Valley Intern. Properties, Inc. v. Brownsville Sav. and Loan Ass'n, 1352

• Decision Date: 19 April 1979
• Docket Number: No. 1352,1352
• Citation: 581 S.W.2d 222
• Parties: VALLEY INTERNATIONAL PROPERTIES, INC., Appellant, v. BROWNSVILLE SAVINGS AND LOAN ASSOCIATION et al., Appellees.
• Court: Texas Court of Appeals

Page 222

581 S.W.2d 222

VALLEY INTERNATIONAL PROPERTIES, INC., Appellant, v. BROWNSVILLE SAVINGS AND LOAN ASSOCIATION et al., Appellees.

No. 1352.

Court of Civil Appeals of Texas, Corpus Christi.

April 19, 1979.

Rehearing Denied May 17, 1979.

Joel W. Cook, Houston, Joseph A. Cohn, Jr., Corpus Christi, for appellant.

Joel William Ellis, Harlingen, for appellees.

OPINION

YOUNG, Justice.

This is an appeal from a suit brought by Bill Bass and appellant, Valley International Properties, Inc. against C. Fount Ray, and appellees. Brownsville Savings & Loan Association, and Los Campeones, Inc., seeking 1) to have a trustee's sale declared void and to have certain deeds issued at this sale cancelled and 2) to recover damages for breach of fiduciary duty in the conduct of the trustee's sale. Much of the background of this suit is explained in our earlier decision, Valley International Properties, Inc. v. Los Campeones, Inc., 568 S.W.2d 680 (Tex.Civ.App. Corpus Christi, 1978, writ ref'd n. r. e.). Briefly, Brownsville Savings, mortgagee herein, loaned several million dollars secured by deeds of trust to V.I.P. for the purchase of golf course facilities in Cameron County, Texas. V.I.P. defaulted on the obligation and the trustee's sale complained of below and here followed. After the sale, V.I.P. and Bass brought suit alleging that C. Fount Ray, as Trustee, Brownsville Savings, and Los Campeones, had conspired to prevent purchasers from attending the trustee's sale which was held June 7, 1977; and that Ray had breached his fiduciary duty to V.I.P. by advertising that the sale would be for cash only and requiring bidders to pay cash for properties bid upon, while Brownsville Savings extended credit to Los Campeones which was thereby able to purchase and did purchase all the properties sold at the trustee's sale.

In response to these allegations, Brownsville Savings and Los Campeones filed a plea in abatement and answer in which they denied these allegations. Their reply stated, among other things, that Brownsville Savings had credited V.I.P.' § debt for all the amounts Los Campeones bid at the sale; that V.I.P. had abandoned the golf course facility prior to the foreclosure sale; that, thus, in essence Los Campeones and Brownsville Savings were "mortgagees in possession" of the golf course properties and that the suit should be dismissed for the failure of V.I.P. to tender or show a willingness to tender the debt. See Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 1083 (Tex.Com.App.1938, opinion adopted); 39 Tex.Jur.2d rev., Mortgages and Trust Deeds §§ 86, 87, 196 (1976).

Brownsville Savings and Los Campeones also filed a motion for summary judgment claiming the absence of any issues of material fact, failure to state a claim, and, again, abandonment of the disputed property. Following these pleas, V.I.P. and Bass filed a second amended original petition which generally admitted that at some time prior to the trustee's sale herein, Los Campeones and Brownsville Savings took possession of the Country Club facilities herein.

The above plea in abatement and motion for summary judgment were set for hearing on December 22, 1977. During this hearing, a transcription of which is a part of the record herein, the trial judge, on his own motion, stated that in his opinion the issues of the instant case had been decided in the Valley International Properties v. Los Campeones, supra, case. Accordingly, he stated that he would dismiss the case as to Brownsville Savings and Los Campeones and would sever the cause against C. Fount Ray. The trial judge also engaged in the following discussion with Joel Ellis, attorney for V.I.P. and Bass:

"The Court: Let me ask you this, Mr. Ellis: . . . let us say for the sake of speaking, say there might have been fraud exercised where you were denied your due process; are you in position now to pay the entire balance?

My recollection is the plaintiff was the one who filed for bankruptcy.

Mr. Ellis: The plaintiff did file for bankruptcy, Your Honor, Chapter XI, and The plaintiff is not in position to pay the entire balance, but it is our position that if the sale were set aside, ultimately set aside in a full trial, Your Honor, that the sale should be re-held, and it's our position that the values received at that sale would be more than the values received at the other sale by reason of the conspiracy or the plan, scheme, and design under which the original sale was held." (Emphasis supplied).

Judgment dismissing appellant's and Bass' case with prejudice was signed on December 30, 1977. Within the judgment three reasons were expressed for the court's dismissal of the case:

"(1) And it appearing to the court that all issues in this case have been previously decided, . . . (2) and the Court having found as a matter of fact that Bill D. Bass and Valley International Properties, Inc. did not have the ability to pay the debt to Brownsville Savings and Loan Association and (3) further being of the opinion from the record in said prior cause . . . and from the pleadings and motions on file herein, that said Plaintiffs have no issue requiring further consideration by the Court in the cause remaining unsevered herein:

IT IS ACCORDINGLY ORDERED, . . . that the cause of action . . . against Brownsville Savings and Loan Association and Los Campeones, Inc. . . . is hereby, dismissed, with full prejudice . . . ."

Appellant, V.I.P., filed a motion for new trial which only complained that there existed material issues of fact and that collateral estoppel did not apply to defendant Brownsville Savings. A hearing was held on the motion for new trial, and the same was denied. Bass did not appeal, but V.I.P. did.

Appellant, V.I.P., brings three points of error. Point 1 complains in the first of its subparts that the trial court erred in dismissing the suit with prejudice because genuine issues of material fact exist. Point 1 also alleges error in dismissing the suit because there was no motion to dismiss before the trial court. This particular complaint was never raised in the trial court, though, and cannot be considered for the first time on appeal. Harmon v. City of Dallas, 229 S.W.2d 825 (Tex.Civ.App. Dallas 1950, writ ref'd n. r. e.); Rule 324, T.R.C.P. The remainder of point 1 and all of point 2 complain that the trial court erred in failing to hear the appellees' motion for summary judgment. Again, this complaint was not raised during the hearing or in appellant's motion for new trial and cannot be raised for the first time on appeal. Harmon, supra. Appellant's point 3 contends the trial court erred in ruling that appellant was collaterally estopped from bringing this suit.

We need not reach the merits of the first subpart of point 1 or point 3 as they regard the requested relief of voiding the sale and cancelling the deeds because appellant failed to assign error to one of the trial court's independent grounds for dismissing the case; i. e., as set forth above, that V.I.P. did not have the ability to pay the debt to Brownsville Savings as a condition precedent to relief in this action. A mortgagee lawfully in possession of the mortgaged property has a right to retain possession until the mortgage debt has been paid in full. Jasper State Bank v. Braswell, supra.

Where a determination may rest upon more than one ground the party aggrieved by the judgment must assign error as to each such ground or risk having the judgment affirmed on the ground to which no error was assigned. Nesmith v. Hester, 522 S.W.2d 605 (Tex.Civ.App. Austin 1975, no writ); LeJeune v. Gulf States Utilities Company, 410 S.W.2d 44 (Tex.Civ.App. Beaumont 1966, writ ref'd n. r. e.). Appellant's failure to assign error to this independent ground requires us to affirm the trial court's determination dismissing appellant's action to void the sale and cancel the deeds.

This leaves us with deciding the merits of the first subpart of appellant's point 1 and appellant's point 3 as they relate to appellant's cause alleging damages for breach of fiduciary duty in the conduct of the trustee's sale.

Again, the first subpart of point 1 alleges that there exist material issues of fact raised by the pleadings and affidavits. This point reads as if a summary judgment had been granted, and yet, within appellant's brief, V.I.P. unequivocally asserts that the motion for summary judgment was not heard. Appellees, in their brief, also appear to agree that the motion for summary judgment was not heard in the trial court. The judgment recitals, themselves, are not conclusive as to whether the court passed upon the motion for summary judgment. Accordingly, we must look to the remainder of the record to determine the...