Valley v. Patterson

Decision Date24 March 1981
Docket NumberNo. 1867,1867
PartiesJacques VALLEY and Wife, Therese Valley, Relators-Appellants, v. Robert J. PATTERSON, Individually and as Trustee for Emma E. Dickson, Respondent-Appellee.
CourtTexas Court of Appeals

William R. Anderson, Jr., Sorrell, Anderson, Sorrell & Cachere, Corpus Christi, for relators-appellants.

B. Mills Latham, Law Offices of Latham & Patterson, Corpus Christi, for respondent-appellee.

BISSETT, Justice.

OPINION

This cause reached this Court by the filing of an application for an injunction to restrain the sale of real property at a proposed trustee's sale to be held on March 3, 1981. Jacques Valley and wife, Therese Valley, as plaintiffs, filed suit against Robert J. Patterson, individually and as trustee for Emma E. Dickson, in the District Court of Nueces County, Texas, on February 20, 1981, and sought the issuance of a temporary injunction, which, if granted, would have enjoined the said proposed trustee's sale. The injunction, after a hearing on plaintiffs' petition, was denied by the trial court on February 26, 1981.

Jacques Valley and wife, Therese Valley, relators in this Court, with leave of this Court first obtained, filed an application in this Court on February 27, 1981, pursuant to Rule 383, T.R.C.P., and Tex.Rev.Civ.Stat.Ann. art. 1823 (1964), to enjoin Robert J. Patterson, individually and as trustee for Emma E. Dickson, defendant in the trial court and respondent in this Court, from selling certain real property under the powers conferred by a deed of trust pending the disposition by this Court of the merits of an appeal from the denial of the temporary injunction by the trial court.

Relators sought injunctive relief in this Court on the ground that the same was necessary in order for this Court to protect its jurisdiction of the appeal from the order denying the aforesaid temporary injunction. Otherwise, according to their application, our jurisdiction would have been unlawfully invaded by the destruction of the subject matter of the appeal before we had decided the issues raised in the appeal.

Plaintiffs alleged in their trial court petition: 1) that they were the owners of a certain parcel of real estate in Nueces County, Texas; 2) that at that time, Robert J. Patterson and Emma E. Dickson were the owners of a promissory note which is secured by deed of trust covering said parcel of real estate; 3) that the aforesaid note, in the original sum of $40,000, was executed on October 1, 1980, was non-interest bearing, and was payable in monthly installments in the amount of $1,666.66, each, commencing on October 5, 1980; 4) that payments were made on said note through and including the payment which was due on February 5, 1981; and 5) on February 11, 1981, plaintiffs received from Patterson an acceleration notice, dated February 9, 1981, advising them that the amount ($33,336) "now due and payable" on the note was accelerated and that "the property will be sold on March 3, 1981," at a trustee's sale if the entire amount due is not paid to Patterson before that date. Plaintiffs further alleged that the "attempted acceleration" of the above described note is void and of no force and effect for the reasons that Patterson: 1) has failed to comply with the provisions of Tex.Rev.Civ.Stat.Ann. art. 3810; 2) has failed to first give notice of demand for payment and then notice of actual acceleration of said note; 3) has failed to act impartially with fairness to plaintiffs in such attempted acceleration and foreclosure; 4) and has waived the right to receive payment on said note on the 5th day of each month "in that all previous payments have been accepted by Patterson as trustee on a date subsequent to the 5th of each month and no notice was given to these plaintiffs that payment was required on or before the 5th of each month." It was also alleged that such attempted foreclosure is in violation of 42 U.S.C.A., § 1983, and that the attempted acceleration is defective in that the signature of the co-payee Emma E. Dickson was not notarized.

The transcript was filed by relators in this Court on February 27, 1981. After a hearing, we granted an injunction on March 3, 1981, whereby respondent was enjoined from proceeding with the trustee's sale of said property on March 3, 1981, and ordered that relators file in this Court on or before 5 o'clock p. m. a good and sufficient bond in the amount of $1,000, payable to respondent, to be approved by the Clerk of this Court, conditioned that relators shall pay all damages to respondent in the event it is later held that the temporary injunction was properly denied by the trial court. Such a bond was timely filed by relators, and we advanced the case on our docket and shortened the briefing times of the parties involved in accordance with Rules 410, 411, 412 and 414, T.R.C.P.

On March 3, 1981, and prior to 10 a. m. on that date, we ordered that a formal writ of injunction issue "and all proceedings by Robert J. Patterson, individually and as trustee, and Emma E. Dickson to sell at a trustee's sale on March 3, 1981, the property of this suit be stayed." We further ordered that the subject injunction "shall be in effect until the decision of this Court in the pending appeal in (our) Cause No. 1867 is final, or until such further order of the Court." It was further ordered by this Court "that this cause be set for hearing on March 12, 1981, at 2 p. m."

We have the power to grant an injunction in order to enforce or protect our jurisdiction of a pending appeal, and to preserve the subject matter of the appeal. City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973 (1931). The transcript of the appeal from the order denying temporary injunction was timely filed in this Court, thereby invoking our jurisdiction of the appeal on the merits of the issue of whether the trial court properly denied relators' application for temporary injunction. State v. Gibson's Distributing Company, 436 S.W.2d 122 (Tex.Sup.1968).

The issue raised by the application for an injunction in this Court is whether the granting of the same is necessary to protect our jurisdiction of the pending appeal and to preserve the status quo of the parties and the property until the appeal is decided. The issue before this Court on review of the pending appeal is whether the trial court abused its discretion in denying the requested temporary injunction. If the respondent should sell the subject property at a trustee's sale while relators' appeal on the merits is pending, the appeal will become moot and our jurisdiction of the pending appeal will have been unlawfully invaded and its subject matter destroyed, since there would then be no way to enforce our judgment in the event the relators prevail in their appeal. Madison v. Martinez, 42 S.W.2d 84 (Tex.Civ.App. Dallas 1931, writ ref'd); Pendleton Green Associates v. Anchor Savings Bank, 520 S.W.2d 579 (Tex.Civ.App. Corpus Christi 1975, no writ).

We hold that we had jurisdiction of the original proceeding filed in this Court, and that under the record before us at the time we granted relators' application for an injunction to stay the proposed trustee's sale, the granting of the injunction was proper in order to preserve the subject matter of the appeal and to protect our jurisdiction.

We now turn to the appeal itself. Neither the action we have taken in granting the injunction nor the expressions we have made in support thereof should be taken or construed as any indication of an opinion on the merits of the pending appeal.

On October 1, 1980, Jacques Valley and wife, Therese Valley, executed a note in the original principal sum of $40,000.00, payable to Emma E. Dickson and Robert J. Patterson. The note was non-interest bearing prior to maturity, and was to be paid in monthly installments in the amount of $1,666.66, the first of which was due and payable on October 5, 1980, and the others regularly thereafter, on the 5th day of each succeeding month until the full amount thereof was paid. This note was secured by a deed of trust, executed by the makers, to Robert J. Patterson, trustee, covering certain described land in Nueces County, Texas. The payments which were due on October 5, November 5 and December 5, 1980, were timely made. Patterson, in his brief, admits that the payment on the note which was due on January 5, 1981, was not paid until January 6, 1981, which was one day late.

The installment which was due on February 5, 1981, was not paid on that date. Jacques Valley testified that on Saturday, February 7, 1981, he suddenly remembered that the installment due on February 5, 1981, had not been paid. He then telephoned his wife at their home in Athens, Texas, who put a check in the mail sometime after 3 p. m. on that date; this check was mailed to Patterson from Athens, Texas, on February 7, 1981. The letter, however, bore a postmark of February 9, 1981, and it was received by Patterson on February 11, 1981.

On February 9, 1981, Patterson sent a telegram to the Valleys, which advised them that the monthly payment which was due on February 5, had not been paid; that the note was being accelerated, and that the full amount of $33,386.00, as principal then due and owing on the note, was immediately due and payable. Apparently, this telegram was placed in the Valleys' post office box in Athens, Texas, upon its being transmitted by Western Union. It was not actually received by them until February 11, 1981. Also, on February 9, 1981, Patterson sent a letter to the Valleys which notified them that default had occurred in the payment of the monthly installment due February 5, 1981, and that the payees of said note had elected to accelerate the maturity thereof. They were further advised that all unpaid monies are "now immediately due and payable." The letter also notified them that the property would be sold at trustee's sale on March 3, 1981, if the entire amount then due...

To continue reading

Request your trial
15 cases
  • Shumway v. Horizon Credit Corp.
    • United States
    • Texas Supreme Court
    • 16 Enero 1991
    ...for payment). Likewise, a waiver of "notice of intent to accelerate" is effective to waive that right. See, e.g., Valley v. Patterson, 614 S.W.2d 867, 871-72 (Tex.Civ.App.--Corpus Christi 1981, no writ) (notice of intent to accelerate is waived when note specifically states that maker "expr......
  • BML Stage Lighting v Mayflower Transit
    • United States
    • Texas Court of Appeals
    • 24 Febrero 2000
    ...appellate decision is released. See, e.g., Brown v. Fleming, 212 S.W. 483, 484 (Tex. Comm'n App. 1919, judgm't adopted); Valley v. Patterson, 614 S.W.2d 867, 869-70 (Tex. Civ. App.-Corpus Christi 1981, no writ). However, BML is not seeking an injunction against a foreclosure sale. Rather, B......
  • Shumway v. Horizon Creditcorp
    • United States
    • Texas Court of Appeals
    • 9 Marzo 1989
    ...(Tex.App.--Houston [1st Dist.] 1984, no writ); Slivka v. Swiss Ave. Bank, 653 S.W.2d 939 (Tex.App.--Dallas 1983, no writ); Valley v. Patterson, 614 S.W.2d 867, 871-72 (Tex.Civ.App.--Corpus Christi 1981, no writ); Phillips v. Whiteside, 426 S.W.2d 350, 351-52 (Tex.Civ.App.--Houston [14th Dis......
  • Kehoe v. Lambert
    • United States
    • Texas Court of Appeals
    • 18 Marzo 1982
    ...waiver of notice, demand, and/or presentment, such notice, demand, and/or presentment is not a prerequisite to acceleration. Valley v. Patterson, 614 S.W.2d 867 (Tex.Civ.App.-Corpus Christi 1981, no writ); Burnett v. Manufacturer's Hanover Trust, 593 S.W.2d 755 (Tex.Civ.App.-Dallas 1979, wr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT