CARLOS LAMAS, Appellant, v. LUIS RAUL SANDOVAL GONZALEZ, Appellee.
No. 08-21-00095-CV
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
August 30, 2022
Appeal from the 34th Judicial District Court of El Paso County, Texas (TC# 2020DCV4095)
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.
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
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
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.
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.”
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.
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
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
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
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.
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,
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
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
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,
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
B. Sections 5.062 and 5.066 of the Property Code
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
As relevant here,
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.
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.
In support of his request for a temporary injunction preventing Lamas from filing additional forcible entry and detainer actions, Sandoval argued that
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
Having established that
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
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 Sandoval’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.
Lamas’s Issues Eight and Nine are overruled.
VI. LACK OF AFFIDAVIT
In his fourth issue, Lamas argues that the trial court violated
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
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
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
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
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
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.