Carlos Lamas v. Luis Raul Sandoval Gonzalez ( 2022 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
CARLOS LAMAS, § No. 08-21-00095-CV
Appellant, § Appeal from the
v. § 34th Judicial District Court
LUIS RAUL SANDOVAL GONZALEZ, § of El Paso County, Texas
Appellee. § (TC# 2020DCV4095)
MEMORANDUM OPINION
This interlocutory appeal arises from the trial court’s grant of a temporary injunction in
favor of Appellee Luis Raul Sandoval Gonzalez (Sandoval). In his original petition, Sandoval
alleged that he was buying a house from Appellant Carlos Lamas through a contract for deed.
Sandoval claimed that he made regular mortgage payments under the contract, but Lamas later
refused to accept payments and attempted to evict Sandoval from the house through several
forcible entry and detainer actions. Sandoval sought a temporary injunction that would ensure his
ability to continue making payments and enjoy the property during the pendency of the suit, which
the trial court granted. Lamas challenges that ruling. For the following reasons, we affirm the
trial court’s order and remand this case to the trial court for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
In his original petition, Sandoval alleged that in June 2015 he entered a contract for deed
with Lamas to purchase a house in El Paso, Texas. Sandoval claimed that after making a $20,000
down payment and monthly mortgage payments under the contract for several years, Lamas filed
multiple actions for forcible entry and detainer in a justice court to remove Sandoval and his tenants
from the house. His petition also claims that Lamas tried to prevent him from making mortgage
payments, thereby “engineering a false default [on the contract] so that [Lamas] can take the
property back—confiscating the $20,000.00 down payment without right or justification.”
Sandoval sued for breach of contract, requested a declaratory judgment, and also sought a
temporary injunction preventing Lamas from filing further forcible entry and detainer actions
against Sandoval and any tenants residing in the house. In part, he relied on TEX.PROP.CODE
ANN. § 5.066(a) that restricts a seller’s remedies if a buyer has made more than 48 payments under
a contract for deed.
As for injunctive relief, he asked the trial court to: (1) order Lamas to provide login
information to the mortgage servicer’s online portal so that he (Sandoval) could continue making
mortgage payments, or alternatively, that Lamas accept mortgage payments and forward them to
the mortgage servicer; (2) enjoin Lamas from interfering with any lease agreements between
Sandoval and any third-party tenants; (3) enjoin Lamas from filing any additional forcible entry
and detainer proceedings; (4) enjoin Lamas from interfering with the homeowners insurance policy
and to name Sandoval as a beneficiary of the policy; and (5) order Lamas to provide Sandoval with
a general warranty deed upon completion of Sandoval’s obligations under the contract for deed.
After Lamas answered the suit, the trial court heard Sandoval’s request for a temporary injunction
2
in which the parties presented the evidence recounted below.
B. Sandoval’s Hearing Testimony and Evidence1
Sandoval testified that he first met Lamas through a Craigslist advertisement for the sale
of a house in El Paso, Texas. Lamas’s advertisement sought a buyer who could make an initial
down payment on the house and continue to make monthly payments on a pre-existing mortgage
until the mortgage was paid off, at which point title to the house would pass from Lamas to the
buyer.
In June 2015, Sandoval and Lamas signed a document titled “Contrato de Transpaso,”
(written in Spanish) which appears to be a contract for deed to the house. Lamas drafted the
document. Under its terms, Sandoval was to make an initial $20,000 down payment, to be
followed by monthly payments of $549.89 on Lamas’s pre-existing mortgage with Bank of
America until the mortgage was paid in full. To allow for those payments, Lamas provided
Sandoval with login information to the bank’s online portal and payment system. That same day,
Sandoval and Lamas also signed an “Assignment of Real Estate Contract and Sale Agreement,”
which provided that Lamas would transfer the house’s title and his interest to Sandoval based on
the terms of a copy of the contract for deed that had been translated into English.
Sandoval paid an initial $2,000 portion of the $20,000 down payment, and moved into the
house, claiming it as his homestead. A handwritten receipt that appears to be attached to the
Contrato de Transpaso also states "Balance of $18,000 for a total of $20,000.” Sandoval then
began to make monthly payments on the mortgage. Sandoval asserted that from June 2015 to
September 2020, a period of around 62 months, he did not miss any monthly mortgage payments.
1
The parties are well familiar with the testimony presented below. We summarize only that testimony relevant to
the several issues necessary for our decision. See TEX.R.APP.P. 47.4 (“If the issues are settled, the court should write
a brief memorandum opinion no longer than necessary to advise the parties of the court’s decision and the basic
reasons for it.”).
3
At some point, Select Portfolio Servicing, Inc. (SPS) became the mortgage servicer.
Sandoval moved to Mexico. While he was gone, he rented the house to tenants, but he
moved back into the house about two to three months before the injunction hearing. While
acknowledging that he worked in Mexico, he claimed to still live in the house “intermittently.”
When Sandoval had the house rented, he claimed that Lamas ran off two renters and threatened to
evict another.
In October 2020, Lamas changed the password on the bank’s login portal without
explanation, preventing Sandoval from making further payments on the mortgage. Sandoval then
sent Lamas a $2,280.00 personal check via certified mail for the October 2020 through January
2021 mortgage payments. Sandoval also sent a separate check through his attorney for the
February 2021 payment. Prior to the temporary injunction hearing, Lamas had filed three forcible
entry and detainer actions in a justice court to evict Sandoval.
The record also reflects some dispute over the authenticity of Lamas’s signature on some
documents. As for that issue, Sandoval presented testimony from Samuel Madrid who notarized
the contract documents. While Madrid was not present when the Spanish version of the contract
for deed was signed, his signature is present on both the “Assignment of Real Estate Contract” and
the translated version of the contract for deed. Madrid recalled notarizing the documents and
stated that if his signature was present on the documents, it meant that he followed his standard
practice of verifying a person’s identification while he was physically present with the person.
Madrid’s office assistant translated the handwritten contract for deed from Spanish to
English. And Madrid, who is fluent in Spanish, stated that the original contract for deed provided
“that the compensation of $18,000 was given and a total of $20,000 was paid.”
4
C. Lamas’s Hearing Testimony and Evidence
Lamas related a different version of events. He testified that he was a co-owner of the
house with Sandra Lamas Marquez, to whom he was married at the time the contract for deed was
signed. But he later admitted that the couple was divorced almost two years before the contract
for deed was executed. And he did not know whether Marquez was awarded any interest in the
house in the divorce.
Lamas acknowledged that he signed the Spanish version of the contract for deed and wrote
some of its language by hand. Lamas further agreed that he and Sandoval signed both the
“Assignment of Real Estate Contract and Sale Agreement” and the “Real Estate Purchase and Sale
Agreement.” Even so, he claimed that his signatures on Sandoval’s copies of the documents were
forged, and he reported this fact to the El Paso Police Department. 2 Nonetheless, Lamas
acknowledged that he signed a different copy of the documents which were filed of record in one
of the justice court proceedings. Lamas also claimed that he never met Samuel Madrid, the notary
whose name and stamp were present on these documents, and that Madrid never notarized the
documents in his presence.
Lamas contended that although Sandoval paid the first $2,000 of the $20,000 down
payment, he never paid the remaining $18,000 down payment. Lamas acknowledged that
Sandoval regularly paid the $549.59 monthly mortgage payments through an online portal from
June 2015 through June 2019, but he learned that payments for July, August, and September 2019
were missing. He acknowledged, however, that Sandoval soon made good on those payments.
2
Detective Randy Serna of the El Paso Police Department testified at the hearing that he was assigned to investigate
Lamas’s allegation. Detective Serna forwarded the case to the District Attorney’s Office, but he did not make a
recommendation about whether the case should be prosecuted. Serna testified that he did not believe that there was
enough evidence to acquire an arrest warrant for Sandoval.
5
At some point, Sandoval informed Lamas that he (Sandoval) had not been living at the
house because he could not enter the United States legally, and that he had leased the house to
another individual who was supposed to be making the payments. This upset Lamas because he
claimed that there was an oral agreement that Sandoval would not rent the property to third parties.
Lamas presented a document from SPS reflecting the mortgage payment history for the
house. This document shows that there were late payment charges for the months of July 2019,
and September through December of the same year. Lamas also presented a document from SPS
that stated it was possible for SPS to accept mortgage payments from a third party. Lamas
claimed he made the mortgage payments for September 2020 through December 2020 and
February 2021 out of his personal account. Lamas sent Sandoval a letter informing him that he
had breached the terms of the contract.
Lamas conceded that he had not complied with the requirements under the Texas Property
Code for a contract for deed, including: (1) his obligation to record the contract for deed; (2)
provide an annual accounting; (3) provide insurance naming Sandoval as a beneficiary; or (4)
comply with the proper procedure for eviction.
Finally, Lamas complained about the condition of the house and the tenants that Sandoval
had rented the house to. He presented estimates for repairs on the house and photographs
appearing to show damage to the house’s roof, window frame, wall, garage door, walls, and
ceiling. A neighbor who lived next door to the house testified that in September 2019, the police
had swarmed the house. The next day, the neighbor went inside the house with Lamas and saw
that the house was a “complete mess. There was . . . poop all over . . . the place and like, clothes
everywhere . . . There [were] holes in the walls.” The neighbor noticed the presence of drug
paraphernalia and the smell of marijuana in the house (an adult male, an adult female, and an infant
6
were residing in the house then). Another neighbor testified that one of the tenants in the house
was selling marijuana and that he frequently smelled marijuana coming from the house. The same
neighbor never recalled seeing Sandoval at the house.
D. Trial Court’s Ruling
At the end of the hearing, the trial court orally granted Sandoval’s request for a temporary
injunction. In its written order, the court enjoined Lamas from: (1) filing additional forcible entry
and detainer actions against Sandoval; (2) interfering with Sandoval’s ability to make mortgage
payments as they come due; and (3) interfering with any tenants or lease agreements between
Sandoval and any third parties. The court further ordered Sandoval to make mortgage payments
through the SPS online portal as a “guest,” by telephone, or by mail. The court also set a bond of
$100. Lamas filed a request for findings of fact and conclusions of law on the temporary
injunction order, as well as a notice of past-due findings and conclusions, but the record before
us contains no findings and conclusions.3 This appeal from the trial court’s interlocutory order
follows. See TEX.CIV.PRAC.& REM.CODE ANN. § 51.014(a)(4) (permitting appeal from
interlocutory order granting a temporary injunction).
II. ISSUES ON APPEAL
Lamas raises eleven issues on appeal. In the interest of clarity and efficiency, we construe
Lamas’s claims as challenges to the temporary injunction order on these grounds: (1) Sandoval
failed to join Lamas’s ex-wife, Sandra Lamas Marquez, as a necessary party, and to serve her with
notice of the temporary injunction proceeding; (2) Sandoval failed to demonstrate that
TEX.PROP.CODE ANN. §§ 5.062 and 5.066(a) on which his suit is based, apply here; (3) the court’s
3
Although Lamas points out that the trial court did not enter findings of fact or conclusions of law in response to his
request, he does not argue that the trial court erred by doing so.
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order is invalid because it was not supported by an affidavit in compliance with TEX.R.CIV.P. 682;
(4) the court’s order is invalid because it lacks sufficient specificity and failed to set the cause for
trial, violating TEX.R.CIV.P. 683; (5) the court’s order is invalid because it failed to set a reasonable
bond, violating TEX.R.CIV.P. 684; (6) the court’s order is invalid because it decides the merits of
the dispute; and (7) the evidence shows that Lamas did not breach the contract. We address
Lamas’s issues together where appropriate.
III. FAILURE TO JOIN AND SERVE MARQUEZ
In his first and third issues, Lamas argues that the trial court’s temporary injunction order
must be reversed because Sandoval failed to join Lamas’s ex-wife (and purported co-owner of the
house) as a necessary party. Texas Rule of Civil Procedure 39 governs the joinder of necessary
parties and requires that a person be joined if “in his absence complete relief cannot be accorded
among those already parties.” Henry v. Cox, 520 S.W.3d 28, 34 (Tex. 2017), citing TEX.R.CIV.P.
39(a)(1). If a necessary party cannot be joined, the court must determine “whether in equity and
good conscience the action should proceed.” Id., citing TEX.R.CIV.P. 39(b). We review a trial
court’s decision on a matter of joinder for an abuse of discretion. Conrad Constr. Co., Ltd. v.
Freedmen’s Town Preservation Coal., 491 S.W.3d 12, 16 (Tex.App.--Houston [14th Dist.] 2016,
no pet.).
In his pleadings, Lamas asserted that his ex-wife, Marquez, retained an interest in the house
when Sandoval filed for the temporary injunction. In support, Lamas produced a deed from 1999
that showed he and Marquez owned the house. Nevertheless, the contract for deed between
Sandoval and Lamas, along with the other associated documents, reflects that Marquez was not a
party to—or even mentioned in—the contract. Sandoval testified that Lamas never told him that
any other individuals had an ownership interest in the house. At the temporary injunction hearing,
8
Lamas admitted that he divorced Marquez before the contract for deed was signed, and he claimed
not to know whether Marquez retained any interest in the house following the divorce. The record
is bare of any other evidence tending to establish that Marquez possessed any interest in the house
following her divorce from Lamas or at the time of the temporary injunction hearing.
The trial court was free to find, based on Lamas’s equivocal testimony on the matter, that
Marquez no longer possessed an interest in the house. Because there is no evidence that complete
relief could not be given to Sandoval or Lamas without joining Marquez in this temporary
injunction action, the trial court did not abuse its discretion by refusing to require Marquez’s
joinder before the issuance of the temporary injunction. And for the same reasons, we conclude
that Marquez was not an adverse party whom Sandoval needed to serve with notice of the
temporary injunction hearing. See TEX.R.CIV.P. 681 (requiring notice to be given to an adverse
party before the issuance of a temporary injunction).
Lamas’s Issues One and Three are overruled.
V. SUFFICIENCY OF THE EVIDENCE
In his second, eighth, and ninth issues, Lamas argues that the trial court abused its
discretion by granting the temporary injunction because the evidence did not establish: (1) the
applicability of TEX.PROP.CODE ANN. §§ 5.062 and 5.066, which would restrict a seller’s
rescission remedies for breach of a contract for deed; (2) that Lamas breached the contract for
deed; and (3) that a valid contract for deed between Sandoval and Lamas existed. We construe
these complaints as challenges to the sufficiency of the evidence supporting the trial court’s order.
A. Standard of Review
A movant for a temporary injunction “must plead and prove three specific elements: (1) a
cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable,
9
imminent, and irreparable injury in the interim.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204
(Tex. 2002). At a temporary injunction hearing, the applicant need not present the underlying
merits of the controversy or establish the applicant will ultimately prevail. See LasikPlus of
Texas, P.C. v. Mattioli, 418 S.W.3d 210, 216 (Tex.App.--Houston [14th Dist.] 2013, no pet.); see
also Camp Mystic, Inc. v. Eastland, 399 S.W.3d 266, 272-73 (Tex.App.--San Antonio 2012, no
pet.) (“At the hearing for a temporary injunction, the applicant is not required to establish that it
will prevail on final trial.”). But the applicant must show a probability of success by presenting
evidence that tends to sustain the cause of action. Mattioli, 418 S.W.3d at 216.
We review a trial court’s order granting or denying a temporary injunction for an abuse of
discretion. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978). As for questions of fact, “[a]n
abuse of discretion does not exist where the trial court bases its decisions on conflicting evidence.”
Id. at 862. Stated otherwise, a trial court does not abuse its discretion if some evidence reasonably
supports the court’s ruling on a temporary injunction. Henry, 520 S.W.3d at 34. But the court has
no “discretion” to incorrectly analyze or apply the law. See Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992) (“[A] clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion . . . .”). Where, as here, no findings of fact or conclusions of law
are entered, the trial court’s grant or denial of a temporary injunction must be upheld on any legal
theory supported by the record. LasikPlus of Texas, P.C., 418 S.W.3d at 216. The trial court sits
as fact finder and has the discretion to believe or disbelieve a witness's testimony; we may not
disturb its findings so long as they fall within the “zone of reasonable disagreement.” Yardeni v.
Torres, 418 S.W.3d 914, 918 (Tex.App.--El Paso 2013, no pet.), quoting City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex. 2005) (“A reviewing court cannot substitute its judgment for that of
the trier-of-fact” if the evidence “would enable reasonable and fair-minded people to differ in their
10
conclusion”).
B. Sections 5.062 and 5.066 of the Property Code
Texas Property Code Chapter 5, Subchapter D, governs executory contracts for the
conveyance of real property, including contracts for deeds. See TEX.PROP.CODE ANN. §§ 5.061-
.087; see also White v. Calvache, No. 05-17-00127-CV, 2018 WL 525684, at *5 (Tex.App.--
Dallas Jan. 24, 2018, no pet.) (mem. op.) (recognizing that Subchapter D applies to an “executory
contract,” such as a contract for deed), citing Reeder v. Curry, 294 S.W.3d 851, 856 (Tex.App.--
Dallas 2009, pet. denied); Shook v. Walden, 368 S.W.3d 604, 627 (Tex.App.--Austin 2012, pet.
denied). When Chapter 5 applies, the section restricts a seller’s remedies for breaches and
imposes specific obligations on the seller. See, e.g., TEX.PROP.CODE ANN. § 5.063 (contents of
required notices); § 5.064 (requiring notice and opportunity to cure as predicates for rescission,
forfeiture and acceleration remedies); § 5.065 (right to cure); § 5.069 (seller’s disclosure
requirements); § 5.076 (recording requirement imposed on seller); § 5.077 (annual accounting
statement required of seller). 4 Sandoval’s injunction is based in part on the application of
Subchapter D.
In his second issue, Lamas argues that Subchapter D, and specifically sections 5.062 and
5.066, do not apply to this transaction. He bases this contention on the argument that: (1)
Sandoval did not use the house as his primary residence, as required by section 5.062; and (2) the
contract for deed was never recorded with the county clerk, rendering section 5.066 inapplicable.
We construe Lamas’s argument as a challenge to the sufficiency of the evidence supporting the
4
Passed in 1995, Chapter 5 was intended to address serious abuses in the Texas–Mexico border region known as “the
colonias,” where many residents were financing the purchase of their homestead properties through contracts for deed.
In re Garza, 462 B.R. 638, 641–42 (Bankr. N.D. Tex. 2011). Later amendments to Chapter 5 have expanded those
protections. Id. citing Flores v. Millennium Interests, Ltd., 185 S.W.3d 427, 429 (Tex. 2005).
11
basis on which Sandoval sought the temporary injunction—namely, that the relevant statutes
prevented Lamas from attempting to evict Sandoval from the house.
As relevant here, section 5.062(a) (which governs the applicability of Subchapter D)
applies to “an executory contract for conveyance of real property used or to be used as the
purchaser's residence[.]” Id. § 5.062(a). If it applies, two other provisions are relevant to our
view of Lamas’s remedies for any breach of the agreement: section 5.064 and 5.066. Section 5.064
provides:
A seller may enforce the remedy of rescission or of forfeiture and acceleration
against a purchaser in default under an executory contract for conveyance of real
property only if:
(1) the seller notifies the purchaser of:
(A) the seller's intent to enforce a remedy under this section; and
(B) the purchaser's right to cure the default within the 30-day period described
by Section 5.065;
(2) the purchaser fails to cure the default within the 30-day period described by
Section 5.065;
(3) Section 5.066 does not apply; and
(4) the contract has not been recorded in the county in which the property is located.
TEX.PROP.CODE ANN. § 5.064.5 Section 5.066, also contained within Subchapter D, contains the
“40 or 48 Rule”:
If a purchaser defaults after the purchaser has paid 40 percent or more of the amount
due or the equivalent of 48 monthly payments under the executory contract or,
regardless of the amount the purchaser has paid, the executory contract has been
recorded, the seller is granted the power to sell, through a trustee designated by the
seller, the purchaser's interest in the property as provided by this section. The
seller may not enforce the remedy of rescission or of forfeiture and acceleration
after the contract has been recorded.
5
In 2015, the legislature amended section 5.064 and 5.066 to add language dealing with recording of executory
contracts. For the revisions to these sections, the change in the law applies only to “a default” that occurs after the
effective date of the Act—September 1, 2015. Act of June 19, 2015, 84th Leg., R.S., Ch. 996, § 9, 2014 Tex. Gen.
Laws 3529, 3532. We assume that Lamas contends any default occurred after that date.
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Id. § 5.066(a).
In support of his request for a temporary injunction preventing Lamas from filing additional
forcible entry and detainer actions, Sandoval argued that section 5.066(a) prevented Lamas from
pursuing that remedy because Sandoval had made more than 48 payments on the mortgage by the
time this litigation began. Lamas first argues that section 5.062 is inapplicable under these facts
because Sandoval did not reside at the house. Sandoval responds that his testimony that he lived
at the house at the time of the temporary injunction hearing established the applicability of sections
5.062 and 5.066. Sandoval testified that although he had spent time living in Mexico and had
rented the house to tenants in the past, he was currently living at the house and using it as his
primary residence. We find this evidence sufficient to establish section 5.062’s applicability.
The statute uses the phrase “used or to be used” as the purchaser’s residence. The statute does
not say, “exclusively used,” and therefore does not preclude there being some gap in the
purchaser’s use of the property as a residence.
The Texas Supreme Court has generally held that for individuals, “‘residence’ means the
‘[p]lace where one actually lives or has his home; a person’s dwelling place or place of habitation;
. . . a dwelling house’” and that permanent residence “requires a home and fixed place of habitation
to which a person intends to return when away.” Owens Corning v. Carter, 997 S.W.2d 560, 571
(Tex. 1999) quoting Residence, BLACK’S LAW DICTIONARY 907 (6th ed. 1991). Courts have also
stated that an individual need not be physically present within the home to claim it as their
residence, and that a person may live temporarily in one place while maintaining a residence in
another. See Ferrara v. Nutt, 555 S.W.3d 227, 237 (Tex.App.--Houston [1st Dist.] 2018, no pet.),
quoting Dickey v. McComb Dev. Co., 115 S.W.3d 42, 45 (Tex.App.--San Antonio 2003, no pet.);
Malnar v. Mechell, 91 S.W.3d 924, 928 (Tex.App.--Amarillo 2002, no pet.). In addition, “the fact
13
that an individual leases the abode while physically absent from it does not mean, by itself, that
the abode is no longer his residence.” Ferrara, 555 S.W.3d at 237, quoting Dickey, 115 S.W.3d
at 45; Malnar, 91 S.W.3d at 929 (internal quotation marks omitted). Thus, even assuming that
Sandoval was not living in the house, and had intermittently rented the house out to others while
he was away, section 5.062 still applies.
Having established that section 5.062 applies, we address Lamas’s claim that section 5.066
does not apply. Sandoval had made over 48 payments on the mortgage at the time of the hearing.
Lamas argues, however, that the remedies for rescission, forfeiture and acceleration do not apply
because the contract had not been recorded. Lamas testified that he never recorded the contract
and that he was unaware of statutory penalties for failure to do so. But as Sandoval argued in the
trial court, it was Lamas’s—not Sandoval’s—responsibility to record the contract under
Subchapter D. See TEX.PROP.CODE ANN. § 5.076(a) (providing that “the seller shall record the
executory contract . . . on or before the 30th day after the date the contract is executed.”).6
In sum, it was not Sandoval’s burden to establish that he would ultimately prevail on his
claims at trial. Instead, it is sufficient that he established a probable right to recovery and a
probable injury in the interim, which warrants preservation of the status quo before trial. See
Walling v. Metcalfe, 863 S.W.2d 56, 57-58 (Tex. 1993). As for his reliance on sections 5.062 and
5.066, Sandoval has satisfied his burden by establishing that he made more than 48 payments on
the mortgage at the time of the hearing. We conclude the trial court did not abuse its discretion
by enjoining Lamas from filing additional forcible entry and detainer actions.
6
Moreover, section 5.062 deals with specific remedies: a trustee’s sale, rescission, forfeiture, and acceleration. In
contrast, the injunction bars Lamas from pursuing an eviction through a forcible detainer action in a justice court.
Section 5.062 does not expressly address an eviction based on a default of an executory contract. Thus, whether
section 5.062 applies to this dispute does not dictate the propriety of the injunction against filing additional forcible
entry and detainer actions.
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Lamas’s Issue Two is overruled.
C. Existence of Breach of a Valid Contract
In his eighth and ninth issues, Lamas argues that the evidence fails to show the existence
of a valid contract, or a breach of contract, sufficient to support the grant of the temporary
injunction. We also construe these issues as a challenge to the sufficiency of the evidence
supporting Sandoval’s probable right to recovery and injury on his breach of contract claim.
The elements of a breach of contract claim are: (1) the existence of a valid contract; (2)
performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant;
and (4) resulting damages to the plaintiff. Chance v. Elliot & Lillian, LLC, 462 S.W.3d 276, 283
(Tex.App.--El Paso 2015, no pet.). As for the first element, Sandoval introduced several copies
of a contract for deed between himself and Lamas, including a version of the contract that Lamas
admitted to partially drafting himself. Lamas testified that he signed at least one version of the
contract and that it was his understanding that he was entering a contract with Sandoval for the
sale of the house. As for the second element, the parties disagreed about whether Sandoval had
paid the full $20,000 down payment under the contract or timely made every mortgage payment.
But the trial court did not abuse its discretion in favoring Sandavol’s evidence, and discounting
Lamas, particularly where issues of credibility color the dispute. Turning to the third element,
Sandoval testified that Lamas changed the password on the mortgage servicer’s online portal, thus
cutting off Sandoval’s means of continuing to make payments and rendering performance of
Sandoval’s obligations under the contract difficult or impossible. Finally, the probable injury
Sandoval would have suffered is obvious; had the trial court not granted the temporary injunction,
it was possible that he could have been evicted from the house, or put to the burden to defend
against additional forcible entry and detainer actions.
15
Based on this evidence, Sandoval satisfied his burden of establishing a probable right to
recovery at trial, and showing the existence of probable injury in the interim that justified
preservation of the status quo. We hold that the trial court did not abuse its discretion by granting
the temporary injunction on this basis.
Lamas’s Issues Eight and Nine are overruled.
VI. LACK OF AFFIDAVIT
In his fourth issue, Lamas argues that the trial court violated TEX.R.CIV.P. 682 by granting
the temporary injunction without a supporting affidavit. Under Rule 682, “No writ of injunction
shall be granted unless the applicant therefor shall present his petition to the judge verified by his
affidavit and containing a plain and intelligible statement of the grounds for such relief.”
TEX.R.CIV.P. 682. But a verified petition for injunctive relief is not required “when a full
evidentiary hearing on evidence independent of the petition has been held.” Mattox v. Jackson,
336 S.W.3d 759, 763 (Tex.App.--Houston [1st Dist.] 2011, no pet.), citing Georgiades v. Di
Ferrante, 871 S.W.2d 878, 882 (Tex.App.--Houston [14th Dist.] 1994, writ denied). Here, the
trial court held an evidentiary hearing spanning three days on the request for a temporary
injunction, and thus no verification was required. See id.; see also Hughes v. Age Indus., Ltd.,
No. 04-16-00693-CV, 2017 WL 943423, at *2 (Tex.App.--San Antonio Mar. 8, 2017, no pet.)
(mem. op.) (holding that a verified petition in support of a temporary injunction request was
unnecessary under rule 682 because the trial court held a full evidentiary hearing on the injunction
request).
Lamas’s Issue Four is overruled.
VII. FAILURE TO COMPLY WITH RULE 683
In his fifth issue, Lamas argues that the trial court erred by disregarding the form
16
requirements for an injunctive order found in TEX.R.CIV.P. 683.7 In pertinent part, Rule 683
provides: “Every order granting an injunction and every restraining order shall set forth the reasons
for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference
to the complaint or other document, the act or acts sought to be restrained . . .” TEX.R.CIV.P. 683.
“[T]he obvious purpose of [Rule 683] is to adequately inform a party of what he is enjoined from
doing and the reason why he is so enjoined.” El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740,
744 (Tex.App.--Dallas 2011, no pet.), quoting Schulz v. Schulz, 478 S.W.2d 239, 244-45
(Tex.App.--Dallas 1972, no writ). For this reason, the order itself must contain the reasons for its
issuance. See In re Chaumette, 456 S.W.3d 299, 305 (Tex.App.--Houston [1st Dist.] 2014, no
pet.), citing Reliant Hosp. Partners, LLC v. Cornerstone Healthcare Grp. Holdings, Inc., 374
S.W.3d 488, 495 (Tex.App.--Dallas 2012, pet. denied) (“Even if a sound reason for granting relief
appears elsewhere in the record, the Texas Supreme Court has stated in the strongest terms the rule
must be followed.”). The explanation must include specific reasons and not merely conclusory
statements. Id., citing Kotz v. Imperial Capital Bank, 319 S.W.3d 54, 56-57 (Tex.App.--San
Antonio 2010, no pet.). Mere recitals on harm are insufficient. See id., citing AutoNation, Inc.
v. Hatfield, 186 S.W.3d 576, 581 (Tex.App.--Houston [14th Dist.] 2005, no pet.).
Here, the trial court’s order, in pertinent part, reads as follows:
On considering the evidence received and the argument of counsel, the Court is of
the opinion that without a temporary injunction as requested by Plaintiff, that the
Plaintiff will be left without adequate remedy at law and will be irreparably harmed.
The Court is of further opinion that without the issuance of a temporary injunction
the Defendant, Carlos Lamas, will alter the status quo and tend to make ineffectual
a judgment in favor of Plaintiff by creating circumstances that will lead to the loss
7
Sandoval notes that Lamas did not object to the form of the order below. But this Court has recognized that a
temporary injunction order that does not comply with Rule 683 can be reviewed even if a defendant does not raise an
objection on this basis in the trial court. See Fasken v. Darby, 901 S.W.2d 591, 593 (Tex.App.--El Paso 1995, no
writ); see also Hoist Liftruck Mfg., Inc. v. Carruth-Doggett, Inc., 485 S.W.3d 120, 124 (Tex.App.--Houston [14th
Dist.] 2016, no pet.) (recognizing that this Court has held that a party need not preserve error on a complaint that a
temporary-injunction order does not comply with Rule 683). Thus, we will address Lamas’s complaint on the merits.
17
of the real property made the subject of this lawsuit through foreclosure.
(emphasis added). Although the order contains some conclusory language, such as its statement
that “the Plaintiff will be left without adequate remedy and will be irreparably harmed,” the order
also states why Sandoval would suffer irreparable harm. Unless enjoined, Lamas would create
“circumstances that will lead to the loss of the real property made the subject of this lawsuit
through foreclosure.” Because this language explains the particular harm that Sandoval would
face if the injunction was not issued, we hold that this language satisfies rule 683’s specificity
requirement. Cf. El Tacaso, Inc., 356 S.W.3d at 747 (holding that a temporary injunction order
that merely stated that the plaintiff “will suffer an irreparable injury for which it has no other
adequate legal remedy” failed to satisfy Rule 683’s specificity requirement).8
Lamas’s Issue Five is overruled.
VIII. FAILURE TO SET A REASONABLE BOND
In his sixth issue, Lamas argues that the trial court failed to set a reasonable bond in
compliance with TEX.R.CIV.P. 684. Before granting a temporary injunction, the trial court must
require the applicant to post a bond in the sum fixed by the trial court payable to the adverse party.
TEX.R.CIV.P. 684. The bond secures payment to the party against whom the injunction is granted
in the amount of damages he would suffer if the injunction is later dissolved. Biodynamics, Inc.
v. Guest, 817 S.W.2d 128, 130 (Tex.App.--Houston [14th Dist.] 1991, writ dism’d by agr.). The
trial court has considerable discretion in setting the amount of the bond. Id. at 131; see also IAC,
Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 203 (Tex.App.--Fort Worth 2005, no pet.).
We review case-by-case the adequacy of a bond set by the trial court based on the record before
8
Lamas further argues that the trial court also violated Rule 683 because it did not set the cause for trial. But he
acknowledges in his reply brief that the case is currently set for a bench trial. As a result, we find this contention to
lack merit.
18
us. IAC, Ltd., 160 S.W.3d at 203.
The trial court set a bond of $100 in its written order. Lamas contends that this amount is
insufficient, pointing to the allegation in his pleadings that he stood to lose over $50,000 from the
grant of the temporary injunction. Nonetheless, Lamas does not direct our attention to any
evidence in the record that supports the contentions in his pleadings; nor does he explain how the
trial court’s grant of the temporary injunction would cause him to suffer such losses.9 For these
reasons, Lamas has not shown that the trial court abused its discretion by setting a $100 bond. See
id.; see also Hsin-Chi-Su v. Vantage Drilling Co., 474 S.W.3d 284, 304 (Tex.App.--Houston [14th
Dist.] 2015, pet. denied) (recognizing that to establish an insufficient bond amount under Rule 684,
a party must present more than general and conclusory evidence that he would suffer a claimed
amount of damages if an injunction is granted).
Lamas’s Issue Six is overruled.
IX. FINAL RELIEF
In his seventh issue, Lamas argues that the trial court erred by granting the temporary
injunction because its order granted Sandoval control of the property, thus inappropriately
determining the merits of the underlying lawsuit. If the effect of granting the temporary
injunction accomplishes the whole object of this suit, it is improper for the court to grant the
injunction. See Guerrero v. Satterwhite, No. 13-11-00181-CV, 2011 WL 3855741, at *2
(Tex.App.--Corpus Christi Aug. 31, 2011, no pet.) (mem. op.), citing Texas Foundries, Inc. v. Int’l
Moulders & Foundry Workers’ Union, 248 S.W.2d 460, 464 (Tex. 1952). Yet in certain property
disputes, a trial court must still determine who has the legal right to possession before the requested
9
Nor is it incumbent upon this Court to scour the record for evidence that supports Lamas’s contentions or to make
his arguments for him. See, e.g., Aguilar v. Morales, 162 S.W.3d 825, 838 (Tex.App.--El Paso 2005, pet. denied).
19
relief of legal ownership can be granted. See id. (holding that a trial court did not abuse its
discretion by granting a temporary injunction request in a conversion case because the trial court
necessarily decided the right to immediate possession before determining the ultimate issue of
legal title at trial).
Through its temporary injunction order, the trial court did not decide the merits of
Sandoval’s breach of contract claim or issue a declaratory judgment that Sandoval has legal title
to the house. Rather, the order sought to preserve the status quo pending a final resolution of the
merits at trial by: (1) preventing Lamas from filing additional forcible entry and detainer actions
to remove Sandoval from the house; (2) allowing Sandoval to continue to make mortgage
payments on the house; and (3) permitting Sandoval to rent the house to third parties without
Lamas’s interference. Because the trial court necessarily had to decide the immediate right of
possession before making a final determination at trial of who has legal title to the house, we find
no abuse of discretion. See Guerrero, 2011 WL 3855741, at *2-3.
Lamas’s Issue Seven is overruled.
X. MISCELLANEOUS ISSUES
In his tenth and eleventh issues, Lamas argues that the trial court’s grant of the temporary
injunction should be reversed for reasons already explained in his previous issues. Lamas’s brief
on these issues contains no citations to the record or applicable authority, and thus it does not
comply with the applicable rules for appellate briefs. For this reason, these arguments are not
presented for our review and are waived. See TEX.R.APP.P. 38.1(i); see also Randolph v. Texaco
Expl. & Prod., Inc., 319 S.W.3d 831, 835 (Tex.App.--El Paso 2010, pet. denied) (appellant’s
failure to properly cite in his brief the applicable standard of review and authority or analyze the
issues resulted in waiver of his appellate claim).
20
Lamas’s Issues Ten and Eleven are overruled
VII. CONCLUSION
We affirm the trial court’s grant of the temporary injunction and remand this case to the
trial court for further proceedings consistent with this opinion.
JEFF ALLEY, Justice
August 30, 2022
Before Rodriguez, C.J., Palafox, and Alley, JJ.
21