Gordon v. West Houston Trees, Ltd.

• Decision Date: 28 April 2011
• Docket Number: No. 01–09–00269–CV.,01–09–00269–CV.
• Parties: Rodney GORDON, Appellant, v. WEST HOUSTON TREES, LTD., Appellee.
• Court: Texas Court of Appeals

352 S.W.3d 32

Rodney GORDON, Appellant,

v.WEST HOUSTON TREES, LTD., Appellee.

No. 01–09–00269–CV.

Court of Appeals of Texas, Houston (1st Dist.).

April 28, 2011.

Marcellous S. McZeal, Grealish & McZeal, LLP, Houston, TX, for Appellant.

Russell C. Jones, The Holloway Jones Law Firm, P.L.L.C., Sugar Land, TX, for Appellee.

Panel consists of Justices KEYES, HIGLEY, and BLAND.

OPINION

EVELYN V. KEYES, Justice.

Appellant, Rodney Gordon, appeals from the summary judgment granted by the trial court in favor of appellee, West Houston Trees, Ltd. In one point of error, Gordon argues that the trial court erred in granting summary judgment.

We affirm.

Background

On July 14, 2006, West Houston Trees obtained a money judgment against Gordon's father, Winter Gordon, Sr. At the time, Gordon's father owned a tract of land in Fort Bend County, the ownership of which is the subject of this lawsuit. On July 24, 2006, West Houston Trees obtained an abstract of judgment and filed it in the Fort Bend County property records, creating a judgment lien on all of Winter Gordon's real property in Fort Bend County. On February 9, 2007, it obtained an Order of Sale on the property.

On March 22, 2007, Gordon filed in the Fort Bend County property records a “Purchase and Sale Agreement,” dated that day, which Gordon asserts conveyed the relevant property to him.

West Houston Trees obtained a writ of execution on the judgment, and, on April 3, 2007, the Fort Bend County Constable conducted a constable's sale of the property (the “Execution Sale”). West Houston Trees purchased the property, which is described in a “Deed under Execution,” executed on April 20, 2007, and filed by West Houston Trees in the Fort Bend County property records on June 27, 2007.

On October 3, 2007, Gordon filed a document entitled “Quit Claim Deed” in the Fort Bend County property records. By its terms, the Quit Claim Deed conveyed Gordon's interest in the property to himself as Trustee of the Rodney J. Gordon Trust.

On January 23, 2008, Gordon filed in the Fort Bend County property records an “Amended Warranty Deed,” backdated to March 22, 2007, the date of the Sale Agreement. The Amended Warranty Deed was signed by Gordon and his father, and purported to correct errors in the March 22 Purchase and Sale Agreement. No original warranty deed was filed and there is no evidence that one ever existed.

On the same day that the Amended Warranty Deed was filed, Gordon filed a suit for wrongful foreclosure against West Houston Trees, claiming that West Houston Trees' abstract of judgment was invalid and that the sale of the relevant property from his father to himself was valid and properly conveyed title to the property to him. West Houston Trees answered with a general denial, asserted various affirmative defenses, and asserted three counterclaims and cross-claims against Gordon and the Rodney J. Gordon Trust: (1) an action for declaratory relief asserting its superior right to the property over Gordon; (2) a suit to quiet title; and (3) a claim for affirmative relief against Gordon for filing a fraudulent document against real property in violation of Civil Practice and Remedies Code Chapter 12. It sought a declaration of its rights and attorney's fees pursuant to the Declaratory Judgments Act; the greater of actual damages or statutory damages pursuant to Civil Practice and Remedies Code section 12.002 for Gordon's filing of a fraudulent document; and costs.

Subsequently, West Houston Trees sought summary judgment on all of the claims and affirmative defenses before the trial court. It argued that it was entitled to summary judgment on Gordon's wrongful foreclosure action because the abstract of judgment it filed was valid, established superior title to the property, and gave notice to subsequent purchasers such as Gordon. It further argued that proper foreclosure procedures were followed and that, therefore, its Execution Deed, obtained upon its purchase of the property at the Execution Sale and recorded in the Fort Bend County property records, was valid. Therefore, the instruments filed by Gordon in the Fort Bend County records constitute invalid hindrances, or clouds on its title. West Houston Trees further argued that these instruments were invalid and fraudulent and failed to convey a valid interest in the property. It contended that there was no language of conveyance in the Sale Agreement; that the Sale Agreement was an executory contract that did not convey title to the property; and that the description of the property in the instruments filed by Gordon was insufficient to identify the land on the ground. Following a hearing, the trial court rendered summary judgment on all of the grounds asserted in the motion.

Gordon asserts, in a single point of error on appeal, that the trial court erred in granting West Houston Trees' motion for summary judgment. He argues in seven sub-issues that West Houston Trees was not entitled to summary judgment because (1) West Houston Trees' abstract of judgment was invalid as a matter of law; (2) the recording and indexing of an abstract of judgment will not perfect or create a lien on the judgment debtor's real property when the cause number is omitted, as happened in this case; thus, (3) West Houston Trees' improperly filed abstract did not satisfy the statutory requirements to create a lien against the property; (4) Gordon, did not file a fraudulent document on the property; (5) West Houston Trees' suit to quiet title is without merit because the property was sold to and recorded by Gordon before the property was sold at the Execution Sale to West Houston Trees and the Execution Deed executed and recorded; (6) the Purchase and Sale Agreement executed by his father and himself and filed in the Fort Bend County property records contained the proper language of conveyance; and (7) the property descriptions in the instruments he filed in the Fort Bend County records were sufficient to identify the property.

Standard of Review

To prevail on a traditional summary judgment motion, a movant must prove that there is no genuine issue regarding any material fact and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Little v. Tex. Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex.2004). A party moving for summary judgment on one of its own claims must conclusively prove all essential elements of the claim. See Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). A defendant may also prevail by traditional summary judgment if it conclusively negates at least one essential element of a plaintiff's claim or conclusively proves an affirmative defense. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). A movant seeking traditional summary judgment on an affirmative defense has the initial burden of establishing its entitlement to judgment as a matter of law by conclusively establishing each element of its affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex.2008) (per curiam); see also Tex.R. Civ. P. 166a(b)-(c). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005).

If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007) (per curiam).

On appeal, we review de novo a trial court's summary judgment ruling. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). In our review, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006).

West Houston Trees' Summary Judgment

West Houston Trees sought and was awarded summary judgment on Gordon's wrongful foreclosure suit and on its own suit to quiet title and fraudulent document claims.¹

A. “Wrongful Foreclosure”

In his first, second, third, and fifth sub-issues, Gordon argues that the abstract of judgment filed by West Houston Trees in the Fort Bend County property records on July 24, 2006 did not attach and failed to give notice of a valid lien to subsequent purchasers of the property, such as himself. Therefore, his title to the property, which was recorded on March 22, 2007, was superior to West Houston Trees' title, obtained at the April 3, 2007 Execution Sale.

Filing and recording an abstract of judgment creates a judgment lien as to a judgment debtor's real property. Won v. Fernandez, 324 S.W.3d 833, 834–35 (Tex.App.-Houston [14th Dist.] 2010, no pet.); Gary E. Patterson & Assocs., P.C. v. Holub, 264 S.W.3d 180, 193–94 (Tex.App.-Houston [1st Dist.] 2008, pet. denied).

In order to obtain a lien on a judgment, the judgment creditor must comply with the statutory requirements for creation of the lien. Tex. Prop.Code Ann. §§ 52.001–52.007 (Vernon 2007 & Supp.2010). The first step in creating a lien on a judgment is to obtain an abstract of the judgment. Citicorp Real Estate, Inc. v. Banque Arabe Internationale D'Investissement, 747 S.W.2d 926, 929 (Tex.App.-Dallas 1988, writ denied). The purpose of an abstract of judgment is (1) to create a judgment lien in the first place and (2) to provide notice to subsequent purchasers of that lien's existence. Holub, 264 S.W.3d at 194.

An abstract of judgment must show:

(1) the names of the plaintiff and defendant;

(2) the birthdate of the defendant, if available to the...