Lisa Monique Okoh-Brown v. Mark Allen BrownAppeal from 246th District Court of Harris County (memorandum opinion )
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Opinion issued January 28, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00096-CV
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LISA MONIQUE OKOH-BROWN, Appellant
V.
MARK ALLEN BROWN, Appellee
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Case No. 2009-47145
MEMORANDUM OPINION
When Lisa Okoh-Brown and Mark Brown divorced in Texas, they agreed
that Mark would receive a condominium located in Tampa, Florida as part of the
marital property division. Mark defaulted on the condominium’s note, and the
bank named Lisa as a defendant in a Florida foreclosure proceeding. Lisa sought
to extricate herself from the Florida proceeding by filing a motion to enforce the
Texas divorce decree, in which she asked the Texas court to require Mark to
procure her dismissal from the foreclosure action and to comply with the divorce
decree’s indemnification provisions.
The divorce court dismissed the motion for lack of subject-matter
jurisdiction. Lisa appeals. In response, Mark moves to dismiss the appeal as
moot. 1
We affirm in part, reverse in part, and remand.
Background
Two years after the trial court signed an agreed final divorce decree in Harris
County, Lisa was served with a complaint naming her as a defendant in a
foreclosure action filed in Hillsborough County, Florida. The foreclosure action,
instituted by U.S. Bank N.A., concerned the Tampa condominium that Mark had
received in the divorce. Lisa hired counsel to appear on her behalf in the Florida
suit.
In response to the Florida suit, Lisa also petitioned the Texas divorce court
for enforcement of the parties’ marital property division agreement, asking that
1
We grant Mark’s motion for leave to file an out-of-time response and construe the
accompanying brief and affidavit together as a request to dismiss the appeal as
moot.
2
Mark be required to indemnify her as the divorce decree provided.
Mark
responded to the Florida suit on behalf of Lisa by requesting that she be removed
from the suit.
Following a hearing on Lisa’s motion to enforce the divorce decree, the
Harris County trial court denied relief on the ground that it lacked subject-matter
jurisdiction over the Florida real property at issue in the Florida foreclosure action.
Lisa challenges that ruling in this appeal.
Mark, in turn, has moved to dismiss this appeal based on later events in the
Florida action. Mark avers that in January 2013, he sold the Florida property in a
lender-approved short-sale transaction, which resulted in transfer of the property
and satisfaction of the remaining deficiency as well as other costs relating to the
property.
Discussion
Standard of review
Whether a court has subject-matter jurisdiction is a question of law, subject
to de novo review. Graber v. Fuqua, 279 S.W.3d 608, 631 (Tex. 2009); Black v.
Wash. Mut. Bank, 318 S.W.3d 414, 416 (Tex. App.—Houston [1st Dist.] 2010, pet.
dism’d w.o.j.).
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Jurisdiction and enforcement
Lisa contends that the trial court erred in denying her motion because she
seeks to compel Mark to indemnify her in the foreclosure proceeding pursuant to
the parties’ divorce decree, and does not seek to interfere with the foreclosure of
the Florida property itself.
As part of a divorce decree, “[a] trial court may require parties over whom it
has in personam jurisdiction to execute a conveyance of real estate located in
another state.” Dankowski v. Dankowski, 922 S.W.2d 298, 303 (Tex. App.—Fort
Worth 1996, writ denied), quoted in Vats v. Vats, No. 01-12-00255-CV, 2012 WL
2108672, at *5 (Tex. App.—Houston [1st Dist.] June 7, 2012, no pet.); see
McElreath v. McElreath, 345 S.W.2d 722, 724 (Tex. 1961) (op. on reh’g)); see
also Griffith v. Griffith, 341 S.W.3d 43, 57 (Tex. App.—San Antonio 2011, no
pet.) (holding that trial court had jurisdiction to divide community property
situated in Florida). But a Texas court cannot adjudicate a title to land in another
state. See Holt v. Guerguin, 163 S.W. 10, 12 (Tex. 1914); Stark v. Benckenstein,
156 S.W.3d 112, 119 (Tex. App.—Beaumont 2004, pet. denied).
The
determination of whether an enforcement of a promise in a decree about land
outside Texas hinges on whether the issue involves “a naked question of title.”
Hartman v. Sirgo Operating, Inc., 863 S.W.2d 764, 766 (Tex. App.—El Paso
1993, writ denied) (citing Massie v. Watts, 10 U.S. (6 Cranch) 148 (1810)).
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If
quieting title to property outside Texas is the basis for the suit, then a Texas court
lacks jurisdiction to adjudicate the dispute. See Hartman, 863 S.W.2d at 766. A
court has subject matter jurisdiction, however, when the remedy sought operates on
the defendant, and not on the out-of-state property. Tex. & Pac. Ry. v. Gay, 26
S.W. 599, 605 (Tex. 1894); Banco Minero v. Ross, 172 S.W. 711, 713 (Tex. 1915);
In re Elamex, S.A. de C.V., 367 S.W.3d 891, 897–98 (Tex. App.—El Paso 2012,
orig. proceeding); Hartman, 863 S.W.2d at 766.
Section 9.007 of the Texas Family Code also defines some parameters that
govern the issues raised in a motion to enforce, in relevant part, as follows:
(a) A court may not amend, modify, alter, or change the division of
property made or approved in the decree of divorce. An order to
enforce the division is limited to an order to assist in the
implementation of or to clarify the prior order and may not alter or
change the substantive division of property.
(b) An order under this section that amends, modifies, alters, or
changes the actual, substantive division of property made or
approved in a final decree of divorce . . . is beyond the power of
the divorce court and is unenforceable.
TEX. FAM. CODE ANN. § 9.007(a), (b) (West 2006).
Lisa asked the trial court, among other things, to require Mark to remove her
as a defendant in the Florida foreclosure action.
The trial court correctly
concluded that it lacked subject-matter jurisdiction to determine whether Lisa is a
proper defendant in the foreclosure proceeding.
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Lisa’s motion, however, also alleges that Mark has failed to indemnify her
for expenses she incurred in connection with the Florida proceeding, and she seeks
enforcement of the divorce decree’s indemnification provision. That provision
requires
if any claim or action, or proceeding is hereafter initiated seeking to
hold the party not assuming a debt, an obligation, a liability, act or
omission of the other party liable for such debt, obligation, liability,
act or omission of the other party, that other party will, at his or her
sole expense, defend the party not assuming the debt, obligation,
liability, act, or omission of the other party against such claim or
demand, whether or not well founded, and will indemnify the party
not assuming the debt, obligation, liability, act, or omission of the
other party and hold him or her harmless from all damages [defined as
including any reasonable loss, cost, expense, penalty, and other
damage, including, without limitation attorney’s fees and other costs
and expenses reasonably and necessarily incurred in enforcing this
indemnity] resulting from the claim or demand.
The issue of whether Mark should be liable for Lisa’s expenses falls within the
parameters of a motion to enforce under the Family Code and does not constitute
an adjudication of title. See TEX. FAM. CODE ANN. § 9.007(a). The trial court thus
has jurisdiction over this claim.
Lisa also asks the trial court to require Mark to (1) notify the bank that Lisa
is not a proper defendant in the proceeding, (2) provide the bank with a copy of the
quit-claim deed executed in connection with the divorce decree and a copy of the
executed promissory mortgage note showing that Lisa was never a responsible
party for the mortgage liability, and (3) ensure that the bank remove any reference
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to her as a defendant to a foreclosure proceeding from any notice filed with credit
reporting agencies. Assuming they have merit, these requests fall within the trial
court’s statutory authority to assist in the implementation of or to clarify the
parties’ obligations under the decree. See id.
We agree with Mark that some of Lisa’s specific requests for
indemnification may have been rendered moot by further action in the Florida
court. Mark’s motion to dismiss Lisa’s appeal explains that Lisa was discharged
from any possible liability that she may have had when he transferred the property
and paid outstanding expenses in January 2013. As none of these events are part
of our appellate record, Mark may present them in the trial court on remand. It is
not apparent from Mark’s motion to dismiss that the entire controversy is moot. In
particular, Lisa requested that Mark (1) reimburse reasonable attorney’s fees and
expenses that she incurred in connection with the Florida property or the suit and
(2) notify credit reporting agencies that Lisa has no connection to the Florida suit
may continue to be in dispute, even though the Florida action is resolved. We hold
that the trial court erred in concluding that it lacked subject-matter jurisdiction to
determine whether Mark is obliged to satisfy these requests under the divorce
decree’s indemnification provision and, if so, to enforce those obligations.
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Conclusion
We hold that the trial court correctly dismissed the part of Lisa’s motion to
enforce that asks to remove her designation as a defendant in the pending Florida
foreclosure action, but erred in dismissing Lisa’s claims for clarification and
enforcement of Mark’s obligations under the divorce decree’s indemnification
provision, with respect to reasonable attorney’s fees and expenses she has incurred
in connection with the Florida suit and the preservation of accurate credit rating
information for her credit reports. We affirm in part, reverse in part, and remand
the cause for further proceedings consistent with this opinion.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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