Daniel Montes, Jr. D/B/A Contract Builders v. Annie Laura Scott ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

Daniel Montes, Jr. d/b/a Contract Builders

Appellant

Vs.                   No. 11-03-00096-CV C Appeal from Dallas County

Annie Laura Scott

Appellee

This appeal arises out of appellant=s efforts to collect a judgment he obtained against appellee=s ex-husband, Eddie Lee Scott.  Appellant obtained a judgment against Eddie Lee Scott on February 26, 1996. Appellant initiated efforts on August, 23, 2002, to enforce the judgment against a residential tract of real property located in Dallas County (hereinafter Athe Property”) on which appellee has continuously lived at least since 1985. Appellee and Eddie Lee Scott acquired the Property in 1966 while they were still married.  The 1966 deed to the Property identified the grantees as AEddie Lee Scott and wife, [appellee].” Appellee and Eddie Lee Scott were divorced in Rockwall County on December 31, 1980.  The divorce decree awarded the Property to appellee as her sole and separate property.  However, the divorce decree was never recorded in the deed records of Dallas County. Furthermore, no other documents indicating the divestiture of Eddie Lee Scott=s interest in the Property were filed of record prior to August 23, 2002. Accordingly, record ownership of the Property remained in the names of appellee and Eddie Lee Scott when appellant initiated efforts to enforce the judgment against the Property.

Appellant filed a document entitled AJudgment Lien” on August 23, 2002, which purported to establish a judgment lien against the Property. Appellant personally delivered a copy of this document to appellee on August 23, 2002, at her residence. Appellant acknowledged in his pleadings that appellee advised him on August 23, 2002, that the Property had been awarded to her in the divorce.  On August 26, 2002, appellee filed a quitclaim deed purportedly executed by Eddie Lee Scott in the deed records of Dallas County whereby Eddie Lee Scott disclaimed any ownership of the Property. 

Appellant continued with his efforts to oust appellee from her residence.  Appellant undertook these efforts despite the fact that appellee was a record owner of the Property under the 1966 deed and had continuously resided on the Property for several years.   Pursuant to appellant=s request, the Sheriff of Dallas County levied execution on the Property on September 30, 2002.  See TEX.R.CIV.P. 637.  Appellant purchased the Property at a sheriff=s sale conducted on November 5, 2002.  See TEX.R.CIV.P. 646a.  Appellant received a ASheriff=s Deed”  to the property on November 6, 2002.  On November 7, 2002, appellant posted the following notice on the house located on the Property:

DANIEL MONTES, JR., D/B/A CONTRACT BUILDERS IS THE RECORD OWNER AND HAS POSSESSION OF THIS PROPERTY.  THE POLICE HAS BEEN NOTIFIED REGARDING THIS PROPERTY.  WE WILL PROSECUTE ANYONE BREAKING AND ENTERING, BURGLARIZING, VANDALIZING, COMMITTING ARSON OR ANY OTHER DAMAGE TO THIS PROPERTY.  E.L. SCOTT=S EX-WIFE IS TO CALL DANIEL MONTES, JR. AT [PHONE NUMBER] TODAY TO SCHEDULE A TIME TO REMOVE YOUR PERSONAL PROPERTY UNDER SUPERVISION.  THERE IS NO LEASE IN EFFECT BETWEEN THE RECORD OWNER CONTRACT BUILDERS AND PAST OCCUPANTS E.L. SCOTT=S EX-WIFE AND OTHERS.  ALL NEIGHBORS HAVE BEEN NOTIFIED REGARDING THIS PROPERTY AND ARE WATCHING IT FOR ME. COPY OF RECORDED DEED IS ENCLOSED.

Appellant also entered the house and changed the locks on November 7, 2002, thereby excluding  appellee from the Property.

Appellee filed the underlying action against appellant in an effort to resolve the disputed ownership of the property. Appellee also sought injunctive relief and monetary damages from appellant.  At the conclusion of a nonjury trial, the trial court entered judgment in appellee=s favor. Specifically, the trial court=s judgment awarded title and possession of the Property to appellee.  The judgment expressly nullified the Sheriff=s Deed conveying the property to appellant.  We affirm the judgment of the trial court.

Appellant raises five issues on appeal.  Prior to addressing these issues, we note that the record does not show that findings of fact or conclusions of law were either requested or filed.   In a nonjury trial where no findings of fact or conclusions of law are filed or properly requested, it is implied that the trial court made all necessary findings to support its judgment.  Pharo v. Chambers County, Texas, 922 S.W.2d 945, 948 (Tex.1996); Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989). The judgment of the trial court must be affirmed if it can be upheld on any legal theory supported by the evidence and contained in the pleadings. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); In the Interest of W.E.R., 669 S.W.2d 716, 717 (Tex.1984).

Appellee contends that the record supports a finding that appellant had notice of her claim of sole ownership of the Property prior to the attachment of his judgment lien on the Property.   It is well established that the lien of a judgment creditor takes precedence over a prior unrecorded deed executed by the judgment debtor unless the creditor has notice of the unrecorded deed at or before the time the judgment lien attaches to the land.  Gibraltar Savings Association v. Martin, 784 S.W.2d 555, 557-59 (Tex.App. B Amarillo 1990, writ den=d).  In order for this legal theory to be applied to the facts in this appeal, we must first ascertain the date that appellant=s judgment lien attached to the property.

Judgment liens are governed by Chapter 52 of the Texas Property Code.  See TEX. PROP. CODE ANN. ' 52.001 et seq. (Vernon 1995 & Supp. 2003); Hoffman, McBryde & Co., P.C. v. Heyland, 74 S.W.3d 906, 908 (Tex.App. B Dallas 2002, pet=n den=d).  A judgment lien is created when a sufficient abstract of judgment is properly recorded and indexed.   See Section 52.001; Hoffman, McBryde & Co., P.C. v. Heyland, supra at 909.  Because a judgment lien is created by statute, substantial compliance with the statutory requirements is mandatory before a judgment creditor=s lien will attach.  Hoffman, McBryde & Co., P.C. v.  Heyland, supra at 909.  The contents of an abstract of judgment are prescribed by Section 52.003 of the Texas Property Code.  Subsection (a) states that an abstract of judgment must show:

(1) the names of the plaintiff and defendant;

(2) the birthdate and driver=s license number of the defendant, if available to the clerk or justice;

(3) the number of the suit in which the judgment was rendered;

(4) the defendant=s address, or if the address is not shown in the suit, the nature of citation and the date and place of service of citation;

(5) the date on which the judgment was rendered;

(6) the amount for which the judgment was rendered and the balance due;

(7) the amount of the balance due, if any, for child support arrearage; and

(8) the rate of interest specified in the judgment.

Section 52.003(a).

As noted previously, appellant filed a document entitled AJudgment Lien” on August 23, 2002. He attached a copy of this document to his pleadings as an exhibit.  However, he did not offer the document into evidence at trial.  Irrespective of this omission, the document does not substantially comply with the requirements of Section 52.003(a) such that it would qualify as a sufficient abstract of judgment.  The document does not list either Eddie Lee Scott=s address or the nature of citation and the date and place of citation.  See Section 52.003(a)(4).  The document does not indicate the month and day on which the judgment was rendered. See Section 52.003(a)(5). Although the document lists the claimed balance due on the judgment as of the date of its filing, it does not indicate the amount for which the judgment was rendered and the rate of interest specified in the judgment.  See Section 52.003(a)(6) & (8).  Accordingly, appellant=s judgment lien did not attach to the property on August 23, 2002, as a result of the document that appellant filed on that date.

There is no evidence of any additional documents being filed which attempted to attach a judgment lien on the Property.  A recital in the Sheriff=s Deed indicates that the sheriff levied execution on the property on September 30, 2002.  Assuming, without deciding, that levy of execution is sufficient to attach a judgment lien against real property in the absence of a proper abstract of judgment being filed, September 30, 2002, was the earliest date that appellant=s judgment lien attached to the Property.  The record reflects that as of September 30, 2002, appellant had received oral notice of the property division in the divorce decree.  Additionally, appellant had both actual notice and record notice of the quitclaim deed purportedly executed by Eddie Lee Scott.  Therefore, there is evidence in the record which supports appellee=s claim that appellant had notice of the divestiture of Eddie Lee Scott=s interest in the Property prior to the attachment of appellant=s judgment.  This evidence of notice constitutes a sufficient basis for affirming the trial court=s judgment.

In his first issue, appellant argues that the trial court erred in admitting the 1980 divorce decree into evidence.  Appellant contends that the decree should not have been admitted into evidence because it was not recorded in the deed records of Dallas County.  Appellant relies upon TEX. PROP. CODE ANN. ' 12.005(a) (Vernon 1984) in support of this contention.  We do not address this issue because the receipt of the divorce decree into evidence is immaterial to the question of notice.

Appellant=s second and third issues address the admission of the quitclaim deed into evidence. Appellant presented documentation to the trial court which indicated that the Secretary of State had previously revoked the commission of the notary that acknowledged Eddie Lee Scott=s execution of the deed. Appellant asserts that the quitclaim deed should not have been admitted into evidence because it was unlawfully recorded as a result of the revocation of the notary=s commission.  The fact that the notary=s commission had been revoked did not prevent the quitclaim deed from being properly recorded.  A disqualification of a notary that does not appear on the face of the instrument will not make the instrument ineligible for recording and will not prevent the instrument from constituting notice.  T. A. Hill State Bank of Weimar v. Schindler, 33 S.W.2d 833, 838 (Tex.Civ.App. B Galveston 1930, writ ref=d). The quitclaim deed was, therefore, admissible to establish notice to appellant.

Appellant additionally contends that the quitclaim deed is either a forgery or a voidable fraudulent conveyance.  Appellant does not assert on appeal that the evidence conclusively establishes either of these affirmative defenses.  Our review of the evidence indicates that neither of these defenses were established as a matter of law.  Appellant=s second and third issues are overruled.

Appellant=s fourth and fifth issues generally attack the trial court=s judgment in favor of appellee.  Our determination that there is evidence in the record which supports appellee=s claim that appellant had notice of the divestiture of Eddie Lee Scott=s interest in the Property prior to the attachment of the judgment lien is dispositive of these general issues.  Appellant=s fourth and fifth issues are overruled.

The judgment of the trial court is affirmed.

PER CURIAM

October 2, 2003

Not designated for publication.  See TEX.R.APP.P. 47.2(a).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.