in Re Vistano Inc. N. v.

• Court: Court of Appeals of Texas
• Decided: May 29, 2001
• Docket: 03-01-00206-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00206-CV

In re Vistano Inc. N.V.

ORIGINAL PROCEEDING FROM TRAVIS COUNTY PER CURIAM

On April 25, 2001, relator Vistano, Inc. N.V., filed a petition for writ of injunction and request for emergency relief to protect this Court's jurisdiction over a pending appeal. The petition for writ of injunction seeks to prevent the sale of eight properties subject to the deed of trust as identified in the trial court's final judgment in cause 99-07436; ⁽¹⁾ specifically, to enjoin Admiral Construction, Inc. and the office of Bruce Elfant, Travis County Constable Precinct 5, from proceeding with any foreclosure sale, judicial or non-judicial, under either the trial court's judgment in 99-07436 or the deed of trust that was at issue in that litigation. By order of April 30, 2001, we granted Vistano's request for emergency relief to stop the foreclosure and sale scheduled for May 1, 2001. See Tex. R. App. P. 52.10 (temporary relief without response). We have now received Admiral's response to the petition for writ of injunction. ⁽²⁾

The underlying lawsuit involves issues concerning the validity of the deed of trust on the properties scheduled for foreclosure and whether any indebtedness it secured has been discharged. Which party in the underlying litigation will be entitled to the land is the ultimate subject matter of the appeal; that subject matter needs to be preserved. See Metropolitan Life Ins. Co. v. La Mansion Hotels & Resorts, Ltd., 762 S.W.2d 646, 652 (Tex. App.--San Antonio 1998, writ dism'd w.o.j.) (land is unique and foreclosure and sale creates harm for which monetary damages are inadequate compensation); Greater Houston Bank v. Conte, 641 S.W.2d 407, 410 (Tex. App.--Houston [1st Dist.] 1982, writ ref'd n.r.e.) (same). An injunction to protect our jurisdiction is appropriate. Tex. Gov't Code Ann. § 22.221(a) (West Supp. 2001); Lamar Builders, Inc. v. Guardian Sav. & Loan Ass'n, 786 S.W.2d 789, 790 (Tex. App.--Houston [1st Dist.] 1990, no writ). Therefore, we grant Vistano's petition for writ of injunction and enjoin any foreclosure, judicial or non-judicial, of the above-described properties pending the disposition of the appeal in our cause number 03-01-00193-CV. Our disposition of the petition for writ of injunction is in no way a comment on the merits of the underlying appeal. ⁽³⁾

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Filed: May 29, 2001

Do Not Publish

NO. 03-01-00206-CV In re Vistano, Inc. N.V., Relator

ORIGINAL PROCEEDING FROM TRAVIS COUNTY WRIT OF INJUNCTION

THE STATE OF TEXAS, COUNTY OF TRAVIS

TO: BRUCE ELFANT, CONSTABLE, TRAVIS COUNTY PRECINCT 5; ADMIRAL CONSTRUCTION, INC.; MIKE R. LARY, TRUSTEE

Whereas, relator Vistano, Inc. N.V., relator above and appellant in our cause number 03-01-193-CV, has filed a petition for injunctive relief alleging as follows:

That the District Court of Travis County, 126th judicial district, did in cause 0-99-07436, styled Vistano, Inc., N.V. v. Admiral Construction Co., Inc., render a judgment authorizing the foreclosure of six commercial properties and two residential properties the subject of a deed of trust; that thereafter Vistano perfected its appeal to the Third Court of Appeals; and that Admiral Construction Company and Bruce Elfant, Constable, will proceed to sell the subject property unless enjoined.

The Justices for the Third Court of Appeals, upon presentation by appellant of its request for injunctive relief, made an order thereon that is attached hereto.

THEREFORE, you, Bruce Elfant, Constable, are enjoined and restrained from proceeding with any foreclosure sale of the subject properties pending this Court's disposition of the appeal in cause 03-01-00193-CV. You, Admiral Construction, Inc. and Mike Lary, Trustee, are enjoined from taking any further steps to secure a foreclosure under the deed of trust that is at issue in the above-enumerated appeal pending this Court's resolution of the appeal.

ISSUED under my hand and seal May 29, 2001.

Diane O'Neal, Clerk

1. The subject of the appeal docketed as cause number 03-01-00193-CV. Admiral Construction, Inc. was the defendant and counter-plaintiff at the trial court.

2. Adminral Construction, Inc. filed an unopposed motion to modify our order and writ of injunction issued April 30, 2001, requesting that it be allowed to take the necessary posting and advertising steps to reschedule the property for sale on June 5, 2001, in the event this court were to dissolve its injunction such that the sale could proceed. We granted Admiral's motion and modified our injunction of April 30, 2001 by order dated May 9, 2001.

3. Vistano also filed a "motion for appellate review under Rule 24.4, or alternatively, petition for writ of mandamus." Because of the relief granted by this order, that motion is dismissed as to both alternatives.

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NO. 03-01-00206-CV In re Vistano, Inc. N.V., Relator