Apex Fin. Corp. v. Brown

• Decision Date: 03 December 1999
• Docket Number: No. 06-98-00155-CV,06-98-00155-CV
• Parties: (Tex.App.-Texarkana 1999) APEX FINANCIAL CORPORATION, Appellant V. TIMOTHY D. BROWN AND TIM BONNER D/B/A BONNER ASSOCIATES, INC., Appellees
• Court: Texas Court of Appeals

Page 820

7 S.W.3d 820 (Tex.App.-Texarkana 1999)

APEX FINANCIAL CORPORATION, Appellant

V.

TIMOTHY D. BROWN AND TIM BONNER D/B/A BONNER ASSOCIATES, INC., Appellees

No. 06-98-00155-CV

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted Dec. 2, 1999.

Decided Dec. 3, 1999.

On Appeal from the 116th Judicial District Court

Dallas County, Texas

Trial Court No. 96-13047-F

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Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

GRANT, Justice.

Timothy Brown, the original owner of the real property in issue, filed suit to set aside a sheriff's sale made pursuant to a judgment lien, contending that irregularities in the sheriff's sale resulted in a grossly inadequate sale price. The purchaser of the property (Apex Financial Corporation), the judgment creditor (Pagoda Trading Company, Inc.), and the sheriff who conducted the sheriff's sale (Jim Bowles) were all made defendants in the suit; and an original contractor on the property (Tim Bonner) intervened claiming a mechanic's and materialman's lien. The trial court entered summary judgment setting aside the complained-of sheriff's sale and thereafter ordered foreclosure and sale of the property pursuant to Bonner's mechanic's and materialman's lien. Apex, the purchaser at the sheriff's sale, appeals the summary judgment and presents the following points for review:

(1) Did the judgment dispose of all issues and counterclaims before the court so as to be a final judgment?

(2) Was Brown precluded from challenging the sheriff's sale under the terms of a prior settlement agreement with Apex?

(3) Is there conclusive proof that an irregularity in the sheriff's sale caused the property to be sold for a grossly inadequate price, so as to justify the setting aside of the sheriff's sale on summary judgment?

(4) Is there conclusive proof that a mechanic's and materialman's lien existed in favor of Bonner, so as to justify foreclosure of the lien on summary judgment?

In 1992, Brown purchased the property in issue, located at 1107 Pleasant Run Road (the Pleasant Run property). Brown contracted with Bonner to build a home on the property, and in so doing, Brown granted Bonner a lien in the amount of $2,377,206 to secure payment for the construction. A written contract memorializing the lien was signed by both parties and acknowledged by a notary public. On July 6, 1994, Bonner filed the contract with the acknowledgment in the Dallas County clerk's office. On February 15, 1995, Bonner filed a waiver of lien in the same records. Then, on March 27, 1995, Bonner refiled the original contract and the original acknowledgment in an attempt to revive the lien.

In April of 1995, Pagoda recovered a final judgment against Brown and others in a suit styled Pagoda Trading Company, Inc. v. Pro Moves, Inc., et al. in the United States District Court for the Eastern District of Missouri. In an effort to obtain satisfaction of this judgment, Pagoda perfected its judgment in the 116th District Court of Dallas County, Texas, and obtained a writ of execution against Brown in the amount of $1,146, 200. Pagoda then delivered the writ to Sheriff Bowles with instructions to execute and sell the Pleasant Run property and two additional real properties owned by Brown to satisfy the judgment. On June 4, 1996, the sheriff sold the three properties to Apex, who was the highest bidder at $800 cash. Although the sheriff sold the three properties as one lot, the sheriff, at Apex's request, issued three separate deeds to the properties.

Shortly after the sale, Apex filed forcible detainer suits in the justice court seeking to evict the occupants of the other two properties. No such suit was filed for the Pleasant Run property, because it was still under construction and unoccupied. Pursuant to the forcible detainer suits, Brown and Apex entered into a settlement agreement which in relevant part provided the following: Brown would pay Apex $18,000 and upon payment, Apex would deed back the other two properties; agreed judgments would be entered in favor of Apex in the forcible detainer suits, but Apex would not take any action pursuant to the judgments unless Brown defaulted in the aforementioned payment; and Brown would not appeal the agreed judgments or challenge in any way the validity of the sheriff's sale of June 4, 1996.

On December 19, 1996, Brown filed suit against Apex, Pagoda, and Sheriff Bowles, seeking damages and an order setting aside the sheriff's sale as to the Pleasant Run property. Bonner intervened in the suit, claiming a mechanic's and materialman's lien on the property and seeking foreclosure on the lien. Apex, Brown, Bonner, Pagoda, and Bowles all filed motions for partial summary judgment. On September 30, 1997, the trial court dismissed Pagoda pursuant to a Rule 11 agreement, granted Brown's motion to set aside the sheriff's sale, and denied all other motions. Apex then filed its supplemental answer and counterclaim contending that Brown breached the earlier settlement agreement by challenging the validity of the sheriff's sale. On July 8, 1998, the trial court entered its final summary judgment setting aside the complained-of sheriff's sale and ordering foreclosure and sale of the Pleasant Run property pursuant to Bonner's lien.

In reviewing a summary judgment record, this Court must determine whether a genuine issue of material fact exists that would preclude the entry of a summary judgment. Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex. 1990). The standards for reviewing a summary judgment are well established. The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there is a disputed fact issue precluding summary judgment, evidence favorable to the nonmovant is taken as true, and all reasonable inferences are indulged in favor of the nonmovant with any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49.

The first point for us to address is whether the trial court's summary judgment order disposed of all issues and counterclaims raised in the case, so as to be a final and appealable judgment.

To be a final, appealable summary judgment, the trial court's order must dispose of all parties and all issues before the court. Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993). If the order does not dispose of all issues and all parties, it is interlocutory; therefore, the case is not appealable absent severance. Mafrige, 866 S.W.2d at 591. When a summary judgment order appears to be final, as evidenced by the inclusion of Mother Hubbard language purporting to dispose of all issues and all parties, the judgment will be treated as final for the purposes of appeal. Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex. 1997).

Apex contends that its breach of contract counterclaim against Brown was not disposed of by the trial court's summary judgment; therefore, as such the judgment was not final. In support of this argument, Apex points out that its supplemental answer and counterclaim was not filed until after the trial court ruled on the summary judgment motion. However, the record reveals that the issue of whether the settlement contract precludes Brown from challenging the sheriff's sale had already been raised by Apex as a defense to Brown's motion for summary judgment. By granting Brown's motion for summary judgment, the trial court implicitly found that the contract did not preclude Brown from challenging the sale. Thus, by the time Apex filed its breach of contract counterclaim, the trial court had already effectively decided that it was not a breach of contract for Brown to challenge the sale. Moreover, the trial court stated in its judgment order that "all relief not specifically granted in this judgment is denied." A Mother Hubbard clause such as this makes a judgment final for purposes of appeal. Therefore, we find that the summary judgment in this case was a final judgment disposing of all issues and parties. Point one is overruled.

The next point we must address is whether the settlement agreement precludes Brown from challenging the sheriff's sale as to the Pleasant Run property.

Apex contends that the trial court erred in setting aside the sheriff's sale on summary judgment because the contract either unambiguously estops Brown from challenging the sheriff's sale as to the Pleasant Run property, or the contract is ambiguous and there is a genuine issue of material fact as to its meaning.

In construing a contract, a court's primary concern is to give effect to the written expression of the parties' intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132 (Tex. 1994). To achieve this objective, courts must consider the entire instrument in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Coker v. Coker, 650 S.W.2d 391 (Tex. 1983). Specific terms of a contract will control over more general terms, O'Connor v. O'Connor, 694 S.W.2d 152, 155 (Tex. App.-San Antonio 1985, writ ref'd n.r.e.); City of San Antonio v. Heath & Stich, Inc., 567 S.W.2d 56, 60 (Tex. Civ. App.-Waco 1978, writ ref'd n.r.e), although all provisions will be considered with reference to the whole instrument. Coker, 650 S.W.2d at 393.

Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances existing when the contract was formed. Reilly v. Rangers Management, Inc., 727 S.W.2d 527 (Tex. 1987). Not every difference in the interpretation of a contract amounts to an ambiguity--neither conflicting expectations or disputation is sufficient to create an ambiguity. Forbau, 876 S.W.2d at 134. A contract will be held to be...