Persyn v. Ishihara

608 S.W.2d 279, 1980 Tex. App. LEXIS 4012
Court of Appeals of Texas·Decided October 22, 1980·No. No. 16502·Published·Cited by 3 cases

Opinion

OPINION

KLINGEMAN, Justice.

This is an appeal from an order granting a temporary injunction. Appellees, Ray K. Ishihara and Mary H. Ishihara, filed suit in [280] Bexar County, Texas, against Richard M. Persyn and Elmaya W. Persyn, seeking reformation of a promissory note so as to provide for annual payments rather than monthly payments; for damages under the Deceptive Trade Practices Act-Consumer Protection Act; and for temporary injunction restraining and enjoining appellants from foreclosing on the real estate lien securing the note involved during the penden-cy of this cause. The trial court set a hearing on the application for temporary injunction, and after hearing evidence, entered an order granting the temporary injunction conditioned on appellees’ posting bond in the amount of $14,257.28. The appeal here involves only the order granting the temporary injunction.

On or about December 1, 1978, appellants as seller and appellees as buyer entered into an earnest money contract to convey property known as Michael’s Apartments in Universal City, Bexar County, Texas, for a total consideration of $270,000 as follows: (1) $60,000 cash; (2) buyer to assume an existing mortgage in the approximate amount of $110,000; (3) seller to carry a second mortgage in the amount of $100,000 at 9%% interest amortized for 25 years at $10,693 annually. Although not specifically shown by the contract, the transaction was to be closed by a third party exchange, with Nicholas Colon and Bertha Colon being conveyed the property by appellants, and the Colons executing the vendor’s lien note here involved. The Colons later conveyed title to the property to appellees in exchange for an apartment building situated in Los An-geles, California, owned by appellees. Ap-pellees assumed the obligation on the promissory note signed by the Colons.

Appellants assert that there is no evidence or insufficient evidence by which the trial court could have concluded the appel-lees would prevail in a trial on the merits. Appellants urge that the only applicable ways for appellants to secure reformation of the executory contract involved are by virtue of (a) mutual mistake of the parties, (b) unilateral mistake of the plaintiff coupled with inequitable conduct on the part of the other party, or (c) fraud or misrepresentation. They argue that there is absolutely no pleading or evidence to support the first two methods, that appellees’ pleadings only hint of fraud and that there is no evidence of the essential elements of fraud.

A trial judge abuses his discretion when he fails to apply the law correctly to the undisputed facts or when he grants a writ when the evidence fails to furnish any reasonable basis for concluding the appellant has a probable right of recovery. State v. Southwestern Bell Telephone Co., 526 S.W.2d 526 (Tex.1975); Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961).

The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion. Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952).

An appeal of an order granting or denying a temporary injunction is interlocutory in nature and the merits of the underlying case are not presented for appellate review. Davis v. Huey, 571 S.W.2d 859 (Tex.1978). The evidence must be reviewed, but only to see if it supports the trial court’s exercise of discretion and if the evidence is conflicting the order will not be reversed if there is evidence to support it. Anderson County Taxpayers’ League v. City of Palestine, 576 S.W.2d 679 (Tex.Civ. App.-Tyler 1979, no writ).

In Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953), the court said:

In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James v. [281] Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. To warrant the issuance of the writ, 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. Rosenfield v. Seifert, Tex.Civ.App., 270 S.W. 220, 223; Nagy v. Bennett, Tex.Civ.App., 24 S.W.2d 778, 781; High on Injunctions, 4th Edition, Vol. 1, See. 5, p. 8. If the party enjoined prevails on a final trial of the case he finds protection against the improvident granting of the writ and consequent loss in the interim in the applicant’s bond. Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 462.

Id. at 552.

Appellees resided in California and closed their portion of the transaction through Stewart-West Coast Title Company while appellants closed their portion of the transaction in the offices of Stewart Title Company of San Antonio. Stewart Title Company of San Antonio delivered a copy of the earnest money contract and the title information to Mr. Peterson, an attorney in the Stewart Title Building, and requested him to prepare the note.

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Persyn v. Ishihara, 608 S.W.2d 279, 1980 Tex. App. LEXIS 4012 (Tex. Ct. App. 1980).

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