Home Sav. Ass'n v. Ramirez

• Decision Date: 22 May 1980
• Docket Number: No. 1669,1669
• Parties: HOME SAVINGS ASSOCIATION, Appellant, v. Crespin RAMIREZ and Mary Flores Ramirez, Appellees.
• Court: Texas Court of Appeals

Page 911

600 S.W.2d 911

HOME SAVINGS ASSOCIATION, Appellant, v. Crespin RAMIREZ and Mary Flores Ramirez, Appellees.

No. 1669.

Court of Civil Appeals of Texas, Corpus Christi.

May 22, 1980.

Rehearing Denied June 18, 1980.

John A. Coselli, Jr. and Howard C. Lee, Jr., Law Offices of Carl, Lee & Fisher, Houston, for appellant.

Terry A. Canales, Law Offices of Canales & Barrera, Alice, for appellees.

OPINION

YOUNG, Justice.

This is an appeal from an order granting a temporary injunction. Crespin Ramirez, and wife, Mary Flores Ramirez, were granted a temporary injunction in district court enjoining the Sheriff of Wharton County from executing a writ of restitution against their home. The writ of restitution was ordered by the county court of Wharton County as a result of a suit for forcible entry and detainer filed by Home Savings Association. The district court issued the injunction based upon the allegations of Mr. and Mrs. Ramirez that the county court exceeded its jurisdiction by adjudicating title to the property. Home Savings appeals. We reverse.

On review of an order granting a temporary injunction, this Court is limited to determining whether there has been a clear abuse of discretion by the trial court in granting the injunction. Davis v. Huey, 571 S.W.2d 859 (Tex.Sup.1978); Powers v. Lynn, 523 S.W.2d 271 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n. r. e.).

"(The purpose of a temporary injunction is the) preservation of the status quo of the subject matter of the suit pending trial on the merits." Davis v. Huey, supra; Young v. Pulaski Bank & Trust, 579 S.W.2d 294, 295 (Tex.Civ.App. Dallas 1979, writ ref'd n. r. e.). The "status quo" has been defined as "the last actual, peaceable noncontested status which precedes the pending controversy." McCan v. Missouri Pac. R. Co., 526 S.W.2d 754, 758 (Tex.Civ.App. Corpus Christi 1975, no writ); Saenz v. Lackey, 522 S.W.2d 237, 242 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n. r. e.). To determine the status quo as it existed at the time of the hearing on the injunction in the district court, it is necessary to review the pertinent facts of this case.

Appellees, the owners of a house at 709 David Street in the city of Wharton, Wharton County, contracted with Major United Steel Siding Corp., a construction company whose principal place of business is in Harris County, to install siding on their home. The contractor received a note for the work to be performed, which was assigned to the appellant, who had prior agreements with the contractor to finance such work. The assignment tranferred to the appellant the note and all liens provided for in the "Contract for Labor and Materials and Trust Deed" previously executed between the appellees and the contractor. That agreement provided that in the event of default, foreclosure and a trustee's sale would occur. It further provided:

"If the Owners or those holding under them shall remain in possession of said property after sale, however, made, such Owners or those holding under them shall become the tenants at sufferance of the purchaser, and should such tenants refuse to surrender possession of said property upon demand, the purchaser shall thereupon be entitled to institute and maintain the statutory action for forcible entry and detainer, and procure a writ of possession thereunder."

The contractor allegedly performed the work provided for in the contract, as is evidenced by the appellees' signatures on a Completion Certificate for Property Improvement Loan. Appellees, however, refused to make payments under the terms of the note. Instead, appellees brought suit against appellant in the district court of Harris County on the contract.

Under the foreclosure provisions set out in the deed of trust, the appellant foreclosed on the note and held a substitute trustee's sale at which the appellant purchased the property. As a result of the sale and appellees' continued occupation of the house, the appellant brought a forcible entry and detainer suit in the justice court of Wharton County to remove the appellees from the premises. After judgment was entered in appellant's favor, a trial de novo was had in the county court of Wharton County in which appellant was granted a writ of restitution in order to obtain immediate possession of the premises. Appellees then brought this suit in the district court of Wharton County to enjoin the execution of the writ until a final disposition of the suit in Harris County was made. This appeal of that temporary injunction followed.

Tex.Rev.Civ.Stat.Ann. art. 3973 (1966) provides that any person who " . . . shall wilfully and without force hold over any lands, tenements, or other real property after the termination of the time for which such lands, tenements or other real property were let to him . . . shall be adjudged guilty of forcible entry and detainer." Jurisdiction of such actions is expressly given to the justice of the peace of the precinct where the property is located. Other statutes relating to this action provide that the judgment of the county court in a trial de novo of the forcible entry and detainer at the justice court is nonappealable except where the judgment for damages exceeds $100.00 and that this suit is non-exclusive in that it does not bar an action for trespass, damages, waste, rent or mesne profits. Tex.Rev.Civ.Stat.Ann. arts. 3992 and 3994 (1966). See Johnson v. Highland Hills Drive Apartments, 552 S.W.2d 493 (Tex.Civ.App. Dallas 1977), writ ref'd n. r. e., 568 S.W.2d 661 (Tex.Sup.1978); Valenzuela v. Housing Authority of El Paso, 520 S.W.2d 406 (Tex.Civ.App. El Paso 1975, no writ).

In most situations the parties involved in a forcible entry and detainer suit are in a...