X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:In 1996, appellee Alvis W. Holder, conveyed a lot in Haltom City to the appellant, Guy Lavigne, by general warranty deed in exchange for a down payment, a note, and a deed of trust. The note and the deed of trust both contained an acceleration clause, providing that Holder may accelerate the note if Lavigne transfers an interest in the property without Holder’s prior written consent unless the transfer creates an encumbrance subordinate to the deed of trust. In 2004, Lavigne granted a 30-foot-wide drainage easement across the back of the lot to a third party. When Holder learned about the easement, he invoked the acceleration clause and demanded full payment on the balance of the note. Lavigne did not pay the full balance within the time specified by the demand. Holder directed the trustee under the deed of trust, appellee Michael Broome, to foreclose on the property. Lavigne sued Holder to enjoin the foreclosure sale, seeking both a temporary and a permanent injunction. Both parties moved for summary judgment on the issue underlying Lavigne’s request for injunctive relief, namely, whether the easement triggered the acceleration clause. The trial court granted Holder’s motion, denied Lavigne’s, and denied Lavigne’s request for a temporary injunction. Lavigne filed both this interlocutory appeal and an original application for writ of injunction in this court. The court denied the application for writ of injunction, but ordered Holder and Broome to refrain from foreclosing on the property during the pendency of this appeal to protect the jurisdiction of this court. The court abated this appeal and remanded the case so that the parties could take steps to finalize the partial summary judgment. On Jan. 3, 2006, the trial court signed an order severing the summary judgment from the rest of the case. HOLDING:Reversed, rendered, and remanded for consideration of attorneys’ fees. It is undisputed that Lavigne transferred the easement to a third party without Holder’s prior written consent. An easement is an interest in land. Holder argues that the parties did not intend the word “encumbrance” to include easements. Texas courts have long held that the term “encumbrance” includes easements. Nothing on the face of the acceleration clause suggests that the parties intended to restrict the meaning of “encumbrance.” There is no evidence in the summary judgment record reflecting such an intent. The court gives the word “encumbrance” its plain grammatical meaning, and that plain grammatical meaning includes easements. An easement is subordinate to a prior deed of trust. The court holds that the easement granted by Lavigne was an encumbrance subordinate to the deed of trust and therefore fell within exclusion (a) of the acceleration clause. As a matter of law, the easement did not trigger the acceleration clause and did not give Holder the right to accelerate the note and foreclose on the property, and the trial court erred by granting Holder’s motion for summary judgment. For the same reasons, the trial court erred by denying Lavigne’s motion for summary judgment with regard to the acceleration clause issue. The summary judgment evidence satisfies each element of the temporary injunction test. First, Lavigne’s original petition stated a claim for a permanent injunction. Second, the easement did not trigger the acceleration clause; thus, Lavigne has shown a probable right on final hearing to a permanent injunction. Third, Lavigne has established an imminent threat of irreparable injury. The threat is imminent because Holder has actually posted the property for foreclosure on at least two different dates. The court declines Holder’s invitation to hold that the denial of Lavigne’s original-proceeding application for writ of injunction in this court precludes review of the trial court’s summary judgment. OPINION:Anne Gardner, J.; Cayce, C.J.; Dauphinot and Gardner, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.