*1 57Q Family Code tate.” Under Tex. has (1975), the trial
Ann. 3.63 court § community dividing
broad discretion deems
estate “in a manner court that the
just . . time of right. .’’At case, quoted Cooper Cooper,
the Carle
the court had similar discretion under 3.63, counterpart
preceding to Section
which art. Tex.Rev.Civ.Stat.Ann. nor
(1960). This does not state as to judgment that the trial court’s
attorney’s fees, equita- which was made in was an community,
ble division of the given by
abuse of discretion 3.- Section
Appellant’s point attorney’s as to fees is
overruled. of the trial is in all
things affirmed. al., et
PENDLETON GREEN ASSOCIATES Petitioners, al.,
ANCHOR BANK SAVINGS et Respondents.
No. 965. Appeals Texas,
Court of Civil Corpus Christi. Opinion Granting 6, 1975
Feb. Temporary Injunction.
On the Merits March
5«1 essary in order for this jurisdiction of their from the afore- Otherwise, said order of the trial court. according jurisdic- to their our application, invaded unlawfully tion ap- matter of the destruction peal before we have decided the issues *3 appeal. raised in Relators, plaintiffs, against filed suit respondents in the District Court of Cam- Texas, Briscoe, County, peti- January eron Harlingen, Gordon L. on for they alleged: they 1) tioners. wherein were the apartment complex owners of an in Har- Abbott, Ewers, Toothaker, C. Ab- James Texas, fix- lingen, with certain McAllen, bott, Talbot, Jarvis, Hamilton & personal property tures and located on the respondents. for therewith; premises and used connection 2) Savings Anchor Bank is the owner of a Injunction On Motion for by is secured a deed of trust note which properties; 3) said
covering some time prior filing petition, Anchor OPINION $210,000.00pursuant to a certain drew let- applied ter of credit and the same on the PER CURIAM. note; principal 4) original This is an proceeding in this fact, $210,000.00,in an constitutes advance injunction. Court for an Pendleton Green succeeding of next several of the Associates, Texas payments and should be Inc., Community Inc., and Projects, rela- principal, against payments all of tors, with leave this Court first ob- interest, insurance taxes as the same tained, application filed an in this on Court due until has been become said sum ex- January 1975, pursuant 28, 383, to Rule hausted; 5) the note default Procedure, Rules of Civil never been in when suit was filed and has 1823, Article Ann.Civ.St., to en- default; O’Donnell, and 6) W. H. Substi- join Savings Anchor Bank and W. H. Trustee, posted tute trustee’s sale notice O’Donnell, Trustee, respond- its Substitute 7, 1975, and in the no- January stated ents, frpm certain selling properties under Relators, tice note was in default. powers by conferred a deed of trust by way temporary in addition to relief pending disposition by this Court of restraining temporary injunc- order and the merits of an from the denial of tion, merits, until a trial was on the had a temporary injunction by the trial court. declaratory judgment respecting a $210,000.00. application proper granted The trial temporary a re- straining January order on which Respondents, peti- in their answer to the prohibited defendants (respondents) from tion, plead among defenses, other that rela- conducting the trustee’s sale on January delinquent in their tors have been mort- application 1975. The in- gage payments September since junction by by was denied the trial court $80,000.00, sum of the total an signed order that was and rendered on apply were entitled (respondents) (relators) 1975. Plaintiffs on said sum appealed. the note. injunctive by
Relators seek transcript relief in this was filed relators The Court on ground January 28, grant- the same nec- on 1975. We this Court injunction injunction by They an rely on this
ed an Court. Savings a en- on Powell Farm & hearing,1 whereby Home Asso ciation, joined proceeding (Tex.Civ.App.— trustee’s provided Fort on properties writ), of said that rela- and Dawson Worth Troup, 417 (on or before Febru- v. First National Bank of tors file Court S. bond, ary 1975) good (Tex.Civ.App. Tyler sufficient W.2d 652 — approved statute, respondents, by writ). applicable payable to to be Article Court, V.A.C.S., itself, conditioned that does not bond the Clerk of pay respond- when the damages relators shall all issued tempo- Civil Appeals ju event be held that the to enforce or ents it properly preserve and to rary injunction was denied risdiction mat litigation appeal; Pen- ter of pending was filed how trial court. Such a bond ever, nothing (or there is in the statute dleton Associates Green addition, prohibits requiring law) advanced the case case *4 briefing the such shortened a bond. on our docket and Rules parties of the involved.2 See times Mall, Larwin Riverdrive Inc. v. Mort 411, 414, 410, 412 T.R.C.P. Investors, gage (Tex.Civ. 2 515 S.W.2d App. 1974, grant writ), to Antonio power have such no the We the — San Court, writs, injunction, as in including requiring filing the the of such writ relator, necessary protect our bond by enforce or stated: may be to appeal, jurisdiction pending over and to effectively respond- prevented “We have preserve appeal. the subject the matter of exercising right granted ents from the 190, City Wright, v. 120 Tex. 36 of Dallas upon under the deed of foreclose trust to Mercer, (1931); 973 Houtchens v. S.W.2d property the the note be- described after Lee (1930); 119 Tex. 27 795 S.W.2d delinquent. Thus, came if it should be Lee, (Tex.Civ.App.— 355 255 S.W.2d not found that the trial did abuse court subject overr.). The Houston mand. in denying its discretion the appeal is pending of the matter whether injunction, respondents have been will properly grant refused to trial court the wrongfully deprived of such valuable requested temporary injunction. If re the for a at least two subject property at a spondents sell the any eq- cannot We conceive months. appeal pend is sale while still trustee’s the why respondents reason are not uitable Court, in will ing appeal the become protected potential such entitled to be for jurisdiction the pending and our over moot power to loss. To hold that we have unlawfully have appeal will been invaded require a bond in circumstances such destroyed, since and its matter the of the would lead to absurd situation way then there would be no could en actually persuade trying relator to our or decree the event force deny request for a tem- trial court to appeal. in their prevail the relators should porary injunction and thus secure re- Martinez, (Tex. Madison v. appellate without the lief in the ; ref’d) Civ.App. Nelson — Dallas penalty bond. . . .” of a District, Independent 386 Blanco School 636 — Austin Antonio agree with the We San e.). writ ref’d n. r. only power to that we not bond to the other from a should a Relators bond loss, possible duty but also to do so. the issuance to condition argument judgment grant and oral Submission our Oral announcement of injunction ing has for March been set made on was opinion support is filed and this same. some deter- tained. We have discretion made counsel According statements the bond. Accord- the amount of parties during argument mining oral ingly, in the amount properties we believe that bond hearing on circumstances, af- $40,000.00,under the April 1974 of purchased by relators protection. fords sufficient $2,000,000.00, respondents and their approximately aft- equity September therein relators Texas Since “drew” the Savings er Anchor Bank Community Proj Inc. and $210,000.00 neighborhood of was in the ects, join in did not the execution Inc. $800,000.00; the balance due on injunction bond, granting order made on was hereby in their is rescinded. favor $1,400,000.00; if August about in favor granting $210,000.00 rightfully applied the full Pendleton Green Associates the relator principal owing the amount of on the note It is further ordered that confirmed. also August payment, then the following the posting any refrain no as of balance due on disposi pending final tice of trustee’s September 1975 would be reduced appeal. Nothing done tion of relators’ $1,200,000.00; payable the note was about opinion this Court or contained installments of about expres construed as an shall be taken or each; year ad valorem taxes for the opinion by us the merits sion $13,000.00 would in the amount of some appeal. delinquent February become date; and, in- paid by rental the Merits *5 apartments paid to (being come from the $11,000.00per relators) was around month. YOUNG, Justice. from the trial This resulted dispute A serious exists between appellants’ application to court’s denial of parties is as to whether the note ac appellees temporarily enjoin from foreclos- tually in If default. relators are correct in ing their first lien on Pendleton Green position, $210,000.00 their then the will Apartments Harlingen, Texas. prepayment constitute a of some fourteen (14) monthly payments, computed from undisputed. Appellants The facts are If, August and after 1974. on the other financing obtained interim for the con- hand, $210,000.00 it be determined that the apartment complex struction of the from principal is to be Loan Associa- Building Rio Grande note, then in default the note has been tion, appellee Flynn an affiliate of In- — September 1, 1974, granting since and the Company. costs vestment As construction by Court will throughout appellants deter- escalated deprived aof valuable per- project require mined that probably for a three months. financing in the amount manent require respondants suggest that we $1,400,000. the relators to file a bond the amount financing Appellants permanent obtained $150,000.00. say
at least
The relators
by:
Savings Bank
appellee
a bond of
should be sufficient
—Anchor
commitment, dated November
1) a letter of
required.
a bond is
conclude that the
We
4, 1974,
29, 1973,
and amended
equities
require
of this case
that a bond be
purchase
con-
agreed to
whereby Anchor
filed
a condition to the issuance of an
as
apart-
loan on the
mortgage
first
injunction.
duty
is the
of this Court to ventional
It
complex;
2)
purchase
and filed in
that a bond be made
ment
20, 1974, whereby
respondents may
adequately
dated March
agreement,
order that
protected against
financial
substantial
loss Anchor contracted
—Texas
purchase
appealed judgment
Valley
is sus-
Inc. to
in the event the
$1,400,000
Inc.,
Transports,
loan from Rio
Texas v. Robertson
Grande
Building
The loan Tex.
and Loan Association.
261 S.W.2d
purchased
by
by
Anchor
evidenced
Appellees contend that the November
Mortgage
“First
Real Estate Note” and
commitment,
1973, letter of
as amended
Trust,
April
Deed of
both dated
1974.
1974;
January 4,
purchase and sale
1974;
agreement
of March
The November
letter
29th
of commit-
payable
Flynn;
and the
trust
deed of
ment,
amended, provided
appellee
securing
all must be read
$1,400,000
provide
—Anchor would
as one
all of
docu-
contract. When
these
amended,
And,
funds.
the commitment
one, appellees
are read as
assert that
ments
appellants provide
Anchor
clearly express
the documents
the intent of
with an irrevocable letter of credit in the
$210,000
appli-
that the
fund is
$210,000.
This letter of credit
only
cable
to reduce the
amount
by
was callable
Anchor in the event that a
note.
projected
“rental achievement” of
per year
had not been reached
Novem-
Appellants assert that the letter of com-
ber
29, 1973,
mitment of November
as amended
4, 1974,
proposed
and the
amend-
undisputed
It is
that the
achieve-
rental
ments to such commitment
letter which
ment was not realized.
It is further undis-
(DX-2)
Anchor
submitted to
puted that
payments
no installment
on the
ground
were inadmissible on the
August,
by appellants
note were made
contradicted the “no
clause
parol
evi-
the note and thus violated the
disagree.
dence rule. We
December
Anchor “drew”
$210,000. Further,
Anchor
As
Bank of
noted
Texas State
apartment
foreclose its
complex
lien on the
Sharp,
(Tex.
Austin v.
appellants’
due to
failure to make the
Civ.App.
e.),
writ ref’d n. r.
— Austin
installments required
the note.
“It
settled in Texas that
two or
where
attempted
One
precluded
trustee’s sale was
instruments,
contemporane
more
executed
by the
issuance of a
restraining
times,
ously
pertain
to the
or
different
trial court on
*6
transaction,
same
the instruments will be
subsequent
At
pend-
a
evidentiary hearing,
though they
read
do not ex
even
ing a trial on
appellants’
the merits of
de-
(emphasis
pressly
to each other.”
refer
claratory judgment
against appel-
action
added).
of
Insurance
also Board
See
lees,
court, by
the trial
January
order of
In
Commissioners v. Great
Life
Southern
23rd,
enjoin
temporarily
appel-
refused to
Co.,
258, 239
surance
150 Tex.
S.W.2d
lees’ threatened foreclosure of their
lien
instru
(1951).
applicable
This
to
rule
apartment
28th,
complex.
the
On
with the
ments executed
connection
appellants perfected
their
to this
same transaction when one or more
the
injunctive
and
immediate
promissory
instruments are
notes.
relief, under
art.
Tex.Rev.Civ.Stat.Ann.
Sharp, supra; B
Bank of Austin v.
State
(1964),
pending our review of the
Pharmacy
Drug,
B
Lake Air
&
and
Inc. v.
trial
temporary injunc-
court’s denial of a
Waco, 449
National Bank of
30th,
tion.
enjoined
this Court
(Tex.Civ.App.
dism’d);
writ
— Waco
appellees
upon
from foreclosing their lien
Knox,
Sides v.
5«5 taming permanent financing pay penalty, for the Pen- forced to itself a if it should Apartments. $1,400,000 dleton Green The not apparent, some reason now choose note is Appellants’ pay not the entire to contract. off the itself. We decline to argument clearly adopt that it demonstrates that construction. As have said: commitment, amended; not the intent that the note the letter as note; purchase “final contract.” sale agreement; of trust be read the deed all must to- attempts In their to avoid the ef gether. monthly fect of their in paying default note, appellants installments on the seek The amendment of $210,000 the aid of the fund created letter of to the commitment of No letter of The note appellants credit. contains ref vember erence letter $210,000 to the of credit does furnish a not Anchor with irrevocable provide credit, install letter of or before callable on De ments funds to out of the available Anchor cember in the event that pre from the letter credit. to annual rental achievement was clude appellees from asserting Apart the terms Pendleton realized Green provided the letter of commitment which ments on or before November for the disposition establishment and of the The amendment “Proceeds states: $210,000 credit, credit, appellants letter of this letter contend called us not previous above, negotiations all ed merged appli[ed] are would be reduction into the note which expresses mortgage final agreement parties. by ap appel- But the herein.” The existence of default lees’ pellants that all prior writings paying contention installments merged upon into the note as an became due would not vest Anchor based al leged $210,000 “merger right clause” contained “draw” on docu ment purchase Only other letter to reach than of credit. a failure note: agreement. specific on or before The “rental achievement” note does not “merger “trigger” contain a An apparent November clause.” It is appellants’ largely action is chor’s to “draw” the fund. founded noted, parties specifically factors As we provisions alien to the stated provided application in the note and deed of for the those funds trust.
in such event. pre-payment” The “no clause in the express provision in the letter of note is clearly applicable only appellants. commitment does not with the conflict When its entirety, read in the intent of the “no in the clause found parties is provides: evident. The clause prohibiting pre-payment note. The clause “During years of seven (7) applicable only appellants. For the *7 from the date this note there shall be stated, it is appellants reasons evident that prepayment option, no thereafter probable have shown to have the penalty (S) percent aof of five fund to the installment year, the eighth reducing one-half of payments in default. percent one each year thereafter, percent one minimum the re- contention, Appellants, in another maining (Emphasis term the loan.” that this Court should construe added) broadly enough to pre-payment” “no clause If we interpret justly were to operate fairly the clause it under allow to equally applying may. apply. to the holder it all the conditions to which maker (as stated, of this note appellants entered argue), As we the contract we would be parties, faced with particularly the novel into situation between wherein the holder of unambiguous “no would be clause is more than reason one Therefore, interpretation. able it is not construction,
open to ef giving even
fect to its literal terms will work a hard
ship parties. Magnolia on one of the Pe Connellee,
troleum Co. v.
(Tex.Comm’n Douglas v. App.1928); Company,
Southwestern Life Insurance (Tex.Civ.App. Tyler — Rhea, e.); ref’d n. r. Rankin v. S.W. — Amarillo 1914, writ). Surety National Cor See
poration Indemnity Western Fire &
Company,
(Cir.Ct.App.
Cir.
Finally, appellants argue that the admitting
trial court erred defendants’ Appellants
exhibit 5 into evidence. con
tend exhibit offer compromise dispos-
was inadmissible. This issue is not
itive of this If the trial court did err case. respect, it was harmless error.
Tex.R.Civ.P. 434 appellants
Because the have failed to a clear abuse of the trial court’s dis-
show
cretion, all their we overrule contentions. is af- of the trial court
firmed. al., Appellants,
Thomas MILLER et O. al., Appellees.
Preston DOUGHTY et
No. Appeals Texas,
Court of Civil Corpus Christi.
Feb.
Rehearing Denied March