John W. Imbert and Billie Imbert v. Federal Deposit Insurance Corporation, as Receiver for Seamen's Bank for Savings, FSB ( 1996 )

cv5-674.dd.imbert TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00674-CV

John W. Imbert and Billie Imbert, Appellants

v.

Federal Deposit Insurance Corporation, as Receiver for Seamen's Bank for Savings, FSB, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. 93-04145, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING

PER CURIAM

John W. Imbert and Billie Imbert appeal the judgment favoring the Federal Deposit Insurance Corporation as receiver for Seamen's Bank for Savings. The Imberts raise four points of error centered around their claim that the trial court should have found the FDIC's claims time-barred. We will affirm the judgment.

The controversy surrounds title to a home on land in Travis County. According to the trial court's findings of fact, unchallenged on appeal, the Imberts bought the property with a note secured by a deed of trust in December 1983. They later defaulted on their obligations; City Federal Savings Bank foreclosed on the property in February 1989. In December 1989, a county court-at-law held that the Imberts were entitled to possession and denied City Federal's claim for rent. After City Federal's insolvency, the property was eventually conveyed to the FDIC. The FDIC filed suit and demanded that the Imberts vacate the premises in 1993. After a nonjury trial, the trial court held that the FDIC owned the property and should have possession of the premises, denied the Imberts' counterclaims, and awarded $1500 and costs to the FDIC.

The Imberts complain by their first point of error about the denial of their motion for summary judgment. We cannot review the denial of such motions except in limited circumstances. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980); Travelers Ins. Co. v. Bosler, 906 S.W.2d 635, 641 (Tex. App.--Fort Worth 1995, no writ). Since the exceptional circumstances do not exist here, we overrule point one.

By point of error two, the Imberts complain that the FDIC was not entitled to judgment because they properly pleaded affirmative defenses of res judicata and statute of limitation that bar the FDIC's causes of action. Pleading alone does not make for a successful defense; evidence must be adduced. The Imberts had the burden to provide a record sufficient to show error. Tex. R. App. P. 50(d). They did not provide a statement of facts of the trial on the merits or comply with the provisions in Texas Rule of Appellate Procedure 53(d) for a partial statement of facts. We therefore must presume that the evidence in the omitted statement of facts from the trial supports the trial-court judgment. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). We overrule point two.

By point three, the Imberts complain that the trial court erred by denying their motion for new trial because it should have granted their motion for summary judgment and their motion for judgment as a matter of law on their affirmative defenses. We overrule point three for reasons set out in our rulings on points one and two--we have no power to review the denial of the motion for summary judgment and have no record to review regarding the motion for judgment as a matter of law.

By point of error four, the Imberts complain that the trial court erred by failing to follow Texas law on res judicata and statute of limitations in reaching these conclusions of law:

2. [The FDIC]'s rights in the Premises are superior to those of [the Imberts].

3. The Judgment of the County Court at Law, dated December 14, 1989, solely awarded possession of the Premises to [the Imberts] at that date.

4. [The FDIC] is now entitled to possession of the Premises, since [the FDIC]'s interest in the Premises is superior to [the Imberts].

5. The Judgment of the County Court at Law dated December 14, 1989, could not have granted [the Imberts] a legal or equitable interest in the Premises superior to the [the FDIC]'s interest, since the County Court at Law does not have subject matter jurisdiction to award title interests.

Again, the appellate record is not sufficient to require the reversal of the trial court's decision. We must presume that the omitted statement of facts contains either insufficient evidence supporting the affirmative defenses of res judicata and statute of limitations or contains evidence defeating those defenses, and that it contains evidence supporting the trial court's conclusions. We overrule point four.

Though we have overruled all points of error, we decline to impose damages for delay. We affirm the judgment.

Before Chief Justice Carroll, Justices Aboussie and Kidd

Affirmed

Filed: June 5, 1996

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