                               NUMBER 13-07-175-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JENNIFER YARTO AND
DTRJ INVESTMENTS, L.P.,                                                        Appellants,

                                              v.

TODD GILLILAND, AND
SOFIA GILLILAND,                                                                Appellees.


   On appeal from the 398th District Court of Hidalgo County, Texas.


                                     OPINION

             Before Justices Yañez, Rodriguez, and Benavides
                         Opinion by Justice Yañez

       This is an accelerated interlocutory appeal brought by Jennifer Yarto and DTRJ

Investments, L.P. (collectively “Yarto”). Yarto appeals a district court’s temporary injunction

that enjoins her from proceeding with a forcible detainer action to recover a residence
occupied by Todd Gilliland and Sofia Gilliland (collectively “the Gillilands”). Yarto contends

through three issues on appeal that the trial court erred in issuing the temporary injunction.

We affirm.

                                            I. Background

        In June 2003, Todd built a home in Mission, Texas (“the residence”). Since that

time, the Gillilands have maintained possession of the residence, despite conveying it to

Yarto through a warranty deed on August 27, 2003. According to Todd, he and Yarto were

business partners before and after the conveyance. The business partnership revolved

around the building and selling of residential property. Todd would traditionally oversee

the construction of a home and, at times, live in the home until it was sold. Todd contends

that he intended to live in the residence long-term, and that he only conveyed the

residence to Yarto so they could use the equity from the residence to invest in a new

construction project. Todd alleges that when the residence was conveyed to Yarto, they

entered into an oral contract for deed. An attorney was directed to construct a written

contract for deed, but no written contract was ever given to the Gillilands. The Gillilands

claim that they have equitable title to the home based on the oral contract for deed

because the deed has been fully satisfied by payment or offset. They further claim their

oral contract for deed is enforceable because they (1) have made payment of

consideration to Yarto, (2) have made valuable improvements to the residence, and (3)

have maintained continuous possession of the residence since June 2003.1

        Yarto maintains that no oral or written contract for deed exists. Rather, Yarto


        1
          See generally Hooks v. Bridgewater, 111 Tex. 122, 229 S.W . 1114, 1116 (1921) (stating the
conditions that m ust exist “to relieve a parole sale of land from the operation of the Statute of Frauds”).

                                                     2
asserts that the residence was orally leased to the Gillilands after it was conveyed, and the

Gillilands have defaulted on that lease. After the Gillilands failed to satisfy Yarto’s written

demands to vacate the residence, Yarto filed a forcible detainer action in a justice court.

Prior to the justice court taking any action, the Gillilands filed suit against Yarto in district

court, arguing various causes of action relating to the residence2 and asking the court to

find that they have title to the residence. Prior to their cause of action being tried on the

merits, the Gillilands requested a temporary injunction from the trial court, seeking to have

Yarto enjoined from following through with her suit in the justice court. After a hearing, the

trial court granted the Gillilands a temporary injunction, enjoining Yarto from (1) “initiat[ing]

any further forcible entry and detainer actions applicable to [the residence],” (2)

“attempt[ing] to prosecute any forcible entry and detainer actions applicable to [the

residence],” and (3) “attempt[ing] to enforce any order issued by any forcible entry and

detainer actions applicable to [the residence].”3 This interlocutory appeal then ensued.

         2
          These causes of action include breach of oral contract, constructive trust, fraud and
m isrepresentation, wrongful eviction, gross negligence, and trespass to try title.

         3
           A forcible entry and detainer cause of action is governed by section 24.001 of the Texas Property
Code, T EX . P R O P . C OD E A N N . § 24.001 (Vernon 2000), while a forcible detainer cause of action is governed
by section 24.002. Id. § 24.002 (Vernon 2000). These causes of action im pose different procedural
requirem ents prior to filing suit, see id. § 24.005 (Vernon 2000), as well as different evidentiary burdens on
those bringing suit. Under a forcible entry and detainer suit, the plaintiff m ust show that the defendant
“entered the real property of another without legal authority or by force,” id. § 24.001, while no such showing
is required in a forcible detainer suit. See id. § 24.002. Though the term “forcible entry and detainer” is often
used to describe both an action for forcible entry and detainer and an action for forcible detainer, such a
practice is incorrect. See Geldard v. W atson, 214 S.W .3d 202, 205 n.1 (Tex. App.–Texarkana 2007, no pet.);
see also Team Bank v. Higginbotham, No. 05-92-02220-CV, 1993 W L 343385, at *1 n.1 (Tex. App.–Dallas
Sept. 10, 1993, no pet.) (m em . op.). Section 24.004 of the property code states that justice courts have
jurisdiction over eviction suits, and that “[e]viction suits include forcible entry and detainer and forcible detainer
suits.” T EX . P R O P . C OD E A N N . § 24.004 (Vernon 2000) (em phasis added). The fact that the Legislature found
it necessary to reference both types of suits is an indication that the term “forcible entry and detainer” does
not subsum e forcible detainer suits.

         In the instant case, the trial court’s tem porary injunction prohibits Yarto from pursuing a “forcible entry
and detainer” suit in the justice court, rather than a forcible detainer suit. At the hearing on the tem porary
injunction, however, the parties m ade a joint stipulation of facts, stating that unless the trial court grants the

                                                          3
                                          II. Standard of Review

         A temporary injunction will not be granted where there is a plain and adequate

remedy at law.4 To obtain a temporary injunction, the applicant must plead and prove three

specific elements: (1) a cause of action against the defendant; (2) a probable right to the

relief sought; and (3) a probable, imminent, and irreparable injury in the interim.5 Whether

to grant or deny a temporary injunction is within the trial court’s sound discretion.6 A

reviewing court should reverse an order granting injunctive relief only if the trial court

abused that discretion.7 The reviewing court must not substitute its judgment for the trial

court’s judgment unless the trial court’s action was so arbitrary that it exceeded the bounds

of reasonable discretion.8


Gillilands a tem porary injunction, Yarto “will continue to prosecute a forcible detainer action seeking
possession of the hom e.” (Em phasis added). Moreover, Yarto’s contention that she entered into a landlord-
tenant relationship with the Gillilands after the residence was conveyed dem onstrates the im probability of
Yarto bringing a forcible entry and detainer suit, given that the success of such a suit would turn on showing
that the Gillilands entered the residence without legal authority or by force. Accordingly, the record reflects
no attem pt or intent by Yarto to bring a forcible entry and detainer suit against the Gillilands, leaving this Court
to contem plate whether the tem porary injunction should be dissolved given that injunctive relief requires
dem onstrable intent to com m it the act for which injunctive relief is sought. See Frey v. De Cordova Bend
Estates Owners Ass’n, 647 S.W .2d 246, 248 (Tex. 1983). W e decline to go down this road, however,
because (1) neither party has raised this m atter on appeal and (2) the injunction, despite stating “forcible entry
and detainer” rather than “forcible detainer,” sufficiently inform s Yarto that she should not proceed with her
forcible detainer suit, without calling on her to m ake an inference or conclusion about which persons might
differ, see San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W .2d 697, 702 (1956).
Nevertheless, we call attention to this concern in the hope of preventing any future m isunderstandings.

         4
             McGlothlin v. Kliebert, 672 S.W .2d 231, 232 (Tex. 1984).

        5
             Butnaru v. Ford Motor Co., 84 S.W .3d 198, 204 (Tex. 2002).

         6
             Id.

         7
             Id.

         8
          Id. Yarto argues that the traditional prerequisites for obtaining a tem porary injunction, set out above,
were not satisfied by the Gillilands. The Gillilands, on the other hand, argue that they satisfied the
prerequisites specifically applicable to anti-suit injunctions. See generally Gonzales v. Reliant Energy, Inc.,
159 S.W .3d 615, 623 (Tex. 2005) (discussing what party seeking anti-suit injunction m ust show to obtain
relief). The m ajority rule in Texas is that in addition to m eeting the requirem ents necessary to obtain an anti-
suit injunction, the traditional prerequisites to injunctive relief m ust be m et by a party seeking an anti-suit

                                                         4
                                                         III.

         We begin with Yarto’s second issue, wherein she argues that the trial court abused

its discretion in granting the temporary injunction because the Gillilands had an adequate

remedy at law. Yarto’s argument is premised on the contention that “[t]he Gillilands have

the ability to defend their right to possession in the justice of the peace court.” In Ward v.

Malone, this Court addressed the law applicable to forcible detainer actions in great detail,

addressing under what circumstances a justice court or district court possessed jurisdiction

to determine a party’s right of possession:

                The forcible detainer action is the procedure by which the right to
         immediate possession of real property is determined. It is a special
         proceeding governed by particular statutes and rules. It was created to
         provide a speedy, simple and inexpensive means for resolving the question
         of the right to possession of real property. To preserve the simplicity and
         speedy nature of the remedy, the applicable rule of civil procedure provides
         that the only issue shall be as to the right to actual possession; and the
         merits of the title shall not be adjudicated. Thus, the sole issue in a forcible


injunction. See, e.g., Bay Fin. Sav. Bank v. Brown, 142 S.W .3d 586, 591 (Tex. App.–Texarkana 2004, no
pet.) (holding that anti-suit injunctions m ust also com ply with requirem ents provided in rules of civil procedure);
Total Minatome Corp. v. Santa Fe Materials, Inc., 851 S.W .2d 336, 339 (Tex. App.–Dallas 1993, no writ)
(holding that “clear equity” justifying injunctive relief requires showing of irreparable injury, inadequate rem edy
at law, and probable right of recovery). But see, e.g., In re Henry, Nos. 01-07-00601-CV & 01-07-00622-CV,
2008 Tex. App. LEXIS 7334, at *4 (Tex. App.–Houston [1st Dist.] Oct. 2, 2008, no pet.) (op. on reh’g)
(negating contention that a party seeking an anti-suit injunction is also required to establish a probable right
of recovery in the underlying lawsuit, irreparable harm , and that no adequate rem edy at law exists); Admiral
Ins. Co. v. Atchison, Topeka & Santa Fe Ry. Co., 848 S.W .2d 251, 258 (Tex. App.–Fort W orth 1993, writ
denied), overruled on other grounds, G olden Rule Ins. Co. v. Harper, 925 S.W .2d 649, 651 (Tex. 1996)
(rejecting contention that a person seeking an anti-suit injunction m ust establish a probable right to recovery
on the m erits).

         The conflict and confusion over this m atter is reflected in the opinions of this Court. See, e.g.,
Fleming v. Ahumada, 193 S.W .3d 704, 713-15 (Tex. App.–Corpus Christi 2006, no pet.) (assessing whether
trial court erred in granting anti-suit injunction by only evaluating the requirem ents specifically applicable to
the acquisition of an anti-suit injunction). But see, e.g., Marroquin v. D & N Funding, Inc., 943 S.W .2d 112,
114 (Tex. App.–Corpus Christi 1997, no pet.) (assessing whether a trial court erred in denying request for an
anti-suit injunction by only assessing whether party had pleaded and proven a probable injury if relief was
denied, and a probable right to recovery). W hether or not a party seeking an anti-suit injunction m ust m eet
the traditional prerequisites for injunctive relief is a m atter we need not firm ly resolve today. W e shall assum e
arguendo, as im plied by Yarto’s brief, that the traditional prerequisites are applicable to the Gillilands’ anti-suit
injunction.

                                                          5
         detainer action is who has the right to immediate possession of the premises.

                 To prevail in a forcible detainer action, a plaintiff is not required to
         prove title but is only required to show sufficient evidence of ownership to
         demonstrate a superior right to immediate possession. However, where the
         right to immediate possession necessarily requires resolution of a title
         dispute, the justice court has no jurisdiction to enter a judgment and may be
         enjoined from doing so. Because a forcible detainer action is not exclusive,
         but is cumulative of any other remedy a party may have in the courts of this
         state, the displaced party is entitled to bring a separate suit in the district
         court to determine the issue of title.

                In most situations, the parties in a forcible detainer suit are in a
         landlord-tenant relationship. One indication that a justice court, and county
         court on appeal, is called on to adjudicate title to real estate in a forcible
         detainer case—and, thus exceed its jurisdiction—is when a landlord-tenant
         relationship is lacking.9

         In the instant case, the parties dispute whether a landlord-tenant or buyer-seller

relationship exists. The Gillilands assert that they entered into an oral contract for deed

with Yarto for the residence and that they fully performed on the contract by paying the

purchase price.10 They do not contend that Yarto has provided them with the actual title

to the residence. Under these facts, the Gillilands have raised a claim of equitable title to

the residence,11 which, if supported by evidence and law, would provide them with a


         9
           115 S.W .3d 267, 270 (Tex. App.–Corpus Christi 2003, pet. denied) (citations and internal quotations
om itted; em phasis added).

         10
            “An executory contract for the sale of real estate contem plates that the purchaser com plete
perform ance in the future (i.e., finish m aking paym ents) before title to the property passes.” 17 W illiam V.
Dorsaneo III, T EXAS L ITIG ATIO N G UIDE § 252.01[3][a] (2006). A “contract for deed” is a type of executory
contract, in which “[t]he seller is required to convey a deed to the property once the purchaser has perform ed
the executory contract by paying the full agreed purchase price.” Id.

         11
          Although legal title does not pass under a contract for deed until the deed is actually delivered to
the purchaser, Graves v. Diehl, 958 S.W .2d 468, 471 (Tex. App.–Houston [14th Dist.] 1997, no pet.), the
purchaser can acquire equitable title by m erely paying the purchase price and fully satisfying his obligations
under the contract. W hite v. Hughs, 867 S.W .2d 846, 849 (Tex. App.–Texarkana 1993, no writ). “Upon
paym ent of the purchase price and full perform ance of a contract for sale of real property, a party becom es
vested with an equitable title in the land sufficient to enable him to m aintain an action for trespass to try title.”
Brown v. Davila, 807 S.W .2d 12, 14 (Tex. App.–Corpus Christi 1991, no writ).

                                                          6
superior right of possession despite Yarto’s retained legal title.12 Accordingly, we do not

believe that the justice court can rely on Yarto’s warranty deed alone to determine which

party has the right to immediate possession. We find that the Gillilands’ and Yarto’s

competing assertions over the nature of their relationship—with neither party’s assertion

having the support of a contractual document (i.e., a written lease or written contract for

deed)—requires the resolution of a title dispute before the right of immediate possession

can be fully ascertained.13 As a consequence, we further find that the justice court does

not have jurisdiction to address whether Yarto or the Gillilands have a right of immediate

possession to the residence.

        Though Yarto seeks to deter this Court from reaching the above finding by citing

various cases, we conclude that Yarto’s case law is inapplicable to the instant case.14

There are, however, two cases cited and discussed by Yarto—Fandey v. Lee and Falcon




        12
          See Hearst’s Heirs v. Kuykendall’s Heirs, 16 Tex. 327, 329 (1856); Guyer v. Rose, 601 S.W .2d 205,
207 (Tex. Civ. App.–Dallas 1980, writ ref’d n.r.e.).

        13
            See, e.g., Dass, Inc., v. Smith, 206 S.W .3d 197, 200-01 (Tex. App.–Dallas 2006, no pet.) (finding
that the determ ination of the right to im m ediate possession of property necessarily required the resolution of
a title dispute when the parties argued over whether a landlord-tenant or buyer-seller relationship existed).
W e observe that the facts of our case are distinguishable from those in Tipton v. Ramirez, No. 04-07-00231-
CV, 2007 Tex. App. LEXIS 9228, at *6-8 (Tex. App.–San Antonio Nov. 28, 2007, no pet.) (m em . op.). In
Tipton, the court of appeals found—despite the fact that the parties argued over whether a landlord-tenant
or buyer-seller relationship existed between them — that the justice court could determ ine the right to
im m ediate possession because there was a written lease agreem ent between the parties that post-dated the
written purchase agreem ent. Id. There is no written lease agreem ent in the instant case.

        14
            Yarto’s reliance on McGlothlin is m isplaced because the party being evicted in that case adm itted
that title was not at issue. 672 S.W .2d at 232. W ith regard to Marroquin v. D & N Funding, Inc., this Court
found that Marroquin, who had declared bankruptcy, was not entitled to injunctive relief to keep D & N from
evicting him because bankruptcy law gave him an adequate rem edy at law. 943 S.W .2d 112, 114-15 (Tex.
App.–Corpus Christi 1997, no pet.). Lastly, we find that Haith v. Drake is irrelevant because it was clear in
that case that the party being evicted had not com pleted his obligations under the contract for deed, thus only
giving the party equitable rights, not equitable title. 596 S.W .2d 194, 197 (Tex. Civ. App.–Houston [1st Dist.]
1980, writ ref’d n.r.e.).

                                                       7
v. Ensignia—that warrant detailed attention.15

        According to Yarto, Fandey demonstrates that the justice court has jurisdiction to

determine whether she or the Gillilands have the right to the immediate possession of the

residence. In Fandey, the Fandeys and the Lees were fighting for possession of a home.16

It was undisputed that the Fandeys were the owners and title holders of a home possessed

by the Lees.17 Prior to taking possession of the home, the Lees gave the Fandeys a large

sum of money.18 The Fandeys alleged that the sum in question served as a security

deposit for the rental of the home, while the Lees urged that the sum was part of the

purchase price of the property.19 After the Fandeys initiated and prevailed in a forcible

detainer action in a justice court, the Lees appealed to a county court, at which time the

Lees counterclaimed and raised affirmative defenses against the Fandeys’ forcible detainer

action.20 The most relevant of these defenses was the Lees’ claim that they and the

Fandeys had entered into an oral contract to sell the home, and that the Lees had

subsequently obtained possession and made valuable improvements to the home.21 At

trial, a jury found that no landlord-tenant relationship existed between the parties, resulting


        15
            Fandey v. Lee, 880 S.W .2d 164 (Tex. App.–El Paso 1994, writ denied) (op. on reh’g), and Falcon
v. Ensignia, 976 S.W .2d 336 (Tex. App.–Corpus Christi 1998, no pet.), are both discussed by Yarto in her
first issue on appeal, not the second. Because we believe, however, that discussion of these cases is m ore
applicable to her second issue, we address them at this tim e.

        16
             880 S.W .2d at 167.

        17
             Id.

        18
             Id. at 166-67.

        19
             Id. at 167.

        20
             Id.

        21
             Id. at 169.

                                                    8
in the entry of a judgment that the Fandeys take nothing.22 The Fandeys appealed, and

the El Paso Court of Appeals reversed and remanded, stating in the process that though

“the Lees’ affirmative defense allegations would have relevancy to their counterclaims to

quiet title and for fraud, among other things, . . . they have no such relevancy to the

question of which party had the right to immediate possession of the premises.”23 In

latching onto this language, Yarto fails to recognize that Fandey is factually distinguishable

from the instant case in one critical respect.

        Though not explicitly stated in Fandey, we believe the court’s determination—that

the Lees’ alleged oral contract for deed had no relevance to the “question of which party

had the right to immediate possession of the premises”—rested on the undisputed fact that

the Lees had not fully satisfied their obligations under the alleged contract.24 By not fully

satisfying their obligations under the contract, the Lees failed to establish that they had

equitable title to the home.25 Instead, the Lees merely established that they had an

equitable right to complete performance under the contract,26 which is not a right that would

have provided the Lees with a superior right of possession to the home. Accordingly, the

instant case is distinguishable from Fandey because the Gillilands assert that they have


        22
             Id. at 167.

        23
             Id. at 169.

        24
           See id. at 166 (stating that the Lees “urge that the sum [of m oney given to the Fandeys] was part
of the purchase price of the property,” and that it “is undisputed at all tim es m aterial to this appeal” that the
“Lees m ade no further paym ents for the property” since taking possession).

        25
             See Haith, 596 S.W .2d at 197; W hite, 867 S.W .2d at 849.

        26
            See generally In re W aldron, 65 B.R. 169, 173-74 (Bankr. N.D. Tex. 1986) (discussing Texas case
law and explaining the distinction between the right that accrues for a purchaser entering into a contract for
deed (i.e., an equitable right), and the right that accrues after the purchaser has satisfied his or her obligations
under a contract for deed (i.e., an equitable title)).

                                                         9
fully performed all obligations under their alleged oral contract for deed.27

        Relying on this Court’s opinion in Falcon v. Ensignia,28 Yarto also maintains that the

Gillilands failed to bring the justice court’s jurisdiction into question because they presented

no specific evidence of a title dispute. In Falcon, Ensignia purchased a motel from

Hernandez and subsequently brought a forcible entry and detainer action against the

Falcons in a justice court.29 The Falcons, who had been managing and residing in the

motel for some time, refused to vacate upon Ensignia’s request.30 The Falcons filed a

written answer in the justice court, wherein they alleged that they had entered into an oral

contract for the purchase of the property from Hernandez prior to Ensignia’s purchase of

the property.31 The Falcons never produced any writing evidencing this conveyance.32

Ensignia, on the other hand, filed a copy of the warranty deed and vendor’s lien evidencing

his purchase and ownership of the property.33 The justice court rendered judgment in favor

of Ensignia, and the Falcons appealed to a county court for a trial de novo.34 After

Ensignia moved for summary judgment, and the Falcons failed to file a response, the


        27
          W e observe that when the parties in a buyer-seller relationship dispute whether the buyer has fully
perform ed as required under a contract for deed, the justice court is denied jurisdiction to ascertain which
party has the right of im m ediate possession to the property in question. See Rodriguez v. Sullivan, 484
S.W .2d 592, 593 (Tex. App.–El Paso 1972, no pet.).

        28
             976 S.W .2d 336.

        29
             Id. at 337.

        30
             Id.

        31
             Id. at 337-38.

        32
             Id. at 338.

        33
             Id.

        34
             Id.

                                                     10
county court granted summary judgment in favor of Ensignia.35 The Falcons then appealed

to this Court, arguing that the lower courts were without jurisdiction to determine title.36 We

rejected the argument, stating:

                 We do not believe a genuine title dispute was ever raised in either
        court. Falcon referred to an oral agreement between him and Gonzalez [sic],
        but such agreement is unenforceable as a matter of law. Specific evidence
        of title dispute is required to raise an issue of a justice court’s jurisdiction.
        Without the Falcons having presented specific evidence to raise a genuine
        title dispute, the jurisdiction of the court was never at issue.37

        This Court’s demand for specific evidence of a title dispute rested on Sparkman v.

State, wherein the Tyler Court of Appeals—citing the Houston First Court of Appeals’

opinion in Mitchell v. Armstrong Capital Corporation as its example—observed that “courts

have required specific evidence of a title dispute before determining that a title dispute

deprived a justice court of jurisdiction in an action for forcible entry and detainer.”38 But

what specific evidence did the Mitchell court really require?

        In Mitchell, Armstrong Capital first prevailed on a forcible detainer action against

Mitchell in a justice court, and then later in a county court.39 Mitchell appealed, arguing that

the county court did not have subject-matter jurisdiction over the case.40 In addressing the

argument, the court of appeals stated that “[i]f it becomes apparent that a genuine issue

        35
             Id.

        36
             Id. at 337.

        37
           Id. at 338 (em phasis added) (citing Sparkm an v. State, 968 S.W .2d 373, 378 (Tex. App.–Tyler
1997, pet. ref’d)).

        38
          Sparkman, 968 S.W .2d at 378 (citing Mitchell v. Armstrong Capital Corp., 911 S.W .2d 169, 171
(Tex. App.–Houston [1st Dist.] 1995, writ denied)).

        39
             911 S.W .2d at 171.

        40
             Id.

                                                  11
regarding title exists in a forcible detainer suit, the [justice or county] court does not have

jurisdiction over the matter.”41 The court then ruled in Mitchell’s favor, stating:

               Appellant Mitchell raised title as an issue in the justice court and
        county court at law by asserting that the Substitute Trustee’s Deed held by
        Armstrong Capital was void, and by specifically giving notice that litigation
        was pending in the 268th District Court to set aside the non-judicial
        foreclosure sale. Because a “title issue” was involved in the courts below,
        they had no subject matter jurisdiction over the case.42

The opinion does not reference any evidence Mitchell presented to support her claim that

Armstrong Capital’s deed was void; rather, the opinion merely establishes that Mitchell was

able to raise a title dispute through her assertions and notice of pending litigation.

        We interpret “specific evidence” as consisting of nothing more than the various

assertions that comprise a party’s title claim, and conclude that “specific evidence” of a title

dispute exists when through those assertions, the party has asserted a basis for title

ownership that is not patently ineffective under the law and is intertwined with the issue of

immediate possession.43 Applying this interpretation to Falcon and the case at hand, it

becomes evident that the two cases are distinguishable.


        41
             Id.

        42
             Id. (em phasis added).

        43
           The W aco Court of Appeals in Aguilar v. W eber, for exam ple, cited Mitchell and Falcon when
stating the following:

        [W ]e find specific evidence of a title dispute raised in the Aguilar’s [sic] counter-claim . The
        counter-claim disputed the alleged default and challenged the right to possession under the
        contract. The Aguilars asserted that non-paym ent was due to the W ebers[’] failure to
        execute the warranty deed as required under the contract. Therefore, determ ining the right
        of possession necessarily involved a title inquiry into the contract to purchase land, unless
        the contract created a landlord-tenant relationship or other independent basis for determ ining
        possession upon default.

72 S.W .3d 729, 734-35 (Tex. App.–W aco 2002, no pet.). Accordingly, the Aguilar court, like the Mitchell court,
found “specific evidence” of a title dispute based on the party’s assertions, rather than on evidence to support
those assertions.

                                                      12
       Falcon does not refer to any assertion by the Falcons that their oral agreement was

enforceable as a matter of law because the agreement satisfied an exception to the statute

of frauds. The Falcons presumably did not make such an assertion; and as a result, they

failed to claim a basis for title ownership that was not patently ineffective under the law.

For even if the justice or county court believed that the Falcons had entered into an oral

contract for deed, the Falcons provided no claim that would give a court cause to believe

that the agreement was enforceable in light of its failure to comply with the statute of

frauds. The Gillilands’ asserted basis for their ownership of the residence, unlike that in

Falcon, is their claim that they (1) entered into a contract for deed with Yarto; (2) fully

satisfied their obligations under this contract; and (3) have done all that is necessary under

the Texas Supreme Court’s holding in Hooks v. Bridgewater44 to relieve their oral contract

from the operation of the statute of frauds. The Gillilands formally evidenced their claim

at the temporary injunction hearing through a joint stipulation of facts and Todd’s

testimony. And for reasons that will be more fully expressed when we reach Yarto’s

remaining issues on appeal, we do not believe Yarto has effectively argued that the

Gillilands’ claim is patently ineffective in establishing their right of ownership. In light of all

this, we find that the Gillilands’ claim, coupled with the Gillilands’ pending litigation in the

district court, raises a title dispute that removes the justice court’s subject-matter

jurisdiction over the case.45

       Yarto’s second issue on appeal is overruled.



       44
            229 S.W . at 1116.

       45
            See Mitchell, 911 S.W .2d at 171.

                                                13
                              IV. Probable Right to the Relief Sought

        We interpret Yarto’s first issue as asserting that the trial court erred in granting

injunctive relief because the Gillilands failed to establish a probable right to the relief

sought. To establish a probable right to recover, a party is not required to prove that it will

prevail on final trial in order to invoke the trial court’s discretion to grant a temporary

injunction.46 A probable right of success on the merits is shown by alleging a cause of

action and introducing evidence that tends to sustain it.47 We will affirm the trial court’s

decision as long as there are grounds to believe that the claim has merit.48

        Yarto first argues that the Gillilands’ ownership claim over the residence is

ineffective because they cannot prove all that is required under Hooks. In Hooks, the

Texas Supreme Court held “that to relieve a parol sale of land from the operation of the

Statute of Frauds, three things were necessary”: (1) “[p]ayment of the consideration”; (2)

“[p]ossession by the vendee”; and (3) “[t]he making by the vendee of valuable and

permanent improvements upon the land with the consent of the vendor.”49 Yarto contends

that the Gillilands cannot satisfy the “possession” element, stating:

              It is undisputed that [the Gillilands] have lived in and maintained
        possession of the subject property from the time it was built in June 2003,
        through the present date. [The Gillilands] continued to occupy and possess
        the subject property after Todd Gilliland executed a Warranty Deed,

        46
             Oil Field Haulers Ass’n v. R.R. Comm’n, 381 S.W .2d 183, 196 (Tex. 1964).

        47
            T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W .2d 18, 23-24 (Tex. App.–Houston
[1st Dist.] 1998, pet. dism ’d).

        48
            183/ 620 Group Joint Venture v. SPF Joint Venture, 765 S.W .2d 901, 904 (Tex. App.–Austin 1989,
writ dism ’d w.o.j.) (stating that, in order to satisfy the “probable right to recover” requirem ent, an applicant
seeking injunctive relief is only required to (1) adduce evidence that tends to support his right to recover on
the m erits, or (2) show that a bona fide issue exists as to his right to ultim ate relief).

        49
             229 S.W . at 1116.

                                                       14
       conveying the subject property to Yarto on August 27, 2003, and they were
       in possession of the subject property when they allegedly entered into an
       oral contract for deed. Because they were already in possession of the
       property when the alleged contract for deed was made, [the Gillilands]
       cannot show that such possession was intended as a delivery under an oral
       contract for deed, and therefore, cannot fall within the Hooks exception to the
       statute of frauds.50

       Yarto derives this argument from the Amarillo Court of Appeals’ discussion of Hooks

in Teague v. Roper.51 In Teague, the court noted that the Hooks court “did not address the

question of whether a plaintiff who was already in possession and who continued in

possession under a new oral agreement within the statute [of frauds] had such possession

as would remove the agreement from the operation of the statute.”52 The Teague court

addressed this question and concluded that “if the grantee is already in possession when

the contract is made, a continuance of possession will not ordinarily suffice, although under

the circumstances of a particular case, a continuance of possession may be such as to be

referable exclusively to a new oral contract.”53 Accordingly, Teague indicates that it is

possible for the Gillilands to satisfy the possession element in Hooks if they can make their

post-conveyance possession of the residence referable exclusively to their alleged oral

contract for deed.

       Both Yarto and the Gillilands clearly rely on Yarto’s warranty deed, which was

presented to the trial court, to assert that the Gillilands entered into some type of oral

agreement after the residence was conveyed. The only dispute between the parties is the

       50
            Y AR TO ’S B R IEF at 6-7 (citations om itted).

       51
            526 S.W .2d 291, 293-95 (Tex. App.–Am arillo 1975, writ ref’d n.r.e.).

       52
            Id. at 293.

       53
            Id.

                                                              15
nature of the agreement. Todd testified that after the conveyance, he provided Yarto with

a number of monthly check payments on which he wrote, “contract for deed.” The

Gillilands also asserted that an attorney, David Girault, had been assigned by both parties

to draw up a contract for deed, but Girault failed to complete the assignment. If the

Gillilands were to present the checks, Girault’s testimony, and any additional evidence to

a fact-finder during a trial on the merits, it is not inconceivable for the fact-finder to

conclude that the Gillilands have demonstrated that their post-conveyance possession of

the residence is referable exclusively to an oral contract for deed.54

        The Gillilands, however, did not produce the checks in question, nor did they

present any additional evidence relating to Girault and his alleged involvement in drafting

the proposed contract for deed. Nevertheless, we do not believe that the Gillilands’ failure

to present this evidence denied the trial court the discretion to grant injunctive relief.

Todd’s testimony, by itself, tended to support the Gillilands’ right to recover on the merits;

as a result, the Gillilands effectively invoked the trial court’s discretion to grant the

temporary injunction.55 We thus reject Yarto’s first argument.

        The Texas Supreme Court has stated that a court cannot find specific performance

“when there is confusion and indefiniteness as to the terms” of an oral contract for deed.56

Accordingly, Yarto raises a compelling second argument by asserting that the Gillilands did



        54
           See, e.g., Arredondo v. Mora, 340 S.W .2d 322, 324 (Tex. Civ. App.–El Paso 1960, writ ref’d n.r.e.)
(noting that the trial court— upon having to determ ine whether plaintiff satisfied Hooks exception— could have
looked at descriptions on paym ent docum entation to assess the validity of plaintiff’s contention that his
paym ents to defendant were pursuant to an oral contract for deed, rather than a contract for lease).

        55
             See T-N-T Motorsports, Inc., 965 S.W .2d at 23-24.

        56
             Francis v. Thomas, 129 Tex. 579, 106 S.W .2d 257, 258 (1937).

                                                     16
not establish a probable right to relief because their alleged oral contract for deed is too

indefinite. Yarto specifically argues the following:

               As evidenced by the record, the obligations under the alleged oral
       contract for deed were anything but certain. Todd Gilliland was unable to
       state any of the terms under this oral contract for deed, including the sale
       price, the interest rate, or who was responsible for the payment of ad
       valorem taxes. Because the obligations are uncertain, it is impossible for the
       Gillilands to fulfill the obligations under the alleged oral contract for deed in
       order to acquire equitable title.57

       Though the record clearly shows that Todd exhibited difficulty in recalling the

Gillilands’ obligations under the alleged oral contract for deed, we do not believe this

denied the trial court its discretion to grant injunctive relief. First, we remain mindful of the

fact that the trial court was evaluating Todd’s testimony on the basis of whether it

established a probable right to recovery, not whether his testimony established that the

Gillilands would prevail on the merits of their claim.58 Second, the Texas Supreme Court

has stated that when dealing with oral contracts, it is the “essential terms [that] must be

free and clear from doubt” for the contract to be enforceable.59 In the instant case, the trial

court could have deemed many of the contract details that Todd could not provide as being

non-essential, and thus irrelevant to the alleged oral contract’s enforceability. The trial

court could have also concluded that Todd provided a sufficient number of essential

details. Todd testified, for instance, that (1) the property at issue in the oral contract for

deed was the residence; (2) he had to pay “about $325,000” to Yarto for the purchase of

the residence; (3) “it was a 30-year contract”; (4) there was an 8.5% interest rate; and (5)

       57
        Y    AR TO ’S   B R IEF at 9 (citations om itted).

       58
            See Oil Field Haulers Ass’n, 381 S.W .2d at 196.

       59
            Smith v. Griffin, 131 Tex. 509, 116 S.W .2d 1064, 1066 (1938) (em phasis added).

                                                             17
he had to make monthly payments on the contract in the amount of $2,500. Moreover, the

trial court, upon hearing Todd’s testimony, could have believed that additional details

relating to the alleged oral contract for deed would be discovered during a trial on the

merits, at which time evidence and testimony from Todd and Sofia Gilliland, Girault, or

some other source could all be presented.60

         We thus find that the trial court did not abuse its discretion because it had grounds

to believe that the Gillilands’ claim had merit.61             Having now rejected all of the arguments

contained within Yarto’s first issue, that issue is overruled.

                                                         V.

         In her third and final issue, Yarto argues that the trial court erred in granting the

temporary injunction because the Gillilands presented no evidence of probable injury. We

disagree.

         The parties’ joint stipulation of facts states that “[u]nless the [trial] court enters the

temporary injunction requested by [the Gillilands], [Yarto] will continue to prosecute a

forcible detainer action seeking possession of the home” in which the Gillilands currently

reside. Because, “[i]n Texas, the potential loss of rights in real property is a probable,




         60
             In Southwest W eather Research, Inc. v. Jones, the suprem e court stated that a “hearing upon the
tem porary injunction is not a substitute for, nor does it serve the sam e purpose as the hearing on the m erits.”
160 Tex. 104, 111, 327 S.W .2d 417, 422-23 (1959). The im portance of allowing the case at hand to proceed
to trial is bolstered by the fact that, in recent years, courts have forced and upheld the transfer of property title
pursuant to a contested oral contract for deed. See, e.g., Ratsavong v. Menevilay, 176 S.W .3d 661 (Tex.
App.–El Paso 2005, pet. denied) (affirm ing trial court’s decision to give Menevilay title to a hom e based on
an alleged oral contract for deed, even though Ratsavong, the alleged seller and pretrial title holder, argued
that only a landlord-tenant relationship existed and denied ever entering an oral contract for deed).

         61
              See 183/ 620 Group Joint Venture, 765 S.W .2d at 904.

                                                        18
imminent, and irreparable injury that qualifies a party for a temporary injunction,”62 the trial

court could have reasonably concluded from the stipulation that a probable injury would

befall the Gillilands if no injunctive relief was granted. Finding no abuse of discretion in this

regard, we overrule Yarto’s final issue on appeal.

                                                       VI.

        The trial court’s order granting the temporary injunction is affirmed.




                                                             LINDA REYNA YAÑEZ,
                                                             Justice



Opinion delivered and filed this the
8th day of January, 2009.




          62
             Rus-Ann Dev., Inc. v. ECGC, Inc., 222 S.W .3d 921, 927 (Tex. App.–Tyler 2007, no pet.); see
Franklin Savs. Ass'n v. Reese, 756 S.W .2d 14, 15-16 (Tex. App.–Austin 1988, no writ) (op. on reh’g) (“Since
it is obvious that appellee would probably be injured if the property were foreclosed and sold, the only question
here is whether the trial court erred in determ ining there was a probable right of recovery.”); Hayter v. Fern
Lake Fishing Club, 318 S.W .2d 912, 914 (Tex. Civ. App.–Beaum ont 1958, no writ) (finding that actions
affecting one’s use and enjoym ent of his hom e is an irreparable injury); see also Positive Feed, Inc. v. W endt,
Nos. 01-96-00614-CV & 01-96-01250-CV, 1998 Tex. App. LEXIS 774, *30 (Tex. App.–Houston [1st Dist.] Feb.
5, 1998, pet. denied) (m em . op.) (“W e hold that loss of enjoym ent or the reasonable use of one’s hom e can
be an irreparable injury for purposes of injunctive relief.”).

                                                       19
