Opinion issued January 10,=20
2008
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-04-00108-CV
GARY =
E. PATTERSON=20
& ASSOCIATES, P.C., Appellant
V.
RONALD =
W. HOLUB,=20
MARY R. HOLUB, AND HOUSTON TITLE COMPANY,=20
Appellees
On =
Appeal from the=20
151st District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2001-61896
O P I N I O=20
N
=
Appellant,=20
Gary E. Patterson & Associates, P.C. (=E2=80=9Cthe Law =
Firm=E2=80=9D), appeals a=20
take-nothing judgment rendered, upon various motions for summary=20
judgment,=20
against it and in favor of appellees, Houston Title Company =
(=E2=80=9CHTC=E2=80=9D)=20
and =
Ronald W.=20
Holub and Mary R. Holub (together, =E2=80=9Cthe Holubs=E2=80=9D). =
We determine=20
(1) =
whether the=20
trial court erred in rendering judgment, upon the traditional=20
summary-judgment motion of the Holubs and HTC, declaring that an =
abstract=20
of judgment recorded by the Law Firm did not create a valid lien; =
(2)=20
whether the trial court erred in implicitly denying the Law =
Firm=E2=80=99s hybrid=20
cross-motion for summary judgment which asserted =
that the=20
same abstract of judgment created a valid judgment lien; (3) =
whether the=20
Holubs=E2=80=99 and HTC=E2=80=99s no-evidence summary-judgment =
motion was legally=20
sufficient; (4)=20
whether the Law Firm has challenged on appeal every basis for =
no-evidence=20
summary judgment below; (5) whether we must reach issues relating =
to=20
aspects of the Holubs=E2=80=99 and HTC=E2=80=99s no-evidence =
summary-judgment motion that=20
were not a basis for the trial court=E2=80=99s ruling or that =
concern an=20
individual who is not a party on appeal; and (6) whether material =
fact=20
issues precluded the trial court from granting the Holubs=E2=80=99 =
and HTC=E2=80=99s=20
no-evidence summary-judgment motion on any of the Law =
Firm=E2=80=99s remaining=20
causes of action for damages. We affirm.
Background
<=
/SPAN>David D. Thomas =
owed the Law=20
Firm $47,372.59 in attorney=E2=80=99s fees for legal work that the =
Law Firm had=20
done for him.=20
Sometime before 1996, the Law Firm sued Thomas for those sums. On =
January=20
4, 1996, Thomas approached the Law Firm about settling the suit. =
The=20
parties settled that same day, agreeing to the following matters =
(=E2=80=9Cthe=20
settlement agreement=E2=80=9D):
WHEREAS Thomas owes Patterson =
$47,372.59 for=20
legal services rendered . . . .
WHEREAS on or =
about January=20
4, 1996, Thomas reached an agreement with Patterson to pay $22,500.00 as settlement of the=20
lawsuit.
. . =
.
NOW THEREFORE AND =
IN=20
CONSIDERATION of the mutual covenants contained herein, and other =
good and=20
valuable consideration, the receipt of which is acknowledged, the =
parties=20
agree as follows:
1.Dave Thomas agrees to pay a total =
principal=20
amount of $22,500 to [the Law Firm] by paying $500 down and =
monthly=20
installments of principal including interest of $300.00 beginning =
of=20
February 1, 1996 and continuing on the first of each month =
thereafter=20
until all principal is paid. The principal amount shall not =
accrue=20
interest.
2.Thomas agrees to =
execute=20
and file with the court an answer to the Lawsuit consisting of a =
general=20
denial. Thomas also agrees to execute a Non-Appealable Agreed =
Final=20
Judgment (=E2=80=9CJudgment=E2=80=9D) along with a joint =
motion for entry of judgment.=20
Thomas agrees and understands that he may not appeal the Judgment =
nor=20
contest any element of the Judgment. Thomas agrees that the =
Judgment shall=20
be binding and final in all respects.
. . =
.
9.Entire Agreement. This document, and the Judgment, =
represent the=20
entire understanding of the Parties hereto and there are no =
oral=20
agreements, understandings, or representations which are being =
relied upon=20
by the parties.
. . . =
15.THIS AGREEMENT REPRESENTS THE FINAL =
AGREEMENT=20
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR =
OR=20
CONTEMPORANEOUS WRITTEN OR ORAL AGREEMENTS AMONG THE PARTIES, NOR =
BY=20
SUBSEQUENT ORAL AGREEMENTS AMONG THE =
PARTIES.
(Italics in =
original;=20
bolding added.) The settlement agreement further provided that the =
Law=20
Firm would not execute on the agreed judgment unless Thomas=20
defaulted.
=
The=20
parties disagree about the sequence of events leading to =
settlement. In=20
the Holubs=E2=80=99 and HTC=E2=80=99s version of events, Thomas =
and Gary Patterson (the=20
partner for whom the Law Firm was named) negotiated a $22,500 =
settlement=20
on January 4, 1996; Thomas then immediately wrote the Law Firm a =
check for=20
$500, which represented the settlement agreement=E2=80=99s =
called-for down-payment=20
(i.e., the $500 was to be credited towards the agreed =
judgment=E2=80=99s=20
$22,500 award); and the balance remaining on the settlement amount =
was=20
thus $22,000.=20
In =
contrast, in=20
the Law Firm=E2=80=99s version of events, when Thomas first =
approached the Law=20
Firm about settling the suit on January 4, he immediately produced =
an=20
already executed $500 check; he offered this $500 check in partial =
payment=20
of the full $47,372.59 that he owed, as an inducement for the Law =
Firm to=20
enter into settlement negotiations; Patterson accepted the $500 =
check; the=20
two men then began settlement negotiations; and Thomas and =
Patterson=20
negotiated the $22,500 settlement, which was in addition to the =
$500=20
already paid as an inducement to settle.
=
The=20
same day that they settled (January 4, 1996), Thomas and the Law =
Firm=20
signed an agreed judgment, which awarded the Law Firm =
$22,500=E2=80=94without=20
interest, attorney=E2=80=99s fees, or costs=E2=80=94against =
Thomas. The trial court =
signed the=20
agreed judgment on January 17, 1996. The Law Firm obtained and =
recorded an=20
abstract of judgment in March 1996 (=E2=80=9CThe 1996 =
abstract=E2=80=9D). The 1996=20
abstract listed the amount of judgment as $22,500 and recited, in=20
pertinent parts, =E2=80=9CBALANCE DUE ON JUDGMENT & COSTS: $ =
FULL AMOUNT=E2=80=9D =
and =E2=80=9CAMOUNT OF=20
CREDITS: $ N/A.=E2=80=9D=20
The =
parties=20
dispute whether a valid lien arose from the 1996 =
abstract=E2=80=99s filing. In a=20
nutshell, the Holubs and HTC assert that no valid lien arose =
because the=20
1996 abstract failed to show credit for the $500 that Thomas had =
paid the=20
Law Firm, which they viewed as a down-payment on an already =
settled=20
amount. The Law Firm contends that the 1996 abstract created a =
valid lien=20
because the abstract did not have to show Thomas=E2=80=99s $500 =
payment, given=20
that (among other things) Thomas=E2=80=99s payment was a separate =
offer (on the=20
$47,372.59 total that he owed) to induce settlement negotiations, =
rather=20
than a down-payment on a settled amount.
=
What=20
is undisputed is that Thomas never paid anything to the Law Firm =
after the=20
agreed judgment=E2=80=99s rendition. In April 2000, before this =
suit was filed,=20
Thomas sold his home to the Holubs. HTC was the escrow and closing =
agent=20
for the sale. As part of the sale, Thomas executed an =
=E2=80=9Caffidavit of=20
identity=E2=80=9D form provided by HTC, in which he averred that =
he was not the=20
debtor listed in certain recorded liens having nothing to do with =
this=20
case and in which he also made a blanket averment that =E2=80=9CI have =
no Abstract of=20
Judgments and no Notices of Federal or State Tax Liens filed of =
Record=20
against me.=E2=80=9D
=
The=20
parties agree that whether the Holubs could purchase =
Thomas=E2=80=99s home as bona=20
fide purchasers for value depended upon whether the Law =
Firm=E2=80=99s lien that=20
arose from the 1996 abstract was valid (=E2=80=9Cthe 1996 =
lien=E2=80=9D). See,=20
e.g., Tex. Prop. Code =
Ann. =C2=A7 13.002 (Vernon 2003) (=E2=80=9CAn instrument =
that is properly=20
recorded in the proper county is: (1) notice to all persons of the =
existence of the instrument . . . .=E2=80=9D); =
Detering Co. v.=20
Green, 989 S.W.2d 479, 481 (Tex. App.=E2=80=94Houston [1st =
Dist.] 1999, pet.=20
denied) (providing that =E2=80=9C[a]n instrument that is properly =
recorded in the=20
proper county provides constructive notice to all persons of the =
existence=20
of the instrument=E2=80=9D and holding that =E2=80=9C[a] lien =
affidavit that does not meet=20
the requirements called for by statute does not provide the =
protection of=20
constructive notice.=E2=80=9D).
=
In=20
December 2001, the Law Firm sued the Holubs, HTC, and Thomas, who =
is not a=20
party to this appeal. The Law Firm=E2=80=99s =
=E2=80=9Clive=E2=80=9D amended petition alleged that=20
HTC and the Holubs had
=E2=97=8Ffailed to =
investigate =E2=80=9Cthe=20
validity of Thomas=E2=80=99 assertions that he was not the Dave =
Thomas named in=20
[the Law Firm=E2=80=99s] Abstract of Judgment,=E2=80=9D despite =
having had notice of the=20
1996 lien and allegedly =E2=80=9Chaving [had] a duty=E2=80=9D to =
investigate;=20
=E2=97=8Fconspired =
=E2=80=9Cto create and=20
transfer a fraudulent document [sic], namely the deed=E2=80=9D to =
Thomas=E2=80=99s home=20
and his affidavit of identity, in violation of the Texas Uniform=20
Fraudulent Transfer Act (=E2=80=9CTUFTA=E2=80=9D); =
![3DFootnote](3D"")
and =
=E2=97=8F=E2=80=9Cconspired =
with Thomas and=20
suborned Thomas=E2=80=99 perjury by=20
instigating and causing Thomas to falsely swear an oath, =
under=20
penalty of perjury=E2=80=9D by his signing the affidavit of=20
identity.
The Law Firm =
further alleged=20
that the Holubs were not bona fide purchasers based on the 1996 =
abstract=20
and lien and on the conspiracies, torts, and statutory violations =
that it=20
alleged. Finally, the Law Firm alleged that HTC =
=E2=80=9Cknowingly and=20
intentionally, tortiously interfered with the contract between =
[the Law=20
Firm] and . . . Thomas.=E2=80=9D The Law Firm =
sought a=20
declaration that the deed from Thomas to the Holubs was =
=E2=80=9Cvoid ab=20
initio[,] thereby subjecting the property to foreclosure by =
[the Law=20
Firm].=E2=80=9D The Law Firm also sought actual and exemplary =
damages from the=20
Holubs and HTC, alleging, in support of the latter damages, malice =
and=20
=E2=80=9Cintent to cause substantial =
injury.=E2=80=9D
=
The=20
Holubs and HTC answered and counterclaimed for, among other =
things,=20
sanctions for frivolous pleadings and a declaration that the 1996 =
abstract=20
be declared null and void, so that no lien could attach through it =
in=20
favor of the Law Firm.
=
On=20
June 2, 2003, the Holubs and HTC filed a joint, hybrid motion for=20
traditional and no-evidence summary judgment. In their no-evidence =
summary-judgment motion, the Holubs and HTC asserted that (1) =
there was no=20
evidence of any element of the Law Firm=E2=80=99s claims for =
conspiracy, tortious=20
interference with contract, TUFTA violations, or suborning perjury =
(assuming that that was even a cause of action); (2) suborning =
perjury was=20
not a cause of action; (3) there was no evidence that the Holubs =
or HTC=20
had a duty to investigate the validity of Thomas=E2=80=99s =
averments in the=20
affidavit of identity, resulting in the failure of any claims =
based upon=20
that duty; and (4) there was no evidence of malice. Their =
traditional=20
summary-judgment motion asserted, in pertinent part, that the =
statute of=20
limitations barred the Law Firm=E2=80=99s claims and (2) the lien =
based on the=20
1996 abstract was invalid. On August 13, =
2003, the=20
Law Firm moved for partial, traditional summary judgment, =
asserting, among=20
other bases for judgment, that (1) its lien based on the 1996 =
abstract was=20
valid and (2) the home that Thomas sold to the Holubs was subject =
to that=20
lien. On September 17, 2003, the trial court granted only the =
Holubs=E2=80=99 and=20
HTC=E2=80=99s no-evidence =
summary-judgment=20
motion and dismissed all of the Law Firm=E2=80=99s claims against =
the Holubs and=20
HTC with prejudice. See =
Tex. R. Civ.=20
P.=20
166a(i).=20
This ruling =
granted more=20
relief than the Holubs=E2=80=99 and HTC=E2=80=99s no-evidence =
motion had requested because=20
the ruling dismissed the Law Firm=E2=80=99s request for =
declaratory relief, which=20
the no-evidence motion did not attack; nonetheless, the Law Firm =
does not=20
complain on appeal that the trial court granted more relief than =
was=20
sought. The trial court did not rule, expressly or impliedly, on =
the=20
Holubs=E2=80=99 and HTC=E2=80=99s traditional =
summary-judgment=20
motion or on the Law Firm=E2=80=99s motion for partial summary =
judgment concerning=20
the 1996 abstract=E2=80=99s and lien=E2=80=99s =
validity.
=
The=20
only claims remaining after the rendition of interlocutory summary =
judgment were the Law Firm=E2=80=99s claims against Thomas and =
the =
Holubs=E2=80=99 and HTC=E2=80=99s=20
counterclaims for sanctions and for a declaration that the 1996 =
abstract=20
and lien were invalid. The Holubs and =
HTC then=20
filed a separate motion for sanctions, which alleged the same =
bases for=20
sanctions that they had alleged in their counterclaims. The trial =
court=20
denied the motion for sanctions by order dated November 4, 2003. =
This=20
separate order denying sanctions disposed of the claims for =
sanctions=20
alleged in the Holubs=E2=80=99 and HTC=E2=80=99s counterclaims. =
Furthermore, in early 2004, the =
trial=20
court =
signed an=20
order non-suiting the Law Firm=E2=80=99s claims against Thomas =
without=20
prejudice. At=20
this point, the Law Firm appealed. However, still pending before =
the trial=20
court at that time was the Holubs=E2=80=99 and HTC=E2=80=99s =
counterclaim for a=20
declaration that the 1996 abstract and lien were void. The =
judgment that=20
the Law Firm attempted to appeal was, therefore, interlocutory and =
unappealable. By order dated September 5, 2006, this Court abated =
the=20
appeal and remanded the cause for the trial court to dispose of =
the=20
Holubs=E2=80=99 and HTC=E2=80=99s counterclaim for a declaration =
that the 1996 abstract=20
and lien were void, so that the =
judgment could=20
be made final.=20
=
A=20
supplemental clerk=E2=80=99s record from the abatement proceedings =
has been filed,=20
and the cause has been reinstated on the Court=E2=80=99s active =
docket. That=20
record shows that, on remand, the Holubs and HTC filed a new =
motion for=20
traditional summary judgment on their counterclaim for a =
declaration that=20
the 1996 abstract was void and that the trial court thus declare =
that no=20
valid lien arose from it. This traditional summary-judgment motion =
did not=20
state that it was an amended motion, but it in effect =
was.=20
The Law Firm filed =
a=20
response to this new summary-judgment motion, without =
incorporating by=20
reference its pre-abatement summary-judgment pleadings. Also on =
remand,=20
the Law Firm filed a hybrid traditional and no-evidence =
summary-judgment=20
motion on the Holubs=E2=80=99 and HTC=E2=80=99s declaratory =
judgment counterclaim, arguing=20
that the 1996 abstract and lien were valid. The Law Firm=E2=80=99s =
post-abatement,=20
traditional summary-judgment motion did not state that it was an =
amended=20
motion, but it in effect was.
=
The=20
trial court granted the Holubs=E2=80=99 and HTC=E2=80=99s =
post-abatement summary-judgment=20
motion and rendered final judgment declaring that the 1996 =
abstract was=20
null and void and that it did not create a valid lien. The trial =
court=E2=80=99s=20
final summary judgment recited that the court had considered, in =
pertinent=20
part, =E2=80=9Cthe Motion=E2=80=9D and =E2=80=9Cany response =
thereto,=E2=80=9D without mentioning any=20
pre-abatement summary-judgment pleadings. The trial =
court=E2=80=99s ruling=20
granting the Holubs=E2=80=99 and HTC=E2=80=99s post-abatement =
summary-judgment motion also=20
functioned as an implicit ruling denying the Law Firm=E2=80=99s =
post-abatement=20
summary-judgment motions, which concerned the 1996 =
abstract=E2=80=99s and lien=E2=80=99s=20
validity, because the granting of one post-abatement motion on =
that issue=20
necessarily denied the other post-abatement motions on the same =
issue.=20
See Frank=E2=80=99s Int=E2=80=99l, Inc. v. Smith =
Int=E2=80=99l, Inc., No.=20
01-06-00366-CV, 2007 WL 1845134, at *1 n.2 (Tex. =
App.=E2=80=94Houston [1st Dist.]=20
June 28, 2007, no pet.) (memo. op.) (providing that one =
party=E2=80=99s=20
summary-judgment motion was implicitly denied on ground on which =
trial=20
court had granted other party=E2=80=99s summary-judgment motion =
when granting of=20
one motion necessarily denied other motion on that =
issue).Standard of =
Review
=
Traditional=20
summary judgment under Texas Rule of Civil Procedure 166a(c) is =
proper=20
only when a movant establishes that there is no genuine issue of =
material=20
fact and that it is entitled to judgment as a matter of law. =
Randall=E2=80=99s=20
Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); =
see=20
Tex. R. Civ. P. =
166a(c).=20
A defendant is entitled to summary judgment if the evidence =
disproves as a=20
matter of law at least one element of each of the =
plaintiff=E2=80=99s causes of=20
action or if it conclusively establishes all elements of an =
affirmative=20
defense. Randall=E2=80=99s Food Mkts., Inc., 891 S.W.2d at =
644.
=
A=20
party may move for a no-evidence summary judgment under Texas Rule =
of=20
Civil Procedure 166a(i) =E2=80=9Cif there is no evidence of one or =
more essential=20
elements of a claim or defense on which an adverse party would =
have the=20
burden of proof at trial.=E2=80=9D Flameout Design & =
Fabrication, Inc. v.=20
Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1999, no pet.); see Tex. R. Civ. P.=20
166a(i).=20
=E2=80=9CThe trial court must grant the motion unless the =
nonmovant produces more=20
than a scintilla of evidence raising a genuine issue of material =
fact on=20
the challenged elements.=E2=80=9D Flameout Design & =
Fabrication, Inc.,=20
994 S.W.2d at 834.
=
In=20
reviewing the granting of either type of summary-judgment motion, =
we=20
indulge every reasonable inference from the evidence in favor of =
the=20
non-movant, resolve any doubts arising from the evidence in its =
favor, and=20
take as true all evidence favorable to it. Malcomson Rd. Util. =
Dist. v.=20
Newsom, 171 S.W.3d 257, 263 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2005, pet.=20
denied); Flameout Design, 994 S.W.2d at 834. When an order =
granting=20
summary judgment does not specify the grounds upon which the trial =
court=20
ruled, we must affirm if any of the summary judgment grounds is=20
meritorious. See Star-Telegram, Inc. v. Doe, 915 S.W.2d =
471, 473=20
(Tex. 1995).
=
To the extent that =
the trial=20
court expressly granted the Holubs=E2=80=99 and HTC=E2=80=99s =
post-abatement=20
summary-judgment motion on the abstract=E2=80=99s and =
lien=E2=80=99s validity and=20
implicitly denied the Law Firm=E2=80=99s post-abatement =
summary-judgment motions=20
on the same issue, we apply the =
standard of=20
review applicable to cross-motions for summary judgment. =
See=20
Frank=E2=80=99s Int=E2=80=99l, Inc., 2007 WL 1845134, at *1 =
n.3 (providing same,=20
when =
one motion=20
was expressly granted and one was implicitly denied). That is, we =
review=20
both parties=E2=80=99 post-abatement summary-judgment evidence =
and, if we reverse,=20
we may grant the relief that the trial court should have granted =
on that=20
one issue. See Valero Mktg. & Supply Co. v. Kalama =
Int=E2=80=99l, 51=20
S.W.3d 345, 351 (Tex. App.=E2=80=94Houston [1st Dist.] 2001, no=20
pet.).
Statute of=20
Limitations
=
In=20
its third point of error, the Law Firm argues that =E2=80=9Cthe =
trial court erred=20
in granting [the] Holubs=E2=80=99 and [HTC=E2=80=99s =
pre-abatement, traditional] motion=20
for summary judgment on the ground that the statute of limitation =
ran on=20
[the Law Firm=E2=80=99s] claims . . . .=E2=80=9D =
=
The=20
only motion in which the Holubs and HTC raised the statute of =
limitations=20
was their pre-abatement, traditional summary-judgment motion, on =
which the=20
trial court never ruled. The trial court=E2=80=99s pre-abatement =
summary-judgment=20
order granted only the Holubs=E2=80=99 and HTC=E2=80=99s =
no-evidence motion for summary=20
judgment=E2=80=94in which they did not assert, and could not have=20
asserted,
a =
statute-of-limitations=20
affirmative defense. The statute of =
limitations=20
was simply not a basis for any summary-judgment motion on which =
the trial=20
court ruled.
=
We=20
overrule the Law Firm=E2=80=99s =
third point of=20
error.
Arguments Relating to Claims Against=20
Thomas
=
Under=20
part of its first point of error, the Law Firm argues that Thomas =
was=20
bound by the settlement agreement that he signed with the Law Firm =
because=20
he did not revoke his consent to it before entry of the agreed =
judgment=20
and because he was presumed to know the content and effect of what =
he had=20
signed. These arguments are irrelevant to this appeal because =
Thomas, whom=20
they concern, is not a party on appeal and because the Holubs and =
HTC did=20
not move for summary judgment on these grounds.
=
Accordingly,=20
we overrule these arguments under the Law Firm=E2=80=99s first =
point of=20
error.
The Validity of =
the 1996=20
Abstract and Lien
=
In=20
the remainder of its first point of error, the Law Firm argues =
that the=20
trial court erred in granting the Holubs=E2=80=99 and =
HTC=E2=80=99s pre-abatement,=20
no-evidence motion for summary judgment because the Law Firm =
raised a fact=20
issue on the validity of the 1996 abstract and thus of the lien =
that arose=20
from it. Accordingly, the Law Firm also argues that, because its =
claims=20
for damages were based on the validity of the 1996 abstract and =
lien, the=20
trial court erred in rendering summary judgment =E2=80=9Cin all =
respects.=E2=80=9D=20
Likewise, in its second point of error, the Law Firm argues that =
the trial=20
court erred in granting the Holubs=E2=80=99 and HTC=E2=80=99s =
pre-abatement, no-evidence=20
motion for summary judgment because Thomas=E2=80=99s =
judicial admission=20
that a fact issue existed on the validity of the 1996 abstract and =
lien=20
bound the Holubs and HTC, thus precluding summary judgment on its =
claims=20
for damages.
=
By=20
supplemental brief filed after the cause was reinstated on appeal, =
the Law=20
Firm argues that the trial court erred in granting the =
Holubs=E2=80=99 and HTC=E2=80=99s=20
post-abatement, traditional summary-judgment motion concerning the =
1996=20
abstract=E2=80=99s and lien=E2=80=99s validity and by implicitly =
denying its own=20
post-abatement summary-judgment motions on the same issue. The Law =
Firm=20
also complains that the trial court erred (1) in declaring that =
the 1996=20
abstract was void and that no lien arose from it and (2) in =
failing to=20
declare that the 1996 abstract and lien were valid and that the =
Holubs did=20
not purchase Thomas=E2=80=99s home as bona fide =
purchasers.
A. The=20
Procedural Posture
=
We=20
must first determine what summary-judgment rulings and grounds we =
may=20
consider on appeal. The Law Firm =
mistakenly=20
assumes in its opening brief on appeal that the Holubs=E2=80=99 =
and HTC=E2=80=99s=20
pre-abatement, no-evidence summary-judgment motion asserted a =
challenge=20
based on the 1996 abstract=E2=80=99s and lien=E2=80=99s validity. =
That motion did not=20
assert such a ground, however. The only pre-abatement grounds =
asserted=20
by =
the Holubs=20
and HTC to the 1996 abstract=E2=80=99s and lien=E2=80=99s validity =
came in=20
their =
traditional summary-judgment motion, on which the trial =
court never=20
ruled. Indeed, that traditional summary-judgment motion was =
superseded=20
during abatement by the Holubs=E2=80=99 and HTC=E2=80=99s filing =
of what was in effect an=20
amended, traditional summary-judgment motion on the same issue. =
See=20
Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 231 =
(Tex.=20
App.=E2=80=94Dallas 2000, pet. denied) (indicating, with respect =
to motion second=20
summary-judgment motion that did not include word =
=E2=80=9Camended=E2=80=9D in title, that=20
=E2=80=9C[a] substituted or amended motion for summary judgment =
supercedes and=20
supplants the previous motion =
. . . .=E2=80=9D); State v. =
Seventeen=20
Thousand & No/100 Dollars U.S. Currency, 809 S.W.2d 637, =
639 (Tex.=20
App.=E2=80=94Corpus Christi 1991, no writ) (holding same with =
respect to motion=20
styled simply =E2=80=9CSecond Motion for Summary =
Judgment,=E2=80=9D without containing=20
=E2=80=9Camended=E2=80=9D in title). Likewise, the trial court =
never ruled on the Law=20
Firm=E2=80=99s pre-abatement, traditional motion for partial =
summary judgment=20
concerning the 1996 abstract=E2=80=99s and lien=E2=80=99s =
validity. And that pre-abatement=20
motion for partial summary judgment was likewise superseded by the =
Law=20
Firm=E2=80=99s post-abatement, hybrid summary-judgment motions. =
See Finlan,=20
27 S.W.3d at 231; Seventeen Thousand & No/100 Dollars U.S.=20
Currency, 809 S.W.2d at 639. Once an amended=20
summary-judgment motion has been filed, the trial court may not =
consider=20
the prior motion. E.g., Gibson v. Park Cities Ford, =
Ltd.,=20
174 S.W.3d 930, 932 (Tex. App.=E2=80=94Dallas 2005, no =
pet.). Under such =
circumstances,=20
the grounds alleged in the movant=E2=80=99s amended =
summary-judgment motion=20
replace the grounds alleged in its superseded summary-judgment =
motion.=20
See Frias v. Atlantic Richmond Co., 999 S.W.2d 97, 102 =
(Tex.=20
App.=E2=80=94Houston [14th Dist.] 1999, pet. denied). =
=
The=20
only rulings that the trial court made relating to the 1996 =
abstract=E2=80=99s and=20
lien=E2=80=99s validity are embodied in the trial court=E2=80=99s =
order expressly granting=20
the Holubs=E2=80=99 and HTC=E2=80=99s post-abatement, =
summary-judgment motion and its=20
implicit denial of the Law Firm=E2=80=99s post-abatement =
summary-judgment motions=20
on the same issue. These are the rulings that we review when =
discussing=20
the 1996 abstract=E2=80=99s and lien=E2=80=99s validity. =
Additionally, the only=20
summary-judgment grounds that can form the basis of those rulings =
are=20
those asserted in the Holubs=E2=80=99 and HTC=E2=80=99s and the =
Law Firm=E2=80=99s post-abatement=20
motions for summary judgment. We cannot consider grounds raised in =
the=20
parties=E2=80=99 pre-abatement summary-judgment motions on which =
the trial court=20
never ruled.
B. The=20
Parties=E2=80=99 Post-Abatement Positions Here and =
Below
=
The=20
Holubs=E2=80=99 and HTC=E2=80=99s implicit starting point in their =
post-abatement,=20
summary-judgment motion was that, to create a valid lien, an =
abstract of=20
an agreed judgment, rendered upon settlement, must reflect =
settlement=20
payments that are made at any time before the abstract is =
recorded, even=20
if those payments are made before the agreed judgment is signed. =
Based on=20
this implicit understanding, the =
Holubs=E2=80=99 and HTC=E2=80=99s=20
motion then asserted as follows: (1) =
Thomas=E2=80=99s $500 check to=20
Patterson was a down-payment on the already agreed-upon $22,500 =
settlement=20
amount, i.e., it was the first payment for which the =
settlement=20
agreement (and thus the agreed judgment) called, albeit paid to =
the Law=20
Firm before the court had signed the agreed judgment; (2) the 1996 =
abstract did not reflect a credit for the $500 down-payment that =
Thomas=20
had made, but instead showed a judgment debt of $22,500; and thus =
(3) the=20
1996 abstract was invalid, making the 1996 lien invalid, as well. =
The=20
Holubs and HTC also argued that any evidence that Thomas=E2=80=99s =
$500 payment=20
was not the called-for down payment=E2=80=94which evidence had =
been attached to=20
the Law Firm=E2=80=99s pre-abatement summary-judgment pleadings, =
and which the=20
Holubs and HTC attached to their post-abatement summary-judgment =
motion in=20
a preemptive move=E2=80=94was incompetent parol evidence that =
could not raise a=20
fact issue on the nature of Thomas=E2=80=99s $500 payment. =
=
In=20
its superseded pre-abatement summary-judgment motion and response, =
the Law=20
Firm had argued (1) that Thomas=E2=80=99s $500 payment was not a =
down-payment, so=20
that the 1996 abstract and resulting lien were not invalid for the =
reason=20
asserted in the Holubs=E2=80=99 and HTC=E2=80=99s various =
summary-judgment motions, and,=20
alternatively, (2) that even if the $500 was a down-payment on the =
settlement amount, it was not a credit that had to be reflected on =
the=20
1996 abstract in order to create a valid lien. However, in its=20
post-abatement summary-judgment motion and response, the =
Law Firm=20
did not reassert these two arguments, but instead raised a new =
one.=20
Specifically, the Law Firm=E2=80=99s new ground was that the =
applicable statute=20
required that the 1996 abstract reflect only the amount due =
according to=20
the judgment, not the amount remaining under the settlement =
agreement.=20
Implicit in this position appears to have been an understanding =
that any=20
payment made pursuant to settlement, but not reflected in the =
agreed=20
judgment, need not be reflected in the abstract. On appeal, the =
Law Firm=20
argues all three grounds, including the two pre-abatement grounds =
that it=20
abandoned in its post-abatement summary-judgment motion and=20
response.
B. The=20
Statutes
=C2=A7 52.001.Establishment of=20
Lien
Except as provided =
by=20
Section 52.0011, a first or subsequent abstract of judgment, =
when it is=20
recorded and indexed in accordance with this chapter, if the =
judgment=20
is not then dormant, constitutes a valid lien on real property of =
the=20
defendant located in the county in which the abstract is recorded =
and=20
indexed . . . .
Tex. Prop. Code Ann. =
=C2=A7 52.001=20
(Vernon 1995) (emphasis added).
=C2=A7 52.003.Contents of =
Abstract
(a)An abstract of =
judgment=20
must show:
. . .
(6)the amount for =
which the=20
judgment was rendered and the balance due;=20
. . . .
Id. =C2=A7 =
52.003 (Vernon=20
1995) (emphasis added).
C. Discussion
=
The=20
parties dispute whether these statues and the case law =
interpreting them=20
require that a payment made pursuant to settlement, but =
before an=20
agreed judgment based on that settlement is signed, be noted on an =
abstract of judgment that issues after the judgment is signed. The =
parties=20
also dispute whether an abstract on an agreed judgment must =
reflect=20
settlement payments, whenever they are made, when the related =
agreed=20
judgment does not reflect those payments. The trial court, by =
granting the=20
Holubs=E2=80=99 and HTC=E2=80=99s post-abatement summary-judgment =
motion and by implicitly=20
denying the Law Firm=E2=80=99s post-abatement summary-judgment =
motions, in effect=20
answered these questions in favor of the Holubs and HTC. =
We reach this =
issue because=20
it was litigated in the parties=E2=80=99 post-abatement =
summary-judgment=20
pleadings.
=
1. The=20
Law
=
=E2=80=9CBecause=20
a judgment lien is created by statute, substantial compliance with =
the=20
statutory requirements is mandatory before a creditor=E2=80=99s =
lien will attach.=E2=80=9D=20
Hoffman, McBryde & Co., P.C. v. Heyland, 74 S.W.3d 906, =
909=20
(Tex. App.=E2=80=94Dallas 2002, pet. denied); accord McGlothlin =
v. Coody,=20
59 S.W.2d 819, 820 (Tex. Comm=E2=80=99n App. 1933, judgm=E2=80=99t =
adopted); Olivares=20
v. Nix Trust, 126 S.W.3d 242, 248 (Tex. App.=E2=80=94San =
Antonio 2003, pet.=20
denied).=20
=E2=80=9CSubstantial compliance allows only a minor deficiency in =
an element of=20
the abstract of judgment as opposed to omitting a statutorily =
required=20
element altogether.=E2=80=9D Olivares, 126 S.W.3d at=20
248;=20
accord Citicorp Real Estate, Inc. v. Banque Arabe =
Internationale=20
D=E2=80=99Investissement, 747 S.W.2d 926, 929=E2=80=9330 (Tex. =
App.=E2=80=94Dallas 1988, writ=20
denied). Accordingly, an abstract of judgment does not =
substantially=20
comply with section 52.003, and thus creates no lien, when it =
completely=20
omits an element that section 52.003 requires be included in an =
abstract.=20
See, e.g., Citicorp Real Estate, Inc., 747 S.W.2d at =
929=E2=80=9330. The=20
reason for this result is that the complete omission of a required =
element=20
is a major=E2=80=94not a minor=E2=80=94deficiency. See =
id.
=
The=20
purpose of Property Code sections 52.003 and 52.004 is two-fold: =
(1) to=20
create a judgment lien in the first place and (2) to provide =
notice to=20
subsequent purchasers of that lien=E2=80=99s (and the =
judgment=E2=80=99s)=20
existence.=20
See Olivares, 126 S.W.3d at 247; Citicorp Real =
Estate,=20
Inc., 747=20
S.W.2d at 929; McGlothlin v. Coody, 39 S.W.2d 133, 134 =
(Tex. Civ.=20
App.=E2=80=94Eastland 1931), aff=E2=80=99d, 59 S.W.3d 819 =
(Tex. Comm=E2=80=99n App. 1933,=20
judgm=E2=80=99t adopted). As for the =
former purpose,=20
if an abstract does not substantially comply with the statutory=20
requirements governing the abstract=E2=80=99s contents, =
=E2=80=9Cit is ineffective to=20
create a lien despite the actual knowledge by others of the =
contents of=20
the defective abstract or related judgment.=E2=80=9D See =
Citicorp Real Estate,=20
Inc., 747=20
S.W.2d at 930; accord Reynolds v. Kessler, 669 =
S.W.2d 801,=20
806 (Tex. App.=E2=80=94El Paso 1984, no writ) (extending same =
principle to=20
abstract that is =E2=80=9Cso improperly recorded and indexed =
that it=20
creates no lien=E2=80=9D) (emphasis added). That is, =
=E2=80=9C[s]ubstantial=20
compliance with section 52.003 is essential and mandatory =
to the=20
creation of the lien itself and is not required solely to ensure =
that=20
subsequent purchasers are provided notice.=E2=80=9D Citicorp =
Real Estate,=20
Inc., 737=20
S.W.2d at 931=20
(emphasis in original).
=
The=20
applicable statute requires that, among other things, the abstract =
show=20
=E2=80=9Cthe amount for which the judgment was rendered and the =
balance=20
due.=E2=80=9D Tex. Prop. Code Ann.=20
=C2=A7 52.003(a)(6) (emphasis added). =E2=80=9CThe balance =
due=E2=80=9D means the amount=20
of the judgment less any amount that is paid in partial =
satisfaction=20
thereof before the abstract is issued.
An abstract of =
judgment that=20
omits the amounts paid in partial satisfaction of the judgment =
before the=20
abstract=E2=80=99s issuance does not substantially comply with =
section=20
52.003(a)(6) and thus does not create a lien. See Willis v. =
Sanger,=20
40 S.W. 229, 234 (Tex. Civ. App.=E2=80=94San Antonio 1897, writ =
ref=E2=80=99d); Evans=20
v. Frisbie, 19 S.W. 510, 511 (Tex. 1892); Askey v. =
Power, 36=20
S.W.2d 446, 447 (Tex. Comm=E2=80=99n App. 1931, holding approved); =
McIntire v.=20
Sawicki, 353 S.W.2d 952, 953 (Tex. Civ. App.=E2=80=94Eastland =
1962, writ ref=E2=80=99d=20
n.r.e.); Tex. Building & Mortgage Co. v. Morris, 123 =
S.W.2d=20
365, 368 (Tex. Civ. App.=E2=80=94Beaumont 1938, writ =
dism=E2=80=99d, w.o.j.); Ainsworth=20
v. Dorsey, 191 S.W. 594, 595=E2=80=9396 (Tex. Civ. =
App.=E2=80=94Austin 1917, no writ)=20
(dictum); Noble v. Barner, 55 S.W. 382, 383 (Tex. Civ. =
App.=E2=80=94Dallas=20
1899, writ dism=E2=80=99d). Courts strictly construe the =
requirement that the=20
abstract of judgment show the amount for which the judgment was =
rendered=20
and the balance due thereon. Morris, 123 S.W.2d at =
368.
<=
/SPAN>2. The=20
Granting of the Holubs=E2=80=99 and HTC=E2=80=99s Post-Abatement =
summary-Judgment=20
Motion
=
The=20
1996 abstract stated =E2=80=9CN/A=E2=80=9D for the amount of =
credit and also provided that=20
the balance due on the judgment as of the date of its issuance was =
the=20
full judgment amount. The 1996 abstract did not reflect the $500 =
payment=20
made by Thomas two months earlier. The Law Firm argues that, even =
if the=20
Holubs and HTC are correct that Thomas=E2=80=99s $500 payment was =
intended as a=20
down-payment in the $22,500 settlement amount (the =
Holubs=E2=80=99 and HTC=E2=80=99s=20
theory), rather than an inducement to settle (the Law =
Firm=E2=80=99s theory), the=20
fact that that payment was made before the agreed judgment was=20
signed requires the conclusion, as a matter of law, that that =
payment=20
could not have been a credit on the $22,500 =
judgment.
=
We=20
disagree. When judgment is rendered in situations other than upon=20
settlement, the usual sequence of events is for judgment to be =
rendered=20
before the tendering of partial payment on that judgment; in this =
type of=20
situation, it is the post-judgment payment that constitutes a =
credit on=20
the amount due under the judgment. When parties enter into an =
agreed=20
judgment upon settlement, however, that sequence does not=20
necessarily apply. That is the situation here. The Law Firm =
points to no=20
authority holding that a payment in partial satisfaction of an =
agreed=20
judgment executed upon settlement cannot count as a =
credit=20
on that agreed judgment simply because the payment was tendered =
before the=20
agreed judgment was signed by the court. Put another way, it is =
the=20
parties=E2=80=99 intent in tendering and accepting the payment =
that is paramount,=20
not the payment=E2=80=99s timing. Indeed, in this situation, the =
settlement and=20
any agreed judgment reciting the full amount for which the =
settlement=20
calls are but one transaction, so that a payment made pursuant to =
the=20
settlement also acts as a credit on the agreed judgment. Moreover, =
section=20
52.003(a)(6) provides that the abstract of judgment show =
=E2=80=9Cthe amount for=20
which the judgment was rendered and the balance due=E2=80=9D; it =
does not speak to=20
when the payment amounting to a credit on the judgment be=20
tendered.=20
Accordingly, we hold that the mere fact that a debtor tenders =
payment=20
pursuant to settlement before the agreed judgment is =
signed by the =
court=E2=80=94when the=20
agreed judgment is required by the settlement and awards the full=20
settlement amount=E2=80=94does not exempt the abstract issued on =
that agreed=20
judgment from having to show the amount of that payment as a =
credit.=20
See Tex. Prop. =
Code=20
Ann. =C2=A7 52.003(a)(6).
=
We=20
must next determine if the Holubs and HTC showed, as a matter of =
law, that=20
Thomas=E2=80=99s $500 payment was such a tender on the agreed =
judgment, instead of=20
a monetary inducement to enter into settlement discussions in the =
first=20
place.
With one exception =
mentioned=20
below, the Holubs and HTC presented the following evidence in =
conjunction=20
with their post-abatement summary-judgment motion: (1) =
the settlement =
agreement,=20
which recited that Thomas owed the full amount of =
$47,372.59 and which called =
for Thomas=20
to pay $22,500 total to the Law Firm, with $500 down and $300 per =
month=20
after that; (2) the agreed judgment, which the parties signed at =
the same=20
time as the settlement agreement and which awarded $22,500 to the =
Law=20
Firm; =
(3) =
evidence=20
that Thomas wrote the $500 check during his settlement meeting =
with the=20
Law Firm, as the down-payment on the $22,500 settlement amount =
that formed=20
the basis of the $22,500 agreed judgment in favor of the Law Firm; =
(4)=20
evidence that Thomas=E2=80=99s $500 check contained the notation =
=E2=80=9CBalance $22,000=20
for att. fees for divorce, etc.=E2=80=9D; (5) evidence that =
Thomas=20
wrote the notation on the check after he and the Law Firm had =
reached an=20
agreement to settle the case; and (6) the 1996 =
abstract,=20
which did not show a credit for the $500 that Thomas had paid.=20
Under =
the=20
Holubs=E2=80=99 and HTC=E2=80=99s summary-judgment theory, the Law =
Firm had to show the=20
$500 on the 1996 abstract if Thomas had paid that amount as a =
down-payment=20
on the settlement. The above =
evidence, when=20
viewed in the light most favorable to the Law Firm, carried the =
Holubs=E2=80=99=20
and HTC=E2=80=99s burden of proving this theory by demonstrating =
that Thomas had=20
paid the $500=20
as a down-payment on the $22,500 settlement amount, rather than as =
an=20
inducement to enter into settlement negotiations at =
all.
=
But=20
the above was not the only summary-judgment evidence that the =
Holubs and=20
HTC produced. They also produced potentially conflicting =
summary-judgment=20
evidence that showed that (1) on January 4, 1996, Thomas entered =
the Law=20
Firm=E2=80=99s office and =E2=80=9Cthrew a check down=E2=80=9D for =
$500, made out to Patterson;=20
(2) Thomas paid=20
the $500 check as an inducement for Patterson, on behalf of the =
Law Firm,=20
to negotiate a settlement with him concerning the delinquent =
attorney=E2=80=99s=20
fees; (3) the $500 was an initial payment on the =
$47,372.59 in fees then =
owing and was=20
made to show good faith on Thomas=E2=80=99s part in asking to open =
settlement=20
negotiations; and (4) the parties did not intend the $500 to be a=20
down-payment on a settlement amount that had not yet been agreed =
or even=20
discussed.
=
The=20
Holubs and HTC presented these last pieces of evidence =
preemptively,=20
assuming that the Law Firm would again rely on this evidence in =
its=20
post-abatement motion and response.
In this preemptive =
move, the=20
Holubs and HTC argued that this =
additional=20
evidence, which indicated that Thomas=E2=80=99s $500 check was =
not the=20
called-for down payment, but was instead an independent inducement =
to=20
settle, was=20
incompetent parol evidence because it contradicted the express =
terms of=20
the settlement agreement. Because the =
Holubs and HTC=20
introduced evidence that would, if not incompetent, preclude the =
very=20
summary judgment that they sought, and because the Law firm =
contends on=20
appeal that this evidence is competent, we must address whether =
this=20
evidence was in fact incompetent. See Perry v. Houston Indep. =
Sch.=20
Dist., 902 S.W.2d 544, 547=E2=80=9348 (Tex. =
App.=E2=80=94Houston [1st Dist.] 1995,=20
writ dism=E2=80=99d w.o.j.) (=E2=80=9CA nonmovant may use a =
movant=E2=80=99s own=20
[summary-judgment] exhibit against the movant to establish the =
existence=20
of a fact question.=E2=80=9D); Keever v. Hall & Northway =
Advertising,=20
Inc., 727 S.W.2d 704, 706 (Tex. App.=E2=80=94Dallas 1987, no =
writ) (=E2=80=9CA=20
movant=E2=80=99s [summary-judgment] exhibit may support a motion =
for summary=20
judgment or it may create a fact question=20
. . . .=E2=80=9D).
=
=E2=80=9CUnder=20
the parol evidence rule, if the parties have integrated their =
agreement=20
into a single written memorial, all prior negotiations and =
agreements with=20
regard to the same subject matter are excluded from consideration, =
whether=20
they were oral or written.=E2=80=9D Baroid Equip, Inc. v. Odeco =
Drilling,=20
Inc., 184 S.W.3d 1, 13 (Tex. App.=E2=80=94Houston [1st Dist.] =
2005, pet.=20
denied).=20
=E2=80=9CAdditionally, a written instrument presumes that all =
prior agreements=20
relating to the transaction have been merged into it and will be =
enforced=20
as written and cannot be added to, varied, or contradicted by =
parol=20
testimony.=E2=80=9D Id. Parol evidence =
=E2=80=9Cis not=20
admissible for the purpose of creating an ambiguity=E2=80=9D in a =
written=20
contract. Nat=E2=80=99l Union Fire Ins. Co. of Pittsburgh, PA =
v. CBI Indus.,=20
Inc., 907 S.W.2d 517, 520 (Tex. 1995). If a written =
contract=E2=80=99s=20
terms are unambiguous (and no one argues here that they are not), =
=E2=80=9Cthen=20
parol evidence is inadmissible . . . to vary, add to or=20
contradict its terms=E2=80=9D=E2=80=94especially when, as here, =
the contract contains a=20
merger clause. Stauffer v.=20
Henderson, 801 S.W.2d 858, 863 (Tex. 1990); Baroid Equip, =
Inc.,=20
184 S.W.3d at 13. Likewise, a =
contract=E2=80=99s=20
essential elements may not be supplied by parol evidence. See =
Boyert v.=20
Tauber, 834 S.W.2d 60, 62 (Tex. 1992). These exclusionary =
rules=20
concerning parol evidence apply, however, =E2=80=9Conly to =
contractual or jural=20
writings evidencing the creation, modification, termination or =
securing of=20
a particular right or obligation.=E2=80=9D Gannon v. Baker, =
818 S.W.2d 754,=20
755=E2=80=9356 (Tex. 1991). Additionally, =E2=80=9C[t]he parol =
evidence rule does not=20
preclude enforcement of prior or contemporaneous oral agreements =
that are=20
collateral to an integrated agreement and are not inconsistent =
with, and=20
do not vary or contradict, the express or implied terms or =
obligations=20
thereof.=E2=80=9D Baroid Equip., Inc., 184 S.W.3d at 15 =
(citing Hubacek=20
v. Ennis State Bank, 317 S.W.2d 30, 30=E2=80=9331 (Tex.=20
1958)).
=
We=20
conclude that the evidence showing =
that=20
Thomas=E2=80=99s $500=20
check was a separate payment to induce settlement, rather than the =
down=20
payment called for by the settlement, was inadmissible parol =
evidence=20
because it would vary or contradict the settlement =
agreement=E2=80=99s terms. This=20
evidence showed that Thomas=E2=80=99s $500 check and its receipt =
were an=20
independent offer and acceptance, made as incentive to=20
negotiate, to=20
pay part of the $47,372.59 that Thomas owed; =
according=20
to that evidence, the negotiations and the settlement that was =
eventually=20
reached followed that incentive payment. Thus, under that =
evidence,=20
the $47,372.59 that Thomas owed was reduced by $500, to a total of =
$46,872.59, before he even entered settlement negotiations with =
the Law=20
Firm. Yet the settlement agreement unambiguously recited,=20
=E2=80=9CWHEREAS Thomas=20
owes Patterson $47,372.59 for legal services =
rendered . .=20
. .=E2=80=9D=20
(Emphasis added.) The cited summary-judgment evidence contradicts =
this=20
total-amount-due recitation in the settlement agreement, rendering =
that=20
evidence incompetent. See Baroid =
Equip,=20
Inc., 184 S.W.3d at 13 (=E2=80=9CEvidence violating the parol =
evidence rule=20
has no legal effect and =E2=80=98merely constitutes proof of facts =
that are=20
immaterial and inoperative.=E2=80=99=E2=80=9D ) (quoting =
Piper, Stiles=20
& Ladd v. Fid. & Deposit Co., 435 S.W.2d 934, 940 =
(Tex. Civ.=20
App.=E2=80=94Houston [1st Dist.] 1968, writ ref=E2=80=99d =
n.r.e.)); Johnson v. =
Driver,=20
198 S.W.3d 359, 364 (Tex. App.=E2=80=94Tyler 2006, no pet.) =
(=E2=80=9C=E2=80=98[E]vidence admitted=20
in violation of the rule is incompetent and without probative =
force, and=20
it cannot properly be given legal =
effect.=E2=80=99=E2=80=9D) (quoting Ross =
v.=20
Stinnett, 540 S.W.2d 493, 495 (Tex. Civ. App.=E2=80=94Tyler =
1976, no=20
writ)).
=
Accordingly,=20
we hold that the Holubs and HTC did not inadvertently raise a =
material=20
fact issue by producing evidence that Thomas=E2=80=99s $500 =
payment was not a=20
down-payment so as to defeat their own post-abatement =
summary-judgment=20
motion. We thus further hold that the trial court did not err to =
the=20
extent that it rendered summary judgment for the Holubs and HTC =
based on=20
the invalidity of the 1996 abstract and lien.
<=
/SPAN>3. The=20
Implicit Denial of the Law Firm=E2=80=99s Post-Abatement Summary =
Judgment=20
Motions
=
In=20
a supplemental brief filed after the appeal was reinstated, the =
Law Firm=20
challenges the trial court=E2=80=99s implicit denial of =
its=20
post-abatement summary-judgment motions on the 1996 =
abstract=E2=80=99s and lien=E2=80=99s=20
validity. The=20
sole argument that the Law Firm advanced in those post-abatement =
motions=20
was =
as=20
follows:
Here, the abstract =
states=20
all of the requirements of section 52.003 of the property Code. =
The Holubs=20
[sic] main (or only) complaint is that the amount of the =
judgment=20
does not accurately reflect the agreement between Dave Thomas =
and the=20
Patterson law firm; Patterson disagrees and takes the position =
that the=20
judgment does accurately reflect the agreement. However, this =
factual=20
dispute has nothing to do whatsoever with the issue of whether the =
abstract attached to the property purchased by the Holubs and =
thereby put=20
them on constructive notice. The only question is whether there =
was=20
substantial compliance with the statute. Namely, did the abstract =
state=20
the amount for which the judgment was rendered and the balance due =
according to the judgment. The judgment in the underlying case =
states that=20
=E2=80=9CGary E. Patterson & Associates, P.C. have judgment =
against Dave=20
Thomas, individually, in the amount of twenty-two thousand five =
hundred=20
and no/100s dollars ($22,500.00).=E2=80=9D The abstract states =
exactly the same.=20
Therefore, there is nothing defective about the abstract=20
. . . .
(Emphasis in =
original;=20
citation omitted.) We interpret this as an argument that the only =
sum that=20
need be reflected in an abstract of judgment is the judgment =
amount and=20
any credit on that amount that is also reflected in the =
judgment=20
itself. That is, any payment made on the judgment at any time =
that is=20
not reflected in the judgment itself need not be revealed in the =
abstract.=20
This position is contrary to well-settled authority, however, and =
we=20
reject it. See Willis, 40 S.W. at 234; Evans, 19 =
S.W. at=20
511; McIntire, 353 S.W.2d at 953; Morris, 123 S.W.2d =
at 368;=20
Ainsworth, 191 S.W. at 595=E2=80=9396; Noble, 55 =
S.W. at=20
383.
D. Conclusion
=
We=20
hold that the trial court did not err in granting the =
Holubs=E2=80=99 and HTC=E2=80=99s=20
post-abatement summary-judgment motion on the validity of the 1996 =
abstract and lien, in implicitly denying the Law Firm=E2=80=99s =
post-abatement=20
summary-judgment motions on the validity of the 1996 abstract and =
lien,=20
and in declaring that lien to be invalid.
=
We=20
overrule the portion of the Law firm=E2=80=99s first point of =
error addressing the=20
1996 abstract=E2=80=99s and lien=E2=80=99s validity; the challenge =
in the Law Firm=E2=80=99s=20
post-abatement supplemental brief to the granting of the =
Holubs=E2=80=99 and HTC=E2=80=99s=20
post-abatement summary-judgment motion on the 1996 =
abstract=E2=80=99s and lien=E2=80=99s=20
validity and to the declaration rendered thereon; and =
the challenge in the =
Law Firm=E2=80=99s=20
post-abatement supplemental brief to the implicit denial of its=20
post-abatement summary-judgment motions.
Issues Relating to the Granting of the =
Holubs=20
and HTC=E2=80=99s
Pre-Abatement, No-Evidence =
Summary-Judgment=20
Motion
=
In=20
multiple points of error, the Law Firm challenges the granting of =
the=20
Holubs=E2=80=99 and HTC=E2=80=99s pre-abatement, no-evidence =
motion for summary judgment=20
against certain of its claims for damages. The Law Firm also =
fails to=20
challenge the rendition of summary judgment against certain of its =
claims=20
for damages or requests for relief. We address the second category =
first.
A. Bases=20
Asserted in the Holubs=E2=80=99 and HTC=E2=80=99s Pre-Abatement, =
No-Evidence=20
Summary-Judgment Motion That Are Not Challenged on=20
Appeal
=
One=20
of the grounds asserted in the Holubs=E2=80=99 and HTC=E2=80=99s =
pre-abatement,=20
no-evidence summary-judgment motion was that no civil cause of =
action for=20
suborning perjury existed. On appeal, the =
Law Firm=20
does not challenge this basis for the rendition of no-evidence =
summary=20
judgment against its =E2=80=9Csuborning perjury=E2=80=9D cause of =
action. Another ground=20
asserted in the=20
Holubs=E2=80=99 and HTC=E2=80=99s motion was that the Law Firm =
could produce=20
no evidence of duty to support its negligence claim against=20
them.
On appeal, the Law =
Firm does=20
not challenge this basis for the rendition of summary judgment =
against its=20
negligence cause of action.
Finally, =
the =
Holubs=E2=80=99 and HTC=E2=80=99s motion=20
asserted that=20
the Law Firm could produce no evidence of the malice needed to =
support=20
exemplary damages. On appeal, the Law Firm does not challenge the=20
rendition of summary judgment on its request for exemplary =
damages.=20
Accordingly, we affirm the pre-abatement, no-evidence summary =
judgment to=20
the extent that it was rendered against the Law Firm=E2=80=99s =
claims for=20
suborning perjury and negligence and its request for exemplary=20
damages. See=20
Garcia v. Nat=E2=80=99l Eligibility Express, Inc., 4 S.W.3d =
887, 889 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 1999, no pet.) (citing Walling =
v.=20
Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993)). Our remaining discussion thus =
concerns=20
only the Law Firm=E2=80=99s remaining claims for damages.
B. Sufficiency=20
of the Holubs=E2=80=99 and HTC=E2=80=99s Pre-Abatement, =
No-evidence Summary-Judgment=20
Motion
=
In=20
a portion of its fourth, fifth, and sixth points of error, as well =
as in=20
its reply brief, the Law Firm complains that the trial court erred =
in=20
granting the pre-abatement, no-evidence summary-judgment motion of =
the=20
Holubs and HTC on the Law Firm=E2=80=99s claims for damages =
because the =E2=80=9CHolubs=20
and [HTC] . . . failed to identify [in their no-evidence =
summary-judgment=20
motion] the specific element(s) they allege [the Law Firm] does =
not have=20
evidence of, as required by Rule 166a(i)=20
. . . .=E2=80=9D
=
After=20
adequate time for discovery, a party may move for summary judgment =
on the=20
ground that there is no evidence of one or more essential elements =
of a=20
claim or defense on which an adverse party would have the burden =
of proof=20
at trial. Tex. R. Civ. =
P.=20
166a(i); Roventini v. Ocular Scis., Inc., 111 S.W.3d 719, =
722 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2003, no pet.). Rule 166a(i) =
requires that a=20
no-evidence summary-judgment motion =E2=80=9Cbe specific in =
challenging the=20
evidentiary support for an element of a claim or defense; =
paragraph (i)=20
does not authorize conclusory motions or general no-evidence =
challenges to=20
an opponent=E2=80=99s case.=E2=80=9D Tex. R. Civ.=20
P. 166a, Comment=E2=80=941997. Thus, all that is required =
under rule=20
166a(i) is that the no-evidence motion specifically challenge an =
element=20
or elements of the non-movant=E2=80=99s theory of liability or =
defense; a specific=20
attack on the evidentiary components that might prove a certain =
element is=20
unnecessary, as long as the element itself is specifically =
challenged.=20
See Timothy =
Patton, Summary=20
Judgment in Texas, Practice, Procedure and Review =C2=A7 =
5.03[2][b] (3d=20
ed. 2006).
=
Contrary=20
to the Law Firm=E2=80=99s contention that the Holubs=E2=80=99 and =
HTC=E2=80=99s pre-abatement,=20
no-evidence motion for summary judgment was =E2=80=9Ctoo =
conclusory, and too=20
general, and violative of Rule 166a(i),=E2=80=9D their motion =
sufficiently=20
identified and challenged at least one element of each of the Law =
Firm=E2=80=99s=20
claims for damages.
=
For=20
example, the Holubs=E2=80=99 and HTC=E2=80=99s motion expressly =
identified and challenged=20
all four of the elements of the tortious-interference claim, =
separately=20
listing each element of the cause of action, and it did the same=20
concerning all elements of the claim for TUFTA =
violations. See Tex. Bus. & Com. Code Ann. =
=C2=A7=20
24.005(a) (Vernon 2003) (TUFTA); Swank v. =
Sverdlin,=20
121 S.W.3d 785, 800 (Tex. App.=E2=80=94Houston [1st Dist.] 2003, =
pet. denied)=20
(tortious interference).
=
As=20
to the Law Firm=E2=80=99s argument that the Holubs and HTC had =
failed to=20
investigate the validity of =E2=80=9CThomas=E2=80=99 assertions =
that he was not the Dave=20
Thomas named in [the Law Firm=E2=80=99s] Abstract of =
Judgment=E2=80=9D when they allegedly=20
had a duty to do so=E2=80=94which we construe to be a claim of =
negligence=E2=80=94the=20
Holubs=E2=80=99 and HTC=E2=80=99s motion expressly identified and =
challenged the element=20
of duty. See Lookshin v. Feldman, 127 S.W.3d 100, 105 (Tex. =
App.=E2=80=94Houston [1st Dist.] 2003, pet. denied) (quoting =
McKinley v.=20
Stripling, 763 S.W.2d 407, 409=E2=80=9310 (Tex. 1989) =
(explaining, generally,=20
elements of negligence claim, including element of duty)).=20
=
As=20
to the Law Firm=E2=80=99s claim that the Holubs and HTC =
=E2=80=9Cconspired=20
with Thomas and suborned Thomas=E2=80=99s perjury by instigating =
and causing=20
Thomas to falsely swear an oath, under penalty of =
perjury,=E2=80=9D the Holubs and=20
HTC first argued in their no-evidence motion that suborning =
perjury was=20
not a viable cause of action. Alternatively, they identified and=20
challenged all of what could possibly be considered elements of =
the=20
purported claim, referring to the Penal Code definition of perjury =
and of=20
party liability, and challenging every element of civil=20
conspiracy.=20
See Tex. Pen. Code =
Ann. =C2=A7=C2=A7 7.02(a)(2), 37.02(a) (Vernon 2003); =
Thomas v.=20
Collins, 960 S.W.2d 106, =
112=E2=80=9313 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 1997, pet. denied) =
(setting out=20
elements of civil conspiracy). =
=
Finally,=20
as to the Law Firm=E2=80=99s request for exemplary damages, the =
Holubs=E2=80=99 and HTC=E2=80=99s=20
motion expressly challenged the element of malice as defined in =
the Texas=20
Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code =
Ann.=20
=C2=A7 41.003 (Vernon 2003) (providing that proving malice =
is one way=20
that claimant can recover exemplary damages from adverse=20
party).
<=
/SPAN>We=20
hold that, because the Holubs=E2=80=99 and HTC=E2=80=99s =
pre-abatement, no-evidence=20
summary-judgment motion identified and challenged at least one =
element,=20
and in most cases all of the elements, of each of the Law =
Firm=E2=80=99s claims=20
for damages, that summary-judgment motion was sufficiently =
specific to=20
satisfy rule 166a(i). See =
Tex. R. Civ.=20
P.=20
166a(i).
=
We overrule this =
portion of=20
the Law Firm=E2=80=99s fourth, fifth, and sixth points of =
error.
C. General=20
Challenges to All Grounds Asserted in the No-Evidence =
Summary-Judgment=20
Motion
=
In=20
its second point of error, the Law Firm argues that the trial =
court erred=20
in granting the Holubs=E2=80=99 and HTC=E2=80=99s no-evidence =
motion for summary judgment=20
on =
its claims=20
for damages because Thomas=E2=80=99s judicial admission that a =
fact issue existed=20
on the 1996 abstract=E2=80=99s and lien=E2=80=99s validity bound =
the Holubs and HTC and=20
precluded the granting of summary judgment. =
=
As=20
stated above, the Holubs=E2=80=99 and HTC=E2=80=99s no-evidence =
summary-judgment motion=20
did not assert a ground concerning the 1996 abstract=E2=80=99s and =
lien=E2=80=99s=20
validity. However, in response to that motion, the Law firm argued =
that=20
all of its claims for damages were based on the 1996 =
abstract=E2=80=99s and lien=E2=80=99s=20
validity, and, in support of its claims for damages, it produced=20
summary-judgment evidence that allegedly showed the =
abstract=E2=80=99s and lien=E2=80=99s=20
validity. One of these pieces of evidence was Thomas=E2=80=99s =
response to the Law=20
Firm=E2=80=99s pre-abatement motion for partial summary judgment. =
In that=20
response, Thomas argued not only that the 1996 abstract and lien =
were=20
invalid, but also that =E2=80=9C[a] genuine issue of material fact =
exists=20
regarding whether the check was paid as the first installment on =
the=20
Judgment or as an inducement to enter into settlement =
negotiations. This=20
is an issue of material fact for the trier of fact to =
determine.=E2=80=9D=20
=
One=20
party=E2=80=99s judicial admission, by itself, generally does not =
bind another=20
party absent something more, such as, for example, the other =
party=E2=80=99s=20
adoption of the first one=E2=80=99s judicial admission. See, =
e.g., Pac.=20
Fin. Corp. v. Rucker, 392 S.W.2d 554, 557=E2=80=9358 (Tex. =
Civ. App.=E2=80=94Houston=20
[1st Dist.] 1965, no writ) (=E2=80=9C[T]he admission made by one =
of the parties,=20
to be binding on the other parties, must in some manner be adopted =
by such=20
other parties.=E2=80=9D). The Law Firm points to no =
summary-judgment evidence of=20
any type of relationship or action that would bind the Holubs and =
HTC to=20
Thomas=E2=80=99s admissions. Indeed, Thomas was represented by his =
own counsel at=20
trial; the Holubs and HTC were represented by separate counsel; =
Thomas=20
filed a separate summary-judgment response to theirs; and the =
Holubs and=20
HTC did not adopt or incorporate any aspect of Thomas=E2=80=99s =
summary-judgment=20
response into their summary-judgment pleadings.
=
We=20
overrule the Law Firm=E2=80=99s second point of =
error.
=
Additionally,=20
as it did below, the Law Firm contends that because it raised a =
fact issue=20
on the validity of the 1996 abstract and lien, the trial court =
erred=20
in =
rendering=20
no-evidence summary judgment on its claims for damages. However, =
we have=20
already decided issues relating to the 1996 abstract and lien =
adversely to=20
the Law Firm. Accordingly, we overrule this argument on=20
appeal.
D. Tortious=20
Interference with Contract
=
In=20
the remainder of its fourth point of error, the Law Firm argues =
that the=20
trial court erred in granting the Holubs=E2=80=99 and =
HTC=E2=80=99s pre-abatement,=20
no-evidence summary-judgment motion because a genuine issue =
of material=20
fact existed as to whether the Holubs and HTC had tortiously =
interfered=20
with a contract (the settlement agreement and agreed judgment) =
between the=20
Law Firm and Thomas.
=
The elements of =
tortious=20
interference with a contract are (1) the existence of a contract =
subject=20
to interference; (2) willful and intentional interference with =
that=20
contract; and (3) actual damage or loss proximately caused by that =
interference. See Swank, 121 S.W.3d at 800. The =
Holubs=E2=80=99 and HTC=E2=80=99s=20
no-evidence summary-judgment motion challenged all of these=20
elements.
=
In=20
support of its tortious-interference claim,
the Law Firm =
produced a blank=20
=E2=80=9Caffidavit of identity=E2=80=9D form from HTC, which was =
made out for Thomas to=20
sign; which was unsigned by him; which was undated (except for the =
year);=20
and which listed five liens, one of which was the number for the =
1996=20
abstract. The Law Firm also produced the deposition of Laurie =
Beasley,=20
HTC=E2=80=99s escrow assistant for the sale from Thomas to the =
Holubs, in which=20
she indicated that she did not recall having seen, and could not =
identify,=20
two affidavits of identity related to the closing. Additionally,=20
the =
Law Firm=20
produced the deposition of Thomas. In his deposition, Thomas did=20
not testify=E2=80=94contrary to the Law Firm=E2=80=99s =
implication in its=20
brief=E2=80=94that HTC had showed him the unsigned affidavit of =
identity at or=20
before closing, that he had refused to sign it when HTC had =
presented it=20
to him, or that=20
he had ever even seen it before. Rather, Thomas acknowledged, when =
asked=20
to review the unsigned affidavit of identity, that it referred to =
the 1996=20
abstract. Thomas also denied having intended to deceive anyone by =
signing=20
the affidavit of identity that he did;
testified that he =
had not=20
told anyone at HTC about the 1996 abstract; asserted that no one =
at HTC=20
had asked him to sign any document that disclaimed the 1996 =
abstract; and=20
testified that he and HTC had not conspired to make false =
statements in=20
the affidavit that Thomas did sign. Finally, the Law Firm produced =
the=20
affidavit of identity that Thomas executed, which did not list the =
1996=20
abstract, but which contained an affirmation that =E2=80=9CI have =
no Abstract of=20
Judgments and no Notices of Federal or State Tax Liens filed of =
Record=20
against me.=E2=80=9D
=
First, the above =
is=20
absolutely no evidence concerning the Holubs=E2=80=99 =
intentions or actual=20
knowledge, even though they might have had constructive knowledge =
of the=20
lien by virtue of its filing of record, depending on the =
abstract=E2=80=99s=20
validity. As=20
for the Holubs and HTC, the above is no evidence that they =
willfully or=20
intentionally interfered with Thomas=E2=80=99s settlement =
agreement with the Law=20
Firm. There is no summary-judgment evidence, even viewed in the =
light most=20
favorable to the Law Firm, that Thomas and HTC ever discussed the =
1996=20
abstract at or before closing, much less that HTC intentionally =
defrauded=20
anyone. Rather, what the summary-judgment evidence indicates, when =
viewed=20
in the required light, is that HTC had =
actual=20
knowledge of the Law Firm=E2=80=99s lien.
=
HTC=20
was functioning as an escrow agent and closer for the sale. =
Generally=20
speaking, =E2=80=9C[a]n escrow agent owes a fiduciary duty to =
both parties=20
to [an escrow] contract.=E2=80=9D Trevino v. Brookhill Capital =
Resources,=20
Inc., 782 S.W.2d 279, 281 (Tex. App.=E2=80=94Houston [1st =
Dist.] 1989, writ=20
denied) (emphasis added). Likewise, =E2=80=9C[t]he title insurance =
agent may not=20
intentionally or recklessly deceive the parties to a real =
estate=20
transaction.=E2=80=9D Zimmerman v. First Am. Title Ins. =
Co., 790 S.W.2d=20
690, 695 (Tex. App.=E2=80=94Tyler 1990, writ denied) (emphasis =
added). An escrow=20
agent and closer like HTC does not owe a duty=E2=80=94and thus has =
no negligence=20
liability=E2=80=94to the non-party creditor of a party to the =
escrow agreement.=20
Cf. Rove v. First Am. Title Ins. Co., No. 05-96-01783-CV, =
1998 WL=20
696880, at *4 (Tex. App.=E2=80=94Dallas Oct. 8, 1998, no pet.) =
(not designated for=20
publication) (holding that escrow agent owed duty only to parties =
to=20
escrow agreement, not to party to tangential contract; further =
holding=20
that trial court correctly rendered summary judgment on negligence =
claim=20
against escrow agent on this ground). Compare Zimmerman, =
790 S.W.2d=20
at 694=E2=80=9395 (holding that, because real-estate agent =
=E2=80=9Cwas a signatory of the=20
contract and the possessor of enforceable legal rights under =
it,=E2=80=9D title=20
company owed agent duty).
=
If=20
actual knowledge of a prior lien does not make a title company =
liable to=20
the seller=E2=80=99s creditor in negligence, then the =
creditor must show=20
something more than the escrow agent=E2=80=99s actual knowledge of =
the lien in=20
order to show that it committed an intentional tort against =
the=20
creditor. The existence of the unexplained, unsigned affidavit of =
identity=20
is as consistent with HTC=E2=80=99s mere actual knowledge of the =
Law Firm=E2=80=99s lien,=20
without an intent to defraud the Law Firm, as it is with =
HTC=E2=80=99s intent (and=20
conspiracy with Thomas) to defraud the Law Firm. Accordingly, it =
is no=20
evidence of the intentional wrong. See Ford Motor Co. v. =
Ridgway,=20
135 S.W.3d 598, 601 (Tex. 2004) (=E2=80=9CTo raise a genuine issue =
of material=20
fact, however, the evidence must transcend mere suspicion. =
Evidence that=20
is so slight as to make any inference a guess is in legal effect =
no=20
evidence.=E2=80=9D);=20
see also City of Keller v. Wilson, 168 S.W.3d 802, 813 =
(Tex. 2005)=20
(=E2=80=9CIn claims or defenses supported only by meager =
circumstantial evidence,=20
the evidence does not rise above a scintilla (and thus is legally=20
insufficient) if jurors would have to guess whether a vital fact =
exists.=20
=E2=80=98When the circumstances are equally consistent with either =
of two facts,=20
neither fact may be inferred.=E2=80=99=E2=80=9D) (citation =
omitted).
=
We=20
hold that the trial court did not err if it rendered summary =
judgment on=20
the Law Firm=E2=80=99s tortious-interference claim because the Law =
Firm failed to=20
raise a fact issue on the element of willful and =
intentional=20
interference.
=
We=20
overrule the Law Firm=E2=80=99s fourth point of =
error.
E. Civil=20
Conspiracy
=
In=20
the remainder of its fifth point of error, the Law Firm argues =
that the=20
trial court erred in granting the Holubs=E2=80=99 and =
HTC=E2=80=99s pre-abatement,=20
no-evidence summary-judgment motion because a genuine issue of =
material=20
fact existed as to whether the Holubs and HTC had conspired with =
Thomas to=20
defraud the Law Firm.
=
The required =
elements of a=20
civil conspiracy are (1) two or more persons; (2) an object to be=20
accomplished; (3) a meeting of the minds on the object or course =
of=20
action; (4) one or more unlawful, overt acts; and (5) damages as a =
proximate result. Thomas, 960 S.W.2d at =
112=E2=80=9313. The =
Holubs=E2=80=99 and HTC=E2=80=99s=20
no-evidence summary-judgment motion challenged all of these =
elements.=20
=
=E2=80=9CCivil=20
conspiracy is a derivative action premised on an underlying =
tort.=E2=80=9D=20
Gonzales v. Am. Title Co. of Houston, 104 S.W.3d 588, 594 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 2003, pet. denied) (citing Tilton =
v.=20
Marshall, 925 S.W.2d 672, 681 (Tex. 1996)). The evidence =
examined in=20
the previous section, which the Law Firm produced in support of =
its=20
conspiracy claim, fails to raise a fact issue on the element of a =
meeting=20
of the minds on an object or course of action. See id. =
at 599=20
(holding that summary judgment against escrow agent to closing was =
properly granted when fraud was alleged basis of conspiracy and =
when=20
=E2=80=9C[n]othing in the [no-evidence] summary judgment record =
supports the=20
borrowers=E2=80=99 claim that American Title was a party to a plan =
to defraud=20
them.=E2=80=9D).
=
For=20
these reasons, we hold that the trial court did not err if it =
rendered=20
summary judgment on the conspiracy claim because the Law Firm =
failed to=20
raise a fact issue on the element of a meeting of the =
minds on an=20
object or course of action.
We overrule the =
remainder of=20
the Law Firm=E2=80=99s fifth point of error.
F. TUFTA=20
Violation
=
In=20
the remainder of its sixth point of error, the Law Firm argues =
that the=20
trial court erred in granting the Holubs=E2=80=99 and =
HTC=E2=80=99s pre-abatement,=20
no-evidence summary-judgment motion because a genuine issue of =
material=20
fact existed concerning whether the Holubs and HTC had conspired =
with Thomas=20
to violate TUFTA.
=
To=20
be liable under section 24.005(a) =
of TUFTA,=20
the debtor must have made the transfer or have incurred the=20
obligation(1) with=20
actual intent to hinder, delay, or defraud any creditor of the =
debtor;=20
or
(2) without=20
receiving a reasonably equivalent value in exchange for the =
transfer or=20
obligation, and the debtor:
(A)was engaged or =
was about=20
to engage in a business or a transaction for which the remaining =
assets of=20
the debtor were unreasonably small in relation to the business or=20
transaction; or
(B)intended to =
incur, or=20
believed or reasonably should have believed that the debtor would =
incur,=20
debts beyond the debtor=E2=80=99s ability to pay as they became=20
due.
See =
Tex. Bus. & Com. Code Ann. =
=C2=A7=20
24.005(a) (Vernon 2003). The Holubs=E2=80=99 and HTC=E2=80=99s =
no-evidence=20
summary-judgment motion expressly identified and challenged all of =
these=20
elements.=20
=
&=
nbsp; Because TUFTA =
speaks to the=20
debtor=E2=80=99s=E2=80=94here, Thomas=E2=80=99s=E2=80=94actions, =
the Holubs and HTC could have been liable=20
for those actions only if they had conspired with Thomas; indeed, =
the Law=20
Firm pleaded this claim as one of conspiracy to violate TUFTA. We =
have=20
already held that the trial court properly rendered no-evidence =
summary=20
judgment on the Law Firm=E2=80=99s conspiracy claim. Accordingly, we =
hold that=20
the trial court did not err if it rendered summary judgment on the =
TUFTA=20
claim because the Law Firm failed to raise a fact issue on=20
conspiracy.
=
&=
nbsp; We=20
overrule the remainder of the Law Firm=E2=80=99s sixth point of=20
error.
Conclusion
|