Howell v. Murray Mortg. Co.

• Decision Date: 17 June 1994
• Docket Number: No. 07-93-0203-CV,07-93-0203-CV
• Citation: 890 S.W.2d 78
• Parties: Charles Ben HOWELL, Administrator of the Estate of Fredrick Lane Howell, Deceased, Appellant, v. MURRAY MORTGAGE COMPANY Formerly Known as Murray Investment Company and Resolution Trust Corporation as Receiver for Murray Savings Association, Appellees.
• Court: Texas Court of Appeals

Page 78

890 S.W.2d 78

Charles Ben HOWELL, Administrator of the Estate of Fredrick Lane Howell, Deceased, Appellant, v. MURRAY MORTGAGE COMPANY Formerly Known as Murray Investment Company and Resolution Trust Corporation as Receiver for Murray Savings Association Appellees.

No. 07-93-0203-CV.

Court of Appeals of Texas Amarillo.

June 17, 1994.

Rehearing Overruled Dec. 15, 1994.

Thomas S. McCorkle, Robert J. Reagan, Dallas, Elizabeth J. Redchuk, Flower Mound, for appellant.

Jenkens & Gilchrist, Charles A. Gall, James W. Bowen, Dallas, for appellees.

Before DODSON, BOYD and POFF, JJ.

POFF, Justice.

Appellant Charles Ben Howell, as dependent administrator of the estate of his deceased brother, Fredrick Lane Howell (Fredrick), brought suit against appellees in response to appellees' enforcement of the terms of a deed of trust executed by Fredrick. Appellant claimed that, for a variety of legal reasons, he was not subject to a due-on-sale clause contained in the deed of trust. Specifically, appellant sought a declaratory judgment cancelling the restrictions on the transfer of the property subject to the deed of trust. Appellant also sought an injunction requiring appellees to execute and record a release of restrictions and prohibiting appellees from representing that they had any right or power to prevent a sale or transfer of the subject property. Additionally, appellant pleaded for actual and exemplary damages occasioned by appellees' conduct.

Upon consideration of appellees' motion for summary judgment, the trial court granted summary judgment in favor of appellees. Appellees had advanced the following grounds in support of their summary judgment motion: (1) appellant is subject to the due-on-sale clause because the clause is a real covenant that runs with the land and is therefore binding on appellant; (2) appellant is subject to the due-on-sale clause because the deed of trust specifically binds the parties' successors and assigns; (3) the due-on-sale clause does not constitute an undue restraint on alienation and thus, appellant's claim that he is not bound by the clause because it is an undue restraint on alienation fails; and (4) the due-on-sale clause does not fail for lack of mutuality as alleged by appellant. The summary judgment order did not state the specific grounds upon which it was granted. By 25 points of error, appellant contends that the trial court erred in granting the summary judgment motion. For the reasons expressed below, we will affirm.

On January 3, 1984, Fredrick executed a deed of trust in favor of appellees ¹ to secure the renewal of a $129,750 purchase money loan on his Dallas residence located at 3780 Royal Lane. Fredrick died on September 15, 1986. Appellant was appointed administrator of Fredrick's estate. Claims against the estate amounted to at least $250,000. Unfortunately, the total value of personal property subject to administration was no more than $100,000. In order to complete the due administration of the estate, appellant determined that it was necessary to sell real property that had been acquired by Fredrick. Accordingly, appellant applied to the trial court for authority to sell the Royal Lane property as well as other properties. Upon finding it was in the best interest of the estate that the properties be sold, the trial court ordered that the Royal Lane property and the other properties be sold at a private sale. Pursuant to that court order, appellant actively offered the Royal Lane property for sale.

On July 18, 1988, appellant executed a written contract for the sale of the Royal Lane property to Robert and Mary Riggs. The sales price of the property was $235,000. The contract called for Mr. and Mrs. Riggs to assume the existing note, the principal balance of which was $126,000. Appellant agreed to finance the balance of $109,000. Accordingly, Mr. and Mrs. Riggs executed a $109,000 note in favor of appellant. The note was due and payable in full one year from the date of closing.

The sale of the property, however, was never closed. As mentioned earlier, there existed certain restrictions on the sale of the property pursuant to the terms of a deed of trust executed by Fredrick. The restrictions at issue are spelled out in Paragraph 17 of the deed of trust--the due-on-sale clause--which we set forth below.

17. Transfer of the Property; Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender's prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Deed of Trust, (b) the creation of a purchase money security interest for household appliances, (c) a transfer by devise, descent, or by operation of law upon the death of a joint tenant or (d) the grant of any leasehold interest of three years or less not containing an option to purchase, Lender may, at Lender's option, declare all the sums secured by this Deed of Trust to be immediately due and payable. Lender shall have waived such option to accelerate if, prior to the sale or transfer, Lender and the person to whom the Property is to be sold or transferred reach agreement in writing that the credit of such person is satisfactory to Lender and that the interest payable on the sums secured by this Deed of Trust shall be at such rate as Lender shall request. If Lender has waived the option to accelerate provided in this paragraph 17, and if Borrower's successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Deed of Trust and the Note.

In an effort to avoid the $126,000 balance becoming due and payable upon sale of the property, appellant requested appellees to execute a waiver of acceleration, i.e., appellant requested appellees to consent to a transfer of the property and agree not to declare the balance due and payable. The appellees refused to grant such a waiver. Nor did appellees waive their option to accelerate by coming to a written agreement with the Riggs that the Riggs' credit was satisfactory to them. Because of the possibility that appellees would accelerate the note if the sale was consummated, the sale of the property to the Riggs never occurred. ² Appellant then brought suit against appellees claiming that he was not subject to the due-on-sale clause.

Appellant has purported to advance an argument in support of his first four points of error. However, such argument only deals with point of error four. An argument in support of a point of error is required to include a "discussion of the facts and authorities relied upon as may be requisite to maintain the point at issue." Tex.R.App.P. 74(f). Failure to brief a point of error waives appellate review of that point. La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 568 (Tex.1984); Jones v. Texas Pac. Indem. Co., 853 S.W.2d 791, 796 (Tex.App.--Dallas 1993, no writ). Because appellant advances no argument in support of points of error one, two and three, those points of error are waived.

In his fourth point of error, appellant argues that the trial court erred in granting summary judgment because the Royal Lane property was under the control of the probate court in custodia legis. In other words, the property was "in the custody of the law." Black's Law Dictionary 346 (5th ed. 1979). Therefore, appellant contends, the Royal Lane property was subject to the sole control of the probate court. Appellant maintains that it is against public policy to allow appellees, on the strength of the due-on-sale clause, to thwart the probate court's attempt to have the property sold. Regardless of the due-on-sale clause, appellant asserts that "the power to decide if property under the Court's jurisdiction should be sold subject to or on assumption of outstanding indebtedness belongs to the Court, not to the lender."

It is undisputed that the due-on-sale clause was in full force and effect during Fredrick's lifetime. The question before us is whether the clause is equally enforceable against appellant as administrator of Fredrick's estate.

Appellant maintains that both the law and public policy excuse him from the constraints of the due-on-sale clause. Specifically, appellant points to Tex.Prob.Code Ann. § 348 (Vernon 1980) which states that upon order of the probate court "equity in land securing an indebtedness may be sold subject to such indebtedness, or with an assumption of such indebtedness, at public or private sale, as appears to the court to be for the best interest of the estate." Section 348 speaks to the right of the court to approve a credit sale. It does not empower the court to require a creditor to make a loan, extend a loan or make a loan assumable. Even so, appellant contends that by refusing to execute a waiver of acceleration, appellees have sought to place themselves above the court and that such refusal constitutes an usurpation of the court's power to determine the best interest of the estate.

Appellant relies on four cases as support for his contention that the specific provisions of the due-on-sale clause must give way to the power of the probate court to act in the best interest of the estate. Each of the four cases stands for the proposition that contractual provisions must yield to the probate court's control over a deceased's estate. None of the cases, however, are exactly on point.

In Universal Credit Co. v. Ratliff, 57 S.W.2d 238 (Tex.Civ.App.--Waco 1933, no writ), a certain D.R. Ratliff purchased a Ford truck for a down payment of $257.50 and the remainder to be paid in twelve equal monthly installments of $47. The sales contract provided that Ratliff was not to receive title to the truck until all sums due were paid. If all the sums were not timely paid, the seller was entitled to take back possession of the truck. After making two of the monthly payments, Ratliff died. The seller took possession...