Opinion
No. 01-06-00663-CV
Opinion issued March 22, 2007.
On Appeal from the 61st District Court Harris County, Texas, Trial Court Cause No. 2006-08712.
Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
MEMORANDUM OPINION
Appellant Everardo Vallejo brings this interlocutory appeal from the trial court's denial of his request for a temporary injunction to enjoin appellee David Meza from evicting Vallejo from a house that Vallejo claims he purchased from Meza. We affirm the trial court's order denying the temporary injunction.
See TEX. Civ. Prac. Rem. Code Ann. § 51.014(a)(4) (Vernon Supp. 2006).
Background
On February 9, 2006, Vallejo filed suit against Meza alleging that Meza had breached an oral agreement to transfer certain real property, i.e., a house located at 2017 Vance Street, Houston, Texas, where Vallejo had lived for several years. Vallejo also filed an application for temporary injunction requesting that Meza be enjoined from pursuing an eviction action against Vallejo until the ownership of the property was determined.
At the hearing on the application for temporary injunction, Vallejo testified that he met Meza in 1994. Both men were stopped at a red light, when Meza indicated to Vallejo that he was interested in buying the 1965 Chevy truck that Vallejo was driving. Meza followed Vallejo to his house to further discuss the sale of the truck. Vallejo testified that he and Meza reached an oral agreement whereby Vallejo agreed to give Meza $1500 and the truck as a down payment on the house, and thereafter to make monthly payments of $375. Vallejo further testified that, in return, Meza promised to sell the house located at 2017 Vance Street. Vallejo testified that he paid Meza $375 dollars a month for five years, and, on one occasion, in 1995, he gave Meza $600 or $700 for the payment of taxes. Vallejo admitted that he had never paid taxes on the property. He testified that he had receipts for the payments he made to Meza, but he did not bring them with him to court, nor had he given them to his attorney. Vallejo's wife testified to essentially the same facts.
Meza's attorney did not call any witnesses at the hearing, but, instead, argued that Vallejo had not met his burden of proving entitlement to injunctive relief.
Propriety of Trial Court's Denial of Injunctive Relief
In his sole issue on appeal, Vallejo contends the trial court erred by denying his request for injunctive relief.
Standard of Review
Analysis
Butnaru v. Ford Motor Co.84 S.W.3d 198204Id. Id. Id. Walling v. Metcalfe863 S.W.2d 5657Butnaru84 S.W.3d at 204EMSL Analytical, Inc. v. Younker154 S.W.3d 693696Id. Camp v. Shannon348 S.W.2d 517519Davis v. Huey571 S.W.2d 859862Int'l Fid. Ins. Co. v. Wise County Bail Bond Bd. 83 S.W.3d 257260
Vallejo produced evidence that he and Meza had entered into an agreement for the sale of the property at 2017 Vance Street. Both he and his wife testified that Meza orally agreed to transfer the property in exchange for $1500, the 1965 Chevy Truck, and payments of $375 on the house for a period of 5 years. He further testified that he fully performed his part of the alleged agreement.
The issue, thus, is whether any evidence in the record supports the trial court's decision, i.e., was there any evidence to suggest that no contract in fact existed. We begin by noting that there is no written contract evidencing the sale of the property. In general, an agreement to sell real property must be in writing. See Tex. Bus. Com. Code Ann. § 26.01(a), (b)(4) (Vernon Supp. 2006).
Vallejo argues that the statute of frauds is inapplicable because, although he has fully performed under the terms of the alleged oral contract, and Meza accepted the benefits of the contract, Meza has not completely performed by transferring title to the property. It is true that when one party fully performs a contract, the statute of frauds may be unavailable to the other party if he knowingly accepts the benefits and partly performs. Callahan v. Walsh, 49 S.W.2d 945, 948 (Tex.Civ.App.-San Antonio 1932, writ ref'd); Estate of Kaiser v. Gifford, 692 S.W.2d 525, 526 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.); Le Sage v. Dunaway, 195 S.W.2d 729, 731 (Tex.Civ.App.-Waco 1946, no writ). This, however, assumes that a contract exists in this case — an issue we do not determine in this interlocutory appeal.
Vallejo conceded that the parties had only an oral agreement. Vallejo testified that even though he had receipts for all the payments he had made to Meza, he did not bring them to court, nor had he provided them to his attorney. Vallejo also admitted that he had never paid taxes on the property, even though, on one occasion, he gave money to Meza so that Meza could pay the taxes.
The trial court, as the finder of fact, could have concluded that, based on the evidence presented, Vallejo's testimony did not show a probable right of recovery because he produced no evidence of an agreement in writing. The trial court further could have concluded that Vellejo's testimony was simply not credible. See State Bd. of Ins. v. Prof'l Bus. Men's Ins. Co., 359 S.W.2d 312, 321-22 (Tex.Civ.App. — Austin 1962, writ ref'd n.r.e.) (noting that at temporary injunction hearing, trial court is judge of credibility of testimony and weight to be given thereto). From this record, we cannot say that the trial court abused its discretion.
Conclusion
We overrule Vallejo's sole point of error.
We affirm the trial court's order denying injunctive relief.