Lowe v. Farm Credit Bank Texas, No. 04-98-00647-CV

CourtCourt of Appeals of Texas
Writing for the CourtPHIL HARDBERGER
Citation2 S.W.3d 293
Docket NumberNo. 04-98-00647-CV
Decision Date27 January 1999
Parties(Tex.App.-San Antonio 1999) Janis LOWE f/k/a Janis Bloodworth, Appellant v. FARM CREDIT BANK OF TEXAS f/d/b as Federal Land Bank of Texas, Appellee & 04-98-00649-CV Delivered and Filed:

Page 293

2 S.W.3d 293 (Tex.App.-San Antonio 1999)
Janis LOWE f/k/a Janis Bloodworth, Appellant
v.
FARM CREDIT BANK OF TEXAS f/d/b as Federal Land Bank of Texas, Appellee
No. 04-98-00647-CV & 04-98-00649-CV
In the Fourth Court of Appeals of San Antonio
Delivered and Filed: January 27, 1999
Rehearing Overruled: Aug. 26, 1999

From the 38th Judicial District Court, Real County, Texas Trial Court No. 97-08-02138-CV, Honorable Mickey R. Pennington, Judge Presiding1

AFFIRMED IN PART; DISMISSED IN PART

Page 294

Sitting: Phil Hardberger, Chief Justice Catherine Stone, Justice Karen Angelini, Justice

Opinion by: Phil Hardberger, Chief Justice

Appellant, Janis Lowe f/k/a Janis Bloodworth ("Lowe"), appeals a summary judgment denying her petition for bill of review. Lowe also brings an accelerated appeal from the trial court's denial of a temporary injunction. We consolidated the two appeals for briefing and argument. Lowe asserts eight issues in her brief relating to the following contentions: (1) the trial court erred in granting summary judgment in favor of Farm Credit Bank f/k/a Federal Land Bank ("Bank"); (2) the trial court erred in denying Lowe's motion for partial summary judgment based on absence of service; (3) the trial court abused its discretion in awarding the Bank attorney's fees; and (4) the trial court abused its discretion in denying Lowe injunctive relief. We affirm the trial court's judgment in favor of Bank, and we dismiss the interlocutory appeal from the trial court's denial of injunctive relief as moot.

Factual and Procedural History

In March of 1982, Lowe, Winston O. Bloodworth, Jr. ("Bloodworth"), and T.A.A.S., Inc. executed a note payable to the Bank in the original principal amount

Page 295

of $477,000. The Bank was granted a lien against real property owned by T.A.A.S. to secure the note. At the time of the transaction, fifty percent of T.A.A.S.'s stock was owned by Lowe, and fifty percent was owned by Bloodworth. Lowe contends that the Bank, the abstract title company closing the transaction, and Bloodworth represented that the pledged property included an improved 19.09 acre tract; however, the Bank failed to take a lien on that tract.

In October of 1985, Lowe and Bloodworth divorced. Bloodworth received Lowe's stock in T.A.A.S. as part of the property settlement. Lowe contends that she notified the Bank of her name and address change in September of 1988.

Sometime after the divorce, the note went into default, and the Bank foreclosed its lien on the property pledged as security. In 1986, Bloodworth filed bankruptcy, and he received a discharge on March 24, 1997. On January 30, 1990, the Bank obtained a summary judgment against Lowe, Bloodworth, and T.A.A.S. for the deficiency that remained due on the note after the foreclosure. The judgment was in the amount of $47,930.48, with post-judgment interest to accrue at 14.25% per annum.

Lowe contends that she never received any notices relating to the default of the note or the foreclosure, and she was never served with process in the action for the deficiency. Although the judgment recites that an answer was filed on Lowe's behalf, the attorney who filed the answer, Howard L. Pyland, admits that he never spoke with Lowe and was under the impression that Lowe and Bloodworth were married when he was retained by Bloodworth to file the answer. Furthermore, the Bank's documents reflect that notice was sent to Lowe at Bloodworth's home, rather than her new address which she claimed to have given the Bank. Lowe asserts that her first notice of the actions taken by the Bank was a demand letter sent by the Bank's attorney dated May 16, 1997. Since no payments had been made on the judgment, the amount due and owing on that date was $131,259.15. The letter indicated that the Bank would levy on real property owned by Lowe in Galveston County, Texas, if Lowe failed to immediately pay the deficiency.

In August of 1997, Lowe filed her original petition for bill of review and application for temporary restraining order, temporary injunction, and permanent injunction. The Bank filed a motion for summary judgment, asserting that the bill of review constituted a collateral attack because Lowe had failed to join Bloodworth and T.A.A.S. as necessary parties. Lowe filed a response and a motion for partial summary judgment, contending that the deficiency judgment should be set aside as to her based on the absence of service. Lowe filed an affidavit stating that: (1) she was without notice of the deficiency suit; (2) she did not authorize Pyland to file an answer on her behalf; and (3) she was not served with process. The Bank attached Bloodworth's affidavit to its response in which Bloodworth states that he informed Lowe of the default and potential foreclosure in September of 1988, and after he was served with process in the deficiency suit, he notified Lowe and indicated that he would hire a lawyer.

By the time of the summary judgment hearing, Lowe had amended her petition, adding Bloodworth and Bloodworth's chapter 7 trustee, Robbye Waldron, as potential parties; however, the petition states that no citation against Bloodworth or Waldron is requested. Lowe also had filed a motion to reopen the bankruptcy estate in order to add Bloodworth as a party. The bankruptcy judge denied the motion, stating that the discharge relieved Bloodworth of any personal liability and the motion failed to name Waldron as a party for purposes of determining whether the claim for setting aside the deficiency judgment was an asset of the estate. Waldron also filed an affidavit in his capacity as trustee, stating that he abandoned any interest

Page 296

in any potential recovery relating to the claim.

On May 1, 1998, the trial court entered an order denying Lowe's motion for partial summary judgment. The trial court also entered a final summary judgment, ordering that Lowe take nothing against the Bank and awarding the Bank attorney's fees. Lowe's motion for reconsideration was denied.

On July 20, 1998, Lowe moved for a severance to sever her wrongful foreclosure claim and claims for injunctive relief from the bill of review. The trial court set the hearing on the temporary injunction for July 24, 1998. On the day of the hearing, Lowe filed a supplemental original petition because the petition on file at the time of the hearing did not contain any pleadings to support injunctive relief. The trial court denied the severance and the request for injunctive relief.

Lowe appeals both the summary judgment denying her petition for bill of review and the trial court's order denying injunctive relief.

Summary Judgment Standard of Review

Since both parties moved for summary judgment in the instant case, each party was required to carry his or her own burden of establishing a right to judgment. Brooks County Cent. Appraisal Dist. v. Tipperary Energy Corp., 847 S.W.2d 592, 594 (Tex. App.--San Antonio 1992, no writ). This initial burden requires the movant to show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In determining whether a material fact issue exists to preclude summary judgment, evidence favoring the non-movant is taken as true, and all reasonable inferences are indulged in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d at 548-49; see also Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Any doubt is resolved in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d at 548-49; see also Doe, 907 S.W.2d at 477.

Bill of Review

In its motion for summary judgment, the Bank asserted that Lowe's bill of review was a collateral attack on the deficiency judgment because Lowe failed to join Bloodworth and T.A.A.S. as necessary parties. In her brief, Lowe contends that Bloodworth and T.A.A.S. are not necessary parties because: (1) Bloodworth was discharged from any liability through bankruptcy; (2) the bankruptcy court refused to reopen the bankruptcy to pursue the bill of review; (3) Waldron abandoned any interest in the claim; and (4) T.A.A.S. had forfeited its corporate charter. The Bank responds that the abandonment of the claim by Waldron resulted in title to the claim being returned to Bloodworth, and since Lowe's prayer for relief seeks to set aside the foreclosure, T.A.A.S. is a...

To continue reading

Request your trial
16 practice notes
  • In re Perry, No. 02-50448.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 4, 2003
    ...been voluntarily dissolved. A corporation is not considered "defunct" or "dead" until it is dissolved. Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 297 (Tex.App.1999). Texas law provides for voluntary dissolution only through the execution and filing of articles of dissolution with the ......
  • Deangelis v. Protective Parents Coal., NO. 02-16-00216-CV
    • United States
    • Court of Appeals of Texas
    • August 2, 2018
    ...fees for all work expended, including that on appeal, if such should be necessary"); see also, e.g. , Lowe v. Farm Credit Bank of Texas , 2 S.W.3d 293, 299 (Tex. App.—San Antonio 1999, pet. denied) (stating that the focus of Meece is "whether the statute authorizing the recovery of attorney......
  • In re Seminole Walls & Ceilings Corp., Bankruptcy No. 6:01-bk-01966-KSJ.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Middle District of Florida
    • April 2, 2007
    ...possessed by the debtor and distribute the proceeds for the benefit of unsecured creditors); See also, Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293 (Tex. App.-San Antonio, 1999) (Beneficial title to dissolved corporation's assets rests in shareholders); El T. Mexican Restaurants, Inc. v.......
  • Curtis v. State, No. 25319.
    • United States
    • United States State Supreme Court of South Carolina
    • July 17, 2001
    ...injunction is moot where a trial court renders final judgment while the appeal is pending. See Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293 (Tex.Ct.App.1999); Save Our Springs Alliance v. Austin Indep. Sch. Dist., 973 S.W.2d 378 (Tex.Ct.App.1998) (trial court's final judgment rendered th......
  • Request a trial to view additional results
16 cases
  • In re Perry, No. 02-50448.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 4, 2003
    ...been voluntarily dissolved. A corporation is not considered "defunct" or "dead" until it is dissolved. Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 297 (Tex.App.1999). Texas law provides for voluntary dissolution only through the execution and filing of articles of dissolution with the ......
  • Deangelis v. Protective Parents Coal., NO. 02-16-00216-CV
    • United States
    • Court of Appeals of Texas
    • August 2, 2018
    ...fees for all work expended, including that on appeal, if such should be necessary"); see also, e.g. , Lowe v. Farm Credit Bank of Texas , 2 S.W.3d 293, 299 (Tex. App.—San Antonio 1999, pet. denied) (stating that the focus of Meece is "whether the statute authorizing the recovery of attorney......
  • In re Seminole Walls & Ceilings Corp., Bankruptcy No. 6:01-bk-01966-KSJ.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Middle District of Florida
    • April 2, 2007
    ...possessed by the debtor and distribute the proceeds for the benefit of unsecured creditors); See also, Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293 (Tex. App.-San Antonio, 1999) (Beneficial title to dissolved corporation's assets rests in shareholders); El T. Mexican Restaurants, Inc. v.......
  • Curtis v. State, No. 25319.
    • United States
    • United States State Supreme Court of South Carolina
    • July 17, 2001
    ...injunction is moot where a trial court renders final judgment while the appeal is pending. See Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293 (Tex.Ct.App.1999); Save Our Springs Alliance v. Austin Indep. Sch. Dist., 973 S.W.2d 378 (Tex.Ct.App.1998) (trial court's final judgment rendered th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT