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

• Decision Date: 08 June 1988
• Docket Number: No. 2-87-222-CV,2-87-222-CV
• Citation: 751 S.W.2d 721
• 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.
• Court: Texas Court of Appeals

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.

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.

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 resolved against him. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence in the light most favorable to the nonmovant. See id.

In essence, appellants argue they proved the elements of an action in trespass to try title: superior title out of a common source. In the alternative, appellants argue appellees failed to negate an essential element of appellants' claim. Appellees do not dispute that both parties claim title from a common source, but do dispute appellants' claim to superior title. Appellants claim that they have superior title to the lots in question by virtue of a default judgment granted to them in the Dayton case.

A judgment is construed in the same manner as are other written instruments, and is construed as it is written. Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 497-98 (1934); 47 TEX.JUR.3d Judgments sec. 85 (1986). The determinative factor is the intention of the court. Adams v. Adams, 214 S.W.2d 856, 857 (Tex.Civ.App.--Waco 1948, writ ref'd n.r.e.). If, taken as a whole and construed according to well-known rules, a judgment is unambiguous, no room is left for interpretation, and it is the duty of the court to declare the effect thereof in light of the literal meaning of the language used. Id. Nevertheless, even if the language used in the judgment is ambiguous, it is a fundamental rule that the writing will be construed most strictly against the party who drafted it. Rep. Nat. Bank v. Northwest Nat. Bank, 578 S.W.2d 109 (Tex.1978); Smith v. McMillan, 352 S.W.2d 871 (Tex.Civ.App.--Houston 1961), aff'd, 363 S.W.2d 437 (Tex.1962). TEX.R.CIV.P. 305 states that "[c]ounsel of the party for whom a judgment is rendered shall prepare the form of the judgment to be entered and submit it to the court."

The relevant portion of the Dayton default judgment reads as follows:

The Court further finds and declares that as of December 1, 1981, the lots listed in the attached and incorporated Exhibit A were assets of the joint venture, that Defendants thereafter held those lots as constructive trustees for the benefit of Plaintiffs, and that the lots were later sold without the consent of Plaintiffs.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Plaintiffs have and recover from Defendants Dayton Financial Corporation and Dayton Financial Corporation of Dallas, jointly and severally, the principal sum of $247,399.00, prejudgment interest of $61,043.16, attorney's fees of $67,500.00, accountant's fees of $35,350.00, and all court costs, with simple interest on all of those amounts at 10% per annum from the date of judgment until paid.

IT IS, FURTHER ORDERED, ADJUDGED AND DECREED that Defendants will be granted a credit against the attorneys' fee award as follows: (1) a $17,500.00 credit if there is no...