Rooms with a View v. Privat Nat'l Mort.

• Decision Date: 09 December 1999
• Citation: 7 S.W.3d 840
• Parties: (Tex.App.-Austin 1999) Rooms With a View, Inc., a Texas Corporation, National Association of the Remodeling Industry-Houston Chapter, Inc., Appellants v. Private National Mortgage Association, Inc., d/b/a Pennie Mae, Appellee NO. 03-99-00231-CV
• Court: Texas Court of Appeals

Page 840

7 S.W.3d 840 (Tex.App.-Austin 1999)

Rooms With a View, Inc., a Texas Corporation, National Association of the Remodeling Industry-Houston Chapter, Inc., Appellants v. Private National Mortgage Association, Inc., d/b/a Pennie Mae, Appellee

NO. 03-99-00231-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

December 9, 1999

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT NO. 98-09772, HONORABLE PETE LOWRY, JUDGE PRESIDING

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Chief Justice Aboussie, Justices B.A. Smith and Yeakel

Bea Ann Smith, Justice

Rooms With A View, Inc. (Rooms), a home remodeler, sued appellee Private National Mortgage Association, Inc., d/b/a Pennie Mae (Pennie Mae) for declaratory relief, and the National Association of the Remodeling Industry-Houston Chapter, Inc. (NARI) intervened. Rooms and Pennie Mae filed motions for summary judgment; NARI filed a brief in support of Rooms' motion. The trial court denied Rooms' motion and granted final summary judgment in favor of Pennie Mae. Rooms and NARI (collectively Rooms) filed this appeal. We will overrule Rooms' issues on appeal and affirm the trial court's grant of summary judgment.

Background

In November 1997, Texas voters approved Proposition 8, which amended Article XVI, Section 50 of the Texas Constitution to allow homeowners voluntarily to encumber their homesteads with liens in exchange for extensions of credit, i.e., "home equity loans."¹ Proposition 8 also amended the constitution's provisions for imposing contractors' or mechanics' liens.

In 1998, Charles and Rebecca Barnett contacted Rooms about adding a glass-enclosed patio cover to their home. The Barnetts filled out a loan application with Pennie Mae on July 30, 1998, and on July 31, Pennie Mae indicated it would approve the loan. On August 12, twelve days after the Barnetts completed the loan application, they signed a contract for Rooms to install the patio cover for $8,085. The contract was signed at the offices of All American Title Services, a title abstractor that Rooms and the Barnetts believed to be a "title company" under the meaning of Proposition 8. On August 19, Pennie Mae declined to close the loan on the grounds that All American Title Services was an abstract office, not a title company as required by Proposition 8. Rooms sued Pennie Mae, seeking a declaration that Proposition 8 was unconstitutional.

Summary Judgment Standard of Review

Summary judgment is properly granted only when a movant establishes there are no genuine issues of material fact to be decided and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Memorial Med. Ctr. v. Howard, 975 S.W.2d 691, 692 (Tex. App.--Austin 1998, pet. denied). In reviewing the grant of summary judgment, we view the evidence in the light most favorable to the non-movant and make every reasonable inference and resolve all doubts in favor of the non-movant. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Howard, 975 S.W.2d at 693. When the trial court's order granting summary judgment does not specify the grounds relied upon, we will affirm the judgment if it is supported by any of the grounds put forth by the movant. See Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Howard, 957 S.W.2d at 693. When the trial court grants one party's motion for summary judgment and denies the other, we review both motions, and if we find the trial court erred, we will reverse and render the judgment the trial court should have rendered. See Bradley, 990 S.W.2d at 247; Howard, 957 S.W.2d at 693.

In reviewing both motions and all accompanying summary-judgment evidence, we will view the evidence and resolve all doubts in favor of Rooms. We will overturn the trial court's judgment in favor of Pennie Mae only if it is unsupported by any of the grounds put forth in its motion. See Bradley, 990 S.W.2d at 247; Howard, 957 S.W.2d at 693.

Discussion

I. Unconstitutionally vague

Rooms argues that the term "title company" in Proposition 8 is unconstitutionally vague in governing where home improvement contracts must be executed. We disagree.

In interpreting a constitutional provision, we start with the text of the provision. See Republican Party of Texas v. Dietz, 940 S.W.2d 86, 89 (Tex. 1997); Mellon Serv. Co. v. Touche Ross & Co., 946 S.W.2d 862, 867 (Tex. App.--Houston [14th Dist.] 1997, no writ). We use the same guidelines in interpreting constitutional provisions as we do in interpreting statutes. See Stine v. State, 908 S.W.2d 429, 431 (Tex. Crim. App. 1995); Mellon Serv. Co., 946 S.W.2d at 867. If the literal text is unclear or could lead to an absurd result, we may look outside of the language for aid in interpretation. See Mellon Serv. Co., 946 S.W.2d at 867. We consider the purpose of the provision, the intent of the provision's drafters, and the context in which it was written, including the legislature's practical interpretation and construction of the ambiguous term. See Dietz, 940 S.W.2d at 89; Mellon Serv. Co., 946 S.W.2d at 867. We may also consider dictionary definitions, earlier court opinions, and interpretations of similar provisions from other jurisdictions. See Dietz, 940 S.W.2d at 89; Mellon Serv. Co., 946 S.W.2d at 867-68.

We begin with the presumption that the legislature acted constitutionally in enacting the provision. See United States v. National Dairy Prod. Corp., 372 U.S. 29, 32 (1963); Travelers Indem. Co. v. Fuller, 892 S.W.2d 848, 850 (Tex. 1995). The party challenging a statute or constitutional provision bears the burden of establishing its unconstitutionality. See Travelers Indem. Co., 892 S.W.2d at 850.

A statute is unconstitutionally vague if it (1) does not give fair notice of what conduct may be punished, and (2) invites arbitrary and discriminatory enforcement by its lack of guidance for those charged with its enforcement. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982); Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex. 1998). A statute is not automatically void for vagueness simply because it is difficult to determine whether certain "marginal" acts fall within its language. See Pennington v. Singleton, 606 S.W.2d 682, 689 (Tex. 1980). Nor is there a constitutional requirement that a statute define all words or terms used. See Garay v. State, 940 S.W.2d 211, 219 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). Courts recognize the myriad of factual situations that may arise and allow statutes to be worded with flexibility, provided the public has fair notice of what is required or prohibited. See Pennington, 606 S.W.2d at 689. In the case of civil or regulatory statutes, no more than a reasonable degree of certainty is required. See id.

Applying these principles, we reject Rooms' claim that the absence of a definition of "title company" renders Proposition 8 void for vagueness.² Instead, we seek to dispel any uncertainty by defining "title company" as used in Proposition 8.

Texas case law makes frequent use of the term "title company," but does not clearly distinguish between "title company" and "title insurance company."³ A "title company" may be an agent for a title insurance company and may solicit insurance, collect premiums, issue policies, and perform other related services, such as title searches and surveys. See Cameron County Sav. Ass'n v. Stewart Title Guar. Co., 819 S.W.2d 600, 602 (Tex. App.--Corpus Christi 1991, writ ref'd n.r.e.).⁴

Courts and the insurance industry also use "title company" interchangeably with "title insurance company." See, e.g., J.H. Lacy v. Ticor Title Ins. Co., 794 S.W.2d 781, 783 (Tex. App.--Dallas 1990, writ denied); Jupe v. City of Schertz, 604 S.W.2d 405, 406 (Tex. Civ. App.--San Antonio 1980, writ ref'd n.r.e.); Appleman § 5205, at 26 ("When a title company insures the owner's title to property," it insures the title and assumes liability for title defects) (emphasis added).⁵

While "title company" and "title insurance company" are interchangeable, courts generally distinguish them from companies doing only title abstractions. See, e.g., Martinka v. Commonwealth Land Title Ins. Co., 836 S.W.2d 773, 777 (Tex. App.--Houston [1st Dist.] 1992, writ denied); Stewart Title Guar. Co. v. Cheatham, 764 S.W.2d 315, 319 (Tex. App.--Texarkana 1988, writ denied). An abstractor compiles data, allowing an examiner to evaluate the title's legal status. See Tamburine v. Center Sav. Ass'n, 583 S.W.2d 942, 947 (Tex. Civ. App.--Tyler 1979, writ ref'd n.r.e.). A title insurer guarantees the title's status and insures owners against possible title defects. See Martinka, 836 S.W.2d at 777.

A company calling itself an abstract company may go beyond performing title abstractions by also acting as an agent for a title insurer, issuing policies or doing other related activities. See, e.g., Stewart Title Guar. Co. v. City Nat'l Bank, 796 S.W.2d 308, 310 (Tex. App.--Eastland 1990, no writ); Lathen v. Richey, 772 S.W.2d 249, 252 (Tex. App.--Dallas 1989, writ denied).⁶

We note that while Proposition 8's legislative history does not discuss the meaning of "title company," the legislative history for Committee Substitute for House Bill 740 ("CSHB 740"), titled "An Act Relating to Mechanics', Contractors', and Materialmen's Liens; Providing Penalties," provides some insight. See Act of May 19, 1997, 75th Leg., R.S., ch. 526, 1997 Tex. Gen. Laws 1880. Although CSHB 740 did not concern home equity loans, it concerned mechanics' liens, an issue related to those addressed by Proposition 8, and it passed during the same legislative session as Proposition 8 in the spring of 1997. The Committee of Business and Industry's report on CSHB 740 says, "[A] party acquiring an interest in the property (a purchaser or lender) or a party insuring title to the property (a title company) may rely on the filing of the bond...