Michael J. O'Brian; Barbara A. O'Brian; Robert J. O'Brian; and Martha J. O'Brian v. First State Bank and H. Frank Harren, III--Appeal from 201st District Court of Travis County

O'Brian v. First State Bank TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00644-CV
Michael J. O'Brian; Barbara A. O'Brian; Robert J. O'Brian;
and Martha J. O'Brian, Appellants
v.
First State Bank and H. Frank Harren, III, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. 491,412, HONORABLE SUE LYLES, JUDGE PRESIDING

Appellants Michael J. O'Brian, Barbara A. O'Brian, Robert J. O'Brian, and Martha J. O'Brian (collectively "the O'Brians") initiated a suit for wrongful foreclosure against appellees First State Bank and H. Frank Harren, III, based on appellees' violation of a temporary restraining order. Appellees moved for summary judgment on the grounds that the suit was barred by res judicata, collateral estoppel, and the election of remedies doctrine. In addition, Harren asserted an additional ground attacking the validity of the temporary restraining order. The O'Brians appeal the trial court's order granting summary judgment in favor of appellees. We will reverse and remand in part and affirm in part.

 
FACTUAL AND PROCEDURAL BACKGROUND

Michael and Barbara O'Brian executed four promissory notes to Frontier State Bank. (1) The notes were secured by two parcels of residential property ("the Preston Avenue property" and "the Harris Road property") jointly owned by Michael and Barbara as community property, revenue bonds with a face value of $25,000 owned by Michael and Barbara, and a $100,000 money market account owned by Robert and Martha O'Brian, Michael's parents. After Frontier State Bank failed, First State Bank acquired the notes from the Federal Deposit Insurance Corporation on October 27, 1988. The notes had matured and were in default when First State Bank acquired them. On January 17, 1989, First State Bank posted the lots for foreclosure on February 7, 1989 between 1 p.m. and 4 p.m.

On the morning of February 7, the O'Brians applied for a temporary restraining order to enjoin First State Bank and Harren, the substitute trustee and counsel for First State Bank, from proceeding with the non-judicial foreclosure sales and from foreclosing on Michael's parents' money market account. Later that day, the trial court conducted a hearing on the application. Harren was present at the hearing in his capacity as substitute trustee and as First State Bank's counsel. During the hearing, the O'Brians represented that Michael was relocating and his employer, IBM, would buy the Preston Avenue property through its employee-relocation program for $412,500. At the conclusion of the hearing, the trial court orally granted the application and signed an order directing that "[a] Temporary Restraining Order be issued without notice" restraining First State Bank and its agents from foreclosing on the real property and the money market account and setting bond at $5,000. The O'Brians contend that Harren agreed to waive service of the restraining order at the hearing. At 1:30 p.m., prior to the scheduled sales, the order and a surety bond were filed with the district clerk, the clerk approved the bond, and a copy of the order was delivered to Harren.

Shortly thereafter, Harren examined the bond and decided it was defective because it contained a photostatic signature of the surety. Additionally, Harren decided that the order was deficient because it (1) failed to set forth the reasons for its issuance, (2) failed to set forth in reasonable detail the act or acts to be restrained, (3) did not adequately describe the real property involved, (4) failed to set a hearing for a temporary injunction, (5) failed to allege wrongful conduct or an intent to engage in wrongful conduct, and (6) did not set out the reasons why an injury would occur if the restraint was not granted.

Harren brought the claimed deficiencies in the bond to the attention of the district clerk. The district clerk directed that the file mark be crossed through and his signature approving the bond be "whitened-out." As a result, the district clerk did not issue the formal writ of injunction. Harren then contacted the O'Brians' counsel and notified him of his intention to proceed with the sales because he believed the defects in the temporary restraining order rendered the order void. After an unsuccessful attempt to locate the district judge, Harren proceeded with the foreclosure sales, and the properties were sold to First State Bank at approximately 3:50 p.m. First State Bank paid $200,000 for the Harris Road property and $245,000 for the Preston Road property.

On February 17, 1989, the O'Brians, without amending their pleadings, moved to have the foreclosure sales set aside. First State Bank and Harren moved to have the temporary restraining order set aside and declared void ab initio. On March 3, 1989, the trial court determined that the temporary restraining order was void ab initio; the court rendered an order setting aside the February 7 temporary restraining order and dismissing the O'Brians' suit with prejudice; the court refused to set aside the foreclosure sales. Only Michael and Barbara appealed the district court's judgment. On appeal, this Court set aside the trial court's March 3 order and dismissed the cause as moot because the temporary restraining order had expired and the sale it purported to restrain had been completed. Our opinion reads in pertinent part:

 

In general, a judgment is void only when it is shown that the court had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). All error other than jurisdictional deficiencies render the judgment merely voidable. Id.

 

It is unnecessary to treat the matter further because we are convinced that this Court lacks jurisdiction to consider the appeal. The order under consideration stems from a temporary restraining order. A temporary restraining order is interlocutory in nature and is not appealable. Lord v. Clayton, 352 S.W.2d 718, 719 (Tex. 1961). Moreover, by its terms the temporary restraining order has long since expired. If the terms of a temporary restraining order have expired, any challenge to the temporary restraining order is moot. Arvol D. Hays Construction Co. v. R & M Agency Corp., 471 S.W.2d 628, 629 (Tex. Civ. App. 1971, writ ref'd n.r.e.).

 

In addition, by their suit appellants sought only to restrain appellees from selling the properties; this act has now been fully completed. Therefore, whether or not the district court erred in ordering appellees to refrain from conducting the foreclosure sales is moot. An order from this Court permitting or prohibiting appellees from going forward with the sales would be meaningless because there would be nothing in such event on which our judgment could operate. Cf. Madison v. Martinez, 42 S.W.2d 84 (Tex. Civ. App. 1931, writ ref'd).

 

Because the case is moot, the district court's order setting aside and declaring the temporary restraining order void ab initio is set aside and the case is dismissed. Texas Foundries v. International Moulders & F. Wkrs., 248 S.W.2d 460, 461 (Tex. 1952).

 

O'Brian v. First State Bank, 3-89-00128-CV, slip op. at 4-5 (Tex. App.Austin June 27, 1990, no writ) (not designated for publication).

On February 17, 1989, Barbara filed for personal bankruptcy protection under Chapter 7. Barbara received her discharge on June 27, 1989. However, on August 4, 1989, citing a meritorious cause of action under 11 U.S.C. 548 and 550, she moved to delay the closing of her case pending this Court's decision in the first appeal. Sections 548 and 550 permit a bankruptcy trustee or debtor to avoid a foreclosure sale of the debtor's property or to recover the value of that property from the transferee if less than a "reasonably equivalent value" was received for the property. (2) On October 19, 1989, First State Bank filed an adversary proceeding within that cause seeking a declaratory judgment that the foreclosure sales did not constitute fraudulent transfers under sections 548 and 550 of the Bankruptcy Code and that First State Bank paid a reasonably equivalent value for the Preston Avenue and Harris Road properties. See First State Bank v. Barbara Aileen O'Brian, Adv. Pro. No. 89-1259FM (Bankr. W.D. Tex.). Barbara challenged only the foreclosure on the Preston Avenue property, asserting that it was her homestead.

On June 28, 1990, the bankruptcy court rendered judgment that the foreclosure sales did not give rise to a cause of action under sections 548 and 550. Barbara appealed the judgment to the U.S. District Court, asserting that the bankruptcy court erred in finding that the value of the Preston Avenue property was $325,000, in adding the amount of property taxes First State Bank paid to determine reasonably equivalent value, and in determining that First State Bank paid a reasonably equivalent value. The U.S. District Court affirmed the judgment of the bankruptcy court.

On August 15, 1990, First State Bank foreclosed its security interest on the money market account owned by Robert and Martha O'Brian. After applying the sales proceeds and the money market account to the debt, a deficiency in excess of $160,000 remained. (3) On September 17, 1990, First State Bank successfully prosecuted a forcible entry and detainer action against Barbara to evict her from the Preston Avenue property.

On September 28, 1990, the O'Brians initiated a suit for wrongful foreclosure, alleging that the sale conducted by the Bank and Harren violated the temporary restraining order, and sought to have the foreclosure sales set aside or alternatively to recover damages. Cf. Cannan v. Green Oaks Apts., Ltd., 758 S.W.2d 753 (Tex. 1988) (whether cause of action exists for damages based solely on violation of temporary restraining order is open question). First State Bank counterclaimed for a deficiency judgment against Michael and Barbara, except to the extent her debts were previously discharged. First State Bank and Harren jointly moved for summary judgment on all claims. The trial court rendered summary judgment for First State Bank and Harren. In another unpublished opinion, this Court reversed the summary judgment, holding that (1) the temporary restraining order was not void ab initio, (2) there was a valid order of the trial court prohibiting the foreclosure sale, of which First State Bank and Harren were aware, (3) whether the suit for the temporary restraining order was res judicata in the wrongful foreclosure suit was not proved as a matter of law because certified copies of the pleadings in the prior district court case had not been made part of the summary judgment record, and (4) the counterclaims had not been proved as a matter of law. O'Brian v. First State Bank, No. 3-91-478 (Tex. App.Austin, April 7, 1993, writ denied) (not designated for publication).

On remand, First State Bank and Harren again moved for summary judgment, asserting grounds of res judicata, collateral estoppel, and election of remedies. In his separate motion for summary judgment, Harren posed as an additional ground that the O'Brians never pleaded an underlying cause of action that could have formed the basis for granting a temporary restraining order to prevent the foreclosure sales. The O'Brians filed no response to the motions for summary judgment. The trial court granted the motions on all grounds and rendered judgment that the O'Brians take nothing. Thereafter, the trial court granted First State Bank's motion for summary judgment on its counterclaim and rendered a final judgment.

 
DISCUSSION

In three points of error, the O'Brians assert that the trial court erred in granting summary judgment on the basis of res judicata, collateral estoppel, and the election of remedies doctrine. (4) The standards for reviewing a summary judgment are well established. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Id. at 548-49. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. at 549.

Appellees moved for summary judgment on the basis of three affirmative defenses and, therefore, had the burden to prove there is no issue of material fact regarding any essential element of the affirmative defenses. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Because the O'Brians did not respond to appellees' motions for summary judgment, however, they are limited on appeal to challenging the legal sufficiency of the movants' grounds for summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). We limit our review accordingly.

 

(i) Res Judicata

Appellees argue that the present suit is barred by res judicata by the prior suit for a temporary restraining order. The doctrine of res judicata prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, could have been litigated in the prior suit between the same parties. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992); Stewart v. City of Austin, 744 S.W.2d 682, 684-85 (Tex. App.Austin 1988, writ ref'd). Appellees insist the O'Brians have already litigated fully their current wrongful foreclosure claim because they moved to have the trial court set aside the sales after the temporary restraining order was violated. Alternatively, appellees contend that even if the O'Brians did not litigate the wrongful foreclosure claim in the prior action, res judicata acts as a bar because the cause of action could have been brought in the prior proceeding.

The elements of a claim for wrongful foreclosure are (1) an irregularity at the sale (2) which contributed to an inadequate price. American Savs. & Loan Ass'n v. Musick, 531 S.W.2d 581, 587 (Tex. 1975); Greater Southwest Office Park, Ltd. v. Texas Commerce Bank Nat'l Ass'n, 786 S.W.2d 386, 388 (Tex. App.Houston [1st Dist.] 1990, writ denied). If these elements are proved, the wrongful foreclosure plaintiff may seek to have the sale set aside. If the plaintiff also proves that because of the illegal sale title to the property has passed into the hands of a third party or the sale has resulted in an unlawful interference with the mortgagor's possession of the land, Janes v. CPR Corp., 623 S.W.2d 733, 738 (Tex. App.Houston [1st Dist.] 1981, writ ref'd n.r.e.), he may alternatively seek to recover damages in the amount of the value of the land at the time of the sale less the amount of the mortgage debt. Diversified, Inc. v. Gibraltar Savs. Ass'n, 762 S.W.2d 620, 623 (Tex. App.Houston [14th Dist.] 1988, writ denied).

This Court has twice previously stated that the O'Brians' first suit was for injunctive relief only. We again come to the same conclusion. A foreclosure sale made in violation of an injunction is void and transfers no title. See Pioneer Bldg. & Loan Ass'n v. Cowan, 123 S.W.2d 726, 729-30 (Tex. Civ. App.Waco 1938, writ dism'd judgmt cor.); Jackson v. The Praetorians, 83 S.W.2d 740, 741 (Tex. Civ. App.Dallas 1935, no writ); Lindley v. Easley, 59 S.W.2d 927, 929 (Tex. Civ. App.Eastland 1932, no writ); see also Slaughter v. Qualls, 162 S.W.2d 671, 674 (Tex. 1942) (discussing void and voidable sales). The remedy for violation of an injunction preventing the sale of land is to set aside the sale. See Lindley, 59 S.W.2d at 930 (trespass to try title suit); cf. Ford v. Emerich, 343 S.W.2d 527, 531 (Tex. Civ. App.Houston 1961, writ ref'd n.r.e.) (where trustee's deed is absolutely void, suit at law in trespass to try title may be maintained to recover land without setting deed aside). The O'Brians' motion to set aside the sales, which appellees attack, requested the trial court to set aside the sales, hold Harren and First State Bank in contempt, or impose sanctions on them for violating the temporary restraining order. In addition, the O'Brians' motion for new trial following the original summary judgment asserted that the temporary restraining order was valid and enforceable at the time of the sales and therefore the sales should be set aside as void. Neither motion asserted that the sale should be set aside because of an irregularity at the sale that contributed to an inadequate price. Moreover, the O'Brians never amended their pleadings to include a cause of action to adjudicate title. See Frost v. Mischer, 463 S.W.2d 166, 167-68 (Tex. 1971) (without alleging action in trespass to try title, title to land cannot be determined in suit seeking injunctive relief only). We believe that the O'Brians sought only to have the trial court enforce its authority to punish the violation of its order and reinstate the status quo before the violation. Consequently, we hold that the wrongful foreclosure claim was never raised or actually litigated in the first state-court proceeding.

We now consider whether, with the use of diligence, the O'Brians could have litigated the wrongful foreclosure claim in their first suit. Any cause of action the O'Brians may have for wrongful foreclosure arose on February 7 when their property was sold. At that time, they could have amended their pleadings to include a claim for wrongful foreclosure; on March 3, however, the trial court dismissed their cause with prejudice, effectively granting summary judgment against them. The dismissal prevented the O'Brians from having a reasonable opportunity to amend their pleadings to include a wrongful foreclosure claim. On appeal, this Court construed the suit as being one for injunctive relief only. Our dismissal of the entire cause for mootness prevented the O'Brians from ever having an opportunity to amend their pleadings to include a claim for wrongful foreclosure. We believe the O'Brians' failure to litigate the wrongful foreclosure claim in their first suit was not through lack of diligence on their part. Accordingly, we hold that the O'Brian's wrongful foreclosure suit is not barred by res judicata and sustain point of error one.

 

(ii) Election of Remedies

Appellees next assert that the election of remedies doctrine bars the present suit because the O'Brians pursued one of the alternate remedies for wrongful foreclosure (setting aside the sale) to final judgment. See Cantu v. Bage, 467 S.W.2d 680, 682 (Tex. Civ. AppBeaumont 1971, no writ). In light of our holding that the O'Brians did not litigate the claim for wrongful foreclosure in their first suit, we also sustain point of error three.

 

(iii) Collateral Estoppel

Finally, appellees argue that the present suit is barred by collateral estoppel because the bankruptcy court's determination that the property was sold for a "reasonably equivalent value" is conclusive of the issue of inadequate price in the wrongful foreclosure proceedings. (5) We disagree.

In BFP v. Resolution Trust Corp., the United States Supreme Court concluded that the phrase "reasonably equivalent value" in 548(a)(2)(A), when applied to mortgage foreclosure sales, was not equivalent to "fair market value" or "fair foreclosure price"; the Court held "that a fair and proper price, or a `reasonably equivalent value,' for foreclosed property, is the price in fact received at the foreclosure sale, so long as all the requirements of the State's foreclosure law have been complied with." 511 U.S. , 114 S. Ct. 1757, 128 L. Ed. 2d 556, 569 (1994); see also In re Lindsay, 59 F.3d 942, 949 (9th Cir. 1995). Thus, a determination by a bankruptcy court that the price paid at a foreclosure sale constitutes a reasonably equivalent value does not necessarily correspond to the elements of a state wrongful foreclosure claim. For example, upon a finding that state law was complied with, the bankruptcy court will presume the price was equivalent to the true value of the land sold and, therefore, will not consider whether the price obtained at the sale was actually "adequate." Thus, a finding of reasonably equivalent value, by itself, does not show that the bankruptcy court ever considered the "adequacy" of the sale price.

An examination of the current record gives no indication of the basis on which the bankruptcy court found "reasonably equivalent value." At best, the record only indicates that the bankruptcy court found that the fair market value of the Preston Avenue property was $325,000 at the time of the sales and that First State Bank paid a reasonably equivalent value for the property. Accordingly, in the absence of a more specific finding by the bankruptcy court regarding First State Bank's compliance vel non with state law, we cannot determine whether the actual adequacy of the foreclosure price was litigated by that court. In the absence of such a showing, the doctrine of collateral estoppel does not apply. See Getty Oil Co. v. Insurance Co. of N. Am., 845 S.W.2d 794, 801-02 (Tex. 1992) (doctrine of collateral estoppel precludes relitigation only of ultimate issues of fact actually litigated and essential to judgment in prior suit), cert. denied, 510 U.S. 820, 114 S. Ct. 76 (1993). We sustain point of error two.

 

(iv) Harren's Independent Ground

In addition to the foregoing grounds, which were asserted by First State Bank and adopted by Harren, Harren's motion stated an additional independent ground for summary judgment: that the O'Brians failed to allege a cause of action to support the issuance of the temporary restraining order in the first place. The trial court granted summary judgment on "all grounds" asserted in First State Bank's and Harren's motions for summary judgment. On appeal, the O'Brians fail to challenge Harren's additional ground either by point of error or argument. See Number 3-C Oil Co. v. Modesta Partnership, 668 S.W.2d 741, 754 (Tex. App.Austin 1984, writ ref'd n.r.e.). To obtain a reversal, an appellant must specifically attack every basis for the summary judgment. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1978); Reese v. Beaumont Bank, N.A., 790 S.W.2d 801, 803-04 (Tex. App.Beaumont 1990, no writ). Accordingly, we cannot reverse the summary judgment in favor of Harren.

 
CONCLUSION

Because the O'Brians failed to challenge one of the grounds raised in Harren's motion for summary judgment, we will affirm the order of the district court as to Harren. Having sustained the O'Brians' first three points of error, we reverse the judgment of the district court as to First State Bank; we sever and remand that portion of the cause for further proceedings.

 

J. Woodfin Jones, Justice

Before Justices Powers, Jones and B. A. Smith

Affirmed in Part; Reversed and Remanded in Part

Filed: September 11, 1996

Do Not Publish

1. Michael and Barbara were married at the time the events leading to this appeal occurred. They have since divorced.

2. Section 548 permits avoidance if the trustee or debtor can establish (1) that the debtor had an interest in property, (2) that a transfer of that interest occurred within one year of the filing of the bankruptcy petition, (3) that the debtor was insolvent at the time of the transfer or became insolvent as a result thereof, and (4) that the debtor received "less than a reasonably equivalent value in exchange for such transfer." 11 U.S.C.A. 548 (a)(2)(A) (West 1993).

3. First State Bank asserts that as of June 10, 1991, the principal amount of the debt still owed was $168,541.10, the accrued and unpaid interest was $39,387.82, and that interest continues to accrue at the rate of $46.18 per day.

4. Appellants' brief contained seven points of error. Following oral argument, appellants withdrew points of error four through seven.

5. In Texas, mere inadequacy of price is not sufficient to set aside a foreclosure sale. American Sav., 531 S.W.2d at 587; Tarrant Savs. Ass'n v. Lucky Homes, Inc., 390 S.W.2d 473, 475 (Tex. 1965); First State Bank v. Keilman, 851 S.W.2d 914, 921 (Tex. App.Austin 1993, writ denied). There must be some evidence of an irregularity at the sale, however slight, which contributed to a grossly inadequate price. Pentad Joint Venture v. First Nat'l Bank, 797 S.W.2d 92, 96 (Tex. App.Austin 1990, writ denied); Resolution Trust Corp. v. Westridge Court Joint Venture, 815 S.W.2d 327, 330 (Tex. App.Houston [1st Dist.] 1991, writ denied); Georgetown Assoc., Ltd. v. Home Fed. Sav. & Loan Ass'n, 795 S.W.2d 252, 254 (Tex. App.Houston [14th Dist.] 1990, writ dism'd w.o.j.).

In the absence of such a showing, the doctrine of collateral estoppel does not apply. See Getty Oil Co. v. Insurance Co. of N. Am., 845 S.W.2d 794, 801-02 (Tex. 1992) (doctrine of collateral estoppel precludes relitigation only of ultimate issues of fact actually litigated and essential to judgment in prior suit), cert. denied, 510 U.S. 820, 114 S. Ct. 76 (1993). We sustain point of error two.

(iv) Harren's Independent Ground

In addition to the foregoing grounds, which were asserted by First State Bank and adopted by Harren, Harren's motion stated an additional independent ground for summary judgment: that the O'Brians failed to allege a cause of action to support the issuance of the temporary restraining order in the first place. The trial court granted summary judgment on "all grounds" asserted in First State Bank's and Harren's motions for summary judgment. On appeal, the O'Brians fail to challenge Harren's additional ground either by point of error or argument. See Number 3-C Oil Co. v. Modesta Partnership, 668 S.W.2d 741, 754 (Tex. App.Austin 1984, writ ref'd n.r.e.). To obtain a reversal, an appellant must specifically attack every basis for the summary judgment. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1978); Reese v. Beaumont Bank, N.A., 790 S.W.2d 801, 803-04 (Tex. App.Beaumont 1990, no writ). Accordingly, we cannot reverse the summary judgment in favor of Harren.

 
CONCLUSION

Because the O'Brians failed to challenge one of the grounds raised in Harren's motion for summary judgment, we will affirm the order of the district court as to Harren. Having sustained the O'Brians' first three points of error, we reverse the judgment of the district court as to First State Bank; we sever and remand that portion of the cause for further proceedings.

 

J. Woodfin Jones, Justice

Before Justices Powers, Jones and B. A. Smith

Affirmed in Part; Reversed and Remanded in Part

Filed: September 11, 1996

Do Not Publish

1. Michael and Barbara were married at the time the events leading to this appeal occurred. They have since divorced.

2. Section 548 permits avoidance if the trustee or debtor can establish (1) that the debtor had an interest in property, (2) that a transfer of that interest occurred within one year of the filing of the bankruptcy petition, (3) that the debtor was insolvent at the time of the transfer or became insolvent as a result thereof, and (4) that the debtor received "less than a reasonably equivalent value in exchange for such transfer." 11 U.S.C.A. 548 (a)(2)(A) (West 1993).

3. First State Bank asserts that as of June 10, 1991, the principal amount of the debt still owed was $168,541.10, the accrued and unpaid interest was $39,387.82, and that interest continues to accrue at the rate of $46.18 per day.

4. Appellants' brief contained seven points of error. Following oral argument, appellants withdrew points of error four through seven.

5. In Texa