Everardo Vallejo v. David S. Meza ( 2007 )

  Opinion issued March 22, 2007  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-06-00663-CV

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EVERARDO VALLEJO, Appellant

V.

DAVID S. MEZA, Appellee

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On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2006-08712

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MEMORANDUM OPINION

Appellant Everardo Vallejo brings this interlocutory appeal ⁽¹⁾ from the trial court's denial of his request for a temporary injunction to enjoin appellee David Meza from evicting Vallejo from a house that Vallejo claims he purchased from Meza. We affirm the trial court's order denying the temporary injunction.

Background

On February 9, 2006, Vallejo filed suit against Meza alleging that Meza had breached an oral agreement to transfer certain real property, i.e., a house located at 2017 Vance Street, Houston, Texas, where Vallejo had lived for several years. Vallejo also filed an application for temporary injunction requesting that Meza be enjoined from pursuing an eviction action against Vallejo until the ownership of the property was determined.

At the hearing on the application for temporary injunction, Vallejo testified that he met Meza in 1994. Both men were stopped at a red light, when Meza indicated to Vallejo that he was interested in buying the 1965 Chevy truck that Vallejo was driving. Meza followed Vallejo to his house to further discuss the sale of the truck. Vallejo testified that he and Meza reached an oral agreement whereby Vallejo agreed to give Meza $1500 and the truck as a down payment on the house, and thereafter to make monthly payments of $375. Vallejo further testified that, in return, Meza promised to sell the house located at 2017 Vance Street. Vallejo testified that he paid Meza $375 dollars a month for five years, and, on one occasion, in 1995, he gave Meza $600 or $700 for the payment of taxes. Vallejo admitted that he had never paid taxes on the property. He testified that he had receipts for the payments he made to Meza, but he did not bring them with him to court, nor had he given them to his attorney. Vallejo's wife testified to essentially the same facts.

Meza's attorney did not call any witnesses at the hearing, but, instead, argued that Vallejo had not met his burden of proving entitlement to injunctive relief.

Propriety of Trial Court's Denial of Injunctive Relief

In his sole issue on appeal, Vallejo contends the trial court erred by denying his request for injunctive relief.

Standard of Review  

Whether to grant or deny a temporary injunction is within the trial court's sound discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). A reviewing court must not substitute its judgment for the trial court's judgment unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion. Id. The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Id. A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Id.; Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). 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. Butnaru, 84 S.W.3d at 204. When a consideration of the evidence is required, we view the record in the light most favorable to the trial court's order, indulging every reasonable inference in its favor. EMSL Analytical, Inc. v. Younker, 154 S.W.3d 693, 696 (Tex. App.--Houston [14th Dist.] 2004, no pet.). When, as here, the trial court does not make findings of fact or conclusions of law, we must uphold the court's order on any legal theory supported by the record. Id.

Analysis

Our analysis will focus on the second element of the temporary injunction test; that is, whether Vallejo showed a probable right to recover on his breach of contract cause of action from Meza. To show a probable right of recovery, an applicant need not establish that it will finally prevail in the litigation, but must, at the very least, present some evidence that, under the applicable rules of law, tends to support his cause of action. Camp v. Shannon, 348 S.W.2d 517, 519 (Tex. 1961). A trial court does not abuse its discretion if it bases its decision on conflicting evidence and evidence in the record reasonably supports the trial court's decision. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). An abuse of discretion does not occur as long as some evidence supports the trial court's decision. Int'l Fid. Ins. Co. v. Wise County Bail Bond Bd., 83 S.W.3d 257, 260 (Tex. App.--Fort Worth 2002, no pet.).

Vallejo produced evidence that he and Meza had entered into an agreement for the sale of the property at 2017 Vance Street. Both he and his wife testified that Meza orally agreed to transfer the property in exchange for $1500, the 1965 Chevy Truck, and payments of $375 on the house for a period of 5 years. He further testified that he fully performed his part of the alleged agreement.

The issue, thus, is whether any evidence in the record supports the trial court's decision, i.e., was there any evidence to suggest that no contract in fact existed. We begin by noting that there is no written contract evidencing the sale of the property. In general, an agreement to sell real property must be in writing. See Tex. Bus. & Com. Code Ann. § 26.01(a), (b)(4) (Vernon Supp. 2006). ⁽²⁾

Vallejo conceded that the parties had only an oral agreement. Vallejo testified that even though he had receipts for all the payments he had made to Meza, he did not bring them to court, nor had he provided them to his attorney. Vallejo also admitted that he had never paid taxes on the property, even though, on one occasion, he gave money to Meza so that Meza could pay the taxes.

The trial court, as the finder of fact, could have concluded that, based on the evidence presented, Vallejo's testimony did not show a probable right of recovery

because he produced no evidence of an agreement in writing. The trial court further could have concluded that Vellejo's testimony was simply not credible. See State Bd. of Ins. v. Prof'l & Bus. Men's Ins. Co., 359 S.W.2d 312, 321-22 (Tex. Civ. App.--Austin 1962, writ ref'd n.r.e.) (noting that at temporary injunction hearing, trial court is judge of credibility of testimony and weight to be given thereto). From this record, we cannot say that the trial court abused its discretion.

Conclusion

We overrule Vallejo's sole point of error.

We affirm the trial court's order denying injunctive relief.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

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