Vantage Bank Texas v. Christopher Gonzalez ( 2020 )

NUMBER 13-19-00265-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
VANTAGE BANK TEXAS, Appellant,
v.
CHRISTOPHER GONZALEZ, Appellee.
On appeal from the 107th District Court
of Cameron County, Texas.
NUMBER 13-19-00371-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CHRISTOPHER GONZALEZ, Appellant,
v.
VANTAGE BANK TEXAS F/K/A INTER
NATIONAL BANK AND PRESTIGE
LUXURY HOMES, LLC, Appellees.
On appeal from the 107th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Perkes
In appellate cause number 13-19-00265-CV, Vantage Bank Texas (Vantage) has
appealed a temporary injunction rendered against it in favor of plaintiff below, Christopher
Gonzalez (Gonzalez). In appellate cause number 13-19-00371-CV, Gonzalez has filed
an interlocutory appeal contending that the trial court erred in denying his motion for
emergency relief requesting the dissolution of the trial court’s initial temporary injunction
and application for a new temporary injunction against Vantage and Prestige Luxury
Homes, LCC (Prestige).1 Because the matters in both appeals are related, we issue this
single memorandum opinion addressing both appellate causes in the interest of judicial
efficiency.
1 Prestige did not file an appellee’s brief in this matter. See TEX. R. APP. P. 38.6(b).
2
We conclude that the temporary injunction in appellate cause number 13-19-
00265-CV is void for noncompliance with Texas Rules of Civil Procedure 683 and 684,
and accordingly, we reverse and remand. See TEX. R. CIV. P. 683, 684. For reasons as
stated herein, we dismiss as moot in part and affirm in part in appellate cause number
13-19-00371-CV.
I. BACKGROUND
In early 2017, Gonzalez executed a residential construction contract and note2
with Prestige “in the amount of $246,331.00, payable to the order of [Prestige] and
assigned therein to [Vantage],” formerly operating as Inter National Bank. Under the
construction contract, Prestige would build a custom home on Gonzalez’s property in
Cameron County. For reasons disputed by all involved parties, the home was not built
within the contracted timeframe of nine months.
A. Hidalgo County Lawsuit
On May 6, 2018, Prestige sent Gonzalez a notice of contract termination, claiming
Gonzalez had breached the builder’s contract. Prestige filed suit against Gonzalez nine
days later in Hidalgo County, pleading breach of the duty of good faith, breach of contract,
and negligence, among other causes.3 On June 11, 2018, Gonzalez filed an original
2 The note contained the following security provision:
This Note is secured by [Gonzalez’s residential property in Cameron County]. As further
security for this Note, Borrower grants the Note Holder a lien and contractual rights offset
in and to all borrower’s money and property now or at any time hereafter coming within the
custody or control of the Note Holder. . .
This Note is further secured by a Deed of Trust of even date herewith, to Michael H.
Patterson, Trustee, covering the real property described to wit: [Gonzalez’s residential
property in Cameron County].
3 Vantage was also named as a co-defendant in the suit.
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answer, a counterclaim against Prestige, a crossclaim against Vantage, and a third party
claim against employees of Prestige, asserting “claims for breach of contract, breach of
the common law duty of good faith and fair dealing, breach of warranty, fraud, forgery,
unconscionability, and violations of section 17.46(b) of the Texas [Deceptive Trade
Practices Act (DTPA)].” Gonzalez specifically claimed that Prestige failed to construct the
home within the contracted nine-month period and asserted that any delay of the
construction was caused by Prestige’s “intentional nonpayment of subcontractors and/or
vendors and failure to cooperate with [Vantage] and Gonzalez.” Gonzalez additionally
complained that Prestige forged his signature on several checks and that Vantage
“allowed the forged checks to be approved due to their gross negligence.” The Hidalgo
County lawsuit remains pending.
B. Cameron County Lawsuit and Temporary Injunction
On January 2, 2019, Prestige foreclosed on the property and sent Gonzalez a
notice to vacate on May 6, 2019, threatening a forcible detainer action. Gonzalez then
filed suit against Prestige and Vantage in Cameron County—the case before this Court.
In his original petition, Gonzalez broadly alleged he “holds valid claims for
damages against Prestige and Vantage bank in an amount no less than $200,000.00, but
no more than $1,000,000.00 and intend[s] to amend petition with newly discovered
information concerning claims and pending trial on the merits.” 4 Gonzalez sought a
4 Gonzalez amended his petition to allege specific claims after Vantage filed its notice of appeal in
appellate cause number 13-19-00265-CV. Claims included “Negligence, Common Law Conversion, Not
Properly Payable, [and] DTPA violations.”
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temporary restraining order and temporary and permanent injunctive relief against
Vantage and Prestige to prohibit the two from:
(a) conducting a foreclosure sale, trustee’s sale, or substitute trustee’s sale
on Gonzalez property; (b) taking any action—including posting or reposting
any notice of sale, notice of trustee’s sale, notices of substitute trustee’s
sale, or notice of foreclosure sale—to further any efforts to conduct a sale,
foreclosure sale, trustee’s sale, or substitute trustee’s sale of Gonzalez
completed property; taking any action to evict, remove Gonzalez from [his]
property.
On May 23, 2019, following a hearing on the temporary injunction, the trial court
granted Gonzalez’s requested relief. The temporary injunction order, in its entirety, reads
as follows:
On the 23rd day of May 2019, after having heard arguments by the parties,
the court finds that, CHRISTOPHER GONZALEZ, Petitioner is entitled to
Temporary Injunction and granted a temporary injunction prohibiting
Vantage Bank Texas and Prestige Luxury Homes, LLC from (a) conducting
a foreclosure sale, trustee’s sale, or substitute trustee’s sale on Gonzalez
property; (b) taking any action—including posting or reposting any notice of
sale, notice of trustee’s sale, notices of substitute trustee’s sale, or notice
of foreclosure sale—to further any efforts to conduct a sale, foreclosure
sale, trustee’s sale, or substitute trustee’s sale of Gonzalez property; taking
any action to evict, remove Gonzalez from said property [address].
The Court further finds that the TEMPORARY INJUNCTION ORDER, shall
remain in effect until MARCH 18TH, 2020 and that the Respondent
continues to be restrained from the commission of the acts prohibited below.
APPLICATION OF TEMPORARY INJUNCTION
1. On the basis of the application, the Court has ordered the issuance of a
temporary injunction because it appears to the Court that, unless you, your
agents and assigns are restrained as ordered, Gonzalez will be irreparably
harmed because default collections have commence[d], evictions have
commence[d], and foreclosure will occur, ultimately calling for the loss of
Mr. Gonzalez[’s] rights to the property.
2. You, your agents and assigns are therefore commanded to obey the
order of this Court prohibiting [Vantage], Prestige, and their attorneys,
agents, and assigns from (a) conducting a foreclosure sale, trustee’s sale,
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or substitute trustee’s sale of [residence address], said property in dispute;
(b) taking any action—including posting or re-posting any notice of sale,
notice of trustee’s sale, notices of substitute trustee’s sale, or notice of
foreclosure sale—to further any efforts to conduct a sale, foreclosure sale,
trustee’s sale or substitute trustee’s sale of Gonzalez homestead property;
taking action to remove Gonzalez from said property.
Vantage filed notice of interlocutory appeal on June 6, 2019.
C. Gonzalez’s Emergency Motion
On July 23, 2019, while Vantage’s appeal was pending and one day after Gonzalez
filed his first amended petition, Gonzalez filed an “Emergency Motion” in the trial court,
requesting that the court dissolve its temporary injunction order and grant his application
for a new temporary injunction. In his motion, Gonzalez argued that the issued temporary
injunction order was noncompliant with Texas Rules of Civil Procedure 683. See TEX. R.
CIV. P. 683 (requiring that the order contain a date “setting the cause for trial on the
merits”).
The trial court held a hearing on Gonzalez’s motion on July 25. No witnesses or
evidence was presented, and only counsel for the parties provided argument. The trial
court ultimately denied Gonzalez’s emergency motion, stating: “The injunction that was
prayed for by the petitioner that was granted by [the then presiding judge] will remain in
place pending appeal. The emergency relief is denied.”
Gonzalez appeals the trial court’s denial of his emergency motion. See TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014(a)(4) (permitting immediate appeal of interlocutory
order denying motion to dissolve temporary injunction).
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II. VANTAGE’S APPEAL
Vantage principally argues that the trial court abused its discretion in its decision
to grant a temporary injunction in favor of Gonzalez.
A trial court’s granting or denial of a temporary injunction is reviewed for abuse of
discretion. Henry v. Cox, 520 S.W.3d 28, 33 (Tex. 2017) (citing Butnaru v. Ford Motor
Co., 84 S.W.3d 198, 204 (Tex. 2002)); InterFirst Bank San Felipe v. Paz Constr. Co., 715
S.W.2d 640, 641 (Tex. 1986); Super Starr Int’l, LLC v. Fresh Tex Produce, LLC, 531
S.W.3d 829, 838 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.). A trial court abuses
its discretion if it rules in an arbitrary manner or without reference to guiding rules and
principles. Butnaru, 84 S.W.3d at 211; see Sargeant v. Al Saleh, 512 S.W.3d 399, 409
(Tex. App.—Corpus Christi–Edinburg 2016, no pet.) (combined appeal & orig.
proceeding).
Additionally, Texas Rules of Civil Procedure require every order granting a
temporary injunction to: (1) specifically state the reasons for its issuance and state, with
reasonable detail and not by reference to the complaint or other document, the acts
sought to be restrained; and (2) contain a trial setting date. TEX. R. CIV. P. 683. Further,
an applicant must “execute and file with the clerk a bond to the adverse party . . . [b]efore
the issuance of the temporary restraining order or temporary injunction.” TEX. R. CIV. P.
684. The requirements of rules 683 and 684 are mandatory and must be strictly followed.
Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000) (per curiam). If
a temporary injunction fails to meet these requirements, it is to be declared void and
dissolved by the reviewing court. Id.; see Sargeant, 512 S.W.3d at 409.
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Having reviewed the order and record, we conclude that the temporary injunction
fails to comply with rules 683 and 684. See TEX. R. CIV. P. 683, 684. We first observe that
the order does not specifically state the reasons for its issuance. While the trial court’s
order generally concludes that Gonzalez would suffer irreparable harm, it should have
recited facts supporting that determination in order to satisfy Rule 683. See Good
Shepherd Hosp., Inc. v. Select Specialty Hosp.–Longview, Inc., 563 S.W.3d 923, 928
(Tex. App.—Texarkana 2018, no pet.); El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740,
744 (Tex. App.—Dallas 2011, no pet.). Since the order did not show “‘the facts the trial
court relied on,’ the finding [of irreparable harm] was improperly conclusory.” Good
Shepherd Hosp., 563 S.W.3d at 929–30 (quoting Indep. Capital Mgmt., L.L.C. v. Collins,
261 S.W.3d 792, 796 (Tex. App.—Dallas 2008, no pet.)); see also Arkoma Basin Expl.
Co. v. FMF Assos. 1990–A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008) (defining
“conclusory” as “[e]xpressing a factual inference without stating the underlying facts on
which the inference is based”).
The order is also without a trial setting—a fact acknowledged by both parties—
which also renders it void. See Qwest, 24 S.W.3d at 337; see also In re Corcoran, 343
S.W.3d 268, 269 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (holding failure
to contain a trial date voided the order); First State Bank of Odem v. Flores, No. 13-13-
00502-CV, 2014 WL 812578, at *1 (Tex. App.—Corpus Christi–Edinburg Feb. 27, 2014,
no pet.) (mem. op.) (collecting cases concluding the same).
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Additionally, Gonzalez failed to execute a bond. 5 Gonzalez filed and posted a
$500 bond for the trial court’s temporary restraining order, but such bond “does not
continue on and act as security for a temporary injunction unless expressly authorized by
the trial court.” Bay Fin. Sav. Bank, FSB v. Brown, 142 S.W.3d 586, 591 (Tex. App.—
Texarkana 2004, no pet.) (holding temporary injunction order void for noncompliance with
Rule 683 and 684 when the order neither fixed bond nor “state[d] that the bond previously
filed for the temporary restraining order continued as the bond for the temporary
injunction”); see TEX. R. CIV. P. 684. In this case, the temporary injunction order does not
expressly authorize the restraining order bond to serve as security for the temporary
injunction, and the record here is devoid of any notice of authorization by the trial court.
The order of injunction is therefore “void on its face.” See Hartwell v. Lone Star, PCA, 528
S.W.3d 750, 770 (Tex. App.—Texarkana 2017, pet. dism’d) (quoting Ex parte Lesher,
651 S.W.2d 734, 736 (Tex. 1983) (orig. proceeding)).
For the three reasons set forth above, we conclude that the temporary injunction
order is void and dissolved. We sustain Vantage’s first issue on appeal, and we do not
reach Vantage’s remaining issues of whether Gonzalez appropriately pleaded and proved
the elements necessary to obtain a temporary injunction. See TEX. R. APP. P. 47.1; see
also Qwest, 24 S.W.3d at 337; see Sargeant, 512 S.W.3d at 409.
III. GONZALEZ’S APPEAL
Gonzalez asserts that the trial court erred in denying his motion for emergency
relief. As a preliminary matter, we note that Gonzalez’s appeal is moot in-part. Gonzalez’s
5 Gonzalez disputes this point in his brief.
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emergency motion requested that the (1) trial court dissolve its initial temporary injunction
order, and (2) issue a new temporary injunction. Having determined that the temporary
injunction is void and dissolved, we overrule as moot Gonzalez’s issue with respect to his
request for dissolution See Conlin v. Haun, 419 S.W.3d 682, 687 (Tex. App.—Houston
[1st Dist.] 2013, no pet.). We now turn to whether the trial court erred in its denial of
Gonzalez’s application for temporary injunction against Vantage and Prestige.
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. A trial court does not abuse its discretion by denying an application for
temporary injunction if the applicant failed to prove one of the requirements for a
temporary injunction. Sargeant, 512 S.W.3d at 409.
No evidence was presented at the temporary-injunction hearing to support any of
Gonzalez’s claims.6 See id.; see also Stewart Beach Condo. Homeowners Ass’n, Inc. v.
6 Gonzalez claims the trial court did not allow him to put forth evidence in support of his application.
Vantage denies Gonzalez’s characterization of the record. Having reviewed the record, we conclude that
the trial court provided Gonzalez with the opportunity and Gonzalez declined. Prior to issuing a ruling, the
court asked Gonzalez if he was “finished,” to which Gonzalez responded, “That concludes it.” Gonzalez’s
counsel then waited until after opposing counsel had presented arguments and the trial court had orally
issued its order of denial to request an opportunity to supplement the record. The trial court stated, in part,
“Now, if you want to present evidence and make a bigger record for another appeal, I’ll let you do it, but I’m
doing it on legal grounds. Okay? But I’m not going to grant the emergency relief because I don’t see the
[sic] because the injunction you prayed for is in place.” Gonzalez remained silent thereafter, and the
proceedings concluded.
We additionally note that Gonzalez’s application fails to plead a “probable, imminent, and
irreparable injury” as related to Vantage. Where the purpose of a temporary injunction is to preserve the
status quo, and the relief from injury sought has already been actualized, there is no status quo to upset.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (“A temporary injunction’s purpose is to
preserve the status quo of the litigation’s subject matter pending a trial on the merits.” (citing Walling v.
Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993))). Gonzalez specifically claimed that the new temporary injunction
was essential to avoid the injury of foreclosure; Gonzalez sought to “enjoin[] Defendant Vantage Bank
Texas from conducting a foreclosure upon the subject property.” No other injury was cited, and neither party
disputes that the foreclosure has already occurred. Under such circumstances, the trial court would be
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Gili N Prop Investments, LLC, 481 S.W.3d 336, 350 (Tex. App.—Houston [1st Dist.] 2015,
no pet.) (“No temporary injunction may issue unless the applicant offers competent
evidence in support of his or her application to the trial court at the hearing on the
temporary injunction” (quoting Brown, 142 S.W.3d at 589–90)). Therefore, the trial court
did not abuse its discretion in denying Gonzalez’s application. See Sargeant, 512 S.W.3d
at 409.
IV. CONCLUSION
Because the trial court’s temporary injunction does not satisfy the requirements of
rules 683 and 684, we conclude that it is void and dissolved. We reverse and remand for
proceedings consistent with this memorandum opinion in appellate cause number 13-19-
00265-CV.
Additionally, in appellate cause number 13-19-00371-CV, we dismiss as moot in
part Gonzalez’s appeal concerning the trial court’s denial of his request for dissolution of
its existing temporary injunction, and we affirm the trial court’s denial of Gonzalez’s
request for a secondary temporary injunction
All pending motions before this Court in either cause are hereby denied.
GREGORY T. PERKES
Justice
Delivered and filed the
2nd day of April, 2020.
justified in denying a temporary injunction application. See id.; Sargeant v. Al Saleh, 512 S.W.3d 399, 409
(Tex. App.—Corpus Christi–Edinburg 2016, no pet.) (combined appeal & orig. proceeding).
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