### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00594- CV

S. Belin da Wright, App ellant

v. The Fir st National Bank of B astrop; Cody Mauck, Indivi dual ly and as P resident of Fir st National Ban k of

Bastrop, Elgin Branch; The Davis Law F irm ; and Joh nni e F . Davis,

Appellees

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 21ST JUDICI AL DISTRICT NO. 28,6 72, H ONO RAB LE CHRI STO P HER DARROW DUGGAN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N This is an interlocutory

appea l from the denial of a temporar y injunction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (4) (West Supp. 2012). S. Be linda Wright, appellant, owns

a building in downtown Elg in, Texas. To purcha se the building, Wright took out a loan from First National Ba

nk of Ba strop (“the Ba

nk”) evide n ce d b y a promissory note and secur ed by a deed of
trust. When the Ba

nk notified Wright that it had acc eler ated the note due to defa ult and intended to sell the proper

ty at a non-judicial fore closure sale, Wright filed suit in district court alleg ing cause s of action for breac h of contract, fraud and rela ted t orts, and breac h of fiduciary duty

. Wright also soug ht a decla

ration that she had a rig ht to “re instate the loan” and cure the defa ult. Wright applied for a temporar

y injunction to prohibit the Ba nk from fore closing on the prop er t y . The trial courtdenied the applica tion. I n nine issues, Wright contends that the trial court abused its discr etion by

deny ing the application. We will affir m.

F ACTUAL AND P ROCEDURAL BACK GR OUND On October 3, 2002, Wright executed a promissory note in the amount of $124,000 pay able to the B ank and use d the borrow ed money to pur chase a building in downtown E lgin. To

secur e the note, Wrig ht also executed a deed of tr ust gr anting the B ank a lien on the building. On May 14, 2012, the Ba

nk sent Wright a notice informing her that she was in defa ult on the note and advising her that if she did not cure the defa ult by pay ing the past-due amounts, it would fore close

on the building. The Ba

nk mailed the notice to 794 FM 3000, Elg in, Texas. On J une 11, the Ba nk
sent a notice to Wright, ag ain mailed to 794 FM 3000, informing her that, due to her failing to cure the defa ult, it was acc eler ating the note. The Ba nk demande d pay

ment of the full amount rema ining

on the note and advised that a non-judicial fore closure sale would take place on J uly 3. Acc ording
to Wright, althoug h she o wn ed the proper ty at 794 FM 3000, she did not live there and did not reg ularly chec k the mail at that addre ss. She stated that she discovere d the J une 11 notice on J une 1 22 when she happene d to check t he mailbox at 794 FM 3000. Wright testified that she had previously informed the Ba nk that notices should be sent to her at 403 Ba ndera Woods Boule vard, Elg in, Texas, the ad d ress at which she resided. Wright testified that she went to the Ba nk the fo l lowing Monday (June 25) and spoke with the Ba nk’s president, Cody Mauck, who she cl ai m s

assure d her that the Ba

nk had not actua lly posted the proper ty for fore closure. Wright then went to

Wright’s testimony was g iven du ri n g a hear ing on her application for a temporar y 1 injunction held on Aug ust 20. 2the Ba strop County Clerk’s office and discovere d that the Ba nk had posted the building for the J uly 3 fore closure sale. Wright testified that when s h e ca l l ed M au ck on J une 26 to inquire as to the past-du e amount neede d to cure the defa ult, he informed her that, beca use the note had been

acc eler ated, the Ba

nk would only acc ept pay

ment of the full amount of the loan balanc e. Acc ording
to Wright, she we n t to the Ba nk on J une 29 and attempted to tender the past-due amount, but the Ba nk ref used to acc ept it. But Mauck also informed Wright that the Ba nk was pulling the building from the July

3 fore closure sa le. On J uly 5, the Ba

nk sent a new notice to the 794 FM 3000 addre ss informing Wright that, due to defa

ult, the note had been acc eler ated. The Ba nk demande d pay

ment of the full amount

rema ining on the note and advised that a non-judicial fore closure sale would take place on Aug ust 7. On Aug ust 6, Wright fi l ed her orig inal petition and applications for temporar y restra ining order , temporar y i n j u n ct i on, and perma

nent injunction. The trial court g rante d a temporar y restra ining order prohibiting the Ba

nk from foreclosing on the bui lding for fourte en day s and set a te mporary injunction hearing for Aug ust 20. The sale sc heduled f or Aug ust 7 did not t ake pla ce. On Aug ust 8, the Ba

nk mailed a notice to Wright at her 403 Ba ndera Woods addre ss informing her that the note was in defa ult due to unpaid principal and interest and also due to the fac t that Wright had failed to maintain hazard insurance on the proper ty and had allowed an I RS tax lien
to be filed ag ainst the proper ty

. The Ba

nk demande d that Wright cure these defa ults by pay ing the
amounts past due by September 5, providing proof of hazard insurance covera g e, and providing a rele ase of the I RS tax lien. The Ba nk informed Wright that if she cure d the defa ults, the note would be reinstated and the Ba

nk would commence acc epting reg ular pay ments. The notice further stated

3that in the event Wright did not cure the defa ult by September 5, the Ba nk would acc eler ate the note and, if the f

ull balance was not paid, for eclose on the building. The trial court held a hear ing on Wright’s application for a temporar y injunction on Aug ust 20. At the hear ing, Wright arg ued that the Ba nk should be enjoined from fore closing on the building beca

use, in her view, the Ba

nk’s notices did not comply with the notice requi re m en t s of proper ty code section 51.002, which, she contends, deprive d her of her statutory rig ht to cure the defa ult. See Tex. Prop. Code Ann. § 51.002 (West Supp. 2012). Wright testified at the hear ing and descr ibed the series of notices sent by the Ba nk as well as h er various conver sations with Ba nk offic ia ls a n d the Ba nk’s attorney reg arding the fore closure eff orts. Wright asser

ted that under section 51.002 of the proper

ty code she was entitled to 20 day s to cure the defa ult and that she was deprive d of this opportunity beca

use the Ba

nk sent the notice to her 794 FM 3000 addre ss rathe r than the Ba ndera Woods addre ss. She stated that the second n o t i ce, sent on J uly 5, was also sent to the “wr ong ” addre ss and purported to acc eler ate the note without providing her any opportunity to cure the default. W ri gh t arg ued that she had a subst antial l ikelihood of prevailing on the m erits of her claim that the Ba

nk’s fore closure eff

orts violated the proper

ty code by eff

ectively , and wrong fully , depriving her of an opportunity to cure the defa ult. Wright reque sted that the trial court enjoin the Ba nk from proce eding on any fore closure until she had cure d all defa ults. The t ri al court denied Wright’s a

pplication for a

temporar y injunction, and Wrig ht perfe cted this appe al.

2

Although the trial court did not file findings o f fa ct or conclusions of l aw, and the order 2 does not set forth the g round for deny ing the reque st for temporar y injunction, the trial court stated at t h e co n clusion of the hear ing that: “[T] he Court finds that the plaintiffs are asking for an injunction ag ainst something that ha sn’t happene d y et.” 4STANDARD OF REVIEW A temporar

y injunction is an extraordinary reme dy and does not issue as a matter of rig ht. W alling v. Metc alf

, 863 S.W .2d 56, 57 (Tex. 1993). The purpose of a temporar y injunction is to prese rve the status quo of the litigation’s subject matter pending a trial on the merits. Butnaru

v. Ford Motor Co. , 84 S.W .3d 198, 204 (Tex. 2002)

. The status quo is “ the last actua l, pe ace able,
non-conte sted status which prec eded the pending controve rsy .” In re Newton , 146 S.W .3d 648, 651 (Tex. 2004) (quoting Janus Films, Inc. v. City of Fort W orth , 358 S.W .2d 589, 589 (Tex. 1962) (per curia m)). To obtain a tem p o ra ry injunction, the applicant must ordinarily plead and prove three specific elements: (1) a cause of action ag ainst the defe ndant; (2 ) a probable rig ht to the relief soug ht; and (3) a probable , imminent, and irrepa rable injury in the interim. Butnaru , 84 S.W .3d at 204. A probable injury is one that is imminent, irrepa rable , an d h as n o adequate reme dy at law. Lavigne v. Holde r , 186 S.W .3d 625, 629 (Tex. App.—For t Worth 2006, no pet.). I n an appea l from an order g ranting or deny ing a reque st for a temporar y injunction,

our revie w is confine d to the validity of the order that g rants or denies the injunctive relief

. Synergy C t r . , Ltd. v. L one Star Franchising, Inc. , 63 S.W .3d 561, 564 (Tex. App.—Austin 2001, no pet.). The decision to g rant or deny an injunction is w ithin the sound discretion of the trial court, and we will not reve rse that decision absent a clea r abuse of discretion. W

alling , 863 S.W .2d at 57. A trial
court abuses i t s d i s cr etion when it acts arbitra rily and unrea sonably , without ref ere nce to g uiding rules or p ri n ci p l es, or when it misapplies the law to the established fac ts. Samlowski v. W ooten , 332 S.W .3d 404, 410 (Tex. 2011) (citing Merc edes- Benz Credit Corp. v. Rhy ne , 925 S.W .2d 664, 6 6 6 (T ex . 1996)); Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241 (Tex. 1985). I n

5deciding whether the trial court has abused its discretion in deny ing or g ranting a requ est for a

t em p o ra ry injunction, the revie wing court may neither substitut e its judgme nt for that of the tri al
court nor consider the merits of the underly ing lawsuit. Davis v. Huey , 571 S.W .2d 859, 862 (Tex. 1978); Synergy Ctr., Ltd. , 63 S.W .3d at 564. We must revie w t h e ev i d en ce in the light most favor able to t he order and must indulge all rea sonable inferenc es i n favor of t he decision. Center for Econ. Justice v. American Ins. Ass’n , 39 S.W .3d 337, 344 (Tex. App.—Austin 2001, no pet.). I n the absenc e of specific finding s of fac t and conclusions of law, the trial court’s orde r m u s t b e upheld on any leg al t heory supported by the record. Davis , 5 7 1 S .W.2d at 862; Universal Health Servs., I nc. v. Thompson , 24 S.W .3d 570, 577 (Tex. App.—Austin 2000, no pet.).

DISCUSSIO N I ssues one throug h six , which Wright combines for arg ument, asser t sever al g rounds
to support Wright’s contention that the trial cour t abused its discretion by

deny ing he r applica tion for a temporar

y injunction, arg

uing that she has a probable rig ht to rec over on her cl ai m t h at the Ba nk’s notices wer e insufficient. As the Ba nk corr ectly notes, howeve r, any reque st that the Ba nk be enjoined from proce eding with the fore closures that wer e schedule d for J uly 3 and Aug ust 7 was moot by the time of the he aring on Wright’s a pplication for a

temporar y injunction, as those dates had alre ady passed without the Ba nk’s taking any action to proce ed with the fore closure sale. At the time of the Aug ust 20 hearing , there was no fore closure sale schedule d. Significa ntly , at that time the Ba nk had provided Wright with an opportunity to cure her defa ults by September 5, afte r which it had ag ree d to acc ept reg ular pay ments on the note. Be cause the Ba nk was not then attempting to proce ed with a for eclosure pursuant to the notices tha t Wright contends were defic ient, the events
6associate d with those notices could not be the source of imminent irrepa rable har m. Future fore closure proce eding s would require new notices, which might or might not comply with the rules g overning fore closure proce eding s. Moreove r, by the time of the temporar y injunction hear ing, the Ba nk had g iven Wright the relief she soug ht in her decla ratory judgme nt action, i.e., it had provided her with an opportunity to cure her defa ult and stated that it would only acc eler ate the n o t e if she fa i l ed t o do so within the approximately 30-day time fra me they provided. The evidenc e i n t h e

rec ord, there fore , supports the t rial court’s denial of the reque st for a temporar y injunction on the g round that Wright did not prove the element of imminent irrepa rable harm. As previously noted,

3 any complaints that the Ba nk did not have the rig ht to acc eler ate the note and fore close beca use of the manner in w hich it provided her notices in the past are moot be cause the Ba nk did not proce ed with fore closure pursuant to those notices. And, more importantly , at the time the court considere d the reque st for a temporar y injunction, the Ba

nk had provided Wright with the relief she soug ht—an opportunity to cure her defa ults and avoid acc eler ation of the note and subsequent fore closure. On these facts, we cannot conclude that the t rial court abused its discretion in deny ing the reque st for

a temporar

y injunction. Davis , 571 S.W .2d at 862; Universal Health Servs., Inc. , 24 S.W .3d at 577 (den i al o f temporar

y injunction not abuse of discretion when one of three require d elements is not proven).

This is distinguishable from the situation in whi ch a party contends that fore closure is 3 wrong ful for re asons that continue to exis t during the pendenc y of the proce eding such as, for example, when the party attempting to fore close did not have the rig ht to acc eler ate the note or when the note is not actua lly

in defa ult. 7We also note that alleged proce dural defe cts in the Ba nk’s previous fore closure attempts are , at least in pa rt, the basis for Wright’s claim to have a probable rig ht to rec over on the merits of her underly ing cause s of action. I n the event the Ba nk attempts to fore close in the future, any such fore closure would have to be pursuant to differ ent notices from the ones prec eding the sales noticed for J uly 3 and Aug ust 7. I f Wright believes that those notices are defic ient, she may at that time seek injunctive relief from the trial court and, if she is unsucce ssful there , from this Court. We

overr ule Wright’s f

irst six issues. I n her seventh issue, Wright asser ts that the trial court abused i t s discretion by ref using to permit her to admit into evidenc e a tape rec ording of a conver sation betwee n her and the Ba nk’s president. I t is evident from the rec ord, howeve r, that Wright never offe red the tape

rec ording into evidenc e. Thus, the trial court did not ref use to admit proff

ere d evidenc e, as Wright contends on appea l. Reg ardle ss of whether the evidenc e would have been admissible, Wright failed
to offe r it into evidenc e and thus failed to obtain a ruling from the trial court that could be the subject of appellate revie w. See Tex. R. App. P. 33.1(a)

. Moreove r, to the extent Wright contends that the
contents of the tape rec ording , had it been admitted, would demonstrate that she was entitled to the temporar y injunction, we ar e unable to evaluate the merits of such a claim beca use Wright did not make an offe r of proof or otherwise make the tape rec ording part of the appellate rec ord. See Tex. R. Evid. 103(a) (2); In re Commitment of Hill , No. 09-11-00593- CV, 2013 WL 772834, at *4 (Tex. App.—B eaumont Feb. 28, 2013, pet. fil ed) (mem. op.) ( “E rror may be predicate d on a ruling t hat excludes a par

ty ’s evidenc e only

if the substance of the e vidence was made known t o the cour t by offe r.”)

. I n her brief, Wright asser ts that the tape- rec orded conver sation is evidenc e supporting her

8cause s of ac tion for fra ud, misrepre sentation, and bre ach of the duty of g ood faith fa ir dea ling a nd supports her contention that the Bank’s noti ces were sent to an incorrec t addre ss. Even a ssuming that the tape rec ording contains such evidenc e, howeve r, the trial court’s ref usal to admit it, had the
court been asked to do so, would not h av e co n s t i t uted reve rsible err or beca use such evidenc e would not have tende d to pr ove the element of imminent irrepar able ha

rm. We overr

ule Wright’s seventh issue. I n her eig hth issue, Wright maintains t h at t h e trial court abused its discretion in “finding that [she] made any ‘mater ial misrepre sentations’ about the c hara cter of the re al prope rty at issue.” Wright appea

rs to ref er to conce rn expressed by the trial court during the temporar y injunction hear ing reg arding the fac t that Wright’s reque st for a temporar y restra ining order had not

reve aled that the property at i s sue was commerc ial, as opposed to residential, property

. The trial 4 court did not file finding s of fa ct or c onclusions of l aw. To the ex tent this statement constit utes a “finding ,” it is not the basis for the trial c ourt’s denial of the temporar y injunction a

nd is theref

ore not materia l to our revie w of the trial court’s order at issue in this appea l. We overr ule Wright’s eig hth issue.

This distinction is potentially signific an t beca use Wright’s application for a temporar y 4 injunction was based, in part, on her contention that the Ba nk failed to provide her with an opportuni t y to cure the defa ults and thus failed to comply with proper ty code section 51.002(d), which re quires that the de btor have at l east 20 day s to cure a defa ult before a notice of

sale c an be g iven. See Tex. P rop. Code Ann. § 51.002( d) (West Supp. 2012). But thi s statute applies onl y to proper ty used as the debtor’s residenc e, not to commerc ial proper ty such as the building at issue in this c ase. See id. (mortg ag e service r shall g ive debtor at least 20 day s to c ure defa ult if proper

ty is used as de btor’s re sidence ). 9The trial court also order ed the Ba strop County District Clerk to return to Wright the

$1,000 bond she posted in co n n ection with obtaining the temporar y restra ining order

. Wright observe s that the chec k issued to her by the district cler k was draw n on a Fi rs t National Ba nk of Ba strop acc ount. I n her ninth issue, Wright asser ts tha t be cause the Ba

nk, a party in this case , also maintains the district c lerk’s bank acc ount, the trial court should have “re cuse[d] itself or move[d]

sua sponte for a chang e of venue” due to an “appe ara nce of p artiality stemming from the court’s established rela tionship with the Ba nk.” Essent i al l y , Wright contends that she cannot g et a fair hear ing in a Ba strop County district court beca use of the banking rela tionship betwee n the Ba nk and the district cler

k. Wright cites no authority for the proposition that it is improper for a district court to hear a case in which one of the litigants is a financ ial instit ution in which the district cler k of that
court holds a bank acc ount. Moreove r, Wright does not identify any ty pe of direc t or indirect pecunia ry or persona l interest the trial court might h av e i n the case or that could possibly be aff ecte d by its outcome, which is the ty pe of inter est require d to disqualify a judge. See Cameron

v. Gree nhill , 582 S.W .2d 775, 776 (Tex. 1979). We conclude that the mere fac t that the district cler k has a bank acc ount at the Ba nk does not require that the trial court rec use himself or that the case be transfe rre d to a diffe rent ve nue. We over rule Wrig ht’s ninth issue.

CONCLUSION The trial court did not abuse it s d is c r e tion in deny ing Wright’s reque st for a temporar y injunction. At the time of the hear ing, the Ba nk had g iven Wright an opportunity to cure the def aults, the cure period was still ong oing, and the Ba nk had neither noticed nor schedule d a fore closure sa le. Having overr uled Wright’s nine issues, we a ffirm the tria l court’s orde r.

10_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Apr il 19, 2013

11