R. Hahn v. R. Love
| Decision Date | 12 December 2009 |
| Docket Number | No. 01-07-00096-CV.,01-07-00096-CV. |
| Parties | Allon R. HAHN, Individually and d/b/a Hahn's Gulf Service, Appellant, v. Bertrand R. LOVE, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
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J. Richard Hall, Ross, Banks, May, Caron & Cabin, P.C., Houston, TX, for Appellant.
Charles E. Fitch, Law Office of Charles E. Fitch, P.C., Samuel Lee Milledge, The Milledge Law Firm, P.C., Houston, TX, for Appellee.
Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.
We withdraw our November 6, 2008 opinion and judgment and issue the following in its stead. See Tex.R.App. P. 50.
Appellee Bertrand R. Love, the purchaser of a property located in Harris County, Texas, intervened in a lawsuit between appellant, Allon R. Hahn, individually and d/b/a Hahn's Gulf Service (collectively, “Hahn”), and Mid-Town Roofing and Construction, Inc. (“Mid-Town”), seeking to enjoin Hahn from carrying out an execution sale on the property to satisfy a judgment lien against a third-party, O'Neal Session, and to remove Hahn's claims as a cloud on the title. The trial court granted Love's motion for summary judgment, removing Hahn's claims as a cloud on Love's title and dismissing Hahn's counter-claims for fraudulent transfer and constructive trust against Love. Hahn appeals, contending in five issues that (1) a general warranty deed transferring the property from Session to Mid-Town, dated April 2002, after the expiration of Hahn's judgment lien, and recorded January 2004, two days prior to revival of the judgment, is void as a matter of law because the description of the land is legally inadequate; (2) Hahn's second abstract of judgment, filed in March 2004, after his revival of the judgment, attached to the property because no prior valid deed transferred the property from Session; (3) genuine issues of material fact exist as to whether Session fraudulently conveyed the property to Mid-Town and as to Love's good faith and notice of the alleged fraudulent transfer when he purchased the property in April 2004, hence as to Love's entitlement to summary judgment on Hahn's fraudulent transfer claims against him and on Love's suit to remove the cloud from his title; (4) a legal basis for a constructive trust exists against Love; and (5) the trial court erred in permitting Love to file his motion for summary judgment after the deadline in the docket control order had passed.
We reverse and remand.
On October 20, 1988, Hahn won a judgment against O'Neal Session, C.J. Foreman, and Roofs by C.J., jointly and severally, for $77,136.05 plus interest. On April 16, 1992, Hahn filed an abstract of judgment, but the defendants in the 1988 judgment had no assets to seize at that time. Then, in August 2001, the property that is the subject of this suit was conveyed to O'Neal Session. 1 Hahn's judgment lien automatically attached to the property by virtue of a properly recorded and indexed abstract of judgment. 2 Hahn's judgment lien expired on April 16, 2002, however, and his judgment against Session, Foreman, and Roofs by C.J. became dormant. 3
On April 26, 2002, ten days after Hahn's judgment lien expired, Session purportedly conveyed the property to Mid-Town, an entity that Hahn contends is owned and operated by members of Session's immediate family, specifically Pamela Session and Toshoner Session Egans. This transfer was not recorded until January 2004.
In August 2003, after the purported execution of the 2002 deed conveying the property to Mid-Town, O'Neal Session and his wife Myria entered into a contract to sell the property to Walter Strickland for $350,000. Real estate broker Herman Gary was involved in this deal on behalf of Strickland, the purchaser. The deal to sell the property to Strickland fell through on December 2, 2003, when Fidelity National Title Company sent the title commitment to Session and Strickland and requested payoff of Hahn's judgment lien and the Sessions refused to pay the amount of the judgment lien from the proceeds.
On December 10, 2003, Hahn filed a motion to revive his judgment against Session and sent notice of the hearing to the Sessions.
On January 7, the Sessions and Strickland signed another earnest money contract to convey the property to Strickland for $450,000 and delivered the contract to American Title for closing. This time, Gary acted as broker on behalf of the Sessions.
On January 21, 2004, a General Warranty Deed reflecting the conveyance of the property from Session to Mid-Town on April 26, 2002 was recorded (the “2002 deed”). That deed lacked a metes and bounds description of the property.
Two days later, on January 23, 2004, following a hearing, Hahn obtained an order for the revival of his 1988 judgment against O'Neal Session, C.J. Foreman, and Roofs by C.J. 4 Hahn's lawyer testified by affidavit:
I filed the motion to revive the judgment and served scire facias on Mr. O'Neal Session by Certified Mail, Return Receipt Requested.... On the date of the hearing before Judge Ken Wise, Mr. Session, Pamela Session, and [her lawyer] appeared and asked the Judge for more time to respond to the motion.
They did not announce that two days before they [had] recorded a deed of the subject property from the Sessions to Mid-Town dated almost two years earlier.
On March 1, 2004, Hahn filed for record a second abstract of judgment, again listing O'Neal Session, C.J. Foreman, and Roofs by C.J. as the judgment debtors and creating a judgment lien against their real property.
On March 3, 2004, two days after Hahn refiled his abstract of judgment against O'Neal Session, Session executed a correction deed to clarify the April 26, 2002 conveyance of the property from himself to Mid-Town, which was filed on March 15, 2004. The correction deed added a metes and bounds description of the property.
In support of his motion for summary judgment, Love testified by affidavit that “shortly before April 14, 2004” he received a telephone call from Gary, the real estate broker who had initially represented Strickland and then the Sessions in the two attempted 2003 sales of the property by the Sessions to Strickland. Gary indicated that the property was available for purchase and that Love “would have to act relatively fast because the initial purchaser under a contract could not qualify to close and the contract was about to expire.” Love further testified by affidavit that, “[a]ccording to Mr. Gary, if [the contract expired] then the property would go back on the market.” Love testified by affidavit that, based on the success of his past dealings with Gary, he was interested in the investment opportunity and that he proceeded to purchase the property. Love sent a cashier's check for $448,587.13 to American Title Company, and Gary took the necessary closing documents for Love to sign in New Orleans, Louisiana.
A few days later, on April 14, 2004, the transaction closed, and Mid-Town executed a deed that conveyed the property to Love. This deed was recorded on April 16, 2004.
In August 2004, Hahn attempted to proceed with an execution sale of the property to satisfy his judgment against Session. Mid-Town sued Hahn, seeking a temporary restraining order and a temporary and permanent injunction prohibiting the execution sale of the property. Love intervened in the suit, seeking an injunction prohibiting the sale of the property and seeking to remove the cloud from his title.
Hahn filed counter-claims against Mid-Town and Love and a third-party action against Session, his wife Myria Mae Session, and other members of the Session family, Pamela Session and Toshoner Session Egans, seeking a declaratory judgment that he had a valid lien against the property. Specifically, Hahn asked for a judgment declaring (1) that the conveyances of the property from Session to Mid-Town and from Mid-Town to Love were both void as fraudulent conveyances under Chapter 24 of the Texas Business and Commerce Code; (2) that the March 1, 2004 judgment lien attached to the property because the 2002 deed was void for lack of a sufficient legal description at the time the second abstract of judgment was filed for record; and (3) that the April 14, 2004, conveyance of the property from Mid-Town to Love was subject to Hahn's judgment lien and to the imposition of a constructive trust because Love was not a bona fide purchaser for value, in good faith, and without notice of Hahn's interest in the property. Hahn also sought an execution sale to satisfy the judgment lien and a money judgment for assets that had been fraudulently transferred.
On July 11, 2005, Love filed a motion for summary judgment, which he supplemented on May 12, 2006. On June 2, 2006, Love filed an amended motion for summary judgment, requesting that the trial court remove Hahn's claims as a cloud on Love's title to the property and that Hahn take nothing against him. Love contended that “no judgment lien existed that attached to the Property at the time Love acquired it” or thereafter. Rather, he contended that he took the property by a general warranty deed from Mid-Town, which had taken the property in 2002 by a valid general warranty deed unencumbered by Hahn's judgment lien, which had expired, and, therefore, the cloud on his title should be removed and he should be dismissed from the suit. Love also claimed that he was entitled as a matter of law to summary judgment on Hahn's fraudulent transfer claims and to removal of the cloud from his title because he was a bona fide purchaser of the property for value, in good faith, and without notice under section 24.009(a) of the Texas Business and Commerce Code 5 and under section 13.001 of the Property Code. 6 Therefore, Hahn was entitled to take nothing from him with respect to those claims.
Love's motion for summary judgment was filed as both a traditional and no-evidence...
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