Bobby G. Burrows, Sr. v. Beatrice Quintanilla ( 2002 )

NUMBER 13-01-134-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

BOBBY G. BURROWS, JR., Appellant,

v.

BEATRICE QUINTANILLA, Appellee.

___________________________________________________________________

On appeal from the 139th District Court of Hidalgo County, Texas.

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O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez Opinion by Justice Rodriguez

Appellant, Bobby G. Burrows, Sr., purchased real property at an Internal Revenue Service (IRS) tax auction. Appellee, Beatrice Quintanilla, sued appellant claiming that a portion of the property appellant purchased was her homestead. After determining appellant's quitclaim deed was a cloud on the title, the district court rendered judgment in favor of appellee and removed the cloud on her title. By six issues, appellant generally contends the trial court's failure to file findings of fact and conclusions of law was harmful; the evidence is legally and factually insufficient to support the judgment; and the judgment is void because it refers to and includes a photostatic copy of evidence not presented at trial. We affirm.

I. Background The record in this case reveals appellee filed for divorce from David Quintanilla in 1985. In the original divorce action, appellee joined and sued David's parents, Genovevo and Josefina Quintanilla, and appellant. Appellee asserted she, not her in-laws, owned a portion of the property purchased by appellant at the tax auction. Appellee also claimed a homestead interest in that portion. In 1996, the trial court granted appellee's divorce ⁽¹⁾ and severed that suit from the real estate title dispute.

At trial of the real estate action, appellee testified (1) the property at issue was acquired from Cosme Muniz in 1982 during appellee's marriage to David; (2) they paid $22,000.00 for the property, $11,000.00 down and the remaining $11,000.00 in payments; (3) it was paid for by earnings of the marriage; (3) appellee's house was built on the property and was paid for as it was being built on a cash basis in the amount of approximately $40,000.00; (4) the home and the land on which it is built is appellee's homestead; (5) appellee and her family lived there for eighteen months before two other houses were built on the property; (6) appellee continued to live there with her three children after she and David separated in 1985; (7) appellee had no knowledge the property had been signed over to her in-laws; (8) she never signed a deed transferring the property; and (9) she did not know the property had been transferred until the divorce was filed. Appellee further testified she never saw Genovevo pay for construction on her home and never heard him claim he paid for the property. Appellee also testified she was certain that Genovevo did not pay for the property or construction, because she and David had accumulated $22,000.00 cash to pay for the real property and accumulated another $40,000.00 to pay for the construction. Finally, appellee testified that David had a bad reputation and had been involved in criminal activity, and that Genovevo tends to not tell the truth, "to turn things around."

Although appellee was the only witness who testified at trial, the parties stipulated that deposition excerpts could be submitted to the court for its consideration. We have reviewed the excerpts from the depositions of Genovevo, Josefina, David, and David's brother and sister-in-law. ⁽²⁾ Each testified Genovevo bought the land and the sons contributed no money for either the land or the homes built on the land. David further testified that after purchasing the land, his father put it under his name and his sons' names. Later, Genovevo asked his sons to sign the land back to him so he could borrow money and build houses on it. David and his brother did as their father requested.

Additionally, the pleadings reveal that after the sons allegedly signed the title over to their father, Genovevo secured a bank loan with the subject property. From 1994 through 1998, the IRS filed federal tax liens against the property for Genovevo's failure to pay federal income taxes. The bank foreclosed on the property and the IRS redeemed it on behalf of the U.S. government. At a public tax auction, appellant purchased the property by virtue of a quitclaim deed.

II. Findings of Fact and Conclusions of Law

By his first issue, appellant contends the trial court's failure to file findings of fact and conclusions of law was harmful error.

A party may request that a court state, in writing, its findings of fact and conclusions of law. Tex. R. Civ. P. 296. If a court fails to file findings of fact and conclusions of law within twenty days after a timely request is filed, the requesting party must file a "Notice of Past Due Findings of Fact and Conclusions of Law" with the clerk of the court. Tex. R. Civ. P. 297. The filing of this notice extends the time for the court to file its findings and conclusions to forty days from the date of the filing of the original request. Id. Following a proper request and reminder, the trial court's duty to file findings of fact and conclusions of law is mandatory. Cherne Indus., Inc., v. Magallanes, 763 S.W.2d 768, 771 (Tex. 1989); Humphrey v. Camelot Ret. Cmty., 893 S.W.2d 55, 61 (Tex. App.-Corpus Christi 1994, no writ); In re O.L., 834 S.W.2d 415, 418 (Tex. App.-Corpus Christi 1992, no writ). The failure to respond, where a proper request and reminder have been filed, is presumed harmful unless the record before the appellate court affirmatively shows that the complaining party has suffered no injury. Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc., 763 S.W.2d at 772; Humphrey, 893 S.W.2d at 61. The question to consider in determining harm in such a case is whether the circumstances of the particular case would force an appellant to guess the reason or reasons that the trial court ruled against it. Humphrey, 893 S.W.2d at 61.

Appellant timely filed his request and past due notice for findings of fact from the March 13, 2000, "final hearing [trial] on a real estate matter." Thus, there is presumed harm. However, based on a review of the transcript of the hearing/trial, it is apparent from statements made by counsel and the judge, as well as appellee's testimony, that the issue being tried was whether appellee owned the property at issue and had a homestead interest in it. The resulting judgment from which this appeal is taken, removed appellant's ownership interest that was determined to be a cloud on the title to appellee's property. It is apparent from the record that the trial court determined appellee owned the property and that it was her homestead. Thus, the trial court ruled against appellant ordering the cloud be removed. Appellant did not have to guess the reason that the trial court ruled against him. See id. The first issue is overruled.

III. Evidentiary Issues

By his second issue, appellant contends appellee failed to establish superior interest in the property at issue. A cloud on titled property is generally defined as a semblance of title, either legal or equitable, that is invalid or would be inequitable to enforce. Vanguard Equities, Inc. v. Sellers, 587 S.W.2d 521, 525 (Tex. Civ. App.-Corpus Christi 1979, no writ). For a plaintiff to recover, she must prove her title and recover on the strength thereof, rather than relying merely on the weakness or invalidity of the defendant's title. Alkas v. United Sav. Ass'n of Tex., Inc., 672 S.W.2d 852, 857 (Tex. App.-Corpus Christi 1984, writ ref'd n.r.e.). In a case where plaintiff's superior equity and right to relief is at issue, plaintiff must prove her title to a common source with defendant. Katz v. Rodriguez, 563 S.W.2d 627, 629-30 (Tex. Civ. App.-Corpus Christi 1977, writ ref'd n.r.e.).

Appellant concedes both parties claim the common source of the title to the property is Cosme Muniz. Thus, the common source element has been satisfied. However, appellant asserts the evidence on the issue of ownership overwhelmingly establishes Genovevo to be the owner prior to the foreclosure, thus, appellee's homestead interest is not superior to the interest claimed by appellant. We interpret this to be a sufficiency of the evidence contention and review it on that basis. Furthermore, because appellant complains by issue three of appellee's alleged failure to establish the real property as her homestead, and by issues five and six of the legal and factual sufficiency to establish ownership of the property, for convenience, we will review issues two, three, five and six together.

When reviewing legal sufficiency, we must view the record evidence in the light most favorable to the factfinder's decision. See Formosa Plastics Corp. U.S.A. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); Hines v. Comm'n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.-Corpus Christi 2000, no pet.). "We sustain a legal sufficiency challenge when the record discloses: (1) that there is a complete absence of evidence of a vital fact; (2) that the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) that the evidence conclusively establishes the opposite of the vital fact." Northwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 853 (Tex. App.-Corpus Christi 1999, pet. denied) (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). "More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Northwest Mortgage, 999 S.W.2d at 853 (quoting Associated Indem. Corp. v. Cat Contracting, 964 S.W.2d 276, 286 (Tex 1998)).

When we review the factual sufficiency of the evidence, we consider, weigh, and examine all of the evidence which supports or undermines the finding of the trier of fact. See Plas-Tex, Inc. v. United States Steele Corp., 772 S.W.2d 442, 445 (Tex. 1989). We review the evidence, keeping in mind that it is the fact finder's role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. See Corpus Christi Teachers' Area Credit Union v. Hernandez, 814 S.W.2d 195, 197 (Tex. App.-San Antonio 1991, no writ). We then overturn findings only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

The Texas Constitution allows a person to establish a homestead, thereby exempting the property from certain sales. Sanchez v. Telles, 960 S.W.2d 762, 769 (Tex. App.-El Paso 1997, writ denied). However, ownership alone is insufficient to make a premises a homestead. Id. at 770. The establishment of a claim of homestead requires the combination of both overt acts or usage and intent by the owner to claim the land as a permanent residence. Id.

Based on our review of the evidence in the light most favorable to the trial court's decision, we conclude the evidence is legally sufficient to support the judgment. See Formosa Plastics, 960 S.W.2d at 48. There is some evidence establishing appellee's ownership of the real property and her homestead interest in the property, an equity interest superior to appellant's interest in the property. See Northwest Mortgage, 999 S.W.2d at 853; see also Patterson v. First Nat'l Bank of Lake Jackson, 921 S.W.2d 240, 245 (Tex. App.-Houston [14th Dist.] 1996, no writ) (citing Laster v. First Huntsville Props. Co., 826 S.W.2d 125, 230 (Tex. 1991) ("A mortgage or lien is void if it is illegally obtained against homestead property, and can never have any effect, even after the property is no longer impressed with homestead character.")). Furthermore, weighing and examining all evidence supporting or undermining the finding of the trier of fact, and keeping in mind the fact finder's role in judging the credibility of the evidence, assigning the weight to be given to testimony, and resolving inconsistencies within or conflicts among the witnesses's testimony, we conclude the judgment is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772; Plas-Tex, 772 S.W.2d at 445; Corpus Christi Teachers' Area Credit Union, 814 S.W.2d at 197. Thus, the evidence is factually sufficient to establish ownership and a homestead interest. Issues two, three, five and six are overruled.

IV. Photostatic Copy of Evidence

In his fourth issue, appellant complains that the final judgment is void because it includes a reference to and attaches photostatic documents that provide a legal description and a survey of the property at issue, documents that were not admitted into evidence at trial. At the entry of judgment proceedings, appellant objected to the court ordering a survey to determine the legal description of the property. Appellant argued that it was "a little bit late to allow new evidence or testimony in terms of property description." He objected to the court allowing, in effect, new evidence. However, appellee had described, in her own terms, the property she owned and claimed as a homestead. At her deposition she testified that it included her home and the property around her home that her ex-husband mowed. It did not include the two additional homes on the tract of land allegedly purchased by Burrows.

Rule of civil procedure 270 provides, in relevant part, "[w]hen it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time." Tex. R. Civ. P. 270; see Krishnan v. Ramirez, 42 S.W.3d 205, 223 (Tex. App.-Corpus Christi 2001, pet. denied) (rule 270 allows, but does not require, a judge to permit additional evidence). The trial court's decision to allow additional evidence to be submitted is within its discretion and will be disturbed on appeal only when clear abuse has been shown. Krishnan, 42 S.W.3d at 223.

In this case, it clearly appears to be necessary to the due administration justice to have an accurate description of the property at issue. The evidence requested by the court was for a survey and legal description of the property. The survey was requested to provide a more specific description, a legal description, of the property that appellee had described. Appellant challenges the propriety of referring to and attaching the documents to the judgment, not the substance of the survey and the legal description. Accordingly, we conclude the trial court did not abuse its discretion in re-opening evidence to allow appellee to establish a legal description of the property. Thus, the final judgment is not void because it includes a reference to and attaches photostatic documents that provide a legal description and a survey of that property. Issue four is overruled.

Accordingly, the judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 25th day of July, 2002.

1. In 1996, when the trial court granted appellee's divorce from David, it vested title to the property in appellee as her sole and separate property. The court ordered David to execute and deliver to appellee the special warranty deed on this real property.

2.

Appellee's deposition transcript was also submitted to the trial court for its review. Testimony from that transcript has been incorporated into the facts set out above.