Appeal from the 152nd District Court Harris County, Texas
Trial Court Cause No. 2005-63424
consists of Justices Christopher, Donovan, and Jewell.
2000 IIG, Inc., appeals from the trial court's order to
release to appellee Asif Waheed the injunction bond funds
being held in the court registry, claiming the trial court
failed to consider damages suffered by appellant due to the
injunction. Appellees Rockfort Builders, Inc., and Asif
Waheed seek dismissal of the appeal and sanctions, asserting
this court lacks jurisdiction because there is no final,
appealable order. For the reasons set forth below, we dismiss
the appeal for want of jurisdiction.
October 2005, appellees filed this case seeking a temporary
injunction to prevent appellant from foreclosing on a deed of
trust and promissory note it was holding on property located
at 6407 Rodrigo, Houston, Harris County, Texas.Appellees owned an
interest in the property. In their underlying petition to the
injunction, appellees raised claims against appellant and
other defendants for breach of fiduciary duty, fraud, and
related claims. Appellees deposited $13, 500.00 in the court
registry to satisfy the bond requirement. Appellant did not
file a counterclaim (e.g., claim for wrongful
injunction or malicious prosecution), but, instead, only
filed a general denial. On December 28, 2005, the trial court
granted appellees' temporary injunction, enjoining a
number of defendants, but specifically appellant, from
selling the property.
a trial on the merits was conducted, appellee Rockfort
Builders filed for Chapter 11 Bankruptcy. The bankruptcy
court ordered Rockfort Builders to pay appellant $6, 000.00
monthly on the note, which allowed the stay to continue and
prevented foreclosure on the property by appellant. Rockfort
Builders made three payments; however, the third payment was
late. Thus, the bankruptcy stay was lifted and appellant
foreclosed on the property on July 4, 2006.
November 26, 2007, appellees non-suited their claims against
appellant and other defendants, and the other defendants with
counterclaims concurrently non- suited their counterclaims
against appellees. On January 21, 2009, appellees nonsuited
their claims against appellant a second time. In December
2009, the trial court entered orders of dismissal, disposing
for want of prosecution any and all remaining claims and
2015, appellant filed a motion to withdraw the funds
deposited by appellees from the registry of the court.
Thereafter, Rockfort Builders filed its amended motion for
release of temporary restraining order and injunction bond
funds from the registry of the court. After considering the
competing motions, on November 4, 2016, the trial court
granted appellees' motion and released the injunction
bond funds, with accrued interest, to appellee Waheed.
On this day came to be heard Plaintiffs' First Amended
Motion for the Release of Temporary Restraining Order and
Injunction Bond Funds from the Registry of the Court filed by
Rockfort Builders, Inc. and Asif Waheed. After due
consideration of the Motion, any response, and argument of
counsel, the Court determines that the Plaintiffs' First
Amended Motion of for the Release of Funds from the Registry
of the Court should be GRANTED.
IT IS, THEREFORE, ORDERED that the Harris
County District Clerk shall immediately release and pay the
current balance of $17, 084.05 from the Registry of the
Court, plus any additional accrued interest, in the
Clerk's customary manner, whether in cash, money order,
check, or other negotiable instrument in the following
(a) Payable to: "Kaiser, P.C. IOLTA Account, 2211
Norfolk, Suite 528, Houston, Texas 77098, for the benefit of
Asif Waheed", the sum of $17, 084.05, plus all
interest accrued upon such principal sum through the date of
payment by the Clerk.
Appellant filed a motion to reconsider, conceding that
appellant did not file an affirmative claim before the
nonsuit filed by appellees in January 2009. Appellant argued,
however, that it did file a claim for damages in 2015
"via its motion to release/withdraw funds and in
addition [appellant] responded to [appellees]."
Appellant argued that the four months of delay of foreclosure
cost appellant $35, 591.45. The trial court denied
appellant's motion to reconsider December 5, 2016. This
appeal timely followed.