Richard Eugene Michael and Mike Williams v. NE CS First National, LP ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00307-CV
___________________________
RICHARD EUGENE MICHAEL AND MIKE WILLIAMS, Appellants
V.
NE CS FIRST NATIONAL, LP, Appellee
On Appeal from the 48th District Court
Tarrant County, Texas
Trial Court No. 048-335909-22
Before Bassel, Womack, and Walker, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
Appellants Mike Williams and Richard Eugene Michael have each filed an
interlocutory appeal from an amended temporary-injunction order. The order
restrains the sale of certain condominiums in Mexico that Williams and Michael
allegedly owned and contracted to convey to Appellee NE CS First National, LP.
The order currently before us was amended as a result of our prior opinion in which
we dissolved the trial court’s first temporary-injunction order because it failed to meet
the requirements of Texas Rule of Civil Procedure 683. See Williams v. NE CS First
Nat’l, LP, No. 02-23-00086-CV, 2023 WL 4781174, at *2 (Tex. App.—Fort Worth
July 27, 2023, no pet.) (mem. op.).
Williams raises a host of issues claiming that the trial court abused its discretion
by granting NE injunctive relief. Rather than listing our dispositions by issue, we will
state our holdings based on the topics that are covered in the complaints that were
raised in Williams’s appeal:
• The record supports the trial court’s exercise of its discretion to conclude
that NE made a showing of imminent and irreparable injury or harm
sufficient to support the issuance of a temporary injunction;
• The contract forming the basis of NE’s claim does not lack consideration;
• The argument that Williams was not a proper party to the contract at issue
fails;
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• The argument that the record conclusively established that the contract at
issue was invalid because one of the parties to it could not be a successor in
interest that was bound by the contract fails;
• We do not reach Williams’s contention that NE failed to offer proof of a
claim under the Texas Theft Liability Act or a conversion claim because the
trial court did not predicate its amended injunction order on those claims;
• NE did not make an election of remedies that barred its ability to obtain
injunctive relief;
• We sustain Williams’s issue contending that the trial court erred by
enjoining the sale of a condominium not referenced in the contract at issue;
and
• The contention that NE could have filed a lis pendens notice in Mexico that
obviated its need for injunctive relief fails.
Michael, in his appeal, raises a single issue claiming that he is not bound by the
contract at issue because he specifically denied that he had executed it and because
there is no proof that he signed it. However, when the contract was offered into
evidence, Michael’s counsel stated that he had no objection to its admission. Thus,
for purposes of the amended temporary injunction, Michael has waived the argument
that the contract cannot be authenticated because of a lack of proof that he signed it.
Based on our disposition of the issues raised in these appeals, we dissolve the
portion of the amended temporary-injunction order that enjoins the sale of a
condominium not referenced in the contract at issue and affirm the amended
temporary-injunction order as modified.
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II. Factual and Procedural Background
This controversy turns on a written agreement executed after NE learned of a
defalcation by Williams and his company. Williams was identified in NE’s petition as
a principal of Purchasing Solutions International, Inc. (PSI), and as president of PSI
he signed a contract with NE to provide procurement services for the redevelopment
of a historic property in Oklahoma City; the procurement contract was titled
“Proposal for OFCI, FF&E[,] and OS&E Procurement Services.”
NE learned that approximately $2 million that it had provided to PSI pursuant
to the proposal for the purchase of materials to be used in the redevelopment had not
been paid to the vendors who had supplied the materials. Upon discovery of this
state of affairs, NE; a company named Consultants in Purchasing, Inc. (CIP) (that was
identified in the document at issue as a “successor in interest” to PSI); Williams
(identified in the document as MWilliams); and Williams’s spouse, Michael (identified
in the document as RMichael) entered into an agreement that was titled an
Amendment to the proposal for procurement services.
The Amendment recited as follows how the funds that NE had provided under
the terms of the proposal were misused:
RECITALS:
A. NE and Purchasing Solutions International, Inc. (“PSI”)
entered into that certain “Proposal for OFCI, FF&E[,] and OS&E
Procurement Services” (“Agreement”) on or about February 23, 2018.
On or about December 30, 2020, CIP notified NE that it owned the
interest of PSI in the Agreement through a name change of PSI.
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B. During the course of the performance of the Agreement by
CIP, NE made payments to CIP [that] were requested by CIP to pay
vendors for delivery of goods procured for NE by CIP and [that], in
some cases, have (1) not been paid to vendors but kept by CIP and/or
MWilliams[;] (2) used for purposes other than performance of the
Agreement and payment to vendors for the benefit of NE, as required
by the Agreement[;] and (3) used for the benefit of CIP and/or
MWilliams to the detriment of NE. Such payments are referred to
herein as the “CIP Retained Funds.”
C. CIP and MWilliams have offered to repay NE the CIP
Retained Funds, with interest from the date such amounts were taken by
CIP and MWilliams, as well as certain costs incurred by NE or its
designee as further described herein, and MWilliams has offered to
convey property owned jointly by MWilliams and RMichael to NE (or to
a designee of NE) pending repayment of the CIP Retained Funds plus
interest thereon and the costs referred to herein.
D. Currently, the total amount of CIP Retained Funds has not
been fully established but is estimated to be in the range of $2,000,000.
The body of the Amendment acknowledged (in the following provision) how
CIP and Williams had diverted the funds (described in the quoted recitals as the CIP
Retained Funds) and had
taken the CIP Retained Funds for their own purposes and not for the
purpose of performing CIP’s obligations pursuant to the Agreement,
without the knowledge, authority[,] or consent of NE or any person
acting on behalf of NE, by invoicing NE for items purportedly to be
procured pursuant to the Agreement, backed-up by invoices from
suppliers, and when NE paid the amounts invoiced to CIP, CIP and/or
MWilliams did not use the funds for purposes of paying vendors as
invoiced but diverted the funds to other purposes including for the
personal benefit of MWilliams . . . .
CIP and Williams agreed to repay the CIP Retained Funds and “to convey certain
property owned by MWilliams and RMichael to NE pending the repayment of the
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CIP Retained Funds with interest and costs on or before one (1) year from the date of
this Agreement.”
The Amendment also required CIP and Williams to provide records so that the
true amount of the CIP Retained Funds could be calculated, with the calculated
amount being included in what the Amendment defined as the Amount Due. The
Amendment then contained the undertaking that “CIP and MWilliams hereby
unconditionally agree, jointly and severally, to pay to NE the ‘Amount Due’ (as
defined herein) on or before one (1) year from the date hereof, without notice or
demand.”
The Amendment next dealt with a number of topics, including (1) a description
of the property to be conveyed to NE “pending repayment in full of the CIP Retained
Funds” as certain “condos” that Williams and Michael owned in Mexico; (2) an
itemization of additional expenses associated with the conveyance of the condos
regarding what would be included as part of the “Amount Due”; (3) the establishment
of a mechanism to determine the value of the condos should the parties not be able to
agree on the value; (4) a provision that
[u]pon payment in full of the Amount Due on or before the Due Date,
NE and/or its designee shall cause the MWilliams Property to be
reconveyed to MWilliams or his designee at the sole cost and expense of
MWilliams (including any and all Costs, as such term is defined herein,
imposed on NE or its designee in connection with such transfer[)];
and (5) the requirement that Williams assist in the transfer of the condos to NE.
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The Amendment next noted that Michael co-owned the condos and that
“MWilliams [would] seek the joinder of RMichael to this Amendment upon which the
interest of RMichael in the Condos will also be conveyed to NE or its designee.” A
schedule listing three condos in Mexico and their values was attached to the
Amendment. The Amendment has a signature purporting to be Michael’s by which
he acknowledged that he had joined in certain provisions of the Amendment.
Finally, the Amendment provided that “[e]xcept as set forth herein, the
Agreement [i.e., the original procurement agreement or Proposal] shall remain in full
force and effect provided that no further fees shall be payable by NE to CIP and
[that] any and all payments made or to be made by NE shall be made directly to
vendors and not to CIP.”
NE later filed suit against CIP, Williams, and Michael alleging the acts
underlying its claim that CIP and Williams had misused funds paid pursuant to the
proposal for procurement services, the execution of the Amendment, and the
execution of a second amendment and that after efforts to finalize conveyance of the
condos, Michael had stated that he “would not honor [the Amendment] and transfer
the condominiums.” NE’s petition alleged causes of action against Williams for
violation of the Texas Theft Liability Act and conversion, against Williams and
Michael for breach of contract, and against CIP for breach of contract. Williams
answered with a general denial and various affirmative defenses and specific denials.
Michael also answered with a general denial and various affirmative defenses and
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specific denials, including a specific denial that he had executed the Amendment or
had granted authority to anyone to execute the Amendment on his behalf.
Several months after filing suit, NE filed an application for temporary
restraining order and a temporary injunction. The application outlined the
background of the defalcation, the Amendment, and how NE claimed that Williams
had initially cooperated in the transfer of the condos and then had reneged. NE
asserted that it was entitled to specific performance of the Amendment’s agreement to
convey the condos and sought to restrain primarily the acts of “[c]onveying or
encumbering the condominiums in any other than to [NE].”
The trial court held a temporary-injunction hearing. Neither Williams nor
Michael testified at the hearing. The only witness was NE’s in-house legal counsel
who had prepared and negotiated the Amendment. We will discuss the specifics of
the testimony in more detail when discussing the issues raised in the appeal, but in
summary, the testimony detailed the background of the dispute that we have already
described. The only exhibits admitted during the hearing were the Amendment, email
chains with discussions between the parties about implementing the conveyance of
the condos, a document partially in Spanish dealing with conveyances that appeared
to be notarized in English with the purported signatures of both Williams and
Michael, and documents dealing with the corporate status of PSI and its bankruptcy.
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The trial court signed a temporary injunction order that described the three
condos listed in the Amendment and enjoined CIP,1 Williams, and Michael from
a. conveying or encumbering the condominiums in any manner other than to
[NE];
b. materially altering the condominiums in any way;
c. destructing the condominiums; and
d. failing to maintain the condominiums.
Williams and Michael filed an interlocutory appeal of the temporary-injunction
order. We dissolved the temporary injunction and remanded the matter to the trial
court because the trial court’s order contained only conclusory statements as to why
NE would suffer probable injury should an injunction not issue, thus failing to meet
the requirements of Texas Rule of Civil Procedure 683. See id.After our remand, the trial court conducted another hearing to discuss the next
steps in the case. No formal testimony was offered at the later hearing, but counsel
for the parties made various statements to the court. The salient facts revealed during
the hearing were that one of the condos subject to the Amendment had been sold
before the dissolved temporary-injunction order was rendered. “Another one was
sold during the pendency of what turned out to be a void injunction.” The parties
also referenced a Rule 11 agreement that had been filed in which a condo not
described in the original temporary-injunction order was made subject to its restraints.
1
CIP is not involved in this appeal.
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Counsel for Williams stated that the Rule 11 agreement was no longer effective as it
was tied to the restraints in the temporary-injunction order that we dissolved in our
prior opinion.
After this hearing, NE filed a supplemental application for temporary
restraining order and temporary injunction that reiterated the transfer of two of the
condos subject to the Amendment and provided evidence that funds from the sale of
one of the condos had been used to purchase another condo—the one that had been
subject to the Rule 11 agreement.
The trial court then signed an amended temporary-injunction order that
chronicled the litigation, the sale of two of the condos subject to the Amendment, and
the purchase of another condo with the sales proceeds from one of those condos.
The order noted that “Counsel for Defendants”2 had admitted that the condo sales
and the purchase of the new condo had occurred. The order then referenced a breach
of the Amendment as the cause of action at issue and a probable right to relief in the
form of a right to specific performance of the Amendment, set forth how NE would
suffer irreparable harm because NE had a vested interest in the condos, and stated
that “enjoining [Appellants] from transferring or otherwise disposing of the property
is necessary to prevent this injury.” The order concluded by restraining the acts of
2
It appears that this is a reference to a statement made by Williams’s counsel at
the hearing on the amended temporary injunction. Michael’s counsel did not make a
statement but merely agreed with what Williams’s counsel had said, and no one
appeared on behalf of CIP.
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“conveying, transferring, encumbering, or materially altering in any way” the one
condo subject to the Amendment not yet sold and the newly purchased condo.
Williams and Michael each filed a notice of interlocutory appeal from the amended
temporary-injunction order.
III. Analysis
A. We set forth the standard of review that applies when reviewing a
temporary-injunction order.
In an interlocutory appeal involving a temporary injunction, the following
standards govern us:
“A temporary injunction is an extraordinary remedy and does not
issue as a matter of right.” Abbott v. Anti-Defamation League Austin, Sw.,
& Texoma Regions, 610 S.W.3d 911, 916 (Tex. 2020) (quoting Walling v.
Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993)). Such an injunction functions
“to preserve the status quo of the litigation’s subject matter pending a
trial on the merits.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002) (op. on reh’g) (citing Walling, 863 S.W.2d at 57). “To obtain a
temporary injunction, the applicant 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, imminent, and irreparable
injury in the interim.” Id.
The trial court exercises its sound discretion in deciding whether
to issue a temporary injunction, and we may reverse that decision only if
we conclude that the trial court abused its discretion because its actions
were “so arbitrary that [they] exceeded the bounds of reasonable
discretion.” Id. Our abuse-of-discretion review requires that we “view
the evidence in the light most favorable to the trial court’s order [and
that we indulge] every reasonable inference in its favor.” IAC, Ltd. v. Bell
Helicopter Textron, Inc., 160 S.W.3d 191, 196 (Tex. App.—Fort Worth
2005, no pet.). Thus, if the trial court must resolve a conflict in the
evidence, its resolution of a fact issue is one to which we must defer.
Wright v. Sport Supply Grp., Inc., 137 S.W.3d 289, 292 (Tex. App.—
Beaumont 2004, no pet.). However, we review the trial court’s
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application of the law to established facts and the resolution of pure legal
questions de novo. Jelinis, LLC v. Hiran, 557 S.W.3d 159, 165 (Tex.
App.—Houston [14th Dist.] 2018, pet. denied) . . . ; Tom James of Dall.,
Inc. v. Cobb, 109 S.W.3d 877, 883 (Tex. App.—Dallas 2003, no pet.).
Also, “[w]hen the trial court embeds findings of fact and conclusions of
law in its order denying a temporary injunction, the findings and
conclusions may be helpful in determining whether the trial court
exercised its discretion in a principled fashion[;] however, they are not
binding on this court.” Communicon, Ltd. v. Guy Brown Fire & Safety, Inc.,
No. 02-17-00330-CV, 2018 WL 1414837, at *6 (Tex. App.—Fort Worth
Mar. 22, 2018, no pet.) (mem. op.).
Because the temporary injunction only preserves the status quo
pending final trial, the trial court’s determination regarding whether to
issue the temporary injunction does not resolve the ultimate merits of
the suit. Brooks v. Expo Chem. Co., 576 S.W.2d 369, 370 (Tex. 1979). The
assumption is that the evidence may well change between the
preliminary temporary-injunction stage of the proceeding and a final trial
on the merits. Burgess v. Denton C[n]ty., 359 S.W.3d 351, 359 n.35 (Tex.
App.—Fort Worth 2012, no pet.) (citing Davis v. Huey, 571 S.W.2d 859,
862 (Tex. 1978)). Thus, the probability-of-success requirement does not
require an applicant to show that it will prevail at final trial. [Young Gi]
Kim v. [Ick Soo] Oh, No. 05-19-00947-CV, 2020 WL 2315854, at *2 (Tex.
App.—Dallas May 11, 2020, no pet.) (mem. op.). The requirement goes
no further than necessitating that “the applicant [ ] present enough
evidence to raise a bona fide issue as to its right to ultimate relief.” Id.Hernandez v. Combined Ins. Co. of Am., No. 02-20-00225-CV, 2021 WL 520456, at *5–6
(Tex. App.—Fort Worth Feb. 11, 2021, pet. denied) (mem. op.).
B. We overrule Williams’s first issue that there is an absence of proof
that NE would suffer an imminent and irreparable injury or harm
should an injunction not issue.
As with many of the issues that Williams raises, we struggle to discern his actual
complaint under his first issue. Williams prefaces this issue with a citation to Texas
Rule of Civil Procedure 683, which requires a temporary-injunction order to specify
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why the applicant for the injunction will suffer irreparable harm if the injunction is
not issued—thus indicating that he might attack the form of the injunction order. See
Tex. R. Civ. P. 683. But Williams then ignores the terms of the amended temporary-
injunction order and makes no argument that its terms fail to meet Rule 683’s
requirements. His argument pivots to one that the proof fails to show that NE will
suffer an imminent, irreparable injury should the injunction not issue. We, however,
view the evidence as establishing the necessary showings.
Though Williams does not actually challenge the form of the amended
temporary-injunction order, we conclude that it is adequate. With respect to the form
of a temporary-injunction order, our prior opinion in this matter stated that
Rule 683 requires, among other things, that every order granting an
injunction “shall set forth the reasons for its issuance” and “shall be
specific in terms.” Tex. R. Civ. P. 683. Rule 683 also requires that a
temporary-injunction order state precisely why the applicant would
suffer irreparable injury in the absence of an injunction preserving the
status quo pending a trial on the merits. Home Asset[, Inc. v. MPT of
Victory Lakes Fcer, LLC, No. 01-22-00441-CV], 2023 WL 3183322, at *2
[(Tex. App.—Houston [1st Dist.] May 2, 2023, no pet.) (mem. op.)];
SISU Energy[, LLC v. Hartman, No. 02-19-00436-CV], 2020 WL
4006725, at *14 [(Tex. App.—Fort Worth July 16, 2020, no pet.) (mem.
op.)]. Even when a lawsuit relates to real estate in some fashion, the trial
court is not excused from Rule 683’s mandate that a temporary-
injunction order explain why irreparable harm will result without an
injunction. Home Asset, 2023 WL 3183322, at *4. An unsupported or
conclusory statement in the order that irreparable harm would occur is
insufficient to satisfy Rule 683. Home Asset, 2023 WL 3183322, at *2;
SISU Energy, 2020 WL 4006725, at *14.
Williams, 2023 WL 4781174, at *2.
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Here, the trial court’s amended temporary-injunction order goes into detail
stating its basis for the conclusion that the potential for irreparable harm exists:
Irreparable Harm
“It is well established law that each and every piece of real estate
is unique[”;] thus, losing a real property interest could result in
irreparable harm that could not be remedied by monetary damages.
Greater Hous. Bank v. Conte, 641 S.W.2d 407, 410 (Tex. App.—Houston
[14th Dist.] 1982, no writ) (upholding a temporary injunction preventing
Greater Houston Bank from selling certain real property based on the
impending irreparable loss of real property). [Appellants] promised to
convey certain real property to [NE] in satisfaction of the debt created
by the misappropriation of funds. The property would only be
conveyed back to [Appellants] if [Appellants] repaid the funds by
February 28[], 2023, the established Due Date. This contract created a
future interest in the properties that vested on February 28[], 2023, due
to the stipulated failure to repay [NE]. This [c]ourt finds that the loss of
this property would cause irreparable harm to [NE] and that enjoining
[Appellants] from transferring or otherwise disposing of the property is
necessary to prevent this injury.
[Appellants] have attempted to differentiate this matter from
Texas jurisprudence pertaining to the uniqueness of real property by
emphasizing that the properties were only being used as collateral for a
monetary debt. However, as stated above, it is plainly evident that the
gravamen of [NE’s] claim pertains to its vested interest in real property
due to [Appellants’] failure to repay the misappropriated funds.
The standard that must be met by the form of a temporary-injunction order is
that the “reasons for granting a temporary injunction must be specific and legally
sufficient on its face and not merely conclusory.” El Tacaso, Inc. v. Jireh Star, Inc., 356
S.W.3d 740, 744 (Tex. App.—Dallas 2011, no pet.) (citing Tex. R. Civ. P. 683). The
amended temporary-injunction order is not conclusory, and Williams makes no
argument that it is legally insufficient.
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With respect to the attacks on the evidence supporting the finding of
irreparable harm—if we understand Williams’s argument under his first issue—
Williams appears to argue that there was no threat of an imminent injury because a
concern about whether the condos would be sold had developed over time and not
just in the two weeks before the temporary-injunction hearing. If Williams’s
argument is that NE was dilatory in seeking injunction relief, Williams cites no
authority depriving the trial court of discretion to determine whether NE had waited
too long or that establishes as a matter of law that NE had waited too long. See El
Paso Dev. Co. v. Berryman, 729 S.W.2d 883, 888 (Tex. App.—Corpus Christi–Edinburg
1987, no writ) (“The trial court heard this testimony [regarding whether a claim was
barred by laches] and had discretion to consider it or not.”).
Further, NE’s concern—that there was an imminent threat that Williams would
act in derogation of NE’s rights in the condos—was justified by the amended
temporary-injunction order’s recitation of the fact that two of the condos listed in the
Amendment had been sold. Harm is imminent for purposes of a temporary
injunction when the commission of an act is more than speculative and the injury that
may flow from the act is more than conjectural. Hotze v. Hotze, No. 01-18-00039-CV,
2018 WL 3431587, at *4 (Tex. App.—Houston [1st Dist.] July 17, 2018, no pet.)
(mem. op.) (citing Camp Mystic, Inc. v. Eastland, 399 S.W.3d 266, 276 (Tex. App.—San
Antonio 2012, no pet.)). The trial court incorporated the act of selling the condos in
its grounds for issuing the injunction by noting in the order’s conclusion that
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“[b]ecause [NE] seeks specific performance of the above properties, has shown that
they have no alternative to secure a pecuniary judgment, and [Appellants] had sold
some of the property in dispute after notice of this cause of action, the [c]ourt shall
enter this [t]emporary [i]njunction.” Thus, we cannot say that proof of an imminent
injury was lacking in view of Williams’s acts in derogation of the contractual
commitments that he made in the Amendment.
Williams’s second argument is apparently that NE’s suit is not predicated on
the recovery of real estate but that it is merely a debt-collection suit. He argues that
“NE did not seek the condominiums because they were unique pieces of real estate;
rather, it wanted them as collateral to ensure prompt payment of an unspecified
obligation (and to be forfeited if such obligation was not fully paid by February 24,
2022).” But Williams never attacks the trial court’s conclusion that “[t]his contract
created a future interest in the properties that vested on February 28[], 2023, due to
the stipulated failure to repay [NE].” It is not our role to brief this issue for Williams
regarding whether this conclusion is correct or not. See Sister Initiative, LLC v.
Broughton Maint. Ass’n, No. 02-19-00102-CV, 2020 WL 726785, at *25 (Tex. App.—
Fort Worth Feb. 13, 2020, pet. denied) (mem. op.).
We overrule Williams’s first issue.
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C. We overrule Williams’s second issue that there is an absence of a
showing of a probable right of recovery on NE’s claim for breach
of the Amendment because the Amendment lacks consideration.
In his second issue, Williams contends that the Amendment is not supported
by consideration; we reject his contention. As we have noted, we review the trial
court’s determination that NE demonstrated a probable right to recovery under a
liberal standard of review. See Hernandez, 2021 WL 520456, at *5–6. At this point in
the litigation, a host of arguments supports a preliminary determination that the
Amendment was supported by consideration.
In general terms,
“Consideration consists of either a benefit to the promisor or a
detriment to the promisee.” [WCW Int’l, Inc. v. Broussard, Nos. 14-12-
00940-CV, 14-12-01077-CV, 14-12-01139-CV, 2014 WL 2700892, at *9
(Tex. App.—Houston [1st Dist.] June 3, 2014, pet. denied) (sub. mem.
op.)]. It is a present exchange bargained for in return for a promise. Id.It may consist of some right, interest, or profit, or benefit that accrues to
one party or of some forbearance, loss, or responsibility that is
undertaken or incurred by the other party.” Id.Katy Int’l, Inc. v. Jinchun Jiang, 451 S.W.3d 74, 85 (Tex. App.—Houston [14th Dist.]
2014, pet. denied).
Here, the Amendment is in writing. It also contains the following recital: “In
consideration of the foregoing, the mutual agreements contained herein, and other
good and valuable consideration . . . .” The recital of consideration creates a
presumption that the contract was supported by consideration, and Williams bore the
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burden to show that the contract lacked consideration. See TLC Hosp., LLC v. Pillar
Income Asset Mgmt., Inc., 570 S.W.3d 749, 761 (Tex. App.—Tyler 2018, pet. denied).
Williams argues that he rebutted the presumption because certain of the
promises that allegedly constituted consideration were based on parol evidence. He
argues that “the [c]ourt must determine and enforce the parties’ intent as expressed
within the four corners of the written agreement.” Williams paints with too broad a
brush. For example, he argues that consideration in the form of a promise—that he
“would be given an opportunity to extend the time for payment of the money rather
than us suing them on the spot”—is not some evidence of consideration.
Williams fails to acknowledge that parol evidence of consideration consistent
with the terms of an agreement may be considered:
The parol evidence rule does not bar evidence of a consistent collateral
agreement. Ledig v. Duke Energy Corp., 193 S.W.3d 167, 179 n.10 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). Thus, parol evidence may be
used to clarify or explain the agreement. Tex. Builders v. Keller, 928
S.W.2d 479, 481 (Tex. 1996). In addition, we may consider parol
evidence “‘to show want or failure of consideration[] and to establish the
real consideration given for an instrument.’” Audubon [Indem. Co. v.
Custom Site-Prep, Inc.], 358 S.W.3d [309,] 316 [(Tex. App.—Houston [1st
Dist.] 2011, pet. denied)] (quoting DeLuca v. Munzel, 673 S.W.2d 373, 376
(Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.)); see McLernon v.
Dynergy, Inc., 347 S.W.3d 315, 335 (Tex. App.—Houston [14th Dist.]
2011, no pet.) (“[P]arol evidence is admissible to show want or failure of
consideration and establish the actual consideration given for the
instrument.”). Thus, we may consider parol evidence “to determine if
consideration exists even though the parties have reduced their
agreement to a writing which appears to be a completely integrated
agreement.” Audubon, 358 S.W.3d at 316 (internal quotations and
citations omitted).
18
Lopez v. Rivas, No. 01-14-00592-CV, 2015 WL 1967594, at *3 (Tex. App.—Houston
[1st Dist.] Apr. 30, 2015, no pet.) (mem. op.). For example, in the context of a
summary-judgment motion, the San Antonio Court of Appeals considered evidence
of consideration in the form of a parol agreement to forbear filing suit. See In re Estate
of Childs, No. 04-15-00623-CV, 2016 WL 3452624, at *3 (Tex. App.—San Antonio
June 22, 2016, no pet.) (mem. op. on reh’g). Here, an agreement to forbear filing suit
is consistent with Williams’s promise to repay the funds that he acknowledged in the
Amendment that he had diverted to his personal use. This evidence in combination
with the presumption that a written agreement is supported by consideration is
sufficient to support a preliminary conclusion that the Amendment was supported by
consideration and that NE had shown a probable right to recovery on its breach-of-
contract claim.
Further, the terms within the four corners of the Amendment demonstrate the
existence of consideration. One essence of the Amendment was that Williams would
repay money that he had wrongfully diverted to his own uses. Decades ago, the
Amarillo Court of Appeals noted that a promise to return money wrongfully
appropriated was a promise supported by consideration:
The record reveals conclusively that appellant wrongfully obtained and
appropriated money that belonged to appellee and that appellee charged
him of so doing. In a similar case of Largent v. Beard, . . . 53 S.W. 90, 92[
(Tex. App.—Dallas 1899, no writ)], the court held that a threat to
prosecute a person which threat induced him to sign a note constituted
duress. But the court further held that [“a]lthough duress may have
existed, yet if, as a matter of fact, defendant had appropriated proper[ty]
19
belonging to plaintiff, and executed the note in settlement therefor,
though induced so to do by the threat of prosecution, he would be liable
thereon to the extent of the value of the property so taken.[”] Such a
rule is recognized by the court in the case of Thompson v. Hicks, . . . 100
S.W. 357[ (Tex. App.—Austin 1907, no writ)]. It is our opinion that the
foregoing authorities directly support appellee’s contention in this case to the effect that
there was a valid consideration for the execution of the note and that such was a valid
obligation although duress existed.
Prigmore v. Hardware Mut. Ins. Co. of Minn., 225 S.W.2d 897, 899–900 (Tex. App.—
Amarillo 1949, no writ) (emphasis added).
Indeed, the facts set out in the Amendment would support a claim against
Williams for money had and received. To establish a claim for money had and
received, “a plaintiff must show that a defendant holds money which in equity and
good conscience belongs to him.” Edwards v. Mid-Continent Off. Distribs., L.P., 252
S.W.3d 833, 837 (Tex. App.—Dallas 2008, pet. denied). Such a claim is a species of
unjust enrichment and implies a contract to return the money:
The claim “belongs conceptually to the doctrine of unjust enrichment.”
Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.—El Paso 1997,
no writ). The doctrine of unjust enrichment applies the principles of
restitution to disputes that are not governed by a contract between the
parties. Id. It characterizes the result of a failure to make restitution
under circumstances that give rise to an implied or quasi-contractual
obligation to return those benefits. Id.Id. (footnote omitted). It is incongruous to argue that the law creates an implied
contract to return money under the circumstances alleged against Williams in this case
but that an explicit promise to return the monies lacks consideration. Williams does
not acknowledge that a promise to return wrongfully appropriated money is
20
supported by consideration and thus offers no rationale for why the trial court could
not conclude that the promise supplied consideration for the Amendment’s promises.
In addition, how much money Williams misappropriated was unliquidated, and
the Amendment was a means of quantifying that amount. A contractual mechanism
to quantify an unliquidated claim is an accord and satisfaction that provides
consideration for a contract:
Texas law is clear that a “good[-]faith dispute as to liability on either a
liquidated or unliquidated claim furnishes sufficient consideration for an
accord and satisfaction,” and the satisfaction is the “actual performance
of the new agreement.” Hycarbex, Inc.[ v. Anglo-Suisse, Inc.], 927 S.W.2d
[103,] 110 [(Tex. App.—Houston [14th Dist.] 1996, no writ)]; Ind.
Lumbermen’s Mut. Ins. Co.[ v. State], 1 S.W.3d [264,] 266 [(Tex. App.—Fort
Worth 1999, pet. denied)]. In determining whether an accord and
satisfaction is supported by consideration, “it is not necessary to resolve
the parties’ underlying dispute.” Hycarbex, Inc., 927 S.W.2d at 110.
Rather, consideration “is found in the resolution of the uncertainty
which exists as to the validity or the amount of a claim” and “the very
existence of the dispute is the consideration for the accord and
satisfaction.” Id.
Case Funding Network, L.P. v. Anglo-Dutch Petroleum Int’l, Inc., 264 S.W.3d 38, 55 (Tex.
App.—Houston [1st Dist.] 2007, pet. denied). Thus, the Amendment’s mechanism to
quantify the unliquidated amount misappropriated by Williams is another aspect of
the contract showing that there was consideration for Williams’s promises.
Finally, NE argues that there was consideration because “[a] commitment to
continue to do business is sufficient consideration.” Indeed, the Amendment
references the original proposal for procurement services and concludes with a
provision that
21
[e]xcept as set forth herein, the Agreement [defined in the Amendment
as the proposal] shall remain in full force and effect provided that no
further fees shall be payable by NE to CIP and any and all payments
made or to be made by NE shall be made directly to vendors and not to
CIP.
As NE notes, “an agreement to continue doing business with a party confers a benefit
on that party.” Gooch v. Am. Sling Co., 902 S.W.2d 181, 185 (Tex. App.—Fort Worth
1995, no writ).
NE explains as follows how the principle that an agreement to continue doing
business applies to the Amendment:
In the drafting of the First Amendment, the parties contemplated
continuation of the completion of the original project under the original
Agreement. [NE] had a legal right to end its obligation under the
original Agreement to allow CIP to continue to perform work on the
project since Williams and CIP had breached the Agreement by retaining
[NE’s] funds meant to be used on the project and misappropriating
funds for purposes unrelated to the project. [NE] allowed CIP to
continue to work on the project in light of the First Amendment, which
provided [Appellants] would convey the condominiums. [NE] allowed
CIP to continue its work as long as [Appellants] were making good[-]
faith efforts to comply with their obligations to convey the
condominiums. [NE] did not bring suit until [Appellants] suddenly
refuse[d] to continue with the conveyance. The agreement to continue
to do business constitutes consideration. [Record references omitted.]
The only response that Williams musters to challenge the principle invoked by
NE is in his reply brief in which he states, “This may be, but no such commitment is
found in the Amendments.” The term of the Amendment that we have quoted
counters Williams’s statement.
22
The trial court did not abuse its discretion by concluding that NE had shown a
probable right to recovery on its breach-of-contract claim. We have enumerated a
number of bases that support a view at this preliminary stage of the litigation that
consideration supported the Amendment’s promises.
We overrule Williams’s second issue.
D. We overrule Williams’s third issue that the Amendment does not
bind him because he was not a party to the Agreement that was
amended.
In his third issue, Williams makes an argument, which we construe as arguing
that the trial court abused its discretion by issuing the amended temporary injunction
because the document termed “Amendment” is invalid since the parties to it were not
parties to the contract allegedly amended. We reject this contention.
Williams argues,
In this case, the Amendments purport to modify and add to a “Proposal
for OFCI, FF&E, and OS&E Procurement Services” (“the Proposal”)
between PSI and NE. But PSI is not a party to the Amendments, and
[Williams], [Michael,] and CIP are not parties to the Proposal. Since there is no
identity of parties, the Amendments do not modify or improve upon the Proposal.
[Emphasis added.] [Record reference omitted.]
Williams’s argument turns a blind eye to the provision of the Amendment that
states that CIP stepped into PSI’s shoes:
NE and Purchasing Solutions International, Inc. (“PSI”) entered into
that certain “Proposal for OFCI, FF&E[,] and OS&E Procurement
Services” (“Agreement”) on or about February 23, 2018. On or about
December 30, 2020, CIP notified NE that it owned the interest of PSI in the
Agreement through a name change of PSI. [Emphasis added.]
23
Further, CIP is described “as successor in interest to” PSI.
These provisions state that the party signing the Amendment owned an interest
in the original contract “through a name change of PSI” and explicitly state that CIP
is a successor to the original party. See Zbranek Custom Homes, Ltd. v. Allbaugh, No. 03-
14-00131-CV, 2015 WL 9436630, at *4 (Tex. App.—Austin Dec. 23, 2015, pet.
denied) (op. on reh’g) (not designated for publication) (“The term ‘successor’ means,
in the context of a business entity, another entity that becomes invested with the
rights and assumes the burdens of the first entity by either amalgamation,
consolidation, or duly authorized legal succession.”). How a party explicitly stating
that it holds the status of a successor can straight-facedly argue that the successor
lacks the power to enter into the Amendment is unexplained.
Further, we reject an argument that Williams cannot be bound by the
document because it is termed an Amendment to the Proposal to which he was not a
party. As we have noted, Williams explicitly confessed in the Amendment that he had
improperly used funds paid by NE for his personal expenses. He made a joint-and-
several promise, along with CIP, to repay the funds that he diverted to his personal
use. How that freestanding promise to repay funds, which he acknowledged that he
had put to his personal use, does not bind him because he was not a party to the
Proposal is another argument that Williams’s brief fails to explain.
We overrule Williams’s third issue.
24
E. We overrule Williams’s fourth issue that the Amendment’s
recitation that CIP is a successor to PSI cannot be credited.
In his fourth issue, Williams argues that the trial court could not conclude that
the Amendment was a valid contract because there is “no evidence” that CIP is a
successor to PSI. In essence, this argument again asks us to put out of our mind that
the Amendment recited that CIP is a successor to PSI and that “CIP notified NE that
it owned the interest of PSI in the Agreement through a name change of PSI.”
Now Williams argues that CIP and PSI cannot be the same company because
we cannot credit the quoted recitations since Williams is not a lawyer; “[a]s
demonstrated by [his] Exhibit 2 and Exhibit 3, PSI is a currently existing entity[;] and
[NE’s in-house counsel] admitted that he is unaware of any document by which PSI
(or the bankruptcy trustee acting for PSI) transferred, assigned, or conveyed any rights
or interests to CIP.” [Record references omitted.] Williams’s argument is no more
than that there may be a fact question regarding whether the recitations in the
Amendment are correct because they are seemingly rebutted by other evidence. The
Amendment’s recitation is sufficient to support the trial court’s exercise of its
discretion to issue a temporary injunction that CIP was a successor to PSI and had the
power to amend the Proposal because it “present[s] enough evidence to raise a bona
fide issue as to its right to ultimate relief.” See Hernandez, 2021 WL 520456, at *6.
We overrule Williams’s fourth issue.
25
F. We do not reach Williams’s fifth issue claiming that NE failed to
establish a probable right of recovery for its claim under the Texas
Theft Liability Act.
In his fifth issue, Williams argues that the trial court erred in predicating a
temporary injunction on NE’s cause of action under the Texas Theft Liability Act
because NE failed to plead and prove a viable claim under that Act. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 134.001–.005. The amended temporary-injunction order
makes no mention of a cause of action under the Theft Liability Act as a cause of
action for which NE has a probable right of recovery nor as a basis for injunctive
relief. Because the Theft Liability Act claim is not a basis for the injunction, we have
no need to discuss whether the evidence indicates one way or another whether NE
has a viable claim against Williams under the Act. See Contract Datascan Holdings, Inc. v.
Retail Servs. WIS Corp., No. 02-23-00153-CV, 2023 WL 7851509, at *28 (Tex. App.—
Fort Worth Nov. 16, 2023, no pet.) (mem. op.) (“Because it is unclear that the trial
court even considered the tortious-interference claim attacked by Datascan in the
present subissue as a basis for the temporary injunction, we will not further lengthen
this opinion by prejudging whether the cause of action has any validity.”).
We overrule Williams’s fifth issue.
G. We do not reach Williams’s sixth issue claiming that NE failed to
establish a probable right to recovery for its conversion claim.
In his sixth issue, Williams makes the same basic argument that he made in
support of his fifth issue—this time arguing that NE failed to plead and prove a viable
26
conversion claim against Williams. Again, the trial court did not predicate injunctive
relief on a finding that NE had a probable right of recovery against Williams on a
conversion claim. Thus, we will not review the question of the viability of the
conversion claim as part of this interlocutory appeal from the amended temporary-
injunction order.
We overrule Williams’s sixth issue.
H. Williams has waived his seventh issue.
The entirety of Williams’s argument under his seventh issue is as follows: “As
noted above, there is no valid, enforceable contract between NE and [Williams],
personally. Accordingly, there is no contract that [Williams] could have breached.
Williams has waived this issue with an argument that is devoid of authority and
citations to the record. See Stewart v. Tex. Farmers Ins. Co., No. 02-23-00041-CV, 2023
WL 6300726, at *4 n.12 (Tex. App.—Fort Worth Sept. 28, 2023, no pet.) (mem. op.).
Further, we have already rejected arguments that the Amendment is not supported by
consideration or that Williams was not properly a party to it.
We overrule Williams’s seventh issue.
I. Williams has waived his eighth issue.
The entirety of Williams’s argument under his eighth issue is one sentence,
stating, “Given the absence of relevant evidence and the fact that [Williams],
personally, was not a party to the supposedly amended PSI Proposal, NE does not
have a probable right to the relief sought against [Williams] and is not entitled to a
27
temporary injunction.” [Record reference omitted.] Williams has again waived his
issue by setting forth an argument devoid of authority and citations to the record. See
id. Further, Williams obviously is a party to the Amendment, which is the crux of
NE’s claims.
We overrule Williams’s eighth issue.
J. Williams has waived his ninth issue.
Next, we deal with an issue in which the extent of the argument is as follows:
Beyond mere speculation, NE offered no evidence whatsoever that it would
probably sustain injury in the absence of a temporary injunction.
Lacking proof of this required element, NE is not entitled to a
temporary injunction.
The issue is waived. See id. To the extent that the issue is briefed in other
issues, we will address it in the context of the discussion of the other issues.
We overrule Williams’s ninth issue.
K. We overrule Williams’s tenth issue that there is an absence of a
showing of an imminent threat of injury.
In his tenth issue, Williams raises exactly the same issue and cites the same
testimony that he cited in his first issue and claims that there was no imminent threat
of injury to NE that warranted injunctive relief. Williams cites no new authority in
this issue—and, indeed, cites no authority at all. Williams’s purpose in rehashing the
same argument raised in a prior issue is unknown.
28
Williams does expand on his argument under his tenth issue in Appellants’ joint
reply brief. Again, he cites no authority but argues that the trial court did not properly
weigh the evidence. We will simply quote his argument:
To support its argument that the evidence demonstrates that the
contemplated injury is imminent, NE states that “[Appellants sold two
of the condominiums] despite the fact that [NE] filed this lawsuit to
recover the condominiums and the trial court entered a temporary
restraining order and temporary injunction prohibiting the sale of the
condominiums.” This assertion is, at best, misleading.
The temporary restraining order and first temporary injunction
were entered on February 17 and March 13, 2023, respectively.
Although Unit 501 is listed in these orders, Appellants did not own this
unit in February or March 2023, having sold it in November 2022.
Further, when these original injunctive orders were entered, Unit PH2
was under contract to be sold, and Appellants feared they would be sued
by the Buyer if they failed to honor the agreement. Faced with an
untenable choice, they elected to honor the sales contract and sold the
unit.
Although Unit 501 and Unit PH2 are included in the Amended
Temporary Injunction, Appellants did not own these condominiums on
August 14, 2023, when this order . . . was entered.
The foregoing facts do not support a finding of imminent injury.
To the contrary, they disprove it. NE would have the [c]ourt believe
that [Williams] and [Michael] sold Units 501 and PH2 to prevent them
from falling into the hands of NE to effectively thwart any subsequent
collection efforts, thereby suggesting that it faced an imminent injury.
NE fails to mention that, as a show of good faith, Appellants
offered, and NE accepted, a Rule 11 agreement[,] which made the newly
acquired Unit 610 subject to the injunction. The fact that Appellants
proposed and voluntarily agreed to the Rule 11 agreement counters the
notion that Appellants have been aggressively attempting to sell
condominiums to place them beyond the reach of creditors. Obviously,
if Appellants truly intended to hinder, delay, or defraud creditors by
29
selling Units 501 and PH2, they would not have suggested and entered
into the Rule 11 agreement.
It also must be noted that Appellants were not under an
injunction when Unit 501 was sold in November 2022, nor were they
under a valid injunction in March 2023 when they sold Unit PH2.
[Record references and footnote omitted.]
In essence, the quote shows that the trial court had evidence that Williams had
sold some of the properties that were subject to the Amendment and offers excuses
for the conduct that breached the Amendment and was calculated to deprive NE of
the interest that the trial court had concluded that NE had in the condos. How this
reveals an abuse of discretion in the trial court’s issuance of a temporary injunction is
unclear.
Williams then argues that no adverse conclusion can be drawn from his
conduct because of the offer of the Rule 11 agreement—an agreement that Williams
told the trial court at the amended temporary-injunction order hearing was “gone,”
meaning that “[t]here is no Rule 11 [a]greement.” Thus, how the existence of a
Rule 11 agreement that Williams no longer stood by demonstrates an abuse of
discretion in the trial court’s conclusion that Williams might well sell the remaining
condo that was subject to the injunction is another conclusion that is left unexplained.
We overrule Williams’s tenth issue.
30
L. We overrule Williams’s eleventh issue asserting that there is no
showing of an irreparable injury from a transfer of the condos because
NE elected to seek only monetary relief.
Williams’s eleventh issue, as we understand it, is that NE has not shown an
irreparable injury because it is seeking monetary relief and not the recovery of
property. We disagree.
First, this argument—like Williams’s prior ones—ignores the provision of the
amended temporary-injunction order that NE has a specific interest in the condos
that is in jeopardy:
This contract created a future interest in the properties that vested on
February 28[], 2023, due to the stipulated failure to repay [NE]. This
[c]ourt finds that the loss of this property would cause irreparable harm
to [NE] and that enjoining [Appellants] from transferring or otherwise
disposing of the property is necessary to prevent this injury.
Then, Williams contends that NE is seeking inconsistent remedies by suing on
a debt and also seeking to enforce its rights in the condos. Again, we will not try to
summarize the arguments but quote them verbatim from Williams’s brief:
As shown by its pleadings, NE is seeking inconsistent, mutually
exclusive relief. On one hand, NE asks the [c]ourt to grant it an award
of $3.6 million in monetary damages; on the other, NE asks the [c]ourt
for Mexican condos. As a matter of law, Texas litigants are not entitled
to double recovery, yet this is exactly what NE is requesting. A party is
entitled to seek damages on alternative theories but is not entitled to
recover on both theories; to do so is considered equivalent to a double
recovery. Waite Hill Serv[s.], Inc. v. World Class Metal Works, Inc., 959
S.W.2d 182, 184–85 (Tex. 1998).
A temporary injunction is an intermediate remedy but, like a final
judgment, it is the type of remedy that compels the applicant to make a
choice that precludes double recovery. Accordingly, it is incumbent
31
upon NE to make an election of remedies: either it seeks to recover
money, or it is asking for the Mexican condos, but it cannot have both.
As a practical matter, NE has made its election: it seeks to
recover money, as demonstrated by its offer to reconvey the condos
upon receipt of payment. By this de facto election of remedies, NE has
confirmed that the true subject of this suit is money, not Mexican real
estate. [Record references omitted.]
If an election is ever required of NE, we hold that the time for NE to make an
election has not yet passed. “The election doctrine may constitute a bar to relief when
‘(1) one successfully exercises an informed choice (2) between two or more remedies,
rights or states of facts (3) which are so inconsistent as to (4) constitute manifest
injustice.’” City of Glenn Heights v. Sheffield Dev. Co., 55 S.W.3d 158, 164 (Tex. App.—
Dallas 2001, pet. denied). But Williams’s argument is at odds with the principle that a
party may plead alternative remedies and that an election of remedies usually occurs at
judgment:
[C]ases on the election[-]of[-]remedies doctrine reflect that an election
between remedies occurs, at the latest, when a party proceeds to final
judgment on one claim with knowledge of an inconsistent claim or
remedy. This is bolstered by the fact that Texas law allows a party to
assert inconsistent theories and facts in the alternative. “One may, for
example, plead alternative and inconsistent facts without being barred.”
Bocanegra[ v. Aetna Life Ins. Co.], 605 S.W.2d [848,] 851–52 [(Tex. 1980)]
(citations omitted). It is the act of obtaining judgment on one theory or
state of facts that precludes the ability to pursue other inconsistent
remedies. See id. at 853[; s]ee also, e.g., B.L. Nelson & Assocs., Inc. v. City of
Argyle, 535 S.W.2d 906, 910 (Tex. [ ] App.—Fort Worth 1976, writ ref’d
n.r.e.) (“The prosecution of a suit to judgment is undoubtedly an
election to pursue the remedy sought in that suit.”[] (citing Cantu v. Bage,
467 S.W.2d 680 (Tex. [ ] App.—Beaumont 1971, no writ))[)]; City of San
Antonio v. Terrill, 501 S.W.2d 394, 399–400 (Tex. [ ] App.—San Antonio
1973, writ ref’d n.r.e.) (“If one having the right to pursue one of several
32
inconsistent remedies makes his election, institutes suit, and prosecutes it
to final judgment[,] . . . such election constitutes an estoppel thereafter to
pursue another inconsistent remedy.”).
Id. at 165. At some point, NE may have to opt between a recovery of the condos and
a monetary judgment; we express no opinion on that issue. But how that election has
either occurred or is required to be made by NE before judgment is another matter
that Williams does not explain. Further, Williams does not address how an election
would bind NE to pursue only the condos if their values were not sufficient to repay
NE the funds that Williams diverted to his personal use and which he promised to
repay—another issue undetermined at this stage.
In his reply brief, Williams argues under the present issue that there can be no
irreparable injury because NE has not shown that he cannot respond in damages. As
with all of his other arguments, this turns a blind eye to the trial court’s finding that
NE has an interest in the remaining condo subject to the Amendment.
Williams’s argument also turns a blind eye to the inference created by
Williams’s conduct in conveying the condos. For example, the Dallas Court of
Appeals recently rejected a similar argument in which a party argued that an injunction
prohibiting it from transferring property was unwarranted because there was no proof
that it lacked the ability to respond in damages:
Viewed in the light most favorable to the trial court’s order, the evidence
that appellants are selling assets and evading financial obligations
supports a reasonable inference of a deteriorating financial condition
that would affect appellants’ ability to fully satisfy a money judgment
based on [appellee’s] losses, which continue to increase. See Hartford Fire
33
Ins. Co. v. 3i Constr., LLC, No. 3:16-CV-00992-M, 2017 WL 3209522, at
*4 (N.D. Tex. May 18, 2017) [(order)] (concluding “[the surety’s]
concern that it will suffer irreparable harm because the Indemnitors did
not respond to the demand letter or pay its subcontractors is not
speculative; it supports a conclusion that the Indemnitors are disposing
of assets or lack the ability to pay a judgment if one is entered against
them”). Thus, the record contains some evidence of a threatened injury.
Id. We conclude the trial court did not abuse its discretion by
determining [appellee] demonstrated irreparable injury. See Graham
Mortg. Corp. v. Hall, 307 S.W.3d 472, 477–78 (Tex. App.—Dallas 2010,
no pet.) [(op. on reh’g)] (“If some evidence reasonably supports the trial
court’s decision, the trial court does not abuse its discretion.”).
31 Holdings I, LLC v. Argonaut Ins. Co., 640 S.W.3d 915, 927 (Tex. App.—Dallas 2022,
no pet.). There is evidence that Williams is also attempting to evade his agreement
and has admitted selling certain of the condos that were subject to the Amendment.
This evidence, in combination with his prior diversion of funds, throws into question
his ability to respond in damages.
We overrule Williams’s eleventh issue.
M. We sustain Williams’s twelfth issue that the amended temporary-
injunction order improperly included a condominium not
referenced in the Amendment.
In his twelfth issue, Williams argues that the trial court erred by restraining the
sale of a condominium not listed in the Amendment but which was apparently
purchased with funds derived from the sale of a condominium that was included in
the Amendment. Williams phrases his issue in terms that the injunction is actually an
improper prejudgment attachment but also notes that NE “has not filed pleadings
requesting an attachment nor has NE provided facts and evidence required to obtain
34
such relief.” Construing the issue as “covering every subsidiary question that is fairly
included,” we view the issue as raising the question that the trial court issued a
temporary injunction for a cause of action not supported by NE’s pleading nor one
mentioned in its order and urging that we should dissolve the temporary injunction as
to the condominium in question on that basis. See Tex. R. App. P. 38.1(f). We agree.
We have quoted the terms of the trial court’s amended temporary-injunction
order by which it concluded that NE had established a probable right of recovery
based on specific performance of the Amendment. But the trial court also enjoined
the conveyance of Unit 610, which is a property in which the Amendment creates no
rights because it is not mentioned in the Amendment. The amended temporary-
injunction order discusses how Unit 610 became part of the controversy as follows:
On July 26[], 2023, [NE] informed this [c]ourt that in November 2022,
Williams and Michael [had] sold the condominium identified in the First
Amendment as Pilitas 177, Unit 501, Puerto Vallarta, Jalisco, Mexico.
Counsel for Defendants admitted that the sale occurred. [NE] also
informed the [c]ourt that in March 2023, [Appellants had] sold the
condominium identified as Barra de Navidad 1230, Unit PH2, and [had]
used the proceeds from the sale to purchase a new condominium
identified as Aquiles Serdan 195T, Unit 610, Puerto Vallarta, Jalisco,
Mexico. Once again, [c]ounsel for Defendants agreed with this
assertion. Because the proceeds from the sale of one of the
condominiums were used to purchase a new one, [NE] requests that
[Appellants] Michael and Williams be enjoined from conveying the
remaining property sought under the Amendment and substitute the
new condominium for the properties no longer in [Appellants’] control.
The flaw that we see in this amended temporary-injunction order is that NE
did file a supplemental application for temporary injunction that references Unit 610,
35
but the only petition alleging a cause of action against Appellants that is included in
the clerk’s record is NE’s original petition that neither alleged a cause of action that
gave NE an interest in Unit 610 nor in any condo that was not listed in the
Amendment. Further, NE defends the inclusion of Unit 610 in the amended
temporary-injunction order by arguing in its brief that the unit is subject to a
constructive trust and that the unit was purchased by means of a fraudulent transfer.
But those causes of action are unpleaded in its original petition and not even
mentioned in its supplemental application for temporary injunction. Instead, the
supplemental application references only a Rule 11 agreement that made Unit 610
subject to the amended temporary-injunction order that we dissolved in our prior
opinion:
The Rule 11 [a]greement proposed by counsel for [Appellants] is
attached hereto as Exhibit B. The new condominium identified in the
Rule 11 as Unit 610, as well as the three condominiums identified above,
which were set forth in the Original Application, and restrained from
conveyance in the Temporary Injunction, are collectively referred to
herein as the “Condominiums.”
As noted above, Williams told the trial court that the Rule 11 agreement was of no
force and effect when the previous injunction order was dissolved, and the Rule 11
agreement is not mentioned as a basis for the present temporary-injunction order.
The fact that the Rule 11 agreement became a nullity after our dissolution of the prior
injunction order is borne out by the terms of the agreement as it states only that Unit
610 “is subject to the Temporary Injunction issued in this cause on March 13, 2023.”
36
Thus, we face a situation in which the trial court found a probable right of
recovery on a cause of action that does not embrace a right to Unit 610, and the cause
of action that NE claims gives it a right in that unit is unpleaded. Further, the Rule 11
agreement that mentions the unit is not mentioned in the present temporary-
injunction order, and that agreement’s effectiveness is tied to an injunction order that
was dissolved.
Two reasons render the present injunction order’s restraints on Unit 610
invalid. Simply, “[t]o establish a probable right to the relief sought, an applicant is
required to allege a cause of action and offer evidence that tends to support the right
to recover on the merits.” Dall. Anesthesiology Assocs. v. Tex. Anesthesia Grp., 190
S.W.3d 891, 896–97 (Tex. App.—Dallas 2006, no pet.). NE has not pleaded the
cause of action that it claims gives it a right in Unit 610.
Beyond this failing, the present injunction order itself references no cause of
action supporting a claim that NE has a probable right of recovery that creates an
interest in Unit 610. The trial court references performance of the Amendment, but
that agreement does not vest a right in NE for Unit 610. The Dallas Court of
Appeals recently noted that for an injunction to validly restrain a conveyance of
property based on an agreement creating rights in the property, the agreement must
actually create a right in the property subject to the injunction:
[An] ancient and controlling rule forecloses resort to injunctive relief
simply to sequester a source of funds to satisfy a future judgment. That
general rule would not control where there is a logical and justifiable
37
connection between the claims alleged and the acts sought to be
enjoined, or where the plaintiff claims a specific contractual or equitable
interest in the assets it seeks to freeze. See, e.g., [Grupo Mexicano de
Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 310, 119 S. Ct.
1961, 1964 (1999)]; Tex. Black Iron, Inc. v. Arawak Energy Int’l Ltd., 527
S.W.3d 579, 587 (Tex. App.—Houston [14th Dist.] 2017, no pet.)
(drilling equipment that was subject of [appellee’s] request for injunction
was equipment it [had] purchased and returned to [appellant] and for
which [appellant had] failed to give credit, and could be used to mitigate
[appellee’s] claims related to its purchase of those items).
RWI Constr., Inc. v. Comerica Bank, 583 S.W.3d 269, 277 (Tex. App.—Dallas 2019, no
pet.). The line between the dots required by RWI is missing with respect to Unit 610
in the absence of a pleaded cause of action that creates an interest in NE or a
reference to a cause of action in the present injunction order that creates such an
interest.
We sustain Williams’s twelfth issue and dissolve the present injunction order’s
restraint with respect solely to Unit 610.
N. We overrule Williams’s thirteenth issue that NE had an alternative
remedy that obviated the need for injunctive relief.
In his thirteenth issue, Williams argues that the trial court abused its discretion
by granting injunctive relief because NE had an alternative remedy that made
injunctive relief unnecessary. Specifically, he argues that NE could have filed a notice
of lis pendens in Mexico to give notice of its claims in the condos and thus did not
need injunctive relief. We reject this argument because nothing in our record
establishes that a lis pendens procedure is available in Mexico.
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“The lis pendens statute provides persons litigating title to property with a
mechanism to give constructive notice to all those taking title to the property that the
claimant is litigating a claim against the property.” Mangione v. Jaffe, 61 S.W.3d 591,
592 (Tex. App.—San Antonio 2001, pet. dism’d). But by its very terms the lis
pendens statute envisions the filing of a lis pendens notice in Texas for real property
located in Texas. The statute provides that
during the pendency of an action involving title to real property, the
establishment of an interest in real property, or the enforcement of an
encumbrance against real property, a party to the action who is seeking
affirmative relief may file for record with the county clerk of each county where
a part of the property is located a notice that the action is pending.
Tex. Prop. Code Ann. § 12.007(a) (emphasis added).
Williams offers no proof that a procedure similar to lis pendens exists in
Mexico. Instead, he tries to remedy this failing by arguing that we must presume that
such a procedure exists in Mexico. To perform this task, he relies on Texas Rule of
Evidence 203; that rule does not create a presumption upon which Williams can rely.
In part, Rule 203 provides that
[a] party who intends to raise an issue about a foreign country’s law must: (1) give
reasonable notice by a pleading or other writing; and (2) at least 30 days
before trial, supply all parties a copy of any written materials or sources
the party intends to use to prove the foreign law.
Tex. R. Evid. 203(a) (emphasis added). The party carrying the burden to prove
foreign law suffers under a presumption if they fail in that showing; “[i]f the party
seeking the application of foreign law fails to provide the necessary information to the
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trial court, there is a presumption that the law of the foreign jurisdiction is identical to
that of Texas.” Diamond Offshore Drilling, Inc. v. Black, 652 S.W.3d 463, 472 (Tex.
App.—Houston [14th Dist.] 2022, no pet.) (first quoting Cal Dive Offshore Contractors
Inc. v. Bryant, 478 S.W.3d 914, 921 (Tex. App.—Houston [14th Dist.] 2015, no pet.);
and then quoting PennWell Corp. v. Ken Assocs., Inc., 123 S.W.3d 756, 764 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied)).
Williams attempts to shoehorn himself into the presumption by arguing that
“NE did not attempt to prove up the law of Mexico. Therefore, the [c]ourt must
presume that Mexican law is the same as Texas law.” But Williams is the one who
relies on Mexican law, and thus he is the person who bore the burden to establish
what that law is because he is the “party who intends to raise an issue about a foreign
country’s law.” See Tex. R. Evid. 203. Why the presumption operating against the
party with the burden to prove foreign law would apply to NE—a party who did not
seek to apply foreign law—is unexplained. The record contains no proof that Mexico
has a lis pendens procedure, and no presumption aids Williams to show that it does.
We overrule Williams’s thirteenth issue.
O. We overrule Michael’s sole issue because he waived an objection
to the authenticity of the Amendment.
Michael raises a single issue in his appeal. Michael filed a verified denial stating
that he did not execute the Amendment, yet when it was offered into evidence, his
counsel stated, “I have no objection.” The trial court confirmed that there was no
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objection to the admission of the Amendment. There was a later objection and
argument over whether Michael’s signature was authentic.
Michael carries this argument forward on appeal by arguing that his verified
denial of execution under Texas Rule of Civil Procedure 93(7) placed the burden on
NE to prove his signature was authentic and that it failed to make that showing. But
Michael fails to acknowledge his lack of objection to the admission of the
Amendment and how this failure waived his challenge to the authenticity of the
document. As the First Court of Appeals has held,
[E]ven had [appellee] filed a verified denial contesting the signature on
the Agreement, she would not prevail. [Appellee] did not object to [the
records custodian’s] declaration or seek a ruling from the trial court on
her authenticity concerns. Her failure to secure such a ruling from the
trial court failed to preserve the issue for our review. See Branch Law
Firm L.L.P. [v. Osborn], 532 S.W.3d [1,] 15 [(Tex. App.—Houston [14th
Dist.] 2016, pet. denied)] (“[Appellee] was required to obtain a ruling on
his authentication objection to preserve his appellate challenge”);
Williams v. Bad-Dab, Inc., No. 01-11-00102-CV, 2012 WL 3776347, at *6
(Tex. App.—Houston [1st Dist.] Aug. 30, 2012, no pet.) (mem. op.)
(“Objections to hearsay, improper authentication, or lack of foundation
are defects in form, which require a ruling for appellate review.”); B.
Gregg Price, P.C. v. Series 1 - Virage Master, LP, No. 01-20-00474-CV, 2021
WL 3204753, at *8 (Tex. App.—Houston [1st Dist.] July 29, 2021 . . . ),
(mem. op.) (“[A] defect in the form of the authentication of a document,
i.e., a defect in an affidavit attempting to authenticate the attached
document, is waived in the absence of an objection and ruling in the trial
court.”) (citing In re Longoria, 470 S.W.3d 616, 630 (Tex. App.—Houston
[14th Dist.] 2015, orig. proceeding))[, overruled on other grounds, 661 S.W.3d
419 (Tex. 2023)]; Segal v. Bock, No. 01-10-00445-CV, 2011 WL 6306623,
at *5 (Tex. App.—Houston [1st Dist.] Dec. 15, 2011, no pet.) (mem.
op.) (holding party who neither objected to document’s authentication
nor secured ruling from trial court on objection waived any complaints
on appeal regarding settlement agreement’s authenticity).
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Northpointe LTC, Ltd. v. Durant, No. 01-22-00215-CV, 2022 WL 17835223, at *7 (Tex.
App.—Houston [1st Dist.] Dec. 22, 2022, no pet.) (mem. op.) (footnotes omitted).
Thus, for purposes of the temporary-injunction hearing, we hold that Michael waived
his objection to the authenticity of the Amendment.
We overrule the sole issue in Michael’s appeal.
IV. Conclusion
Having sustained Williams’s twelfth issue, we dissolve the restraints in the
amended temporary-injunction order regarding the condominium identified as
“Aquiles Serdan 195T, Unit 610, Puerto Vallarta, Jalisco, Mexico.” Having overruled
Williams’s remaining issues and Michael’s sole issue, we affirm the trial court’s
amended temporary-injunction order as modified.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: February 8, 2024
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