Home Sav. of America, F.A. v. Van Cleave Development Co., Inc., 04-86-00498-CV

• Decision Date: 31 July 1987
• Docket Number: No. 04-86-00498-CV,04-86-00498-CV
• Parties: HOME SAVINGS OF AMERICA, F.A. and David Abdalla, Appellants, v. VAN CLEAVE DEVELOPMENT COMPANY, INC., Albert William Van Cleave, Jr., Individually and Albert William Van Cleave, III, Individually, Appellees.
• Court: Texas Court of Appeals

Page 58

737 S.W.2d 58

HOME SAVINGS OF AMERICA, F.A. and David Abdalla, Appellants, v. VAN CLEAVE DEVELOPMENT COMPANY, INC., Albert William Van

Cleave, Jr., Individually and Albert William Van

Cleave, III, Individually, Appellees.

No. 04-86-00498-CV.

Court of Appeals of Texas,

San Antonio.

July 31, 1987.

James P. Keehan, Glenn A. Ballard, Houston, for appellants.

J. Ken Nunley, Uvalde, for appellees.

Before CADENA, C.J., and BUTTS and CHAPA, JJ.

OPINION

CHAPA, Justice.

This appeal involves the granting of a temporary injunction in favor of Van Cleave Development Company, Inc., Albert William Van Cleave, Jr., Individually, and Albert William Van Cleave, III (Van Cleave) preventing a foreclosure by Home Savings of America, F.A. and David Abdalla (Savings). No findings of fact or conclusions of law are included in the record before us.

The issues before us are:

1) Whether the temporary injunction was improper because:

a) Irreparable injury was not proved;

b) Van Cleave has an adequate remedy at law;

c) A likelihood of success was not proved;

d) The damages to Savings outweighs the damage to Van Cleave; and

e) Van Cleave failed to do equity in not tendering past due amounts or affirmatively demonstrate ability to pay the amounts due; and

2) Whether a bond of $25,000.00 amounts to abuse of discretion.

We affirm.

The issues involved in the granting of the temporary injunctions will be discussed jointly.

Where a temporary injunction is sought, the only question to be resolved is whether the plaintiff is entitled to a preservation of the status quo of the subject matter. Where a trial court bases its decision on conflicting evidence, no abuse of discretion is shown. In reviewing the decision of a trial court in such cases, the appellate court may not substitute its judgment for that of the trial judge, and is strictly limited to a determination of whether there has been a clear abuse of discretion. In going any further, the appellate court is venturing into an improper premature review of the case on its merits. Where no findings of facts or conclusions of law have been requested or filed, the trial court's judgment must be upheld on any legal theory supported by the record. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978).

Pertaining to the granted temporary injunction, the initial complaint is that Van Cleave failed to prove irreparable injury. We disagree.

The law recognizes that each and every piece of real estate is unique, and that this is certainly an element to be considered in deciding whether there has been irreparable damages. Greater Houston Bank v. Conte, 641 S.W.2d 407 (Tex.App.--Houston [14th Dist.] 1982, no writ). Other elements which may be considered in determining the question of irreparable damages are: 1) whether there may be a loss of substantial equity in the property; 2) whether the value of the property is substantially larger than the debt owed; and 3) whether valuable improvements have been made on the property sought to be foreclosed. Trickey v. Gumm, 632 S.W.2d 167 (Tex.App.--Waco 1982, no writ).

The case at bar deals with the foreclosure of a piece of real estate; 1) involving a piece of land worth $1,500,000.00 previously owned by Van Cleave and contributed to the project; 2) which is worth considerably more than the debt owed; 3) where valuable improvements have been made to the property; 4) involving the potential loss of substantial equity; and 5) involving the potential serious irreparable loss of credit rating to Van Cleave which not only could permanently damage them as a development company, but will specifically damage the entirety of the larger development involved. The record contains ample evidence for the trial judge to find irreparable damage. The cases of Cox v. Guaranty National Bank, 565 S.W.2d 565 (Tex.App.--Corpus Christi 1978, no writ) and Ginther-Davis Center, Ltd. v. Houston National Bank, 600 S.W.2d 856 (Tex.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.) relied upon by Savings are not applicable in that they merely hold the facts therein justified the trial court's ruling denying the injunction.

The next contention is that Van Cleave has an adequate remedy at law. The elements listed in the discussion of the initial complaint are also pertinent to justify the trial court's finding of no adequate remedy at law. The potential loss of credit rating, reputation, and the entire development along with the other elements suffice to hold the trial court did not abuse its discretion. The contention is rejected.

Savings next complains that Van Cleave failed in their burden of proving a probability of recovery on the merits.

In a temporary injunction, "the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation." Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552 (1953); Persyn v. Ishihara, 608 S.W.2d 279 (Tex.App.--San Antonio 1980, no writ). Since the standard is abuse of discretion, the testimony must be viewed in the light most favorable to Van Cleave. Persyn v. Ishihara, 608 S.W.2d 279.

The testimony viewed in the light most favorable to Van Cleave disclosed a series of breached agreements by Savings to reinstate the loan which resulted in making it impossible for Van Cleave to salvage the loan through a completed arrangement to transfer the property into a limited partnership. The testimony was not without conflict. However, a decision of...