Sanchez v. Telles

• Decision Date: 15 August 1997
• Docket Number: No. 08-96-00241-CV,08-96-00241-CV
• Citation: 960 S.W.2d 762
• Parties: Gilberto SANCHEZ, Appellant, v. Raymond TELLES d/b/a Raymond Telles Bail Bonds, Appellee.
• Court: Texas Court of Appeals

Page 762

960 S.W.2d 762

Gilberto SANCHEZ, Appellant, v. Raymond TELLES d/b/a Raymond Telles Bail Bonds, Appellee.

No. 08-96-00241-CV.

Court of Appeals of Texas El Paso.

Aug. 15, 1997.

Rehearing Overruled Sept. 11, 1997.

Alejandro Soto, El Paso, for appellant.

James K. Read, El Paso, for appellee.

Before BARAJAS, C.J., and LARSEN and CHEW, JJ.

OPINION

BARAJAS, Chief Justice.

This is an appeal from a summary judgment granted to Appellee, Raymond Telles, concerning the transfer of real property. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

A. Factual History

On February 12, 1992, Manuela Montoya Yanez, pledged a parcel of real property to Appellee as collateral for two bail bonds on Francisco Javier Hirales, in the sum of $30,000. Montoya is the mother-in-law of Hirales. On the same date that the real property was pledged, Montoya signed a deed of trust as principal guaranteeing her son-in-law's appearance in court to face criminal charges. The deed of trust was to secure a note to Appellee.

At the time Montoya executed the deed of trust and note, she was the record owner of the property. She did not claim the property as her homestead, nor was there ever filed of record any designation of homestead concerning the property in question. The deed of trust signed by Montoya included the following provision:

GRANTORS EXPRESSLY REPRESENT THAT THE PROPERTY HEREINABOVE MENTIONED AND CONVEYED TO THE TRUSTEE FORMS NO PART OF ANY PROPERTY, OWNED, USED OR CLAIMED BY GRANTORS AS EXEMPTED FROM FORCED SALE UNDER THE LAWS OF THE STATE OF TEXAS, AND GRANTORS RENOUNCE ALL AND EVERY CLAIM THERETO UNDER ANY SUCH LAW OR LAWS. THIS IS NOT MY HOMESTEAD.

Hirales failed to appear in Court to face his criminal charges, defaulted on his bonds, resulting in bonds being forfeited.

Subsequent to the bond forfeiture, Montoya signed a power of attorney naming her daughter, Sandra Luz Antillion Hirales, the wife of F. Hirales. The power of attorney was filed of record. Sandra Hirales then sold the property to Appellant on April 25, 1992. While the deed recites that the grantor is Manuela Montoya Yanez, the signature of Montoya does not appear anywhere on the deed. The signature of Sandra Hirales, attorney of fact for Montoya, does not appear on the deed either. The only signature appearing on the transfer instrument is that of Appellant. Appellant's signature appears on the space provided for the signature of the grantor. In fact, Appellant testified under oath at deposition that it was his signature on the purported deed dated April 25, 1992. The transfer instrument does not contain the signatures of any witnesses. This instrument also contains a notary's signature that is illegible and does not have the person's name who took the acknowledgment printed on the instrument. This purported deed was recorded May 7, 1992. Appellee's deed of trust was recorded on May 21, 1992.

On October 5, 1993, subsequent to default on the note, Appellee purchased the subject property for the sum of $36,000. The trustee's deed was recorded on October 7, 1993. The trustee then executed a "correction deed" on November 9, 1993 which corrected the name of the grantee at the trustee's sale from "Raymond Telles Bail Bonds" to "Raymond Telles, d/b/a Raymond Telles Bail Bonds."

On December 10, 1994, Sandra Hirales, as attorney-in-fact for Montoya, executed a correction warranty deed to Appellant for the property. It was recorded on December 15, 1994. The correction was that by error or mistake the signature of the grantee was affixed in place of that of the grantor, and that the correction deed is made by the grantor and accepted by the grantee in order to correct the mistake. This was done subsequent to the recordation of the deed of trust from Montoya to Appellee, the purchase at the trustee's sale and the trustee's correction deed, and after the litigation had already begun.

Appellee alleges that Sandra Hirales, the attorney in fact for Manuela Montoya Yanez, had actual notice of the pre-existing deed of trust to Appellee, because she not only executed a real estate lien note on the same date as the deed of trust, February 12, 1992, but she was the spouse of F. Hirales the person for whom the bail bond was issued and for whom the subject property was pledged.

B. Procedural History

In the proceedings below, Appellee sought to set aside the purported conveyance of the subject property to the Appellant and to gain possession of the subject property. Appellant Sanchez affirmatively defended as a bona fide purchaser without notice. Sanchez also cross-claimed in a suit to quiet title, repeating the issue of bona fide purchaser and claiming that at the time Appellee acquired his deed of trust, the property was the homestead of the grantor, Montoya, and as a result, alleged that the deed of trust was invalid and void.

Appellee filed two motions for summary judgment, which were both answered by Appellant, and Appellant filed his own motion for summary judgment in favor of his cross-claim based on the issue of homestead. The trial court granted Appellee's second motion for summary judgment finding that the evidence raised by Telles' second motion for summary judgment and uncontroverted by Appellant's response was clear, positive and direct, and otherwise credible and free from contradiction and inconsistencies, and could have been readily controverted. The court also found that there was no genuine issue of fact and that Appellee is entitled to judgment on his claim as a matter of law. The court also found that Appellant had no title to the property and that any deed showing he is the owner of the property is null and void. Finally, the court denied Appellant's motion for summary judgment and assessed all costs of court against Appellant.

Appellant then filed a motion for new trial following the summary judgment which was denied. Appellant now brings this appeal.

II. DISCUSSION

Appellant brings three points of error alleging the trial court erred in granting the summary judgment. We begin with the standard of review for summary judgments.

A. Standard of Review

The standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.--El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex.1970).

In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co., 884 S.W.2d 206, 208 (Tex.App.--El Paso 1994, writ denied). Where the defendants are the movants and they submit summary judgment evidence disproving at least one essential element of each of plaintiff's causes of action, then summary judgment should be granted. Perez, 819 S.W.2d at 471; Bradley v. Quality Serv. Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d at 469.

B. Appellant's Points of Error

Appellant's Point of Error No. One avers that the trial court erred in granting summary judgment to Raymond Telles because Gilberto Sanchez was a bona fide purchaser without notice. We disagree.

Section 5.021, entitled Instrument of Conveyance, states, "A conveyance of an estate of inheritance, a freehold, or an estate for more than one year, in land and tenements, must be in writing and must be subscribed and delivered by the conveyor or by the conveyor's agent authorized in writing." TEX. PROP.CODE ANN. § 5.021 (Vernon 1984). The Court in Williams v. Jennings, found, "The Texas Property Code requires that a conveyance of land must be in writing and must be subscribed and delivered by the conveyor.... Without such formalities, deeds could be changed at will without the knowledge of some parties." 755 S.W.2d 874, 879-80 (Tex.App.--Houston [14th Dist.] 1988). The Texas Property Code also provides for the recording of real property transfers and limits the validity of unrecorded instruments as follows:

A conveyance of real property or an interest in real property or a mortgage or deed of trust is void as to a creditor or to a subsequent purchaser for a valuable consideration without notice unless the instrument has been acknowledged, sworn to, or proved and filed for record as required by law.

TEX.PROP.CODE ANN. § 13.001(a) (Vernon 1984 and Supp.1997); Prowse v. Walters, 941 S.W.2d 223, 227-28 (Tex.App.--Corpus Christi 1996, n.w.h.). This statute, through various transmutations in enumeration, has been a part of our jurisprudence since before Texas was a state. Gibralter Sav. Ass'n v. Martin, 784 S.W.2d 555, 557 (Tex.App.--Amarillo 1990, writ denied). All of the transmutations of the statute are so similar in all material respects to the present one as to make decisions under those predecessors relevant. Martin, 784 S.W.2d at 557.

Texas law has long favored the purpose of recording acts, which make land title information available to interested persons. City of Richland Hills v. Bertelsen, 724 S.W.2d 428, 429-30 (Tex.App.--Fort Worth 1987, no writ), citing Leonard v. Benford Lumber Co., 110 Tex. 83, 216 S.W. 382, 383 (1919); Hancock v. Tram Lumber Co., 65 Tex. 225, 232 (1885). In Anderson v. Barnwell, 52 S.W.2d 96, 101 (Tex.Civ.App....