Villarreal v. Laredo Nat. Bank

• Decision Date: 27 June 1984
• Docket Number: No. 04-83-00073-CV,04-83-00073-CV
• Citation: 677 S.W.2d 600
• Parties: Irma Rocha VILLARREAL, Appellant, v. LAREDO NATIONAL BANK, Appellee.
• Court: Texas Court of Appeals

Page 600

677 S.W.2d 600

Irma Rocha VILLARREAL, Appellant, v. LAREDO NATIONAL BANK, Appellee.

No. 04-83-00073-CV.

Court of Appeals of Texas San Antonio.

June 27, 1984.

Rehearing Denied Aug. 28, 1984.

J.G. "Bumper" Hornberger, Jr., Dallas, for appellant.

Julio Garcia, Dist. Atty., Alonzo Laurel, Jr., Laredo, for appellee.

OPINION

CANTU, Justice.

On the Court's Motion, This Case Was Heard En Banc.

This is an appeal from an order granting summary judgment in favor of appellee, Laredo National Bank and from an order denying a summary judgment in favor of appellant, Irma Rocha Villarreal.

Appellant filed suit to enjoin a foreclosure sale involving property on which she and her three minor children were residing. Alternatively appellant sought, in the event injunctive relief was denied, an order requiring that foreclosure and sale be subject to her homestead rights. The trial court, in the early stages of the litigation, granted a temporary restraining order and subsequently converted it into a temporary injunction.

The trial court's entry of its orders on the motions for summary judgment in effect denied the permanent injunction sought by appellant. Nevertheless, the court continued the temporary injunction in full force and effect pending the outcome of this appeal.

Roger C. Rocha and appellant were married in 1966. In 1973, the couple resided at 1810 Aldama Street in Laredo, Webb County, Texas, and were claiming the residence as their homestead. On August 30, 1973, they executed a Builder's and Mechanic's Lien Note in the amount of $30,000.00 to Guisseppe Priolo, a contractor, for the construction of improvements to their homestead. The note was secured by a Builder's and Mechanic's Lien. ¹

The note and lien were subsequently assigned to appellee bank on the same day.

On February 8, 1974, the Rochas, while still living on the property and claiming it as their homestead, executed and delivered to appellee a promissory note and deed of trust lien which were a renewal and extension of the Builder's and Mechanic's Lien note and Lien. The note is dated February 13, 1974, and the Deed of Trust is dated February 8, 1974. The Deed of Trust, however, recites that it is given to secure the payment of a note of even date but presumably refers to the note dated February 13, 1974.

Under the terms of the note, appellant and Roger obligated themselves to pay the sum of thirty-five thousand dollars at nine and one-half percent interest in monthly installment payments of $365.50 including interest beginning on March 10, 1974.

The note further recites that $30,000.00 of the note represents renewal of the principal balance due on the promissory note dated August 30, 1973, and that the additional $5,000.00 represents other improvements performed by the contractor at the request of the Rochas.

The note specifically acknowledges that the lien granted under the note and Deed of Trust executed on August 10, 1973, is renewed, extended and merged with a Deed of Trust lien given under the Deed of Trust dated February 8, 1974.

Appellant and Roger further agreed by the terms of the note that appellee could at any time after five years from the date of execution of the note, mature the balance due on the note by giving appellant and Roger three months written notice of acceleration.

On August 13, 1976, the 201st Judicial District Court of Travis County, Texas, entered an interlocutory decree in a divorce proceeding between the Rochas. On November 10, 1976, a final decree of divorce was entered by the court.

The divorce decree provided, in pertinent part:

The Court FINDS and hereby ORDERS that the following property be awarded to ROGER C. ROCHA (Husband), subject to any encumbrances thereon:

1. The community homestead located at 1810 Aldama, Laredo, Texas. Said property, however, is set aside for the use and occupancy of IRMA C. ROCHA and the minor children until the youngest child reaches the age of eighteen. Mortgage payments, taxes and insurance in said property are to be paid by Husband until the youngest child reaches the age of eighteen. (Emphasis ours.)

It is noteworthy that prior to the time of the divorce, appellant was living at the Aldama Street residence with her three minor children. Moreover, appellant and her children continued to live on the premises and to claim a homestead exemption under the terms awarded by the divorce decree.

In August 1980, appellee bank exercised its option to accelerate the balance due on the note as per the terms in the 1974 note permitting maturity anytime after five years.

On August 8, 1980, Roger, without appellant's knowledge or consent, executed a Real Estate Lien note payable to appellee in the amount of $29,900.92 with interest at the rate of twelve percent and payable in monthly installments of $365.00 commencing on September 10, 1980. ² The note recites that the "maker ... of this note expressly waives all notices, demands for payment, presentations for payment, notices of intention to accelerate the maturity, protest and notice of protest, as to this note and as to each, every and all installments hereof."

Roger further granted a Deed of Trust lien to secure the foregoing note. The Deed of Trust is boiler plate but contains the added notations that the note which is secured is given in renewal and extension of the sum of $29,900.02 left owing and unpaid by grantor (Roger) upon the note in the original sum of $35,000.00 dated February 13, 1974. The notation further recites that Roger acknowledges that the lien granted in the Deed of Trust dated February 13, 1974, remains a valid lien and is renewed, extended and continued in full force to secure the payment of the note dated August 8, 1980. On July 10, 1981, the August 8, 1980, note matured as per its own terms and Roger was unable to pay the remaining balance. Consequently the trustee, pursuant to the Deed of Trust given to secure the note, gave notice of trustee's sale. Appellant then filed suit to enjoin the sale.

Appellant contends that the court erred in denying her motion for summary judgment and in granting appellee's motion for summary judgment because the summary judgment proof conclusively established that appellee's deed of trust lien was void or inferior to appellant's homestead rights in the property sought to be foreclosed. Appellant further asserts that she was entitled to a permanent injunction enjoining the foreclosure sale because the trustee's notice of sale was void and because the property upon which she was residing is exempt from forced sale under the laws and Constitution of Texas.

In reviewing a summary judgment record, it is the duty of appellate courts to apply the following rules:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Wilcox v. St. Mary's University of San Antonio, 531 S.W.2d 589, 592-593 (Tex.1975); TEX.R.CIV.P. 166-A.

2. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Wilcox, 531 S.W.2d at 593; see also Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286, 287 (1957).

3. Every reasonable inference must be indulged in favor of the nonmovants and any doubts resolved in their favor. Wilcox, 531 S.W.2d at 593; Hudnall v. Tyler Bank & Trust Co., 458 S.W.2d 183, 185 (Tex.1970); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952); Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233, 235 (1956).

In considering the propriety of the trial court's granting of appellee's motion for summary judgment, we abide by the foregoing rules.

However, failure of appellee to discharge its burden on its motion would not necessarily entitle appellant to summary judgment on her motion nor would appellant be entitled to summary judgment on her motion simply because she negates the summary judgment proof offered by appellee. Rio Bravo Oil Co. v. Hunt Petroleum Corp., 455 S.W.2d 722, 727 (Tex.1970).

Since both parties moved for summary judgment, all the evidence accompanying both motions should be considered in deciding whether or not to grant either party's motion. Sorsby v. State, 624 S.W.2d 227, 230 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ); see also Highway Contractors, Inc. v. West Texas Equipment Co., 617 S.W.2d 791, 794 (Tex.Civ.App.--Amarillo 1981, no writ).

Moreover, when faced with an appeal containing two summary judgment motions, the court of appeals should, if error is properly preserved, determine all questions presented. If reversible error is found, the court should render such judgment as the trial court should have rendered. See Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958).

A hearing on a motion for summary judgment is purely one of law and no oral testimony is allowed. Therefore, the court must decide whether the moving party is entitled to judgment based on the pleadings, depositions, answers to interrogatories and admissions, together with any affidavits. Cronen v. Nix, 611 S.W.2d 651, 652 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 112 (1981).

The statement of facts and documentary evidence developed in a prior trial can properly be considered by the trial court in ruling upon a motion for summary judgment. Sturm Jewelry, Inc. v. First National Bank, Franklin, 593 S.W.2d 813, 815 (Tex.Civ.App.--Waco 1980, no writ).

At the hearing on the motions for summary judgment, appellant and appellee entered into a stipulation providing that the summary judgment proof would include the statement of facts from the hearing on the temporary injunction and that all pleadings and orders which pertained to appellant individually would automatically pertain to appellant as next friend of her three minor children.

The appellee's summary judgment proof contains the...