Ellis v. Mortgage and Trust, Inc., 2-87-222-CV

• Court: Court of Appeals of Texas
• Citation: 751 S.W.2d 721
• Docket Number: No. 2-87-222-CV,2-87-222-CV
• Parties: Glen J. ELLIS, Individually and as Trustee, and Lucille Thagard Ellis, as Trustee, Appellants, v. MORTGAGE AND TRUST, INC., Randall C. Sweet, Donna Sweet, Raymond Claude Miles, Donna Jo Miles, First Funding Investment, Inc., Earl J. Armbruster, Doris R. Armbruster, Sertex Properties and Don Taylor, Appellees.
• Decision Date: 08 June 1988

Page 721

751 S.W.2d 721 Glen J. ELLIS, Individually and as Trustee, and Lucille
Thagard Ellis, as Trustee, Appellants,
v.
MORTGAGE AND TRUST, INC., Randall C. Sweet, Donna Sweet,
Raymond Claude Miles, Donna Jo Miles, First Funding
Investment, Inc., Earl J. Armbruster, Doris R. Armbruster,
Sertex Properties and Don Taylor, Appellees. No. 2-87-222-CV. Court of Appeals of Texas,
Fort Worth. June 8, 1988.

Page 722

Thompson, Coe, Cousins & Irons, Scott Patrick Stolley, Dallas, for appellants.

Law, Snakard & Gambill, Walter S. Fortney and Mark S. Pfeiffer, Fort Worth, for appellees.

Before FENDER, C.J., and HILL and KELFNER, JJ.

OPINION

FENDER, Chief Justice.

Appellants Glen J. Ellis and Lucille Thagard Ellis brought a trespass to try title suit against appellees Mortgage and Trust, Inc., Randall C. Sweet, Donna Sweet, Raymond Claude Miles, Donna Jo Miles, First Funding Investment, Inc., Earl J. Armbruster, Doris R. Armbruster, Sertex Properties, and Don Taylor. Appellants moved for partial summary judgment, and appellees responded with a motion for summary judgment. The district court denied appellants' motion for partial summary judgment, and granted appellees' motion for summary judgment.

We affirm.

In September 1978 appellants Glen J. Ellis and the Glen J. Ellis, Jr. Trust and the Dawn Belen Ellis Trust entered into a joint venture agreement with Dayton Financial Corp. (Dayton). ¹ In December of 1982 appellants sued Dayton for a breach of a joint venture agreement and breach of fiduciary duties. The lawsuit, among other items, requested a dissolution of the joint venture, a temporary restraining order against Dayton restraining it from tranferring joint venture assets, and an award of money damages. Appellants did not file a notice of lis pendens on their original petition, which would have encumbered the joint venture lots as to subsequent purchasers.

On December 21, 1982, the court denied appellants' motion for temporary injunction. In light of the denial of their motion for temporary injunction, appellants amended their petition on December 23, 1982, and requested "[a] constructive trust on all joint venture assets or the proceeds thereof" held by Dayton. At the same time, appellants filed a notice of lis pendens regarding their alleged one-third interest in the joint venture assets.

On December 1, 1981, even before appellants filed the Dayton suit and the lis pendens, appellees First Funding Investment, Inc., Raymond Claude Miles, and Donna Jo Miles had purchased the lots at issue, those lots subsequently described in the notice of lis pendens, from Dayton. The remaining appellees purchased their lots from Dayton after the filing of the Dayton suit and the lis pendens.

Thereafter, in December of 1985 appellants filed a third amended original petition, asking for money damages and a constructive trust on the lots themselves. Appellants took a default judgment against Dayton. Hon. Judge Street awarded appellants damages in the principal sum of $247,399.00 together with prejudgment interest, attorneys' fees, and accountant's fees. Judge Street further found and declared that as of December 1, 1981, specified lots which were assets of the joint venture were to be held by Dayton as constructive trustees for the benefit of appellants, and that these lots were the ones later sold by Dayton without the consent of appellants. At the time of the default judgment, all of the lots in question had been conveyed away.

In August of 1986 appellants brought this suit against appellees, the present owners of the lots in question. The suit alleged that the default judgment awarded them by Judge Street not only awarded them money damages equal to their one-third ( 1/3) interest in the joint venture assets, but also fee simple title to the entire lots by virtue of a constructive trust. Appellees' motion for summary judgment was granted, and this appeal ensued.

Page 723

Appellants' first point of error asserts that the trial court erred in failing to grant a partial summary judgment in favor of appellants. Appellants' second point of error asserts that the trial court erred in granting a summary judgment in favor of appellees. An order overruling or denying a motion for summary judgment is not a proper subject for appeal. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). Therefore, appellants' point of error one is overruled.

In a summary judgment case, the issue on appeal is whether the movant met his burden for summary judgment by establishing that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); TEX.R.CIV.P. 166a. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are...