In=20 The
For=20 The
EVERARDO =
VALLEJO,=20
Appellant DAVID S. =
MEZA,=20
Appellee
On =
Appeal from the=20
61st District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2006-08712
MEMORANDUM=20
OPINION Appellant =
Everardo=20
Vallejo brings this interlocutory appeal On February 9, 2006, Vallejo =
filed suit=20
against Meza alleging that Meza had breached an oral agreement to =
transfer=20
certain real property, i.e., a house located at 2017 Vance Street, =
Houston, Texas, where Vallejo had lived for several years. Vallejo =
also=20
filed an application for temporary injunction requesting that Meza =
be=20
enjoined from pursuing an eviction action against Vallejo until =
the=20
ownership of the property was determined. At the hearing on the =
application for=20
temporary injunction, Vallejo testified that he met Meza in 1994. =
Both men=20
were stopped at a red light, when Meza indicated to Vallejo that =
he was=20
interested in buying the 1965 Chevy truck that Vallejo was =
driving. Meza=20
followed Vallejo to his house to further discuss the sale of the =
truck.=20
Vallejo testified that he and Meza reached an oral agreement =
whereby=20
Vallejo agreed to give Meza $1500 and the truck as a down payment =
on the=20
house, and thereafter to make monthly payments of $375. Vallejo =
further=20
testified that, in return, Meza promised to sell the house located =
at 2017=20
Vance Street. Vallejo testified that he paid Meza $375 dollars a =
month for=20
five years, and, on one occasion, in 1995, he gave Meza $600 or =
$700 for=20
the payment of taxes. Vallejo admitted that he had never paid =
taxes on the=20
property. He testified that he had receipts for the payments he =
made to=20
Meza, but he did not bring them with him to court, nor had he =
given them=20
to his attorney. Vallejo's wife testified to essentially the same=20
facts. Meza's attorney did not call =
any=20
witnesses at the hearing, but, instead, argued that Vallejo had =
not met=20
his burden of proving entitlement to injunctive relief. Propriety of Trial=20
Court's Denial of Injunctive Relief In his sole =
issue on=20
appeal, Vallejo contends the trial court erred by denying his =
request for=20
injunctive relief. Standard of=20
Review Whether to grant or deny a =
temporary=20
injunction is within the trial court's sound discretion. =
Butnaru v.=20
Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). A reviewing =
court=20
must not substitute its judgment for the trial court's judgment =
unless the=20
trial court's action was so arbitrary that it exceeded the bounds =
of=20
reasonable discretion. Id. The purpose of a temporary =
injunction=20
is to preserve the status quo of the litigation's subject matter =
pending a=20
trial on the merits. Id. A temporary injunction is an=20
extraordinary remedy and does not issue as a matter of right.=20
Id.; Walling v. Metcalfe, 863 S.W.2d 56, 57 =
(Tex. 1993).=20
To obtain a temporary injunction, the applicant must plead and =
prove three=20
specific elements: (1) a cause of action against the defendant; =
(2) a=20
probable right to the relief sought; and (3) a probable, imminent, =
and=20
irreparable injury in the interim. Butnaru, 84 S.W.3d at =
204.=20
When a consideration of the evidence is required, we view the =
record in=20
the light most favorable to the trial court's order, indulging =
every=20
reasonable inference in its favor. EMSL Analytical, Inc. v.=20
Younker, 154 S.W.3d 693, 696 (Tex. App.--Houston [14th Dist.] =
2004,=20
no pet.). When, as here, the trial court does not make findings of =
fact or=20
conclusions of law, we must uphold the court's order on any legal =
theory=20
supported by the record. Id. Our analysis will focus on the =
second=20
element of the temporary injunction test; that is, whether Vallejo =
showed=20
a probable right to recover on his breach of contract cause of =
action from=20
Meza. To show a probable right of recovery, an applicant need not=20
establish that it will finally prevail in the litigation, but =
must, at the=20
very least, present some evidence that, under the applicable rules =
of law,=20
tends to support his cause of action. Camp v. Shannon, =
348 S.W.2d=20
517, 519 (Tex. 1961). A trial court does not abuse its discretion =
if it=20
bases its decision on conflicting evidence and evidence in the =
record=20
reasonably supports the trial court's decision. Davis v. =
Huey,=20
571 S.W.2d 859, 862 (Tex. 1978). An abuse of discretion does not =
occur as=20
long as some evidence supports the trial court's decision. =
Int'l Fid.=20
Ins. Co. v. Wise County Bail Bond Bd., 83 S.W.3d 257, 260 =
(Tex.=20
App.--Fort Worth 2002, no pet.). Vallejo produced evidence that =
he and=20
Meza had entered into an agreement for the sale of the property at =
2017=20
Vance Street. Both he and his wife testified that Meza orally =
agreed to=20
transfer the property in exchange for $1500, the 1965 Chevy Truck, =
and=20
payments of $375 on the house for a period of 5 years. He further=20
testified that he fully performed his part of the alleged=20
agreement. The issue, thus, is whether any =
evidence=20
in the record supports the trial court's decision, i.e., was there =
any=20
evidence to suggest that no contract in fact existed. We begin by =
noting=20
that there is no written contract evidencing the sale of the =
property. In=20
general, an agreement to sell real property must be in writing. =
See=20
Tex. Bus. & Com. Code Ann. =A7 26.01(a), (b)(4) (Vernon =
Supp.=20
2006). Vallejo conceded that the =
parties had=20
only an oral agreement. Vallejo testified that even though he had =
receipts=20
for all the payments he had made to Meza, he did not bring them to =
court,=20
nor had he provided them to his attorney. Vallejo also admitted =
that he=20
had never paid taxes on the property, even though, on one =
occasion, he=20
gave money to Meza so that Meza could pay the taxes. The trial court, as the finder =
of fact,=20
could have concluded that, based on the evidence presented, =
Vallejo's=20
testimony did not show a probable right of recovery because he produced no evidence =
of an=20
agreement in writing. The trial court further could have concluded =
that=20
Vellejo's testimony was simply not credible. See State Bd. of =
Ins. v.=20
Prof'l & Bus. Men's Ins. Co., 359 S.W.2d 312, 321-22 =
(Tex. Civ.=20
App.--Austin 1962, writ ref'd n.r.e.) (noting that at temporary =
injunction=20
hearing, trial court is judge of credibility of testimony and =
weight to be=20
given thereto). From this record, we cannot say that the trial =
court=20
abused its discretion. We overrule Vallejo's sole =
point of=20
error. We affirm the trial court's =
order denying=20
injunctive relief. Sherry Radack Chief Justice Panel consists of Chief Justice =
Radack=20
and Justices Jennings and Bland. 1. =A7=20
2. -- ' -- ' -- --=20