Affirmed and Majority and Concurring Opinions filed June 29, 2023. 

In The

Fourteenth Court of Appeals

NO. 14-22-00505-CV

FERCAN KALKAN, TXMV2017, LLC AND ENKB-MONTICELLO, LLC, 

Appellants 

V.

PABLO SALAMANCA, Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2022-33737

CONCURRING OPINION

I concur with the court’s judgment. I agree that the Supreme Court has 

previously held that a tort claimant can bring a TUFTA claim prior to judgment in a

tort case. See Hollins v. Rapid Transit Lines, Inc., 440 S.W.2d 57 (Tex. 1969) (point 

of error number 1). The Hollins case did not concern a temporary injunction.

1

1 In fact, the concurring justice specifically noted: “As I understand the Court’s opinion, 

its only holding is that the trial court erred in dismissing the suit to set aside. I agree with that 
2

As to point of error number two—whether there is evidence to support 

imminent and irreparable harm to Salamanca—the only argument briefed under that 

point was that Salamanca had an adequate remedy by law through money damages. 

Salamanca cited a number of cases, from our court, that were not TUFTA cases to 

support that position. The majority relied on a case from the First Court of Appeals, 

Telephone Equipment Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601

(Tex. App.—Houston [1st Dist.] 2002, no pet.), to conclude that an injunction is 

necessary to prevent action to render a debtor insolvent under TUFTA. I agree that 

under TUFTA a party is entitled to such an injunction—irrespective of money 

damages.

Appellants’ third point of error is whether there are “sufficient badges of 

fraud” to support the injunction and I agree with the majority on that point.

The Appellants discussed an opinion from our court, Mosaic Baybrook One 

LP v. Cessor, Nos. 14-19-00514-CV, 2021 WL 2656613 (Tex. App.—Houston [14th 

Dist.] June 20, 2021, pet. filed) under point of error number one, arguing that we 

should not follow the opinion in Mosaic. 

I write separately to address a point—not briefed by the Appellants—in 

connection with the Mosaic opinion. In Mosaic, our court held that a party under 

TUFTA does not have to prove a probable right of recovery on the underlying tort 

claim prior to obtaining an injunction. See Mosaic, 2021 WL 2656613, at *4–5. I 

disagree with our opinion on this point. This is one of the unbriefed points of error 

holding and concur in the judgment entered. It would be well to point out, however, that the Court 

has Not held: (1) that the suit to set aside should be Tried before the plaintiffs have recovered a 

judgment in their tort action; (2) that the suit to set aside and the tort action should be tried at the 

same time and before the same jury; (3) that the trial court erred in ordering a severance; or (4) 

that the suit to set aside cannot be held in abeyance until a judgment has been rendered in the tort 

action.” See Hollins v. Rapid Transit Lines, Inc., 440 S.W.2d 57, 60 (Tex. 1969) (Walker, J., 

concurring).
3

in the pending petition for review.

2 (The Mosaic case is a purported class action 

lawsuit.)

TUFTA defines a claim as a “right to payment or property, whether or not the 

right is reduced to judgment.” See Tex. Bus. & Com. Code § 24.002(3). When a 

TUFTA claim is brought after the judgment the “right to payment or property” is 

obvious. Even a pre-judgment TUFTA claim that is based on a claim to certain 

property is obvious. But in a pre-judgment tort claim the only way to prove a “right 

to payment or property” would be by putting on evidence of a probable right to 

recover on the underlying tort claim. There was no evidence presented on this point 

in the trial court. Salamanca was shot by an unidentified person, while working at 

the apartment complex. There was no evidence presented that Salamanca would 

prevail on his suit against the apartment complex.

In my opinion, the Mosaic case is not correct on this issue. The cases3 it cites 

in support of this argument are not similar to the facts of its own case or to the facts 

2 There are two petitions associated with Mosaic. The Supreme Court has already denied 

one petition in Cause No. 22-0323, which concerned a TCPA motion. A separate petition remains 

pending in Cause No. 23-0099, concerning a temporary injunction.

3 I focus on the following passage from Mosaic, 2021 WL 2656613, at *4: “On the other 

hand, several appellate courts have concluded that an applicant seeking injunctive relief under 

TUFTA is not required to demonstrate the probable right to relief on the underlying 

claim. See Sargeant v. Al Saleh, 512 S.W.3d 399, 414 (Tex. App.—Corpus Christi–Edinburg 

2016, no pet.) (“Under the express terms of TUFTA, Al Saleh is a ‘creditor’ because he ‘has a 

claim....’ Under TUFTA, the claim can be equitable and need not be matured or reduced to 

judgment.”); Blackthorne v. Bellush, 61 S.W.3d 439, 443–44 (Tex. App.—San Antonio 2001, no 

pet.) (“Tort claimants, such as the appellees, are entitled to file causes of action under TUFTA 

based upon pending, unliquidated tort claims.”); see also Rocklon, LLC v. Paris, No. 09-16-00070-

CV, 2016 WL 6110911, at *2-3 (Tex. App.—Beaumont Oct. 20, 2016, no pet.) (mem. 

op.) (rejecting argument that plaintiff had to “present sufficient competent evidence supporting a 

probable right to recover on her [underlying wrongful death] claims”); Williams v. Performance 

Diesel, Inc., No. 14-00-00063-CV, 2002 WL 596414, at *2 (Tex. App.—Houston [14th Dist.] Apr. 

18, 2002, no pet.) (mem. op.) (observing that TUFTA defines “claim” broadly as “a right to 

payment or property, whether or not the right is reduced to judgment, liquidated, unliquidated, 

fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or 

unsecured”). Thus, the relevant inquiry is whether the Tenant Appellees provided sufficient 
4

of this case. In Sargeant, the creditor had a judgment in its favor. In Blackthorne, 

the tort wrongful death plaintiffs established that the debtor was convicted of 

murder. In Rocklon, the estate bringing the wrongful death claim established that a 

debtor had pleaded guilty to intoxicated manslaughter. The TUFTA claim was 

against an entity alleged to be the alter ego of the debtor—and the estate put on 

evidence of alter ego. There was no injunction in the Williams case, and Texas Black 

Iron was a breach of contract case on the sale of certain property.

Allowing a court to freeze assets via a temporary injunction without any 

showing of a “right to payment” in the underlying tort case is contrary to the statute 

and to our rules of injunction. But this point of error was not briefed.

I respectfully concur.

/s/ Tracy Christopher

Chief Justice

Panel consists of Chief Justice Christopher and Justices Jewell and Spain.

evidence to show a probable right to relief on their TUFTA claim, not the underlying class-action 

lawsuits. See Tex. Black Iron, 527 S.W.3d at 584.”