The Cadle Co. v. Butler, 13-94-495-CV

• Decision Date: 21 August 1997
• Docket Number: No. 13-94-495-CV,13-94-495-CV
• Parties: The CADLE COMPANY, Appellant, v. Ray BUTLER, Appellee.
• Court: Texas Court of Appeals

Page 901

951 S.W.2d 901

The CADLE COMPANY, Appellant, v. Ray BUTLER, Appellee.

No. 13-94-495-CV.

Court of Appeals of Texas Corpus Christi.

Aug. 21, 1997.

Rehearing Overrulrd Sept. 25, 1997.

C.M. Henkel, III, Henkel, Hyden & Sanders, Corpus Christi, for Appellant.

Jeffrey J. Zissa, Gregory K. Esmon, Oden & Zessa, Alice, for Appellee.

Before DORSEY, FEDERICO G. HINOJOSA, Jr., and YANEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Ray Butler sued The Cadle Company for a declaratory judgment that his deed of trust lien was superior to a judgment lien obtained by Cadle, or alternatively, for a finding that Cadle was not a good faith purchaser of the real property affected by the lien, and for reimbursement of an insurance premium. Cadle counterclaimed and asked the trial court to declare that its judgment lien was superior. Both parties moved for summary judgment. The trial court granted Butler's motion and denied Cadle's motion. By two points of error, Cadle contends that the trial court erred (1) by failing to grant its motion for summary judgment and (2) by granting Butler's motion. We reverse the trial court's judgment and render summary judgment for Cadle.

On November 19, 1987, Harold Weakly and Jane Weakly executed and delivered to Ray Butler a $200,000.00 promissory note that would mature on November 19, 1988. The note was secured by a deed of trust on two lots, lots 35 and 36, in Block "C" of Carmel Hills Estates, Unit III Subdivision, in Live Oak County, Texas. The deed of trust was properly recorded in Live Oak County on December 18, 1987. The deed did not recite the maturity date of the note, which was not recorded.

On March 28, 1993, the U.S. District Court for the Southern District of Texas granted Cadle a default judgment against the Weaklys for $125,474.60, together with pre-judgment and post-judgment interest and attorney's fees. In the judgment, Cadle was authorized to foreclose on a deed of trust lien it held on lots 37 through 42 in Block "C" of Carmel Hills Estates, Unit III Subdivision. These lots were owned by the Weaklys. The judgment also ordered that an order of sale be issued ordering the U.S. Marshal to seize and sell the lots in satisfaction of the judgment. Cadle abstracted the judgment in Live Oak County on May 12, 1993. The U.S. District Court issued an order of sale for lots 37, 38, 39, 40, and 42 on May 24, 1993, and the U.S. Marshal executed the order of sale on July 8, 1993. Cadle bought the properties at the U.S. Marshal's sale for $52,000.

The lots at issue in the instant case are lots 35 and 36, which lie adjacent to those described in the order of sale. In addition to expressly authorizing the sale of lots 37 through 42, the default judgment provided that "if the proceeds of the sale are insufficient to satisfy the judgment, the United States Marshal shall take any money or unpaid balance out of any other property of the Defendants, as in the case of ordinary executions." The record reflects that, apart from the land at issue (lots 35 and 36), the Weaklys have no other assets subject to execution to satisfy the deficiency remaining after the sale of lots 37, 38, 39, 40, and 42.

On October 30, 1993, Butler and the Weaklys executed a written modification agreement to the note and deed of trust and recorded it in Live Oak County on November 2, 1993. On November 4, 1993, Cadle deposed Butler and learned, apparently for the first time, that Butler's note had a maturity date of November 19, 1988. At the deposition, Cadle also learned that from 1988 to 1993 the Weaklys and Butler had orally agreed each year to extend the maturity date of the note one additional year.

Cadle obtained a writ of execution to satisfy the judgment, and the U.S. Marshal sold lots 35 and 36 to Cadle for $1,000 on November 10, 1993. On June 9, 1994, Butler filed this suit for declaratory judgment. On June 14, 1994, Cadle counterclaimed and asked the trial court to declare that its judgment lien was superior. Both parties moved for summary judgment. On September 26, 1994, the trial court granted Butler's motion and denied Cadle's motion. Cadle promptly perfected its appeal to this court.

When both parties move for summary judgment and one motion is granted and the other is overruled, the appellate court should consider all questions presented to the trial court, including whether the losing party's motion should have been overruled. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). Each party must carry its own burden as the movant and, in response to the other party's motion, as the non-movant. James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701, 703 (Tex.App.--Houston [1st Dist.] 1987, writ denied). To prevail, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex.1993). When both parties move for summary judgment, this court has the authority to (1) affirm the judgment, (2) reverse the judgment and render the judgment that the trial court should have rendered, or (3) reverse the judgment and remand the case to the trial court for further proceedings. Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex.1984).

Butler was the plaintiff below and Cadle the defendant/counter-plaintiff. Each moved for summary judgment. In a summary judgment proceeding, the plaintiff, as movant, must conclusively prove his entitlement to prevail on each element of his cause of action as a matter of law. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). A defendant who seeks summary judgment has the burden of showing that (1) as a matter of law there remains no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action or (2) he has established his affirmative defense to the plaintiff's cause of action as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Swilley, 488 S.W.2d at 67. Once the movant establishes an affirmative defense which would bar the suit as a matter of law, the non-movant must then produce summary judgment proof raising a fact issue in avoidance of the affirmative defense. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex.App.--Corpus Christi 1991, writ denied).

In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true. Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Id. When a party moves for summary judgment on several theories and the trial court enters summary judgment without specifying the ground relied upon, we affirm the summary judgment if any one of the theories advanced is meritorious. Martinez v. Corpus Christi Area Teachers Credit Union, 758 S.W.2d 946, 950 (Tex.App.--Corpus Christi 1988, writ denied).

CADLE'S MOTION FOR SUMMARY JUDGMENT

Limitations

Cadle argues in its motion for summary judgment that Butler's lien was barred by limitations before Cadle's judgment lien attached, rendering the subsequent attempted extension of Butler's lien ineffective. Cadle presents little argument and no citations in its motion for summary judgment. However, the limitations defense presented by Cadle coupled with the facts of the case establish that sections 16.035, ¹ 16.036, ² and 16.037 ³ of the Texas Civil Practice and Remedies Code are the applicable statutes. These statutes provide for the time bar of lien debt by prescribing the period within which an action may be brought and for means to suspend the running of limitations.

In their appellate briefs, Cadle and Butler expressly rely upon sections 16.035 and 16.036 and make no references to section 16.037. A primary and principal rule of statutory construction is that legislative enactments which are involved with the same general subject matter and also possess the same general purpose or purposes are considered to be and are construed to be in pari materia. ⁴ See TEX. GOV'T CODE ANN. § 312.005 (Vernon 1997); Garrett v. Mercantile Nat'l Bank, 140 Tex. 394, 168 S.W.2d 636, 637 (1943); see also Calvert v. Fort Worth Nat'l Bank, 163 Tex. 405, 356 S.W.2d 918, 921 (1962). Such statutes are in pari materia even though these statutes may fail to contain any reference in one to the other and even though the statutes may have been passed at different times or at different legislative sessions. Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167, 171 (1937); Reed v. State Dept. of Licensing & Regulation, 820 S.W.2d 1, 2 (Tex.App.--Austin 1991, no writ). The purpose of the in pari materia rule of construction is to fulfill the legislative intent. Crimmins v. Lowry, 691 S.W.2d 582, 584 (Tex.1985); Lenhard v. Butler, 745 S.W.2d 101, 105 (Tex.App.--Fort Worth 1988, writ denied); Texas & N.O.R. Co. v. W.A. Kelso Bldg. Material Co., 250 S.W.2d 426, 430 (Tex.Civ.App.--Galveston 1952, writ ref'd n.r.e.).

Sections 16.035, 16.036, and 16.037 have not previously been interpreted in a situation similar to that of the instant case. However, the history of these statutes clearly shows that they are codifications of Texas Revised Civil Statutes 5520 ⁵ and 5522. ⁶ A revision or recodification of law is to be construed as a continuation of previously existing law. Hartford Fire Ins. Co. v. Walker, 94 Tex. 473, 61 S.W. 711, 711-13 (1901); G.P. Show Prods., Inc. v. Arlington Sports Facilities Dev. Auth., Inc., 873 S.W.2d 120, 122 (Tex.App.--Fort Worth 1994, no writ) (a mere change of phraseology in the revision of a statute in force before will not change the law previously declared, unless it indisputably appears the legislature intended change). A comparison of the language in articles 5520 and 5522 reveals that they are substantially reproduced in sections 16.035, 16.036, and 16.037. Compare TEX.REV.CIV. STAT. ANN . arts. 5520 & 5522 (Ve...