Pedro Salazar and Wife, Hinelda Salazar v. Aeropajita Mata and Albert Trevino ( 2001 )

NUMBER 13-00-492-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

PEDRO SALAZAR AND WIFE,

HINELDA SALAZAR

, Appellants,

v.

AEROPAJITA MATA AND

ALBERT TREVINO

, Appellees.

___________________________________________________________________

On appeal from the 107th District Court of Cameron County, Texas.

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O P I N I O N

Before Justices Dorsey, Hinojosa, and Castillo Opinion by Justice Dorsey

This is an interlocutory appeal⁽¹⁾ of a temporary injunction. Appellants, Pedro and Hinelda Salazar, appeal the trial court's order granting a temporary injunction enjoining them from foreclosing on a home which they had sold to appellee, Aeropajita Mata.⁽²⁾

Procedural History

On April 21, 1988, the Salazars sold a home in Brownsville, Texas to Ricardo⁽³⁾ and Aeropajita Mata. Aeropajita defaulted on the note, and the property was eventually set for foreclosure on July 4, 2000. However on July 3, 2000, the trial court signed a temporary restraining order, preventing the Salazars from foreclosing on the property. On July 17, 2000, the trial court held an evidentiary hearing and on August 2, 2000, signed an order granting a temporary injunction. The injunction prevented the Salazars from proceeding with a non-judicial foreclosure on the property until the time that the trial court held a final hearing on the full merits of this case. The Salazars appeal from that order.

Standard of Review

The standard of review for the grant or denial of a temporary injunction is abuse of discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Tenet Health Ltd. v. Zamora, 13 S.W.3d 464, 468 (Tex. App.--Corpus Christi 2000, pet. dism'd w.o.j.). A trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to guiding rules or principals, or misapplies the law to the established facts of the case. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

To be entitled to a temporary injunction a plaintiff must show: (1) that a wrongful act has occurred (i.e., that the plaintiff has a cause of action against the defendant); (2) a probable right of recovery; and (3) a probable injury in the interim. Walling, 863 S.W.2d at 57; Zamora, 13 S.W.3d at 468; Castaneda v. Gonzalez, 985 S.W.2d 500, 502 (Tex. App.--Corpus Christi 1998, no pet.). The probable injury element requires a showing that the harm is imminent, the injury would be irreparable, and that the plaintiff has no other adequate legal remedy. Zamora, 13 S.W.3d at 468. A prerequisite for injunctive relief is actual injury, the threat of imminent harm, or another's demonstrable intent to do that for which injunctive relief is sought. Tri-State Pipe and Equip., Inc. v. Southern County Mut. Ins. Co., 8 S.W.3d 394, 401 (Tex. App.­Texarkana 1999, no pet).

Analysis

By two issues the Salazars assert that the trial court abused its discretion in enjoining the foreclosure sale because appellees did not plead a cause of action, and there was no evidence to support injunctive relief. Appellees did not plead a cause of action against the Salazars. The evidence elicited at the evidentiary hearing did not show that the Salazars committed a wrongful act and did not satisfy the requisite elements of a temporary injunction. See Walling, 863 S.W.2d at 58. Accordingly, we hold that the trial court abused its discretion in granting the temporary injunction and enjoining the Salazars from foreclosing on the property. We sustain both issues.

The trial court's temporary injunction order is REVERSED, and the cause is REMANDED to the trial court.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 22nd day of March, 2001.

1. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (4) (Vernon Supp. 2001); Tex. R. App. P. 28.1.

2. Appellees, Aeropajita Mata and Albert Trevino, have not filed a brief with this Court.

3. After the purchase the Matas divorced, and Aeropajita has sole interest in the contract for deed. Appellee, Albert Trevino, is renting the subject property.