t ” t ha t

in c lude s t he BVCC agreement with hand

- w r itten notations showing its acceptance by the par t ies.
Thus, the cont ro versy in t his case has no w shifted bec ause WCJ h as take n the position that the Al ternative Mi ning Co ntra ct ex ecuted within the three

- year period

tha t would allow it to avoid conveying the Aggregate to UST , which i t claims it is

entitled to execute pu rsuant to t he Ad dendum , is no lo nger the Second Rogers Lease

b ut is now the BVCC agre ement and t hat WCJ i s goi ng fo rward w ith i mplem enta tio n
of that agr eement

. W e h ave no doubt that WCJ will argue o n appe al of an event ual

final judgment that the Second R ogers L e as e wa s a valid Alternative Mining

Contract

— no matter it s provision permitting th e placement of a c rush ing

- a nd

scre ening p lant on the property

. B ut for now , W CJ has self

- altered the status quo that it argued exi s ted at the time of the temporary

- injunctio n hea ring by taking the

p osition that t he BV CC a g reement , and not the Second Ro gers Lease , is now th e
A l terna tive Mi ning Contra ct that exercise d it s rights u nde r the A ddendum and triggered UST ’ s obliga tion of firs t refusal

. As n oted, “ [w] hen a temporary i nj u nc tion

bec omes inop erati ve due to a change i n status of the par t ies [,]

. . . the issue of its26 val idit y is also mo ot. ” Jone s , 1 S. W.3d at 8 6

. WCJ wants to hedge

— and admittedl y

our qu estions may have p rompted the hedge

— tha t the BVCC agreement is some how

a co n tin genc y , but the w ords of WCJ ’ s counsel d o not supp ort this co n clusion ; t h ose
words state th at t he BV CC agre emen t is no w the A lterna tiv e Mi ning C o ntr act
executed within the three

- year period required to av oid the sale

- to

- UST provision

. WCJ has cha nged hors es ; that change in sta tus does not mean that we might

not have to addr es s eventually wheth er t he S e cond Ro ger s Lease was a b on a fide

Al t ernative Mining Contract, but it does impact when that review shoul d occur. For

t he time b eing a t least , WC J h as po s iti on ed itself to rely o n the BVCC agre ement as an
exercise of its right s under the Addendum and rende r e d a d ea d l etter the question of

wheth er it should be able to execute the Second Rogers L e ase as an exe rcise of that

r ight.

C

. Becaus e of t he tr ial cour t ’ s ruling s on the mer its of the parties’ cl aims, th e appeal of the tempor ary - injunction order is moot.

W e a lso conclude that WCJ ’ s appeal is mooted for an additional reason

. Wh y WCJ pivoted away from th e S econd Rog ers Lease is apparent and provi des our

seco nd rational e for determining that the co ntr oversy over the trial court ’s temporary

injunc tion orde r is mo ot. W e have detailed the pa r ties ’ argument s a t the t emporary

in juncti o n heari ng and th ose invo lved in UST ’ s m oti on for summary judgm ent. B o th

re volv e around the question regarding w hether the rights r eserved t o WCJ in the

Addendum include d th e rig ht to b uild a crushing

- and

- screening plan t on the pr o perty.27 Because of the obvious effect on the que st i on of m oot ne ss of a j udgment that

r e solv es U ST ’ s righ t to relief on the merits from W CJ ’ s claim , the parties argue

strenuou sly on both sides of th e ques tion re garding whether the trial court ’ s summary ju dgment may be decoupled from the issues at play in the inju nction

. WCJ arg ues
tha t t he is s u es ar e not co u pled , while UST argue s that they are. We conclude that the

is sues can not be deco upled and tha t the trial c ourt ’ s summary

- judgmen t rul ing

re solves the legal question at issue in the inju nction ; render s our review of th at

ques tion in t he appe al of the t emp o rary injunction moot ; an d inst ead, posture s the question for review as an appeal from an e vent ual f inal ju dgmen t

.
Several issues are bey ond dispute : (1) the Second Rogers Lease a llows Roger s

to const ruct a crushing

- and

- scree ning pl ant on th e pro p er ty ; (2 ) the f ocus of UST ’ s claimed rig ht to relief at the temporary

- inj u nctio n hearing was whethe r WC J ret ained

t he rig ht to build such a plant on the property and thus had the right to grant the ability to build such a plant to it s le sse e ; an d (3 ) US T ’ s summ ar y jud gment sought a
resolution of WCJ ’ s d e claratory

- judgment claim tha t a cru shing

- and

- scree ning plan t

could be constructed on the p roperty

— a claim that we view the trial court as having effectively resolved adversely to WCJ’s position

. As we will expla in below, w e canno t

c on st ru e t he t ria l court ’ s summary

- judgmen t order a s anything other than a rejection of WCJ ’ s contention tha t it has the ri ght to build or can grant the right to build a crushing

- and

- screening plant o n the property

. Thus, we conclude t h at the trial cou rt

h as r e solv e d

— o n the meri ts

— the legal issue th at fo r med the basis of its conclusions28 tha t UST had shown a pro bable ri ght t o rec over on it s legal claim th at the S econd

R ogers Lease grant ed a right that WCJ did not ha ve the right to grant

. T o addres s t he

me rit s i n t hi s a ppea l would put us in the pos i tion of offering an advisory opinion on a question that shou ld b e add r essed o n t he merits of a n appeal f rom a final judgment.

W e acknowledge that the trial court has no t entered a final jud gmen t a nd th a t

t h e ba s i s for t he r u le t hat a final judgment m oo t s an interlocutory temporary injunction is t he fact that the in ter l ocut o ry orde r is merged into the final judgment.

See Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle F eeders, LLC , 603 S.W.3d 385, 390 (Tex

. 2020) ( “ W hen a tria l co urt renders a final judgm e nt, the court ’ s interlocutory orders merge i nto the judg ment and m ay be c hallenge d by appealing that judgment. ” )

. That merger has not occurred in this case , nor do the p arties argu e otherwis e
. B ut in th e

f

o rm of its int erloc ut ory order granting UST ’ s summary judgment , the t ria l court has

ma de a ru ling on the mer i t s tha t direc tly impact s the validity of the Second Roger s

L ease
. W e have no jurisdiction to review an interl ocutory summary

- judgme nt o rde r , and as noted, the a p peal o f a temporary inju n ction i s n o t a vehic le to obtain a preview

ru ling on the merits

. See Equip . Perfo rmance M g

m t

. , Inc. v. Baker Hughes, Inc. , No. 14

- 15

-
01000

- CV, 2017 WL 1540805, at * 2 (Tex. App.

— H ouston [14th Dist.] Ap r. 2 7, 2017,

no p et.) (mem. o p .) ( “ N o statute authorizes an interlocutory a ppeal in this case, so this

c ourt has jurisdi ction over this a ppeal only if the trial court ’ s summary

- judgment order

is final. ” ); see also Fuentes , 527 S.W.3d at 498 ( holding that appea l of a te mporary injuncti on is n ot a ve hicle to obtain an advance ruling on the merits )

.29 T o try review in g the pr esen t sta tus o f this matter in an interlocutory appeal

f

rom a temporary injunction would put us in a position in wh ich every corner we

turn ed , w e wou ld meet our selve s co ming th e o ther direction with questions that are poised for a review on t he mer its

. If a q uesti on in tegral to the temporary

- injuncti on
order is whether the S econd Rogers L e ase is a valid Alternative Mi ning Contract , how

can we ign o re a nd not address t h e q uesti on r e solve d by the tria l court’s summary

judgment ruling that answers t hat question ? And a s dis cussed below, WCJ ’ s argument

to inv alidate the temporary injunction is that there can be n o irreparab le harm f rom

ex ec uting a leas e that can l ater be inval idate d by a ruling on the merits. Again, a s we
discuss below , h ow does that question survive w hen we h ave c onclude d that the trial

court ha s render ed a ruling on the m erits that invalidate s the lease ? WCJ di s agrees with our vi ew of mootne ss be cause the trial co urt h a s not entered a permanent injuncti on pr ohibit in g the e xecution of the Sec ond Rogers L ease
and d is putes tha t the summary

- judgment ru ling does not explicitly invalida te the

Second Rogers Lease. Tru e enough , but a gain as we discu ss below, that argu men t

tu r n s a bl ind eye to the fact that the interlocutory summary

- judgment orde r ca n be

constru ed as reso lving t he only issue that was the focus of the temporary

- inj unction hearing : whether WCJ could grant a right that it purpo rtedly di d not r e t ain , i. e., the righ t t o p l ace a crushing

- and

- screening plan t on the property

. WCJ specificall y ar g ues w hy we s hould ignore this state of aff ai rs and go

forward with interlocutor y review :30 The temporary inj unction is in place and preven ts WCJ from sign ing the Second

. . . Rog ers Lease, to WCJ ’s detri ment. The temporary in j unc t ion is therefor e liter ally not m oot, an d this [c] ourt can affect WCJ’s rights by finding the modif ied temporary injunction to be void and by vacating it. Upon the [c ] our t’s vacat ing the tempor a ry i n junc tion, WCJ can sig n the lease, [ 6 ] and then the parties ca n a ddres s t he parti a l su mmary [

- ] judg ment order in a regular appeal once a final judgment is rendered. [ Footnote s and record refer ence omitted .] WCJ th e n flesh e s ou t this argument in a n accompa nyin g foot note :
UST is correct t hat vacating the te mp o ra ry in jun ctio n “wi ll not have any effect” on the yet

- to

- be

- appealed partial summary [

- ] judgment order, and
t hat is part of WCJ’s point tha t the p artial su mmary [

- ] judg me n t or der also has no effect on th e tem porary injunction, as explai ned in WCJ ’ s respo n se
. But U ST i s i ncorrect th at, as “part of obtaining injunctive relief, [ US T ] proved th at there was no right t o a crushing [

- ] and [

- ] screenin g plant .” All U ST ostensibly d e mon strated was a likelihood of su cces s. [Reply references omitte d.] Ag ai n , we disagree with the pr emise tha t the question of the validity of the S econd
Rogers Lease remains o nly a likeliho od in v iew of wh at has transpi r ed i n the trial

court

. W e disagre e tha t the very basis of WCJ ’ s in terl ocutory a ppea l rema ins

— tha t i t

should b e able to p reserve its rights by exe cut ing the Se co nd Rogers Lease 7

— when it

is n o lon ger an unresolved question in t he tria l court t hat the lease cont a ins a

6 As explained in more deta il belo w, any at tempt by WC J to p r oceed with sign ing the Second Rog ers Lease, which permits the construction of a crushing

- and

screening plant, would be contrary to the trial court ’ s summary

- jud gment ruling , whic h indicates that WCJ d oes not have the right to con struct a c rushi ng

- an d

sc ree ning plant on th e property

.

7 The three

- year post

- mining contract period has passed without the Secon d Rogers Lease ’ s being sign ed , and thus it can no longer ser v e the purpose of an Alternative Mining Con tract to prevent th e s ale

- t o

- US T p rovisi on fr om beco ming operative.31 provi sion showing that it is not a bona fide Alternativ e Min in g Contr act

. And again, WCJ has moved the controver sy beyond the issu es a t play in the temporary

- injunctio n
hear i ng by n ow taking the position th a t the B VCC agr eement i s an exercise o f its right

to enter into an Alter native Mining Contract. Events h ave moved to o far beyon d the

c ontroversies at play i n the temporary injunctio n , making the temporary

- injunction

issues moot.

D

. Th e tria l c our t ’ s ruling s on the me rits moot WCJ ’ s argumen ts
r egard ing why the restraint of the temporary
- injunction order harms it. WCJ a lso a rgues that i ts temporary

- inju n ction ap peal i s not moot becau s e even
if the trial c ourt has resolved the que stion of UST ’ s p roba ble ri ght t o recov ery, the question remai ns o utstanding regarding whether ther e is irreparable harm to s upport

the is suance of t h e inj unction

. This argument is encap su l ated in a footnote in WCJ ’ s

res ponse to UST ’ s moti on to d ismiss: “ At best, UST can only establ i sh t hat t h e partia l summary [

- ] ju dgm e nt ruling 8 would prove its probab le right to relief sought on

its coun ter claims , but that does n ot moot the third injunctive

- rel i ef element of

‘ p robable[,] immi nent, and irreparable injury ’ t o warrant a finding of mootness of t his

ap peal. ” W e disagree with th e premise that if the questio n of UST ’ s pro bable righ t t o

re co very is mooted, t h e question of whether h arm exists to support t he injunction

s urvives for ou r interl ocutory review.

8 Although WCJ refers to this as a partial summary

- judgment ruling, the trial
court ’ s various orders have resolv ed all of WCJ ’ s clai ms.32 Not onl y did t he trial c our t ’ s summar y j u dgment appear to moot this

controversy because the Second Rogers Lease a llows t he pl aceme nt of a c rush ing

and

- sc reening plant on the pr operty despite the tria l court ’ s declining to rule that such

a right was not reserved to WCJ in the contr act , but th at j udgme n t also renders moot

the u nder lying basis of WCJ ’ s p rimary ar g

ument regardi ng wh y the injunc ti on i s
invalid

. T he premise of WCJ ’ s argument a t the tempo rary

- injunction heari ng and on

app eal is that the trial court erred by restraining WCJ from exe c uti ng th e S e con d

Ro gers Lease because U ST w ould suffer no h arm fro m t hat act. WCJ ’ s bri ef

ch allenge s the arg u ment th at UST made a t the temporary

- injunction hearing that

execution o f t he lease w ould irrep ar ably ha r m its right to validly exercise its right of

first refusa l

. 9 And a s we n oted ab ov e, WCJ ’ s counsel ar g ued a t th e heari ng th a t m ere

9 T he cor e of this ar gume nt i n WCJ ’ s brief follow s :
M oreover, UST has c l a i med that thi s issu e has been l egally and factua lly determi ned in the trial court’s partial summar y [

- ] jud gment rul ing on WCJ’s c laim for declaratory relief. W CJ disputes the bre a dt h of the pa rtial summary [

- ] ju dg ment ruling, but by taking this position, UST ha s confir m ed tha t it is no l onger facing a dilem ma

— and there fore no longer facing ha rm

— on wheth er to e xercise i ts right of fi rst refusal. For UST explained as follows in its r esp o nse to WC J ’s motion for

rec on sideration of the te mporary inju nction:

H e re, W CJ is at te mpting to c hange t he status of the [ p] r operty by en tering into a [l] easehold with Rog ers. E xecuting that lease wit h Ro gers then triggers [ US T ’s ] right of first refus al, putting [ US T ] to a n electio n of w hether to exerci se the right of f irst ref usal or to g amble that it will prevail at tr ial

. If [ US T ] exercises the rig ht of first refusal, it will do
so at an inflated p rice beyond market for what [ US T ]33 execution of the Se co n d Roger s L e as e, in and of itself , would do UST no harm

because the tri a l court could later determine whether th at l ease was a valid A lte rnati ve

Min i ng C ont ra ct , and no imm e diat e physical harm to the property wou l d o c cur
b ecaus e opera tion s wo uld no t oc cur until t h e permi tti ng process w as complete

. I n

essence, WCJ argues that UST would suffer no harm because if the trial court allowed

execu tion of th e Se cond Ro gers Lease, t h at co urt c ould l ater determine whether t h at

l ease t rigg ered US T ’ s obligation to exercise it s r ight of first refusal and c ould make

bel iev e s WCJ a ctu ally owns and has the legal abi lity t o convey. But i f [ US T ] w ait s for tria l a nd l oses , it will have forever lost its val uable right of first ref usal. That election and the t iming o f it that WCJ has repea tedl y and continually attempted to fo r ce onto th e [ c] ourt and [ U S T ] is the irrepar able, imminent harm th at must be e njo ined

. . . . [ T]he imm inent, irre parable har m

. . . relates to the right of first

re fusal and the impossibl e choic e to whic h WCJ is
attem ptin g to force on [ US T ]

. [E m ph ases add ed .]

T his is a tacit admi ssion by UST that, becau se it prevai led o n the

me rit s in the p art ial summary [

- ] judg ment ru ling, it is no longer facing harm. B ased on the above evidence and UST’ s admis sion that it no longer face s “imminent, irreparable ha r m

. . . rel at[ ing] to the r ight of first refusal,” there is no evidence of i njur y to UST ’s rig ht of f irst ref usal f

rom W CJ’s si gning the Se cond Rogers Lease.

N ever theless, the question of why UST so ught to enjoin s igning the lea se c ries out because the ob v iou s and pr ope r cou rse of a ction would have been t o seek to enjoin any m inin g pr epar atio n and min ing activity on th e pro perty a fter the lea se was signed. [Footnote and record reference omitted

. ]34 that determination befor e the only possible basis that UST has to claim harm

— physical dama ge to the pr op erty

— oc curs. 10

Assum in g t he validity of thi s argument, how do e s i t pre sent a live controv ersy

th at s till exist s when the trial c our t ( in the later summary judgment on the meri ts

outside the tempo rary

- injunction context ) declined WCJ ’ s invitati on to make a

declaration that a central feature of the Second Rogers Lease

— t he r ight to p lace a crushing

- and

- s cre en ing plant o n the property

— was permitted ? Irr epara ble harm

bec a me irrelev an t be cause the tr ial court wa s n ot rely i ng on harm to leave the st atus quo in place until it ha d time to make its final decision

. I n stead, it m ade th e dec ision

t ha t , as a matte r o f law, WCJ is not entitled to a declaration that t he act of pl acing a

crushi ng

- and

- screening plan t o n the propert y is permitted

. T he need for the tria l

cou rt to give it s elf the br eathing room to make that deci sion b y c o n cludin g tha t irrep arable harm co uld occur in the p eriod to m ake th a t d eci sio n is now a pas t

con cern

.

10 Wi th the questio n of harm moot, the questio n of wh ether the mo dified temporar y

- injunction order adequate ly d ocumente d a finding of irreparable harm as
r e qu ired by T exas Ru le of Civil Procedure 683 also appea rs moot

. See Clark v. Hastings Equ ity Par tners , 65 1 S.W.3d 359, 3 73 (Tex. App.

— Hous ton [1st Dist.] 2022, no pet.). ( “ To compl y with Rule 6 83, a trial co urt must set out in the temporary [

- ] in junction

o r d e r th e rea sons th e court finds it proper to issue the in junction, including the

reasons the app licant wi ll suffer irre para ble harm if the injunct ion does not issue. T ex . R. C iv

. P. 683. ” )

.35 E. We con c lude that the trial court ’ s summary judgme nt order invalidated WCJ ’ s claim that a crushing

- and

- screening pl ant could be plac e d o n the property as envis ion ed by the Second Rogers L e ase. To wrap up, we a ddress WCJ ’ s a rgumen t that w e can no t glea n a ruling on the

merits from the trial court ’ s grant of UST ’ s summary

- judgment m otion b ecause o f it s
form :
T he partial summary [

- ] judgment order on WCJ’s cl ai m for decla ratory relief does no t d eclare anything or mak e any r ulings ot her th an a gen eri c grant of UST’s mo ti on for partial sum m ary judgment. Contra ry to UST’s assertions, it does no t st ate that “the r e is n o ri ght to have a crushing [

- ] and [

- ] screening pl ant on the propert y.” The parti al summary [

- ] judgment or der als o doe s no t state that “ WCJ d id no t have the r igh t to bu i ld or the right to c onvey the right to build a crushing [

- ] an d [

- ] screening p l ant.” And the partial summary [

- ] judgment order does not st ate th at “t here ar e no rights in t he conveyance documents to a c rushi ng [

- ] and [

- ] screeni ng pl ant.”

A s we underst an d th e argument , it is that no conclusi o n as to what declara tio n th e
trial cou rt was making can be drawn from the summ ary

- ju dgmen t order becau se it

d o es not explicitly state a dec lara tion of t he parties ’ ri ghts

. W e d is agre e.

W CJ ’ s pre mise

— tha t we can gl ea n nothing f rom the trial court ’ s order b ecause

i t merely g rants U ST ’ s summar y

- judgme nt motion

— is not support ed by cas e law.

For exampl e, a p rior case f rom this c ourt dealt wi th a ta ke

- nothin g judgment in a sui t

in which a part y s ought decla ratory r elief

. See Do wne v. Askey , 529 S.W. 2 d 121, 12 4
( Tex. App.

— Fort Worth 1975, no writ ). W e con c l u ded th at we could glean the

na ture of t he decl aratio n by pursuing the following inquir y:36 The law appea rs to be that since no technical for m is p rescribed for the dec laratio n of r ights in a declarat o ry [

- ] jud gme nt action, the form of a judgment rendered in s u c h an a cti on is sufficient if the righ ts of t he par ties that are sought in the suit t o b e as certained can be ascert ained from the judgm en t r ender ed when consid ered in view o f the controversy involve d along wi th the findings of fact and conclusions of law f i led in th e case by the tri al cou rt.

Id

. La ter ca ses have cited ou r opini on for the pr opos ition tha t the nature o f a
d eclaration may be gleaned by examin ing what was i n controve rsy : Moreover, under the l ibe r al construction [that] must be given the [D] eclar a t ory [J] u dgm ent [s] [A] ct , Hex t v. Pr ice , 847 S.W .2d 408, 416 (Tex. App.

— Amarillo 1 9 93 , no writ), no particular fo rm is necessary for th e decla ration of rights in a declaratory [

- ] judgment a ction if, when

con strued toge th er with the pleadings and any findings, the r i g

hts of t h e par ties can be determ ined f rom the face of the judgment. Tra v is Heig hts Imp [ r ovement ] Ass ’ n v. Small , 662 S.W.2d [406,] 41 2

– 13 [ (Tex. A p p.

— Austin 1983, no writ)] ; Downe

. . . , 529 S.W.2d [a t] 124

. . . .
4 6933 , Inc. v. Z & B Enters., Inc. , 899 S.W.2 d 8 0 0 , 80 8 (Te x. A pp.

— Amarillo 1995, writ denied) ; s ee also In re An Unborn Child , 153 S.W. 3d 559, 56 1 (T ex. A pp.

— Amarillo

2004 , pet. denied) ( s tating that “ [e] ven though the order doe s not make a d eclar ation,

de termination of law, o r ex pressly grant any r elief, beca use no parti c ular fo rm is prescribed for a declaration of rights in a d eclarator y [

- ] judgment a ction [] and [because]

matters of statut o ry construction are questio ns of law for the court , ” the court w ould

“ co nstrue th e word ‘ f inds ’ to constitute a dec la ratio n based upon facts f ound from the

e v i dence ” ( c itations om itted ) )

.37 Mor e recent cases are less supp ortive of the pro position tha t the trial court can

f

or go stating its d eclaration in a judgment but still leave th e burden on th e appe llate

cour t to define the parameters of the d eclaration :
A s draf ted , the trial cou rt ’ s j u dgment does not set forth a d ecla ration of the inte rest and rights co nveyed by the assignments. From t he four

corners o f t he judgm ent, we are left to speculate as to exact ly w h at the trial court determined the r ights of th e partie s u nder the ass ign me nts to be. A proper ly drafted dec lara tory judgment shou ld terminate the

u ncertainty or controversy giving ri se to suit by de clar ing the rights of the pa rtie s as to t hose m atter s upo n which the parties joined issue. Calvert v. [ Em p s
. ] Ret . Sys. of Te x. , 6 48 S .W.2d 4 18, 419

– 2 0 (Tex. App

. — A usti n 1983, writ ref ’ d n.r.e.). See gen erally Robert W. Calvert, Declarato ry Judgments in Texas

— Manda tory or Discretio nary? , 14 S t. Mar y ’ s L .J. 1 ( 19 82). Notwithstanding the fact th at the parties m ay hav e d rafted th e j udgmen t and s ubmitted it to the tria l co urt “approved as t o form,” the failu re of the judgment to specifically de clare those ri ghts wa s
er ror.

In a situatio n whe re a ll par ties have mo ved for summary judgment and one mo tion is grante d and th e o thers are de nied, the app ellate co urt should rev iew all parties [ ’ ] sum mary [

- ] judgment ev idence and determine all questions present ed. See Bradley v. St ate ex rel. Wh ite , 990 S.W .2 d 24 5, 24 7 (Tex. 1999) [; s ] e e also Tex. R. App. P. 43.2(c). The reviewing co u r t shou ld then render the j udg ment that the tria l court should hav e rendered. Bradley , 990 S.W.2d at 247. The questions presented in th is

case a re, what int erest is conve ye d by t h e as s ignmen ts, and what are th e rights of the pa rties? Therefore, this [c] ourt w i ll co ns t rue th e assignm en ts in questi on a nd declare the int erests conveyed and [the] rights of the parties as to those matters u pon which t he par ties have joine d issue

.
Pet r

o Pr o, Lt d. v. Upland Res., Inc. , 279 S .W.3d 743 , 74 7

– 4 8 (Tex. App.

— Amarillo 2007,

pe t s
. de nied ) ( footnote om itted)

. Tho ugh Pe tro Pro dealt w ith cross

- motions f or summary judgment, we read it as indicating an a ppellate court can glean the nature of38 the d eclar ation r ende red b y the tria l court f r om the i ssues in controversy in the

summar y

- j udgmen t proce eding

. Again, we exp r ess no opinion on any question resolved in the trial court ’ s

summary

- judgment order ; that ta sk awaits an app eal on t he merits. The ma tter

- of

- law ruling

— that WCJ does not get an affir mative declaration

— effectively ope rat es as a legal ruling that the Adden dum ’ s reservations do not encompass the r ight to operate a crushing

- and

- screening plant, ev en if there is not currently an actual d ecla ratio n in pl a ce that expressly says that

. A lmos t the entire ty of the contro v ersy i n vo l ved in

U ST ’ s motion for summary j udgm ent w a s an attack o n WCJ ’ s claim that the

reser vations in the Addendum and Special Warra nty Deed permitt ed the con s truction

of a cru shing

- and

- sc reening plan t on the pro pert y. W e ca n efficiently gl ean w hat th e
trial co u rt inten de d to not decl are in its int erlo cutory order gr anting UST ’ s motion for

sum m ary judgment.

F. After submission of this matter, WCJ filed a supplemental brief arguing th is appeal is indeed moot.

Three weeks af ter th is matter was submitted on t he briefs , WCJ filed a supplemental brief that again shifts its po si tion and raises an argument not made in

the voluminous prior briefing in this case

— indeed, WCJ now argues that this appeal

is moot. See generally Tex. R. App. P. 39.8 (providing for notic e t o parties of

submission of case ). The last two paragraphs of the supplemental brief capture WCJ’s

new argument asserting that UST has nonsuited the “ cause of action ” attacking the39 Second Rogers Lease underl ying its req uest for injunctive relief and tha t t his act

“dissolved” the injunction : During this appeal, [ US T ] nonsuited its first amended counterclaim for breach of contract, leaving only its first amended counterclaim for declaratory judgm ent pending. When [ US T ] t hen filed its second amended count erc laim during this appeal, it omitted its causes of action pertaining to the Second Rogers Lease, and it does not seek any injunctive relief. The causes of action in the first amended counter claim pertaining to the Secon d Rogers Lease have therefore been no nsuited. The causes of action in the second amended counterclaim pertain only to the BVCC lease; they do not make any allegations pertaining to the Second Rogers Lease and therefore cannot s upport the temporary injunct ion.

Because [ U S T ’s ] causes of a cti on pertaining to the Second Rogers Lease have been nonsuited, the temporary injunction is not supported by a cause of action and must be vacated. Alternatively, because of the actual and deemed nonsuits of the causes o f action in the f irst amended

coun ter claim pertaining to the Second Rogers Lease, the temporary injunction dissolved automatically, and this appeal should be dismissed
as moot. If the [c] ourt dismisses this ap peal as moot because the temporary injunction dissolved automatically, the [c] ou rt should affirmatively hold that the temporary injunction dissolved automatically so that the parties and the trial court know the status of the temporary injunction. [Record references omitted.]

UST filed its own sup plemental brief in response to WCJ ’s latest argument. UST argues that WCJ misses the point that U ST has never abandoned the declaratory

- judgment claim that is the foundation of it s suit . In UST’s view, its

second amended counterclaim alleges verbatim the declaratory

- judgment claim made

i n i ts first amended counterclaim but then pleads additional facts addressing the ever

evolving landscape created by WCJ’s execution of the BVCC agreement. Specifically,

UST argues that WCJ’s characterization of its pleadi ngs is myopic by failing to40 reco gn ize that UST is seeking a broad declaration about what characteristics an Alternative Mining Contract may possess

. To quote UST’s res ponse , To get around [ US T ’s ] actual pleadings, WCJ mischaracterizes [ US T ’s ] claims as “ causes of action pertaining to the Se cond Rogers Lease [.] ” This is result

- oriented wordsmithing. [ US T ’s ] declaratory [

- ] judgment action is not and has never been lease

- specific. WCJ’s declaratory [

- ] judgment action language requests a general declaration of the parties [ ’ ] right s under the Fa rm and Ranch Contract. Specifically, [ US T ] and WCJ have argued over whether WCJ had the right to build a crushing [

- ] and [

- ] screening plant. The trial court ruled via temporary injunction and summary judgment that WCJ d id not. This construc tion of the Fa r m and Ranch Contract applies to all leases. It would be absurd to relitigate the Farm and Ranch Contract interpretation for each new WCJ lease, yet that’s what WCJ attempts to impose through its argument. [ US T ’s ] Seco nd Amended Counterclai m still cont ai n s the same declaratory [

- ] judgment action that has underlied [sic] this entire litigation, with the identical pleading allegation, and WCJ is not relieved of its injunctive obligations just because [ US T ] amended its clai ms to add additional factual alleg a ti ons and claims relating to WCJ’s new and unadjudicated conduct. WCJ’s latest attack on the injunction order is without merit. [Record references and references to the supplem ental brief omit ted.] Though it approache s the argument w ith m ore certain t y th an is reflected in the
record, UST anticipates our holding above : that the trial court’s summary

- judgment order addressing WCJ’s declaratory

- judgment claim “ effectively operates as a legal ruling that the Addendum’s re servations do not encompass the ri ght to operate a crushing

- and

- screening plant ” ; that this ruling undermines WCJ’s ability to enter into the Second Rogers Lease ; and that review of that ruling should be from an appeal on

the merits: Moreover, as explain ed in prior br iefing, even if the in jun ction were lifted, WCJ still cannot legally enter into the Second Rogers Lease that41 contains provisions relating to a crushing [

- ] and [

- ] screening plant because the trial court has also decided, independent of the injunct io n order, t hat WCJ did not hav e t he right to operate a crushing [

- ] and [

- ] screening plant or to convey to Rogers any such right

— meaning WCJ must await a final judgment and then successfully appeal the trial court’s January 24, 2023 summary

- judgment order to conce ivably gain any relief in re lat ion to the Second Rogers Lease. An order reversing or dissolving the temporary [

- ] injunction order will not change the summary

- judgment order, and the Second Rogers Lease will remain illegal and inoperativ e. [Record

r eference omi tted.]

We conclu de tha t WCJ’s latest premise

— that UST’s pleadings abandoned a legal basis for a claim that challenges WCJ’s claimed right to execute the S econd
Rogers Lease

— is not supported by the record. Nor does the argument alter our vie w
that the t rial court has effectively made a mer it

- based ruling t hat we interpret

invalidates the Second Rogers Lease and that review of that ruling should await an appeal on the merits. This opinion reflects (1) the struggle that we have faced in

reconc iling the ever

- evolvin g state of the tria l

- c o ur t record as the parties contin ue to

maneuver ; (2) the summary

- judgment orders rendered that leave it to us to interpret

the sco p e of the rulings being made and to determine when such ruling s should be

reviewed ; a nd (3) how the arguments on a ppeal have c ont inually shift ed even after the

case was submitted. Though we do not accept the premise of WCJ’s latest argument,

we do note that the relief sought by its new argument now parall els our h olding that this appea l of the trial court’s temporary

- i njunction ord er is moot

.42 IV. C onclusion Having de termined tha t the i ssues at play in th e tri a l cou rt ’ s mo dified

temp orary

- injunction order are now moot, we set aside the January 2 7, 2023

“ Modified Order Granting [UST ’ s] Application for Temporary . . . Inj unctiv e R elief, ”

and we dismiss WCJ ’ s interlocutor y appeal

. /s/ Dabney Bassel

D a bn ey Bassel J ust ice

De liv ered: Ju ne 22, 2023