Union Square Federal Credit Union v. Richard R. Clay ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-167-CV
NO. 2-07-168-CV
UNION SQUARE FEDERAL CREDIT APPELLANTS
UNION AND DAVID NORRIS
V.
RICHARD R. CLAY APPELLEE
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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Union Square Federal Credit Union (“Union Square”) and David Norris
(collectively “Appellants”) appeal from two judgments in favor of Appellee
Richard R. Clay. In five issues, they argue that the trial court erred by (1)
enjoining the enforcement of the underlying money judgments rendered in their
1
… See Tex. R. App. P. 47.4.
favor, (2) finding that the money judgments were dormant and unrevivable, (3)
finding that the abstracts of judgment obtained and the writs of execution
issued on the judgments were null and void, (4) finding that Richard never
abandoned his homestead claim to his residence at 4600 Trailwood, Wichita
Falls, Texas (“Trailwood”), and (5) finding that property at 4409 Tobago Lane,
Wichita Falls, Texas (“Tobago”) was the separate property or, alternatively, the
sole management community property of Richard’s wife Diane. We affirm in
part and reverse in part. We affirm those portions of the trial court’s judgments
declaring that Trailwood is Richard’s homestead, but we also reverse the
remaining portions of the trial court’s judgments, vacate those portions of the
trial court’s judgments permanently enjoining the enforcement of the underlying
money judgments, and render take-nothing judgments against Richard on all of
his claims for declaratory relief except his claim that Trailwood is his
homestead.
Background Facts and Procedural History
On July 13, 1989, Union Square filed a lawsuit against Richard, alleging
that he had defaulted on a credit agreement. On March 13, 1990, it filed an
amended pleading that incorrectly listed Richard’s name as “Richard E. Clay”
instead of “Richard R. Clay.” Richard filed an answer and did not object to the
change in the pleadings showing his name as “Richard E. Clay.” On July 2,
2
1990, the trial court rendered judgment for Union Square, awarding damages
of $24,533.86 plus interest, costs, and attorney’s fees.
On August 14, 1990, Union Square asked the clerk to issue a writ of
execution on the judgment. The writ identified the judgment debtor as “Richard
E. Clay.” On November 15, 1990, the sheriff returned the writ nulla bona, that
is, the sheriff found no seizable property belonging to Richard E. Clay within the
jurisdiction.2
On April 4, 2000, a few months short of ten years after the judgment had
been rendered, Union Square requested the clerk to issue a second writ of
execution. The clerk issued the writ on April 19, 2000, again identifying the
judgment debtor as “Richard E. Clay.” The writ was received by the Wichita
County Sheriff’s office on May 2, 2000, and returned nulla bona on May 19,
2000.
On February 16, 2001, Union Square sought a judgment nunc pro tunc
to correct the 1990 judgment to identify the judgment debtor as “Richard R.
Clay.” The trial court rendered the judgment nunc pro tunc on March 5, 2001.
2
… See Black’s Law Dictionary 1098 (8th ed. 2004) (defining “nulla
bona” as a notation made by a sheriff on a return when no seizable property
belonging to the judgment debtor was found within the jurisdiction).
3
The clerk issued a writ of execution on the judgment nunc pro tunc and
delivered it to the sheriff’s office on April 9, 2001.
In an unrelated action, Norris filed suit against Richard on December 22,
1989, alleging that Richard had defaulted on a note of which Norris was the
holder. The petition identified the defendant as “Rick Clay.” Richard filed an
answer but did not appear at trial. Norris obtained a default judgment against
Richard on April 3, 1990, with an award of damages of $3,750 plus interest,
costs, and attorney’s fees. A writ of execution was prepared by the clerk on
March 31, 2000, and delivered to the sheriff’s office on April 14, 2000, which
returned it nulla bona on July 3, 2000. On February 16, 2001, Norris sought
a judgment nunc pro tunc to correct the 1990 judgment to identify the
judgment debtor as “Richard R. Clay.” The trial court rendered the judgment
nunc pro tunc. The clerk issued a writ of execution on the judgment nunc pro
tunc on April 5, 2001 and delivered it to the sheriff’s office on April 9, 2001.
After the writs on the two judgments nunc pro tunc were delivered to the
sheriff’s office, the sheriff attempted to execute against Trailwood. On June
1, 2001, Richard filed lawsuits against Union Square and Norris seeking
declaratory and injunctive relief from the writs of execution on the 1990 money
judgments held by them. The trial court heard the cases together. Richard
testified that his name was Richard R. Clay but that he also went by “Rick.”
4
He further testified that Trailwood was his separate property and homestead,
that he kept no bank accounts and paid all his bills with cash, that Tobago was
his wife’s separate property, and that he would not have been able to finance
its purchase himself. He also testified that he had no ownership interest in five
other properties held in his wife’s name.
On April 18, 2007, the trial court rendered judgment granting the relief
sought by Richard, finding that Richard never abandoned his homestead claim
to Trailwood and declaring that Trailwood is Richard’s homestead, that Tobago
is the separate property or, alternatively, the sole management community
property of Richard’s wife Diane, and that the 1990 money judgments obtained
by Appellants are dormant and cannot be revived. The trial court further
ordered that Appellants “may not take any action in the future to attempt to
collect or revive” the money judgments. Appellants appealed.
Analysis
Dormancy of the Judgments
In Appellants’ second issue, they argue that the trial court erred by
finding that the money judgments rendered in their favor were dormant and
unrevivable. In Appellants’ third issue, they argue that the trial court erred by
finding that the abstracts of judgment obtained and the writs of execution
issued by Appellants on the money judgments were null and void. In their first
5
issue, Appellants contend that the trial court erred by enjoining the enforcement
of the money judgments. Appellants combine their arguments on these issues,
and we will address them together.
A judgment becomes dormant if no writ of execution is issued within ten
years after its rendition.3 If a writ is timely issued, another writ of execution
must be issued at some time within ten years after the prior writ or the
judgment will become dormant. 4 If the judgment becomes dormant, no writ of
execution may be issued until the judgment has been revived by scire facias or
by an action of debt.5 An action to revive a dormant judgment may not be
brought after the second anniversary of the date that the judgment became
dormant.6
In the trial court, Richard contended that the writs on the 1990 Union
Square judgment were not properly issued because the 1990 writ of execution
was defective in that his middle initial was not properly placed in the execution
and that no execution issued in 2000 because Union Square instructed the
sheriff to return the writ nulla bona. He argued that no writ of execution issued
3
… Tex. Civ. Prac. & Rem. Code Ann. § 34.001(a) (Vernon 2008).
4
… Id. § 34.001(b).
5
… Id. §§ 31.006, 34.001(a).
6
… Id. § 31.006.
6
on the 1990 Norris judgment because the original writ that was issued stated
the name of the judgment debtor as “Rick Clay” and because it was not timely
delivered to the sheriff.
If the writs of execution issued by Appellants were null and void as
alleged by Richard, then no writs were issued within ten years of rendition of
the money judgments, the judgments became dormant and unrevivable, and the
trial court did not err by enjoining their enforcement. 7 Appellants had the
burden at trial to prove issuance of a valid writ within the statutory period.8
We first address the writs of execution originally issued on the underlying
money judgments and whether they were fatally defective. Appellants argue
that the minor irregularities in the form of the writs were immaterial. We agree.
Rule 629 of the rules of civil procedure provides that a writ of execution
must contain the name of the party against whom judgment was rendered.9
Not every element set out in rule 629 is vital for the creation of a valid writ.10
But a writ is of no effect if it completely omits the name of the judgment debtor
7
… See id. §§ 31.006, 34.001(a).
8
… See Ross v. Am. Radiator & Standard Sanitary Corp., 507 S.W.2d
806, 809–10 (Tex. Civ. App.—Dallas 1974, writ ref’d n.r.e.).
9
… Tex. R. Civ. P. 629.
10
… Collins v. Hines, 100 Tex. 304, 99 S.W. 400, 402 (1907).
7
or misidentifies the party against whom judgment was rendered. 11 Richard
argued that under this requirement, a writ of execution identifying him as
“Richard E. Clay” or “Rick Clay” is void. Although we have found cases holding
that a writ was void for failing to reflect the name of the debtor as it appeared
in the judgment, we have found no case voiding a writ of execution on the
ground that, although it reflected the name of the defendant as it appeared in
the judgment, it failed to state correctly the defendant’s legal name.
Furthermore, courts have allowed some deviation from the requirements for
writs.12
11
… Id. (stating that it is “essential” that writ of execution state “against
whom it is to operate” because “[w]ithout the command to take the property
of a named person, the official has no authority to take that of any one”); Battle
v. Guedry, 58 Tex. 111, 1882 WL 9585, at *2–3 (1882) (holding that
judgment against J. P. Clements would not support writ of execution reciting
judgment against P. B. Clements when evidence did not show the two
judgments were one and the same).
12
… See Houston Oil Co. of Tex. v. Randolph, 251 S.W. 794, 797 (Tex.
Comm’n App. 1923, judgm’t adopted) (noting that “where there exists a valid
judgment, a writ of execution[,] though defective and irregular in failing to
comply with some of the statutory requirements with reference to the form of
the writ, is only voidable” and citing to cases upholding writs that failed to
comply with some of the statutory requirements for the form of the writ); see
also Irvin v. Ferguson, 83 Tex. 491, 18 S.W. 820, 821 (1892) (addressing writ
that described trial court judgment rather than supreme court judgment and
omitted name of plaintiffs and holding that “[w]e are not prepared to hold that
any of the irregularities referred to would, under the execution and sale, render
it void”).
8
We believe that the doctrine of misnomer applies to this case. Misnomer
is when the plaintiff sues but misnames the correct defendant. 13 Under Texas
law, a judgment is not rendered void by the misnaming of a defendant,
“provided the intention to sue the correct defendant is evident from the
pleadings and process, such that the defendant could not have been misled.” 14
If the defendant appears and does not object to the misnomer, the judgment is
binding on him as though he had been properly named.15
In this case, Richard acknowledged that he filed an answer in Union
Square’s suit. And although he signed his pleadings with his correct initial and
stated in interrogatories that his legal name was Richard Robert Clay, he did not
object that he had been misnamed. The suit in that case was on a promissory
note that Richard admitted he had executed. Union Square’s intention to sue
Richard was obvious from the pleadings and process, and Richard was clearly
13
… Enserch Corp. v. Parker, 794 S.W.2d 2, 4 (Tex. 1990); Torres v.
Johnson, 91 S.W.3d 905, 908 (Tex. App.—Fort Worth 2002, no pet.).
14
… Brown v. Lanier Worldwide, Inc., 124 S.W.3d 883, 895 (Tex.
App.—Houston [14th Dist.] 2004, no pet.); see also Abilene Indep. Tel. & Tel.
Co. v. Williams, 111 Tex. 102, 229 S.W. 847, 848 (1921) (stating that
misnomer that is not misleading “merely entitles the defendant to abate the
proceeding until the misnomer be corrected”).
15
… Abilene, 229 S.W. at 848; see also Brown, 124 S.W.3d at 895.
9
not misled by the misnomer.16 We also note that he did not file a plea in
abatement to correct the mistake or attack the money judgment on appeal.17
Similarly, although the judgment obtained by Norris was against “Rick
Clay,” Richard was served and filed an answer in that case. Richard admitted
at trial that he goes by the name “Rick Clay,” and he stated in interrogatories
in Norris’s suit against him that his name was “Richard Robert Clay, a/k/a/ Rick
Clay.” He did not object that he had been misnamed, and he admitted in the
declaratory judgment trial that he had executed the note on which Norris sued.
Norris’s intention to sue Richard was clear from the pleadings and process, and
Richard was not misled by the misnomer. Thus, the 1990 money judgments
obtained against Richard by Appellants were valid judgments. 18
Because a writ of execution on these judgments had to conform to the
defendant as named in the judgments,19 and the judgments were valid despite
16
… See Brown, 124 S.W.3d at 897 (noting that defendant was not
misled by the misnomer in that case).
17
… Abilene, 229 S.W. at 848 (noting that the misnomer of a defendant
“merely entitles the defendant to abate the proceeding until the misnomer be
corrected”).
18
… See Brown, 124 S.W.3d at 895.
19
… See Tex. R. Civ. P. 629; Battle, 1882 WL 9585, at *2–3.
10
the misnomers,20 it stands to reason that the writs of execution issued on those
judgments must also have been valid despite the misnomers. We find
applicable the reasoning applied by the Supreme Court of Texas in Abilene
Independent Telephone and Telegraph Co. v. Williams.21 In that case, the court
decided whether a defendant may enjoin the enforcement of a default judgment
when the defendant is misnamed in the petition, citation, and judgment. An
employee sued his employer, Abilene Independent Telephone & Telegraph
Company, for injuries sustained on the job.22 His petition misnamed his
employer as Abilene Independent Telephone Company. 2 3 The citation issued
named the defendant as Abilene Telephone Company. The citation was
returned as served on Abilene Independent Telephone Company. 24 An attorney
for Abilene Independent Telephone & Telegraph Company declined to appear
on behalf of the company but, as a friend of the court, exhibited a charter
showing the company’s correct name. 25 The trial court rendered a default
20
… See Abilene, 229 S.W. at 848.
21
… Id. at 849.
22
… Id. at 847.
23
… Id.
24
… Id. at 848.
25
… Id.
11
judgment for the employee, and execution was ordered to issue against Abilene
Independent Telephone Company. Thus, neither the petition, citation,
judgment, or writ of execution correctly named the company, but there was no
doubt as to the true identity of the party being sued. 26 The company then
brought suit to enjoin the execution.27 Although the ground presented by the
company for the injunction was that no judgment had been rendered against it
by its true corporate name, and not that the writ of execution did not correctly
name it, the court’s analysis is instructive to the case here.
The court first noted that under the facts of the case, where the true
identity of the defendant was not in question, the defendant was obliged to
appear and answer or face default judgment.28 The court stated that if a party
knows that suit has been brought against it but fails to appear and object to the
mistake in its name, “it ought to be treated as having waived the mistake.” 29
Thus, under the court’s holding, because Richard did not object in the trial court
26
… Id. at 847–48.
27
… Id. at 847.
28
… Id. at 848.
29
… Id.
12
that he had been misidentified when Appellants originally sued him, we must
treat him as having waived the mistake in his name.30
The court also noted that the judgment was being attacked, not on direct
appeal, but collaterally in an injunction action. It stated that “[n]umberless
errors entitle a party to a reversal of a judgment on appeal [but] are of no avail
when relied on to support a collateral attack on the judgment or to furnish a
basis for equitable relief against the enforcement of the judgment.” 31 The court
went on to state that the judgment was not void and that “[u]nder thoroughly
settled principles, equitable relief against the enforcement of the judgment must
be denied.” 32 Although the supreme court decided Abilene over eighty years
ago, the holding in that case has not been overruled.
The principles set out in Abilene apply here. Like the judgment debtor in
Abilene, Richard made a collateral attack on the judgments and sought equitable
relief from them in the form of an injunction.33 As in Abilene, there is no doubt
that Richard was the defendant in both judgments. Although he stated his
30
… See id.
31
… Id. at 848 (emphasis added).
32
… Id. at 849.
33
… See In re City of Dallas, 977 S.W.2d 798, 804 (Tex. App.—Fort
Worth 1998, no pet.) (noting that injunction is equitable relief).
13
correct name in both cases in responses to interrogatories, he never objected
to the misnomer in either case. Thus, he should be treated as having waived
the mistake, and he cannot now argue that the enforcement of the judgments
should be enjoined based on the mistake.34 And although he states his ground
for relief as a misidentification in the writs of execution rather than in the
judgments, the same reasoning should apply. 35 We note that Richard did not
object in the trial court when the money judgments were rendered,36 did not ask
for post-trial correction of the judgments to reflect his legal name, 37 and did not
attack the previous writs for failing to use his legal name.38 Instead, he waited
34
… Abilene, 229 S.W. at 848–49.
35
… See Williams v. Ball, 52 Tex. 603, 1879 WL 7761, at *5 (1879)
(citing Freeman on Executions for the proposition that “[w]hen an execution is
not in proper form . . . the defendant . . . ought not to be heard when . . . he
has allowed plaintiff to be placed in a worse situation than though prompt
complaint had been made” and that “[w]hen sufficient [sic] appeared on the
face of the execution to connect it with the judgment, courts have frequently
disregarded variances in the names of the parties”).
36
… See Abilene, 229 S.W. at 848.
37
… See Carlyle Real Estate Ltd. P’ship-X v. Leibman, 782 S.W.2d 230,
233 (Tex. App.—Houston [1st Dist.] 1989, no writ) (holding that trial court did
not err by rendering judgment nunc pro tunc to accurately reflect legal name of
party against whom judgment was rendered).
38
… See Ayres v. Duprey, 27 Tex. 593, 1864 WL 2724, at *9 (1864)
(noting that law was ”abundantly settled . . . that the question of irregularity
or error in the execution, or the proceeding under it by the sheriff, can never be
discussed collaterally in another suit”).
14
to attack the writs until the time when the judgments would be dormant if no
writ of execution had issued on them. Because Richard allowed Appellants to
be placed in a worse situation than if he had made a prompt complaint, he
should not be heard to complain now.39
Furthermore, in Union Square’s suit, it named Richard using a correct
Christian name but an incorrect middle initial. Under the common law, a middle
initial was held to be of no importance. 40 Although cases have suggested that
the common law may no longer be applicable,4 1 we have found no case
39
… See Williams, 1879 WL 7761, at *5.
40
… See Mullins v. Albertson, 136 S.W.2d 263, 264 (Tex. Civ. App.—San
Antonio 1940, writ ref’d) (noting that judgment at issue named defendant as
G. W. Albertson, that abstract of judgment also named the defendant as G. W.
Albertson, and that there was no question that G. M. Albertson and G. W.
Albertson were one and the same person and holding that the abstract of
judgment naming G. W. Albertson created a lien against land belonging to G.
M. Albertson); Gilles v. Miners’ Bank of Cartersville, Mo., 198 S.W. 170, 171
(Tex. Civ. App.—Amarillo 1917, writ ref’d) (op. on reh’g) (stating that under
common law middle initials “were never taken notice of” and that it was of no
concern whether that rule still applied when question was raised for first time
on appeal because “a misnomer can be taken advantage of only by plea in
abatement”).
41
… See Wicker v. Jenkins, 49 Tex. Civ. App. 366, 108 S.W. 188, 190
(Tex. Civ. App.—Texarkana 1908, no writ) (noting that common law rule
disregarding middle initial, or middle name, of a party to an instrument had “lost
much of the reason upon which it was originally based” and holding that
abstract of judgment identifying plaintiff as W. “B. F.” Wicker instead of W. “F.
B.” Wicker did not create a lien on the defendant’s property). But see Gilles,
198 S.W. at 171.
15
expressly abrogating it.42 With respect to Norris’s suit, the name “Rick” is a
common diminutive of “Richard.” 43 A common diminutive of a name is
sufficient to identify a person,44 and here, not only is Rick a common diminutive
of Richard, but the Richard involved in this suit is known by that name and has
entered into at least one agreement using it. Thus, under the facts presented
here, neither the incorrect middle initial nor the use of a diminutive made the
writs void.
While this court declines to create a general rule as to when a writ that
misnames the judgment debtor is nonetheless valid and enforceable, we hold
that in this limited factual situation—when there was no doubt as to the true
42
… See Mullins, 136 S.W.2d at 264 (holding that abstract of judgment
naming G. W. Albertson created a lien against land belonging to G. M.
Albertson).
43
… See, e.g., U.S. v. Vallee, No. 08-01987-CR, 2008 WL 5411079, at
*1 (2d Cir. Dec. 30, 2008) (styling the case “United States of America v.
Richard Vallee, also known as ‘Rick’”); U.S. v. Clonce, 186 Fed. Appx. 464,
2006 WL 1738221, at *1 (5th Cir. 2006) (naming defendant as “Richard Lee
Clonce, also known as Rick Clonce”); Szkatulski v. Thruway Inn, Inc., 836
N.Y.S.2d 463, 463 (N.Y. App. Div. 2007) (naming one respondent as “Richard
Osborne, also known as Rick Osborne”).
44
… O’Brien v. Cole, 532 S.W.2d 151, 152–53 (Tex. Civ. App.—Dallas
1976, no writ) (noting that “purpose of describing a person by name is to
identify him” and that “[a] commonly-known diminutive or abbreviation is
sufficient to identify a person in the absence of evidence indicating that a
different person is intended” and holding that use of the name “Terry” in an
invoice was sufficient to identify “Terrance” as alleged in petition).
16
identity of the party, the party failed to object at trial or to the judgments nunc
pro tunc to correct the misnomer, and where the misnomers are merely the use
of an incorrect middle initial and the use of a diminutive by which the party
acknowledged he is known—the writs were valid. The trial court therefore
erred by declaring that the writs of execution were null and void.
Richard argued in the trial court that even if the 1990 writ issued on
Union Square’s money judgment was valid, the judgment nonetheless became
dormant because in 2000, when another writ of execution was required to
maintain the judgment, Union Square instructed the sheriff to return the writ
“nulla bona” and therefore no writ was issued. On April 4, 2000, Union
Square’s attorney sent a letter to the district clerk stating, “Please issue a Writ
of Execution and advise the Sheriff that he may return it Nulla Bona in 30
days.” Rule 629 states that a writ “shall require the officer to return it within
thirty, sixty, or ninety days, as directed by the plaintiff or his attorney.” 45
Union Square directed the sheriff that if after thirty days, no property could be
found to levy upon, the sheriff could return it nulla bona at that time. Union
Square did not instruct the sheriff not to attempt to levy on Richard’s
property;46 it merely instructed the sheriff to return the writ after thirty days,
45
… Tex. R. Civ. P. 629.
46
… See Carpenter v. Probst, 247 S.W.2d 460, 461 (Tex. Civ. App.—San
17
rather than continue to look for property for sixty or ninety days. Richard
argued in the trial court that because of the instruction to the sheriff, the sheriff
did not attempt to serve the writ. There was no evidence about the motivation
of the sheriff in not serving the writ on Richard; although Richard testified that
no one attempted to serve the writ on him, he also testified that no one
attempted to serve the 1990 writ either. The writ as prepared by the clerk
instructs the sheriff to return the writ in thirty days and does not instruct him
to hold it and to return it nulla bona without attempting to levy on Richard’s
property. There was no evidence that the sheriff ever saw the letter from the
attorney. Further, the sheriff’s return stated that it was returned nulla bona,
“[n]o property found in Wichita County belonging to Defendant subject to
Execution.” Thus, on the face of the return, the sheriff did look for Richard’s
property. We reject Richard’s argument that Union Square’s attorney’s letter
to the clerk prevented the writ from issuing. Thus, we hold that the writ of
execution was validly issued and served to keep Union Square’s money
judgment from becoming dormant, and the trial court erred by declaring that the
Antonio 1952, writ ref’d) (holding that when no showing was made that officer
“was in any way thwarted or deterred from performing his duty,” writ issued
when delivered to officer); cf. Harrison v. Orr, 296 S.W. 871, 875–76 (Tex.
Comm’n App. 1927, judgm’t adopted) (holding no “issuance” of writ when,
upon clerical preparation of the writ, sheriff was instructed to hold the writ until
a certain date and then return it).
18
judgment was dormant and that the abstracts of judgment against Richard
based on the judgment were null and void.
Richard also argued that the writ of execution on the money judgment
obtained by Norris was not issued within the ten-year time period of section
34.001 and thus the judgment became dormant because, although the clerk
prepared the writ before the ten-year time period had run, the writ was not
delivered to the sheriff for enforcement until after the time period had run. On
appeal, Appellants argued that the issuance of the 2000 writ on Norris’s
judgment was timely, given that only fourteen days elapsed between the clerk’s
preparation of the writ and delivery to the sheriff for enforcement.
Although section 31.004 does not define “issue,” courts have long held
that issuance of a writ requires more than preparation of the writ by the
clerk—the writ must also be delivered to an officer for enforcement.47 In
determining the effect of preparation of the writ before the statutory period but
delivery after the statutory period, some courts have relied on the law
governing statutes of limitations and service of citation. 48 If a suit is filed
before the end of the limitations period but the defendant is not served until
47
… Parlin & Orendorff Implement Co. v. Chadwick, 4 S.W.2d 133, 135
(Tex. Civ. App.—Fort Worth 1928, no writ).
48
… Ross, 507 S.W.2d at 809–10; Williams v. Short, 730 S.W.2d 98,
99–100 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.).
19
after the limitations period has run, and the defendant asserts the defense of
limitations, the plaintiff must show that he exercised reasonable diligence in
having the defendant served.49 The relevant inquiry in assessing the plaintiff’s
diligence is “whether the plaintiff acted as an ordinarily prudent person would
have acted under the same or similar circumstances and was diligent up until
the time the defendant was served.” 50 If diligence is shown, then the date of
service relates back to the date the petition was filed.51 Relying on that body
of law, some courts have held that if a writ of execution is clerically prepared
before the ten years in section 34.001 ends but not delivered to an officer for
enforcement until after the period ends, the judgment creditor must show
reasonable diligence in having the writ delivered to the sheriff.52
In this case, the money judgment obtained by Norris was signed on April
3, 1990. The writ was clerically prepared by the clerk on Friday, March 31,
2000—within the statutory period—and delivered to the sheriff on Friday, April
49
… Ross, 507 S.W.2d at 809.
50
… Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007).
51
… See Tarrant County v. Vandigriff, 71 S.W.3d 921, 924 (Tex.
App.—Fort Worth 2002, pet. denied).
52
… See Rollins v. Am. Express Travel Related Servs. Co., 219 S.W.3d
1, 4 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Williams, 730 S.W.2d at
100; Ross, 507 S.W.2d at 809.
20
14, 2000—outside the statutory period. Norris offered no explanation in the
record for the delay in delivery of the writ to the sheriff.
With respect to service of citation, some courts (including this one) have
held that when no explanation for the delay is given, the delay shows a lack of
diligence as a matter of law.53 Such cases generally involve a delay of months
or years.54 But two courts have held that “a showing of speedy service of
citation, without any unexplained lapses of time, may establish diligence as a
matter of law.” 55 In Harrell, the El Paso Court of Appeals held that the plaintiff
did not have to show evidence of diligence in serving the defendants after the
statute of limitations had passed because a clerk “must be given a reasonable
time to fulfill her obligations” to issue and deliver citations, and “a party may
ordinarily rely on the clerk to perform that duty within a reasonable time.” 56
53
… See Vandigriff, 71 S.W.3d at 925 (“Whether a plaintiff was diligent
in effecting service is normally a question of fact, but if no excuse is offered for
a delay . . . lack of diligence will be found as a matter of law.”).
54
… See, e.g., Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (delay
of three periods totaling thirty-eight months); Vandigriff, 71 S.W.3d at 926
(twenty-eight-month delay); Ross, 507 S.W.2d at 809–10 (delay of over two
months).
55
… Harrell v. Alvarez, 46 S.W.3d 483, 486 (Tex. App.—El Paso 2001,
no pet.) (holding that three weeks is not an unreasonable amount of time to
allow a clerk to perform her duties) (emphasis added).
56
… Id.
21
The three weeks it took the clerk to issue and serve citation “did not entail any
inaction by the clerk obligating . . . recognition and correction” by the plaintiff
in the case and therefore that period of time did not “include any unexplained
lapses in diligence.” 57 The Dallas Court of Appeals similarly has held that two
weeks was a reasonable amount of time to allow the clerk to perform his duties
and that the plaintiff was not required to do anything within that time to ensure
that the clerk delivered the citations. 58
Here, we have a delay of two weeks. We find compelling the reasoning
of the El Paso and Dallas Courts of Appeals and hold that it should apply to the
issuance of writs of execution. The record is not clear whether, after preparing
the writ, the clerk delivered it to the sheriff or Norris’s attorney.59 But even
assuming the clerk delivered the writ to Norris’s attorney, rather than delivering
the writ directly to the sheriff for enforcement, some time must be allowed for
the clerk to notify Norris’s attorney that the writ has been prepared, for Norris’s
57
… Id.
58
… Boyattia v. Hinojosa, 18 S.W.3d 729, 734 (Tex. App.—Dallas 2000,
pet. denied) (“Two weeks is not an unreasonable amount of time to allow a
clerk to perform his duties under the rule. Accordingly, there was no inaction
by the clerk that Boyattia was obligated to recognize and act upon to correct.”).
59
… See Bourn v. Robinson, 107 S.W. 873, 875 (Tex. Civ.
App.—Texarkana 1908, no writ) (noting that law did not require clerk to deliver
writ to officer for enforcement and that clerk may have delivered writ into
hands of plaintiff or his attorney).
22
attorney to go to the clerk’s office and pick up the writ or for the clerk to
deliver the writ to Norris’s attorney, and for Norris’s attorney to deliver the writ
to the sheriff. We decline to set out a general rule for how long a clerk must
be allowed to prepare a writ, or how much time after preparation of a writ must
be allowed to deliver it to an officer for enforcement, but we hold that two
weeks shows reasonable diligence. Thus, Norris was not required to give any
explanation in the trial court for the delay, and the date of delivery relates back
to the date of preparation of the writ.60 We hold that the writ of execution on
Norris’s 1990 money judgment was therefore timely issued and prevented the
judgment from becoming dormant, and, consequently, the trial court erred by
declaring that the Norris judgment became dormant and that any abstract of
judgment based on the judgment was null and void.
Having held that the 1990 money judgments did not become dormant, we
now consider whether the trial court had the authority to change Richard’s
name on the judgments by judgment nunc pro tunc. Richard argued to the trial
court in his declaratory judgment action that the judgments nunc pro tunc
changed the defendant and therefore constituted a correction of a judicial error
and not a clerical error. The trial court’s judgments on Richard’s declaratory
60
… See Harrell, 46 S.W.3d at 486.
23
judgment actions made no finding about whether Richard’s name could validly
be corrected in a judgment nunc pro tunc and said only that the judgments nunc
pro tunc were invalid because they were rendered when the underlying money
judgments were dormant. We have held that the underlying money judgments
were not dormant. Furthermore, there is no question that Richard was the
correct defendant in both of the underlying suits. The types of misnomers at
issue here constitute clerical errors that may be corrected by judgment nunc pro
tunc. 61 Thus, the trial court properly entered the judgments nunc pro tunc. 62
And, accordingly, the writs of execution issued on those judgments were valid.
Because we hold that the trial court erred by declaring that the money
judgments against Richard were dormant and incapable of being revived, we
61
… See Masterson v. Young, 48 S.W. 1109, 1110 (Tex. Civ.
App.—Austin 1899, writ ref’d) (noting that a mistake as to a person’s middle
initial “does not, ordinarily, affect the rights of the parties”); see also Kollman
Stone Indus., Inc. v. Keller, 574 S.W.2d 249, 250 n.2 (Tex. Civ.
App.—Beaumont 1978, no writ) (noting that courts have held that “entry of a
nunc pro tunc judgment is a proper method of correcting an error in the initials
of the defendant”); Goodyear Tire & Rubber Co. v. Pearcy, 80 S.W.2d 1096,
1097 (Tex. Civ. App.—Eastland 1935, no writ) (stating that it was “evident”
that the entry of judgment against R. A. Pearcy instead of A. R. Pearcy was
clerical error and not judicial error).
62
… See Kollman Stone, 574 S.W.2d at 250 n.2; see also Daniels v.
Comm’n for Lawyer Discipline, 142 S.W.3d 565, 573 (Tex. App.—Texarkana
2004, no pet.) (reciting rule that a nunc pro tunc judgment relates back to the
date of original judgment); Gen. Elec. Co. v. Canyon City Ice & Light Co., 136
S.W. 78, 79 (Tex. Civ. App.—Fort Worth 1911, no writ) (same).
24
sustain Appellants’ second issue. Because the judgments were not dormant,
we further hold that the trial court abused its discretion by enjoining the
enforcement of the judgments.63 Accordingly, we sustain Appellants’ first
issue. Because we hold that the abstracts of judgment and writs of execution
issued by Appellants were valid, we sustain Appellants’ third issue.
Homestead Claim to Trailwood
In Appellants’ fourth issue, they argue that the trial court erred by finding
that Richard never abandoned his homestead claim to Trailwood.64 Appellants
do not specify whether they challenge the trial court’s finding for legal
sufficiency or for factual sufficiency, but because they ask this court to render
judgment on the issue, we will review the finding for legal sufficiency.65 We
therefore determine whether Appellants established as a matter of law that
63
… Jamestown Partners, L.P. v. City of Fort Worth, 83 S.W.3d 376, 384
(Tex. App.—Fort Worth 2002, pet. denied) (stating that permanent injunctions
are reviewed for clear abuse of discretion).
64
… See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789,
794–95 (Tex. 2002) (stating that in appeal from trial to the court, appellant
may challenge trial court’s findings for legal and factual sufficiency of the
evidence).
65
… See Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401–02 (Tex.
1981) (stating that if appellate court sustains challenge to factual sufficiency,
it must reverse judgment and remand for new trial).
25
Richard abandoned Trailwood as his homestead.66 Appellants concede that
Richard proved that Trailwood had been his homestead at one time, but they
argue that Richard abandoned his homestead rights in the property.
Once a party proves the existence of homestead rights in property, those
rights are presumed to continue until abandoned or until a new homestead is
acquired.67 A party asserting abandonment of a homestead has the burden of
proving it.68 Thus, once Richard established that Trailwood was his homestead,
Appellants had to prove that Richard had abandoned that property as his
homestead.
To show abandonment of a homestead, a party must prove cessation of
use of the property as a homestead coupled with an intention not to return.69
A person may not have two homesteads, and the establishment of a new
66
… See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)
(stating that party attacking legal sufficiency of adverse finding on issue on
which party had burden of proof must demonstrate on appeal that evidence
establishes, as a matter of law, all vital facts in support of issue).
67
… Sullivan v. Barnett, 471 S.W.2d 39, 43 (Tex. 1971); Rancho Oil Co.
v. Powell, 142 Tex. 63, 175 S.W.2d 960, 963 (1943).
68
… Caulley v. Caulley, 806 S.W.2d 795, 797 (Tex. 1991); Sullivan, 471
S.W.2d at 43.
69
… Rancho Oil Co., 175 S.W.2d at 963; see also Hudgins v. Thompson,
109 Tex. 433, 211 S.W. 586, 587 (1919).
26
homestead constitutes abandonment of the previous homestead. 70 But merely
acquiring and moving to a new “home” does not necessarily establish the
acquisition of a new “homestead.” 71 The evidence demonstrating abandonment
“must be undeniably clear and beyond almost the shadow, at least of all
reasonable ground of dispute, that there has been a total abandonment with an
intention not to return and claim the exemption.” 72
Appellants contend that the evidence supported the conclusion that
Richard and his family moved to Tobago with the intent to “trade up” their
home and that Richard only “remembered” his intent to return to Trailwood
when it became clear he could lose the property to his creditors. They further
contend that Richard’s testimony that he intended to return to Trailwood was
insufficient because he did not testify when he would return or what
circumstances would lead him to return. Appellants cite no law for the
proposition that Richard was required to put on evidence of any definite plan
70
… Silvers v. Welch, 127 Tex. 58, 91 S.W.2d 686, 687–88 (1936).
71
… Rancho Oil Co., 175 S.W.2d at 963 (“The acquiring of a new home
is not always the acquiring of a new homestead, and one does not necessarily
abandon a homestead by merely moving his home.”); see also Silvers, 91
S.W.2d at 688.
72
… Rancho Oil Co., 175 S.W.2d at 963; Burkhardt v. Lieberman, 138
Tex. 409, 159 S.W.2d 847, 852 (1942) (citing Gouhenant v. Cockrell, 20 Tex.
96, 1857 WL 5186, at *2 (1857)).
27
to return to the property to defeat an assertion of abandonment.73 Richard did
not have to put on evidence of any kind that he intended to return to the
property; rather, Appellants had to prove that he discontinued use of Trailwood
with the intent to permanently do so.74
As evidence that Richard abandoned his homestead at Trailwood,
Appellants note that in 2001, Richard and his wife bought another home
(Tobago) and that they had not lived at Trailwood for four years.75 Appellants
also point out that the county taxing authority terminated Richard’s homestead
property tax exemption on Trailwood after he failed to spend a night on the
property during 2003, and they argue that Richard’s failure to take any action
73
… See, e.g., Foreman v. Meroney, 62 Tex. 723, 1884 WL 8988, at *4
(1884) (“[A]bandonment is accomplished, not by going away without any
intention of returning at any particular time in the future, but by going away
with the definite intention never to return at all.”).
74
… See Caulley, 806 S.W.2d at 797 (stating that “anyone asserting
abandonment has the burden of proving it by competent evidence”); Archibald
v. Jacobs, 69 Tex. 248, 6 S.W. 177, 251 (1887) (“Abandonment of property
actually homestead cannot be accomplished by mere intention. There must be
a discontinuance of the use, coupled with an intention not again to use as a
home.”); see also Gill v. Quinn, 613 S.W.2d 324, 327 (Tex. Civ.
App.—Eastland 1981, no writ) (noting that “[a]bandonment requires both the
overt act of discontinued use and intent to permanently do so” and that
“burden of proving both act and intention to abandon property as homestead
rests on the person seeking to subject it to forced sale”).
75
… See Hudgins, 211 S.W. at 588 (noting that “the best evidence of
homestead abandonment” is proof that “a new and permanent home had been
acquired”).
28
to reinstate the exemption indicates in a clear manner his intent not to return
to the property. The Clays both acknowledged that they had not spent a night
on the property since moving to Tobago. Diane testified that her driver’s
license lists the Tobago address.76 In addition, Appellants introduced a deed of
trust that the Clays had executed on Trailwood as part of the transaction for
the loan they obtained to purchase the house on Tobago, and if Trailwood was
their homestead, then the Clays obtained a loan from a bank in part by signing
a void deed of trust.77 The president of the bank through which the Clays
financed the purchase of Tobago testified that it was his understanding that the
Clays purchased Tobago to be their homestead, although he also testified that
he understood that Diane was purchasing Tobago as her separate property and
76
… See, e.g., Barrera v. State, No. 14-04-01030-CR, 2005 WL
1691037, at *5 (Tex. App.—Houston [14th Dist.] July 21, 2005, no pet.)
(mem. op.) (including the fact that appellants used McAllen address on driver’s
licenses in list of evidence that they had established new homestead in
McAllen, thereby abandoning Houston homestead).
77
… See Hinton v. Uvalde Paving Co., 77 S.W.2d 733, 736 (Tex. Civ.
App.—Dallas 1934, writ ref’d) (stating that if parties did not intend to abandon
their former home as a homestead, “the continuity of this intention” was broken
by their mortgage of the property to secure a loan, ”for it will not be assumed
that they would be parties to the void, illegal, and futile act of mortgaging their
home-stead”); see also Tex. Const. art. 16, § 50 (limiting the validity of a lien
created on homestead property to certain specific transactions, which do not
include the financing of a second home).
29
that no one told him that she was abandoning her homestead at Trailwood
when she did so.
Evidence in support of the trial court’s finding included the testimony of
both Diane and Richard that they considered Trailwood to be their homestead.
Diane testified that the utilities are still connected to Trailwood, they still
maintain the property, and they still have furniture at the property. The Clays
have not rented 78 or sold 79 Trailwood, and they have not claimed any other
property as their homestead. Thus, there was evidence before the trial court
that the Clays did not acquire Tobago with a definite intent not to return to
Trailwood.80 That the Clays allowed their tax exemption on Trailwood to lapse
may be evidence of intent not to return but it is not dispositive, 81 especially
78
… Beck v. Avindino, 29 Tex. Civ. App. 500, 68 S.W. 827, 829 (Tex.
Civ. App.—Dallas 1902, no writ) (stating that renting of homestead may be
enough to show abandonment if renting is not temporary).
79
… See Paddock v. Siemoneit, 147 Tex. 571, 218 S.W.2d 428, 436
(1949) (stating that wife could lose homestead protection in land only by
abandonment or voluntary conveyance).
80
… Wharton v. Mortgage Bond Co. of N.Y., 48 S.W.2d 519, 522 (Tex.
Civ. App. —Fort Worth 1931, no writ) (stating that to establish abandonment,
“[i]t must appear that the removal was with a definite purpose and intent to
never return”); see also West Tex. State Bank of Snyder v. Helms, 326 S.W.2d
47, 49 (Tex. Civ. App.—Eastland 1959, no writ) (stating that abandonment
requires showing of “present, definite, and permanent intent to cease to use the
property”).
81
… See Ramsey v. Davis, 261 S.W.3d 811, 817 n.1 (Tex. App.—Dallas
30
considering that a tax exemption for a person’s homestead is generally only
available if the property is the person’s principal residence. 82 Thus, if the Clays’
principal residence was Tobago, but they lacked an intent not to return to
Trailwood, the Clays could lose their homestead tax exemption for Trailwood
without losing constitutional homestead protection from creditors.83
With respect to the deed of trust on Trailwood, Richard testified that he
executed the deed of trust because the bank asked them to and that the bank
had been informed that Diane was buying Tobago with funds from her
inheritance. The bank president testified that it was normal bank practice when
a party is abandoning one homestead and acquiring another with a bank loan,
which he understood was Diane’s intention, and the former homestead had not
yet been sold. Thus, there was apparently some confusion at the bank as to
whether Trailwood would be sold, and this court does not have to conclude
either that the Clays evidenced a desire to abandon their homestead at
2008, pet. denied) (noting that county records relating to homestead exemption
are not determinative of homestead status).
82
… See Tex. Tax Code Ann. § 11.13(a), (j), (l) (Vernon 2008).
83
… See Dodd v. Harper, 670 S.W.2d 646, 649 (Tex. App.—Houston [1st
Dist.] 1983, no writ) (stating that “[t]o assert that [constitutional homestead
protection] could be voided by a mere failure to designate the property as a
homestead for tax purposes would be to render the constitutional homestead
protection meaningless”).
31
Trailwood by signing the deed of trust or that they induced the bank to give
them a loan by executing a void security instrument.84
In light of the record before us, because Appellants failed to produce
legally sufficient evidence that the Clays had abandoned their homestead at
Trailwood with an intention not to return to it, the trial court did not err by
failing to find abandonment.85 We overrule Appellant’s fourth issue.
Characterization of Tobago
In Appellants’ fifth issue, they argue that the evidence was legally
insufficient to support the trial court’s finding that Tobago is the separate
property or, alternatively, the sole management community property of
Richard’s wife Diane. In Appellants’ prayer for relief on appeal, they ask this
court to determine that each of the other properties purchased by Richard and
Diane are also subject to execution to satisfy the underlying judgments against
Richard. At trial, Richard testified that the president of the bank that financed
the purchase of Tobago had told Diane that “she could have all the real estate
she wanted if she would pay 10 percent down” and that consequently, Richard
and Diane had executed notes and deeds of trust to finance the purchase of
84
… See Hinton, 77 S.W.2d at 736.
85
… See Dow Chem., 46 S.W.3d at 241.
32
five additional properties. Because the trial court’s judgments made no findings
as to these other properties, we will not address them.
Property acquired during marriage is presumed to be community
property.86 This presumption may be rebutted, however, by clear and
convincing evidence. 87 Appellants challenge the legal sufficiency of the trial
court’s finding that Richard rebutted this presumption as to Tobago.
Because the burden of proof at trial was clear and convincing evidence,
on appeal we apply a higher standard of legal sufficiency review than is
ordinarily employed in civil cases.88 In reviewing the evidence for legal
sufficiency under the clear and convincing standard, we must determine
whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction that its finding was true. 89 We must review all the evidence
in the light most favorable to the finding.90 This means that we must assume
that the factfinder resolved any disputed facts in favor of its finding if a
86
… Tex. Fam. Code Ann. § 3.003(a) (Vernon 2006).
87
… Id. § 3.003(b).
88
… In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).
89
… Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238,
248 (Tex. 2008); Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 170
(Tex. 2005).
90
… Hogue, 271 S.W.3d at 248; Hall, 168 S.W.3d at 170.
33
reasonable factfinder could have done so. 91 We must also disregard all
evidence that a reasonable factfinder could have disbelieved.92 We must
consider, however, undisputed evidence even if it is contrary to the finding.93
That is, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not.94
Property purchased during marriage on the credit of the community is
community property unless there is an express agreement from the lender to
look only to the separate property of the purchasing spouse for satisfaction of
91
… Hogue, 271 S.W.3d at 248; Hall, 168 S.W.3d at 170.
92
… Hogue, 271 S.W.3d at 248; Hall, 168 S.W.3d at 170.
93
… City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005); Hall,
168 S.W.3d at 170.
94
… Adams v. YMCA of San Antonio, 265 S.W.3d 915, 917 (Tex. 2008);
City of Keller, 168 S.W.3d at 827.
34
the debt.95 The intention of the spouses is not controlling in the absence of
such an agreement.96
Although Diane had inherited several hundred thousand dollars from her
mother, she did not use these funds to purchase Tobago. Instead, Richard
approached a bank about financing the purchase through a loan. It was
undisputed that both Richard and Diane signed the note by which they acquired
the funds used to purchase Tobago. 9 7 Although Richard testified that he
assumed that he was just a “co-maker,” that is, that he would only be obligated
on the loan if Diane did not pay, the note itself was not introduced into
evidence. The deed of trust on Tobago stated that the maker of the note was
95
… Glover v. Henry, 749 S.W.2d 502, 503 (Tex. App.—Eastland 1988,
no writ); Holloway v. Holloway, 671 S.W.2d 51, 57 (Tex. App.—Dallas 1983,
writ dism’d); Goodloe v. Williams, 302 S.W.2d 235, 237–38 (Tex. Civ.
App.—Texarkana 1957, writ ref’d); see also Broussard v. Tian, 156 Tex. 371,
295 S.W.2d 405, 406–07 (Tex. 1956) (noting that vendor’s lien note executed
by husband during marriage, when nothing in note or related instruments were
to the contrary, was by presumption a community obligation, and in absence
of showing otherwise, the community thereby acquired ownership in the
property and holding that evidence not sufficient to support jury finding of an
agreement between grantor and husband to make the note a separate obligation
of husband and the property therefore his separate estate), cert. denied, 353
U.S. 941 (1957).
96
… Glover, 749 S.W.2d at 503; Holloway, 671 S.W.2d at 57.
97
… UBS Fin. Servs., Inc. v. Branton, 241 S.W.3d 179, 189 (Tex.
App.—Fort Worth 2007, no pet.) (“By signing a contract, a party is presumed
to have read and understood its contents.”).
35
“Diane T. Clay and husband, Richard R. Clay.” Thus, Tobago was acquired on
community credit.
The bank took as security an assignment of a certificate of deposit at the
bank that was in Diane’s name, but it also took a security interest in Tobago,
the deed for which listed both Richard and Diane as grantees. Although the
bank president testified that the Clays had requested the loan be made to Diane
and that he understood that Diane wished to acquire the property as her
separate property, the deed as executed listed both Richard and Diane, and
both Richard and Diane signed the note. Although the bank president testified
that the Clays had requested the loan to be in Diane’s name alone, “which was
fine considering that she was putting up the additional collateral” of the
certificate of deposit, under the loan documents as actually executed—and not
corrected or amended by the time of trial—there was not clear and convincing
evidence that the bank expressly agreed to look solely to Diane’s separate
property to satisfy the loan. And in March 2001, at the bank’s request, Diane
and Richard executed a deed of trust on Trailwood to secure the note, and
Richard testified that they did so at the bank’s request, which belies an
agreement that the bank had expressly agreed to limit itself to Diane’s separate
property for satisfaction of the debt. Thus, because a factfinder could not
reasonably form a firm belief or conviction that the bank expressly agreed to
36
look solely to Diane’s separate property, the evidence was not legally sufficient
to support the trial court’s finding that Tobago is Diane’s separate property. 98
Appellants further argue that the evidence was not legally sufficient to
support the trial court’s alternative finding that Tobago was Diane’s sole
management community property. Community property is generally subject to
the joint management of the spouses unless they provide otherwise by
agreement.99 But community property is not subject to joint management if one
spouse has sole management, control, and disposition of the property. 100 A
spouse has sole management, control, and disposition over property that the
spouse would have owned if single.101 Property is presumed to be one spouse’s
98
… See Hogue, 271 S.W.3d at 248; Hall, 168 S.W.3d at 170; Broussard,
295 S.W.2d at 407 (stating that although bank considered existence of
husband’s separate property in making loan, that did not reflect a contract that
it was to be paid out of those properties or out of husband’s separate property
generally); see also Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 877
(Tex. App.—Dallas 1990, no writ) (holding that when wife paid for property
with inheritance from her mother, property was in both spouses’ names but
considered by couple to be wife’s property, property was then sold and
proceeds placed in wife’s savings account, her husband considered account to
be wife’s separate property though he was a signatory, and couple made an
informal oral agreement before opening account that account would belong to
wife, this evidence did not rebut presumption that property was community
property).
99
… Tex. Fam. Code Ann § 3.102(c).
100
… Id. § 3.102(a).
101
… Id.
37
sole management community property if it is held in that spouse’s name alone
“as shown by muniment, contract, deposit of funds, or other evidence of
ownership.” 102 If property is the sole management community property of one
spouse, it is not subject to the nontortious liability of the other spouse.103
When property is transferred, title to the property vests upon execution
and delivery of the deed.104 In this case, although both Richard and Diane
testified that Diane owned Tobago, the deed actually named both Richard and
Diane as grantees. Thus, title to the property vested in them both. 1 0 5 The
evidence was also undisputed that both Clays signed the note and the deed of
102
… Id. § 3.104(a). But see Evans v. Muller, 510 S.W.2d 651, 655
(Tex. Civ. App.—Austin 1974) (stating that predecessor statute “by its terms,
seems to operate not for the benefit of the spouse, but instead for the
protection of those third persons who may deal with the spouse in possession
or in whose name the property is held”), rev’d on other grounds, 516 S.W.2d
923 (Tex. 1974); Cockerham v. Cockerham, 514 S.W.2d 150, 160 (Tex. Civ.
App.—Waco 1974) (Hall, J. dissenting) (stating that statute did not convert
joint management community property to sole management community
property and thereby exempt it from liability and that presumption provided by
statute was intended to protect third persons), rev’d in part and aff’d in part,
527 S.W.2d 162 (Tex. 1975).
103
… Tex. Fam. Code Ann. § 3.202(b)(2).
104
… Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257, 261
(Tex. 1975).
105
… See In re Marriage of Murray, 15 S.W.3d 202, 205 (Tex.
App.—Texarkana 2000, no pet) (stating that when deed names more than one
grantee without stating interest of each grantee, presumption arises that each
grantee is vested with title to equal undivided interest).
38
trust relating to the transaction. That both Clays were listed as grantees on the
deeds and both Clays signed the deed of trust and the note is sufficient to
establish that Tobago when acquired was subject to the Clays’ joint
management.106
Richard argued to the trial court that no person can be made a grantee
without his acceptance of the deed and that he did not accept delivery. Richard
is correct that a grantee must accept the deed in order for the deed to convey
an interest in the property to him.107 But the recording of a deed creates a
rebuttable presumption that the grantee accepted the deed.108 The deed from
the grantors to Richard and Diane was recorded, which created a presumption
that Richard accepted the deed. There is no evidence in the record that after
the Clays acquired Tobago, Richard said anything or took any action prior to
filing suit that was inconsistent with an ownership interest in Tobago.
Although Richard and Diane testified that it had not been their intention in
106
… See Cockerham v. Cockerham, 527 S.W.2d 162, 170 (Tex. 1975)
(holding joint management of property sufficiently established by fact that title
to property was taken in both spouses’ names and both spouses were obligated
on note under which money to buy property was acquired); Cooper v. Tex.
Gulf Indus., Inc., 513 S.W.2d 200, 201–02 (Tex. 1974) (same).
107
… See Panhandle Baptist Found., Inc. v. Clodfelter, 54 S.W.3d 66, 71
(Tex. App.—Amarillo 2001, no pet.).
108
… Tex. Land & Mortgage Co. v. Cohen, 138 Tex. 464, 159 S.W.2d
859, 863 (1942); Clodfelter, 54 S.W.3d at 71–72.
39
setting up the transaction for Richard to have an ownership interest in the
property, that is not evidence that he did not actually accept the deed. Thus,
Richard did not rebut the presumption of acceptance. The trial court therefore
should have presumed that Richard accepted the deed and that the deed
therefore vested an interest in the property in Richard. The property was
therefore joint management community property absent evidence from Richard
to the contrary. Furthermore, once title vested in Richard, a subsequent deed
from the same grantors to Diane could not thereby divest Richard of his title to
the property.109 Assuming that a spouse may rely on section 3.104 to protect
property from the other spouse's creditors, 110 Richard is not entitled to the
presumption in this case. Thus, unless the evidence established that Richard
and Diane agreed that Tobago would be under Diane’s sole management, then
Tobago was subject to their joint management.111
109
… Nat’l Bank of Commerce v. May, 583 S.W.2d 685, 689–90 (Tex.
Civ. App.—Eastland 1979, writ ref’d n.r.e.) (noting that after execution and
delivery of deed, neither grantor nor grantee may alter or destroy deed and
thereby divest grantee of title to land as originally described); see also Henson
v. Peterson, 218 S.W. 126, 128 (Tex. Civ. App.—Texarkana 1919, writ ref’d)
(holding that after grantor conveyed life estate to grantee with remainder to
grantee’s children, grantor and grantee could not subsequently by agreement
enlarge grantee’s estate and divest remaindermen of interest acquired under
deed).
110
… But see Evans, 510 S.W.2d at 655.
111
… Tex. Fam. Code Ann. § 3.102(c).
40
We therefore look to the record to determine if the Clays produced more
than a scintilla of evidence that they entered into an agreement that the
property would nevertheless be Diane’s sole management community
property.112 Although there was testimony that the parties had originally
planned that Diane would acquire Tobago as her separate property, there was
no testimony or other evidence admitted to show that Diane and Richard had
entered into an agreement that the property, once acquired as community
property, would be under Diane’s sole management.113 Furthermore, any
circumstantial evidence that could support such an agreement was no more
than a scintilla. Richard testified that the note from the bank was for a bridge
loan that became due at the end of one year, that the note was paid off, and
that “at the end of the year they went to a balloon note,” but he does not state
who “they” is, and thus it was not clear that Diane is the only one obligated on
the new note. Diane testified that Richard pays some of their bills, but she
112
… Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998) (setting out standard of review for challenges to legal sufficiency of
evidence), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No
Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361,
362–63 (1960).
113
… See Brooks, 788 S.W.2d at 877 (stating that although couple may
have intended, prior to opening of accounts, for wife to own accounts as her
special community property, the intent was superseded by opening of joint
account with its joint right of control).
41
could not recall which ones, and there was no testimony that Richard does not
pay for any of the household bills relating to Tobago. Rather than having no
involvement with Tobago, both Richard and Diane live at Tobago with their
children, and there was no evidence that Richard did not participate in decision-
making with respect to Tobago.114 No action was taken to put the property in
Diane’s name alone until after the Clays commenced this litigation. And in fact,
in March 2001, Richard and Diane executed a new deed of trust on Trailwood
to secure the note on Tobago. Richard testified that when he was served with
the writs of execution and he was asked by the constable which house he
wanted to sell, he told the person serving him, “pick you one,” that his
homestead was Trailwood, “but, you know, sell whichever one you want.” He
did not tell the officer that Tobago was not his property or was not subject to
execution for his debts. That the grantors executed another deed to Tobago
in Diane’s name alone after Richard filed suit is evidence Diane attempted to
convert the property into her separate property, but it is not evidence of an
114
… See Patel v. Kuciemba, 82 S.W.3d 589, 596 (Tex. App.—Corpus
Christi 2002, pet. denied) (holding that stores were husband’s sole
management community property when wife worked at two stores but did not
discuss or even know of decisions husband made on investments, borrowing
money, or running business and she never participated in making loans for
money to run stores where she worked).
42
agreement that the property would be community property subject to Diane’s
sole management.115
Because Richard did not produce more than a scintilla of evidence that he
and Diane entered into an agreement that Tobago would be under Diane’s sole
management, the evidence was legally insufficient to support the trial court’s
finding. Because the trial court erred by finding that Tobago was Diane’s
separate property or sole management community property, it also erred by
declaring that Tobago is not subject to execution for payment of Richard’s
debts. We sustain Appellants’ fifth issue.
Conclusion
We affirm the trial court’s judgments in part and reverse the trial court’s
judgments in part. Having overruled Appellants’ fourth issue, we affirm those
portions of the trial court’s judgments declaring that Trailwood is Richard’s
homestead. Having sustained Appellants’ first, second, third, and fifth issues,
we reverse the remaining portions of the trial court’s judgments, vacate those
portions of the trial court’s judgments permanently enjoining the enforcement
of the underlying money judgments, and render take-nothing judgments against
115
… Cf. Montemayor v. Ortiz, 208 S.W.3d 627, 645 (Tex. App.—Corpus
Christi 2006, pet denied) (holding that store was wife’s special community
property when “unequivocal evidence” indicated that wife maintained full
control over management and operations of store, no community capital assets
were used to increase business, store was purchased with wife’s separate
property, no debts were incurred by both husband and wife to finance growth
of store, and store did not rely upon any community-owned real property).
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Richard on all of his claims for declaratory relief except his claim that Trailwood
is his homestead.
LEE ANN DAUPHINOT
JUSTICE
PANEL: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.
DELIVERED: April 23, 2009
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