Dorbandt v. Bailey

• Decision Date: 19 March 1970
• Docket Number: No. 470,470
• Parties: Morris DORBANDT, Appellant, v. Sam BAILEY and Ted Saba, Appellees.
• Court: Texas Court of Appeals

Page 205

453 S.W.2d 205

Morris DORBANDT, Appellant, v. Sam BAILEY and Ted Saba, Appellees.

No. 470.

Court of Civil Appeals of Texas Tyler.

March 19, 1970.

Rehearing Denied April 9, 1970.

Second Rehearing Denied April 30, 1970.

Clapp & Beall, Alex Beall, Tyler, for appellant.

Kenneth R. King, Tyler, for appellees.

DUNAGAN, Chief Justice.

Appellant filed suit on April 29, 1969, alleging that appellees purchased appellant's property at a sheriff's sale on March 3, 1965, as trustee for the benefit of appellant. Appellees, in addition to their answer, filed a cross-action to quiet title to the land in question and for damages resulting from the cloud cast upon their title.

Appellant sought an accounting from the appellees of the operation of the alleged joint ownership of the land here involved, and judgment requiring appellees to execute and deliver to him a deed to a 1/3rd interest in all the real estate described in his original petition or for judgment declaring his said interest therein in accordance with an alleged agreement between appellant and appellees . Subsequently, appellees filed a motion for summary judgment, with supporting affidavits of appellees attached, alleging as grounds therefor that (1) there had been no agreement between appellant and appellees concerning such property, either written, oral or otherwise and (2) any evidence offered by the appellant to sustain his allegations and cause of action would be in violation of the statute of conveyances, Art. 1288, Vernon's Ann.Civ.St. and the statute of frauds, Art. 3995, V.A.C.S. By the other allegations in the motion for summary judgment, appellees plead the two, three and the four-year statute of limitations.

Appellant timely and duly filed his answer to appellees' motion for summary judgment asserting therein that there were genuine issues of facts as to whether or not the two, three or four-year statute of limitations applies to appellant's cause of action, with appellant's controverting affidavit attached.

Appellant states in his affidavit that he and appellee, 'SAM BAILEY, agreed to join together in the acquisition and development of a certain tract of land in Smith County, Texas, hereinafter referred to and described as the Swan Lake Development; that in accordance with such agreement a tract of 225 acres * * * was purchased in the name of Sam D. Bailey, * * *; that MORRIS DORBANDT owned several adjoining tracts to the 225 acre tract, which were to be included in the development program; that Defendant, THEODORE SABA, became a party in this development operation in February, 1959, the Defendant, THEODORE SABA having purchased an interest, and in addition having loaned a sum of money to the parties in their joint venture in order to facilitate the construction of a lake on a portion of the described property and to aid in the development of Swan Lake'. Appellant also stated in his affidavit that in accordance with the oral agreement of the parties, Sam Bailey kept the books and records of the development and maintained a bank account designated as the Swan Lake Account and generally acted for the parties in their venture; that for several years the partnership's income tax return was filed, by the parties to this lawsuit, with the United States Government reporting the income and expenses of the Swan Lake Development; that in 1964, a money judgment was obtained against appellant Dorbandt and thereafter writ of execution was issued to the sheriff of Smith County, Texas, and by virtue of levy and execution the sheriff proceeded to advertise for sale on March 2, 1965, the undivided interest of appellant Dorbandt in the properties in the Swan Lake Development; that prior to such date of sale the appellees orally advised appellant 'that they would loan him sufficient funds so that said Defendants would purchase at the Sheriff's sale the interest of' appellant in the properties so advertised for sale, such purchase to be made for the benefit of appellant and that appellees would hold title to the undivided interest of appellant until such time as said loan was repaid or the prorata share of profits due appellant from the Swan Lake Development would have repaid appellees for their expenditures and purchase of appellant's undivided interest at the sheriff's sale; that in reliance upon such statements he did not appear at the sheriff's sale and made no effort to protect his interest in the properties being sold, as he was relying upon the assurance of the appellees that they would purchase his interest and hold for his benefit; that after the purchase at the sheriff's sale by the appellees they told him that his interest was being protected; that appellees did not take any action that would put him on notice that they were claiming possession of such interest adversely to him.

On May 16, 1969, a hearing was had on the motion for summary judgment and at the conclusion of the hearing the court signed and entered an interlocutory judgment granting appellees' motion for summary judgment, to which appellant excepted and gave notice of appeal to this court. Subsequent to the interlocutory summary judgment, trial was had to a jury on the issues of damages raised by appellees' cross-action. On August 1, 1969, the court signed and entered final judgment therein reaffirming the interlocutory summary judgment and vesting title and interest to and in all the property, here involved, in the appellees and that appellees take nothing by reason of their cross-action for damages against appellant. Appellant timely perfected his appeal from this judgment.

However, on this appeal appellant complains only of the court's action in granting the motion for summary judgment. That portion of the judgment disposing of appellees' cross-action is not before us for review as appellant has not brought forward any point of error asserting any error to this portion of the judgment and appellees did not appeal from said portion of the judgment.

Appellant by his two points of error asserts that (1) there was a material fact controversy, and (2) a material question of fact was raised to the plea and issue of limitations.

In addition to the pleadings, the interlocutory summary judgment was based upon the appellees' motion for summary judgment and appellant's answer thereto and the affidavits of each of the parties .

Appellant in his brief refers this court to a certain portion of the statement of facts which was developed upon the jury trial of appellees' cross-action. This statement of facts was not before the trial court when the motion for summary judgment was granted. In fact, it was not even in existence at that time, as the testimony contained therein was given upon the trial of appellees' cross-action which was some ten days after the summary judgment was heard and disposed of by the interlocutory judgment. This being a summary judgment matter and, as such, the trial court is charged with the duty of considering only the record as it appears before the court at the time of the hearing of the motion for summary judgment. Rule 166--A Texas Rules of Civil Procedure; Dipp v. Rio Grande Produce, Inc., 330 S.W.2d 700, 702 (Tex.Civ.App., El Paso, 1959, writ ref. n.r.e.) and cases cited therein; Womack v. I. & H. Development Company, Inc., 433 S.W.2d 937, 940 (Tex.Civ.App., Amarillo, 1968, n.w.h.).

The review of the ruling of a trial court, by an appellate court, will be made on the record that was before said court at the time the ruling was made, and will not, as a rule, consider matters outside of the record. 4 Tex.Jur.2d, p. 237, Sec. 743. Therefore in reviewing the trial court's action on the motion for summary judgment this court cannot give any consideration to the statement of facts referred to which was not before the trial court when it granted the summary judgment.

It appears that appellant and appellees each owned an undivided interest in certain real estate properties in Smith County, Texas. On April 24, 1964, the Peoples National Bank of Tyler, Texas, executor and trustee of the Estate of Z. J. Spruiell deceased, obtained a money judgment against appellant, Morris Dorbandt. By virtue of writ of levy and execution under this judgment, under order of sale, appellant's undivided interest in the property here involved was sold at sheriff's sale on March 2, 1965. There are 4 tracts of land described in appellant's original petition in which the appellant alleges that he owned a 1/3rd interest in and title to at the time of the sheriff's sale. Appellees, Sam Bailey and Ted Saba, purchased one of these tracts at the sheriff's sale and the other 3 tracts were purchased at such sale by the above-named executor and trustee for the Spruiell estate. Both sales were consummated by execution of sheriff's deeds to each of the purchasers. Thereafter on April 5, 1965, the executor and trustee for the Spruiell estate conveyed by a warranty deed the 3 tracts previously purchased at the sheriff's sale to Sam Bailey. Thereafter the appellees by deeds divided or partitioned the 4 tracts of land between themselves.

The summary judgment evidence consisted of the pleadings and affidavits by each of the parties. Such evidence does not show that appellant paid the consideration for the purchase of the property. There can be no purchase money resulting trust under these circumstances. Cohrs v. Scott, 161 Tex. 111, 338 S.W.2d 127 (1960). There was no agreement in writing, alleged or shown, therefore, under the Texas Trust Act, there can be no valid, enforceable expressed trust. Art. 7425b--7, V.A.C.S.

Under appellant's pleadings and his affidavit a constructive trust should be imposed. Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960); Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951); Thompson v. Newman, 378 S.W.2d 879 (Tex.Civ....