                            NUMBER 13-15-00285-CV

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

PLAINSCAPITAL BANK,                                                          Appellant,

                                            v.

MICHAEL ROGERS,                                                              Appellee.


                   On appeal from the 107th District Court
                        of Cameron County, Texas.


                                       ORDER
  Before Chief Justice Valdez and Justices Rodriguez and Longoria
                          Order Per Curiam
      Appellant PlainsCapital Bank (the Bank) filed this interlocutory appeal from the trial

court’s order granting appellee Michael Rogers’s request for a temporary injunction in a

suit on a promissory note and deed of trust. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(4) (West, Westlaw through 2015 R.S.). On appeal, the Bank argues that the
trial court erred when it entered a temporary injunction order that prevented the Bank from

foreclosing on its security interest in collateral property, after the borrower Far Properties,

L.P., allegedly defaulted on the note. The Bank contends that we should reverse the trial

court and dissolve the temporary injunction because (1) Rogers does not have standing

to sue on the promissory note or deed of trust; and (2) in the alternative, the temporary

injunction is void because it does not “adhere to the Texas Rules of Civil Procedure.” We

abate and remand this matter to the trial court.

                                          I.      BACKGROUND

A.      The Note, Deed of Trust, and Guaranty

        It is undisputed that on May 26, 2006, Far Properties, L.P., a single-member limited

partnership, entered into a Commercial-Variable Rate Promissory Note (the Note) for the

purchase of real property (the Property) in the original principal sum of $2,250,000.00 and

for the benefit of First National Bank (FNB).1 In conjunction with the Note, Far Properties,

L.P., executed a Deed of Trust Security Agreement—Financing Statement (Deed of

Trust), securing the repayment of the Note with the Property that Far Properties, L.P.,

purchased with the funds loaned under the Note. PlainsCapital was the lender or holder

of the Note and the lender on the Deed of Trust. Far Properties, L.P., was the maker of

the Note and the grantor or borrower on the Deed of Trust. Rogers signed the Note and

the Deed of Trust for Far Properties, L.P., in his capacity as Manager of Far Properties 3,

LLC, the General Partner of Far Properties, L.P. Rogers, who testified at the temporary




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          It is undisputed that PlainsCapital is the successor in interest to certain assets of FNB by way of
a purchase and assumption agreement by and between the Federal Deposit Insurance Corporation, the
receiver of First National Bank, and as such, PlainsCapital is the holder in due course of the Note at issue
in this case and any modifications/renewals of the Note and the Deed of Trust.

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injunction hearing that he was the sole owner of Far Properties, L.P., also executed an

unconditional, unlimited Guaranty for the Note.

B.     Property Posted for Foreclosure

       PlainsCapital claims that because Far Properties, L.P., did not provide income tax

returns, tenant listings, and rent rolls as required by the Deed of Trust, it delivered a notice

of default and demand for performance dated February 10, 2015 to Far Properties, L.P.

And because Far Properties, L.P., allegedly failed to cure the defaults, PlainsCapital

accelerated the Note and caused the Property to be posted for foreclosure.

C.     Rogers’s Lawsuit

       In response to the foreclosure posting, Rogers filed an Original Petition and

Application for Temporary Restraining Order and Temporary Injunction, claiming that

PlainsCapital was wrongfully foreclosing the Property under the Note and Deed of Trust.

Rogers alleged that he entered into the loan with FNB and that he performed and paid

the past due amounts and provided the financial information to PlainsCapital. In his

petition, Rogers asserted, among other things, that he suffered loss of use and enjoyment

of the Property because of a loss to a restaurant operating on the Property—a restaurant

known as La Hacienda. On June 1, 2015, the trial court entered a temporary restraining

order to restrain PlainsCapital from selling the property.

D.     Temporary Injunction Hearing and Order

       On June 11, 2015, the trial court held a hearing on Rogers’s application for a

temporary injunction. At the hearing, Rogers acknowledged that Far Properties, L.P.,

was the borrower on the promissory note and testified that the Deed of Trust identified

Far Properties, L.P., as the grantor. In addition, Rogers testified that he signed the Note



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and Deed of Trust as Manager of Far Properties 3, LLC, the general partner of Far

Properties, L.P. But Rogers also agreed that he was the sole owner of Far Properties,

L.P., which is a single-member limited partnership.2 PlainsCapital objected that Rogers

did not have standing to request a temporary injunction based on the Note and Deed of

Trust because Rogers was not a party to the Note and Deed of Trust. PlainsCapital also

argued at the temporary injunction hearing that Rogers was not entitled to enforce the

Note or Deed of Trust even as a guaranty. After considering the evidence presented at

the hearing, the parties’ arguments, and PlainsCapital’s objections, the trial court entered

its June 17, 2015 order, finding “evidence that harm [was] imminent to [Rogers], and if

the [c]ourt [did] not issue the temporary injunction, [Rogers] [would] be irreparably injured”

and granting Rogers’s request for a temporary injunction.                    PlainsCapital filed this

accelerated appeal on June 29, 2015.

E.      PlainsCapital’s Counterclaim and Third-Party Petition

        On July 22, 2015, during the pendency of this appeal, PlainsCapital filed its original

counterclaim against Rogers, alleging breach of the Guaranty. PlainsCapital also filed a

third-party petition against Far Properties, L.P., claiming breach of the Note and Deed of

Trust. PlainsCapital sought foreclosure and attorney’s fees.

F.      Far Properties, L.P.’s Counterclaim

        Third-party defendant Far Properties, L.P., filed its answer to PlainsCapital’s

petition on August 13, 2015. Far Properties, L.P., also filed a counterclaim against

PlainsCapital in which it alleged that all information had been provided to PlainsCapital



        2 When asked if he was the sole owner of Far Properties, L.P., and if he was Far Properties, L.P.,
Rogers answered, “Yes, I am.” Rogers also agreed that the letters of foreclosure and the earlier letters
advising him that he was in default were sent to Michael Rogers.

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and that neither it nor Rogers was in default.         Far Properties, L.P., asserted that

PlainsCapital “wrongly accelerated the maturity of the note knowing that the Plaintiff had

complied.” Far Properties, L.P., did not request injunctive relief or join Rogers in seeking

the temporary injunction.

G.     Second Amended Temporary Injunction Order

       On August 17, 2015, the trial court signed a second amended temporary injunction

order, enjoining PlainsCapital from instituting foreclosure proceedings on the Property.

The order referenced evidence from the June 11, 2015 hearing and found that “[t]he

evidence indicated [Rogers] was not only the real party in interest as the single-member

of an LLC, [sic] but that he was not in default in paying the loan.” The trial court also

found that “[Rogers] presented evidence that the basis for the foreclosure of PlainsCapital

Bank, failure to provide requested financials [was] without merit and that he did in fact

provide the information requested.” The trial court further found “that the harm [was]

imminent” and “that the damage [was] irreparable,” reasoning that “[t]he proposed

foreclosure would immediately shut down a restaurant business as the summer tourist

season [was] beginning, put ten to fifteen employees out of work, and terminate any

income the restaurant was providing” and “[i]f the Plaintiff prevail[ed] in the lawsuit and its

restaurant [was] closed down there [would be] no way to measure how much revenue

was lost, or to be certain that the restaurant [could] even successfully reopen after this

lawsuit [had] been concluded after what [was] to be at [sic] significant hiatus.”

                                     II.    ABATEMENT

       As set out above, the trial court signed a second amended temporary injunction

order during the pendency of this appeal. See TEX. R. APP. P. 27.3 (authorizing appellate



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courts to treat an appeal from the original order as an appeal from the modified order);

Tex. Health and Human Servs. Comm'n v. Advocates for Patient Access, Inc., 399

S.W.3d 615, 622–25 (Tex. App.—Austin 2013, no pet.). In its August 17 order, the trial

court again enjoined PlainsCapital from instituting foreclosure proceedings on the

Property, relied on evidence from the June 11, 2015 hearing, and made a number of

findings. But at the time the trial court entered its amended temporary injunction order,

PlainsCapital had filed a third-party petition, making Far Properties, L.P., a third-party

defendant. And, in response, Far Properties, L.P., had filed a counterclaim against

PlainsCapital, alleging the same wrongful foreclosure claim that Rogers alleged. It was

after the parties filed these pleadings that the trial court amended its temporary injunction

order for the second time. In other words, when the trial court entered its second

amended temporary injunction order, Far Properties, L.P., was a party to the suit. And

while we note that Far Properties, L.P., had requested no injunctive relief at the time the

trial court entered its second amended temporary injunction order, the trial court referred

to the plaintiff as both “he” and “it.”

       Now, on appeal, Rogers claims that his standing to pursue an injunction to enjoin

the foreclosure is no longer an issue before the trial court because Far Properties, L.P.,

is now a party to the lawsuit. Rogers claims that his standing need not be decided in

order for the suit to proceed. See Int’l Paper Co. v. Harris County, 445 S.W.3d 379, 384–

85 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (explaining that subsequent actions by

one or both of the parties can in fact moot an appeal).

       Accordingly, we ABATE the appeal and REMAND the cause to the trial court for

clarification of its temporary injunction order in light of Far Properties, L.P., being a party



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to the lawsuit and in light of any new applications for temporary injunction that have been

filed.3 Upon remand, the trial court shall address, among other things, whether the

standing issue is now moot. The trial court shall cause its findings and recommendations,

together with any newly filed pleadings, applications, or other documents that are relevant

to this matter and any subsequent orders or amended orders, to be included in a

supplemental clerk’s record. Also, the trial court shall cause a supplemental reporter’s

record of any proceedings, including any further temporary injunction hearings, to be

prepared. The supplemental clerk’s record and supplemental reporter’s record, if any,

shall be filed with the Clerk of this Court on or before the expiration of thirty days from the

date of this order. We will reinstate the appeal upon receipt of the foregoing materials

and upon order of this Court. Once reinstated, we will resubmit the appeal for further

consideration. At that time, we will request supplemental briefing, if any is necessary,

and set a briefing schedule.


                                                                          PER CURIAM


Delivered and filed the
2nd day of December, 2015.




       3 Because we have abated the appeal, the original submission date of November 19, 2015 has
been withdrawn.

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