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Yardeni v. Torres

Court of Appeals of Texas, Eighth District, El Paso

December 19, 2013

Mike YARDENI and Mike Yardeni Family Investments, L.P., Appellants,
v.
Maria Lourdes Luna TORRES and Kids View Zaragosa Center, L.L.C., Appellees.

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Thomas Wicker Jr., Dennis L. Richard, El Paso, for appellants.

J. Morgan Broaddus III, Gordon Davis Johnson & Shane, P.C., Harrell L. Davis III, El Paso, for appellees.

Before McCLURE, C.J., RIVERA, and RODRIGUEZ, JJ.

OPINION

YVONNE T. RODRIGUEZ, Justice.

Appellants Mike Yardeni and Mike Yardeni Family Investments, L.P., seek interlocutory review of the trial court's grant of an amended temporary injunction in favor of Maria Lourdes Luna Torres and Kids View Zaragosa Center, L.L.C., Appellees, which prevents Appellants from inter alia locking Appellees out of property located on 1777 North Zaragosa Road in El Paso, Texas (" the Zaragosa Property" ). This temporary injunction, granted on October 1, 2013, revived a previous injunction that expired by its own terms on August 6, 2013.

On appeal, Appellants argue in two issues that the trial court abused its discretion by granting the temporary injunction order because (1) Appellants lacked standing to obtain the injunction, and (2) the order did not account for the monthly ad valorem tax payments Appellees purportedly owed under their lease. Appellants ask in a third issue that this Court find that Torres' contractual claim to a 50 percent ownership interest in the Zaragosa Property is barred by the Statute of Frauds. For the following reasons, we affirm the amended temporary injunction order and dismiss Issue Three for presenting a matter that is not justiciable on interlocutory appeal.

Factual Background

In 2004, Maria Lourdes Luna Torres sought a business loan from Capital Savings Bank in order to expand her child care business and open a daycare center called the Kids View Zaragosa Center on the premises of the Zaragosa Property. Torres approached Capital Savings Bank Board Member Mike Yardeni to assist her in getting the funding. Yardeni told her that if she applied for a loan from Capital Savings Bank, the bank would likely deny the loan because Torres was overextended in her financial commitments. However, Yardeni offered to enter into a business partnership with Torres and sad he would personally obtain a loan for her from Citibank. Torres accepted the offer. Under the terms of their verbal partnership agreement, Yardeni would provide the down payment for the building, the equipment, and the mortgage financing. Torres would operate the facility, provide her expertise in running other daycare centers, and hold the necessary licenses to operate the business.

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Torres claimed that Yardeni told her he would make the down payment for the Zaragosa Property out of his own personal funds, but that he first needed to provide Citibank with a written lease in order to obtain the loan for the remaining balance. As such, Yardeni executed a lease in 2004 with an entity referred to in the record as " Kids View Seven." There is also apparently a second lease in existence naming " Kids View, Inc." as the tenant. The Court is unable to find a written copy of any leases or the loan applications in the record. Torres testified that she and Kids View Zaragosa Center, L.L.C. are the current tenants in fact and alleges in her brief that Yardeni executed the leases to Kids View Seven and Kids View, Inc. as a " ruse" to obtain a loan from Citibank that would have otherwise been denied if Yardeni had executed the lease with Kids View Zaragosa Center, L.L.C. Torres purports that there exists a third lease from 2006, which was executed when she attempted to buy Yardeni out of the partnership, that names Kids View Zaragosa Center, L.L.C, as the current legal tenant.

Eventually, Yardeni obtained financing from Citibank, the Zaragosa Property was purchased, and the Kids View Zaragosa Center opened to the general public. Following a period of initial business success, Torres and Yardeni sought to expand the Kids View Zaragosa Center by building an annex to the daycare center on an empty portion of the Zaragosa Property. Yardeni again obtained financing from Citibank to build the annex and business continued.

In 2006, an apparent dispute over ownership of Zaragosa Property arose between Torres and Yardeni. Torres claims that she and Yardeni entered into an oral agreement that they would each own 50 percent of the Zaragosa Property. Yardeni apparently disputed that arrangement. Consequently, Torres and Yardeni entered into a written agreement which recited that (1) Yardeni was the sole owner of the Zaragosa Property, and (2) Torres had the option to purchase a 50 percent share in the Zaragosa Property if she paid Yardeni $130,767, the amount he purportedly invested in the property out-of-pocket The Court again notes that this written agreement is not in the record before us. In 2008, upon advice of counsel, Torres sought to buy out Yardeni from the partnership, and a new agreement was signed. Under the 2008 agreement, Torres agreed to sign a $235,000 promissory note to Yardeni in exchange for 50 percent of the Zaragosa Property. Torres did not make all of the scheduled payments under this promissory note.

Eventually, Torres reviewed Yardeni's financial records. Torres allegedly discovered that Yardeni had not actually paid the down payment for the Zaragosa Property from his own funds. Instead, Yardeni obtained a $650,000 loan in his name from Citibank secured by the Zaragosa Property and used that loan money to purchase the $475,000 Zaragosa Property and some equipment for the daycare center. Torres testified that she had asked Yardeni for an accounting from the first loan in order to determine how the remaining $175,000 in loan money had been spent, but she has not yet received one. She also discovered that at the time the annex had been built, Yardeni obtained a second loan from Citibank in his own name for $253,000, also apparently secured by the Zaragosa Property. Torres ...


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