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                                     MEMORANDUM OPINION

                                              No. 04-08-00541-CV

                                          G&D FURNITURE LLC,
                                                Appellant

                                                          v.

                                   SFD ENTERPRISES, INC.,
                  and Arthur G. Uhl, III, Substitute Trustee for SFD Enterprises, Inc.,
                                               Appellees

                      From the 224th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CI-10198
                            Honorable Barbara Nellermoe, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: February 18, 2009

AFFIRMED

           This is an appeal from the trial court’s denial of a temporary injunction sought by appellant

G&D Furniture LLC (“G&D”) for the purpose of stopping the non-judicial foreclosure of its real

property by appellee, SFD Enterprises, Inc. (“SFD”).1 In an opinion and judgment dated January 14,

2009, we affirmed the trial court’s order. Appellant filed a motion for rehearing. Although we deny



           … W e have previously issued a temporary injunction in order to preserve our jurisdiction, restraining the
           1

trustee’s sale pending appellate review.
                                                                                      04-08-00541-CV

the motion for rehearing, we withdraw our opinion and judgment of January 14, 2009, and issue this

opinion and judgment in its place. We affirm.

                                   STANDARD OF REVIEW

       A trial court has broad discretion in deciding whether to deny a temporary injunction.

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). We review the denial of a temporary

injunction for a clear abuse of discretion without addressing the merits of the underlying case.

Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). An appellate court will uphold the trial court’s

order unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable

discretion. Butnaru, 84 S.W.3d at 204. We may not substitute our judgment for that of the trial

court, even if we would have reached a contrary conclusion. Id. at 211. Rather, we view the

evidence in the light most favorable to the trial court’s order, indulging every reasonable inference

in its favor, and determine whether the order was so arbitrary as to exceed the bounds of reasonable

discretion. Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 576 (Tex. App.—Austin

2000, no pet.). When, as here, no findings of fact or conclusions of law are requested or filed, we

will imply all necessary findings in support of the trial court’s order, and review the record to

determine if the order of the court must be upheld under any legal theory supported in the record.

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Davis v. Huey, 571 S.W.2d 859,

862 (Tex. 1978). If some evidence reasonably supports the trial court’s decision, the trial court does

not abuse its discretion. Butnaru, 84 S.W.3d at 211.




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                                                                                         04-08-00541-CV

                                            DISCUSSION

        To obtain a temporary injunction, the applicant must plead and prove three specific elements,

one of which is a probable right to the relief sought. Butnaru, 84 S.W.3d at 204; City of San Antonio

v. Vakey, 123 S.W.3d 497, 501 (Tex. App.—San Antonio 2003, no pet.). G&D contends that

because it raised a fact issue on whether the promissory note to purchase the property was reinstated,

it established a prima facie case sufficient to establish its probable right to relief. However, probable

right to relief must be established by competent evidence adduced at a hearing. Goldthorn v.

Goldthorn, 242 S.W.3d 797, 798 (Tex. App.—San Antonio 2007, no pet.); see also Anderson Oaks

(Phase I) Ltd. P’ship v. Anderson, 734 S.W.2d 42, 44, n.1 (Tex. App.—Austin 1987, no writ) (“The

requirement of demonstrating probable right or the likelihood of prevailing on the merits . . .

require[s] evidence that ‘at the very least, [will] tend to support a right of recovery.’”). The only

evidence adduced by G&D at the hearing on its application for a temporary injunction were two

emails sent by Dan Bailey, G&D’s principal, to SFD in which Bailey states the loan has been

reinstated. Both emails were sent after SFD had mailed to G&D a letter stating that because payment

delinquencies under the note had not been cured, the note was accelerated with all unpaid principal

and accrued interest due. Bailey did not testify. The only witnesses who testified at the hearing were

SFD’s controller and SFD’s attorney. These witnesses both stated that SFD intended to accelerate

the note and SFD never intended to reinstate the loan.

        Based on the record before the trial court here and indulging every reasonable inference

favorable to its order, we cannot conclude the court’s denial of G&D’s request for a temporary

injunction was so arbitrary as to exceed the bounds of reasonable discretion.


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                                       CONCLUSION

       We overrule G&D’s issue on appeal and affirm the trial court’s order denying G&D’s request

for a temporary injunction.

                                                     Sandee Bryan Marion, Justice




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