Walter H. Ballard v. Carrie Davis Allen--Appeal from 258th District Court of San Jacinto County

NO. 12-03-00370-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WALTER H. BALLARD, APPEAL FROM THE 258TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

CARRIE DAVIS ALLEN,

APPELLEE SAN JACINTO COUNTY, TEXAS

MEMORANDUM OPINION ON REHEARING

Walter H. Ballard filed a motion for rehearing. We requested a response from Carrie Davis Allen. In her response, Allen declined to substantively respond to Ballard s issues on rehearing, but rather, adopted our opinion dated March 23, 2005. Ballard s motion for rehearing is granted. We withdraw our opinion and judgment dated March 23, 2005 and substitute the following opinion and corresponding judgment in its place.

Ballard, proceeding pro se, appeals the trial court s order granting summary judgment in favor of Allen. Ballard raises two issues on appeal. We reverse and remand.

Background

Allen filed suit seeking to quiet title to land conveyed to her by warranty deed on January 19, 2001, by her ex-husband, James Allen. At the time of the conveyance, James Allen was incarcerated and owed Allen back child support. Allen subsequently had the deed recorded in the offices of the San Jacinto County Clerk on June 22, 2001. Unbeknownst to Allen, James Allen had conveyed the same property to Ballard on December 2, 1999. However, Ballard did not record his deed until August 20, 2001.

Allen filed a motion for summary judgment on April 30, 2003. In support of her motion for summary judgment, Allen attached an affidavit in which she stated as follows:

I took title to the property from my ex-husband, JAMES ALLEN for a good and valuable consideration to-wit: credit towards his child support obligation in the amount of $10,000.00 towards the over $22,000.00 that he is in arrears on his child support.

I had no knowledge of any deed that Walter H. Ballard claims to have had . . . at the time that I got my deed to the property as a credit against the child support owed to me by James Allen.

The warranty deed transferring the land from James Allen to Allen containing the county clerk s file stamp was attached as an exhibit to Allen s motion as was the file-stamped warranty deed transferring the subject property from James Allen to Ballard.

Ballard filed a response to Allen s motion contending that the conveyance from James Allen to Allen was not supported by consideration and, furthermore, was void for illegality as it sought to reduce James Allen s child support obligation. Ballard also objected to Allen s affidavit as self-serving. Moreover, Ballard objected to the participation by any assigned visiting judge in the case pursuant to Texas Government Code, section 74.053.

Allen s motion was set to be heard on June 23, 2003. On that date, the Honorable Jim Keeshan, the assigned visiting judge, noted Ballard s objection and passed the hearing until July 23, 2003. On July 23, 2003, the Honorable Tom McDonald, also a visiting judge, granted Allen s motion for summary judgment. Ballard filed a motion for new trial, which was overruled by operation of law. This appeal followed.

Standard of Review

In reviewing a traditional motion for summary judgment, this court must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 49 (Tex. 1985), which are as follows:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

See id.; May v. Nacogdoches Mem l Hosp., 61 S.W.3d 623, 628 (Tex. App. Tyler 2001, no pet.). For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either negate at least one essential element of the nonmovant's cause of action or prove all essential elements of an affirmative defense. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (Tex. 1952). The only question is whether or not an issue of material fact is presented. See Tex. R. Civ. P. 166a(c).

Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c).

Suit to Quiet Title

In his first issue, Ballard argues that the trial court erred in granting summary judgment. Specifically, Ballard argues that (1) the warranty deed was secured without consideration, (2) the warranty deed was secured pursuant to an agreement to reduce child support, which is prohibited by law, (3) Allen s self-serving affidavit was insufficient to support summary judgment, and (4) there is a fact issue as to whether Allen had constructive notice of the prior conveyance of the subject property to Ballard.

A trespass to try title action is the exclusive remedy by which to resolve competing claims to property. See Tex. Prop. Code Ann. 22.001 (Vernon 2000); Ely v. Briley, 959 S.W.2d 723, 727 (Tex. App. Austin 1998, no pet.). Any suit that involves a dispute over title to land is, in effect, an action in trespass to try title, whatever its form and regardless of whether legal or equitable relief is sought. Jordan v. Exxon Corp., 802 S.W.2d 880, 883 (Tex. App. Texarkana 1991, no pet.).

The principal issue in a suit to quiet title is the existence of a cloud that equity will remove. See Bell v. Ott, 606 S.W.2d 942, 952 (Tex. Civ. App. Waco 1980, writ ref d n.r.e.). The action lies to enable the holder of the feeblest equity to remove any unlawful hindrance having the appearance of a superior right that lies as an obstacle to his legal right to the property. See id. (citing Thompson v. Locke, 66 Tex. 383, 1 S.W. 112, 115 (Tex. 1886)). In other words, the plaintiff s purpose is to have the defendant s claims judicially declared to be unfounded. See Temple Trust Co. v. Logan, 82 S.W.2d 1017, 1019 (Tex. Civ. App. Amarillo 1935, no writ). In a suit to quiet title, the plaintiff must show ownership of the disputed property, see Aransas Properties, Inc. v. Brashear, 410 S.W.2d 934, 941 (Tex. Civ. App. Corpus Christi 1967, writ ref d n.r.e.), and that the alleged adverse claim is a cloud on the title that equity will remove. See Walker v. Haley, 236 S.W. 544, 545 (Tex. Civ. App. Texarkana 1921, no writ).

A conveyance of real property is void as to a subsequent purchaser for valuable consideration without notice unless the instrument has been acknowledged, sworn to, or proved and filed for record as required by law. See Tex. Prop. Code Ann. 13.001(a) (Vernon 2004). Conversely, the unrecorded instrument is binding on a subsequent purchaser who does not pay a valuable consideration or who has notice of the instrument. See Tex. Prop. Code Ann. 13.001(b) (Vernon 2004).

Consideration

Ballard first argues that the conveyance of property to Allen was not supported by consideration. What constitutes consideration is a question of law. See Brownwood Ross Co. v. Maverick County, 936 S.W.2d 42, 45 (Tex. App. San Antonio 1996, writ denied). Consideration is a bargained-for exchange of promises and consists of either a benefit to the promisor or a loss or detriment to the promisee. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991); Turner-Bass Assoc. v. Williamson, 932 S.W.2d 219, 222 (Tex. App. Tyler 1996, writ denied). The detriment must induce the making of the promise, and the promise must induce the incurring of the detriment. Roark, 813 S.W.2d at 496. For example, paying money or surrendering a legal right ordinarily represents valid consideration. See Northern Nat. Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1998). However, the doing of an unlawful act is not valid consideration. See Seeligson v. Lewis & Williams, 65 Tex. 215, 222 23 (1885); Scoggins v. Furst & Thomas, 9 S.W.2d 405, 406 (Tex. Civ. App. Texarkana 1928, writ dismissed) (a consideration arising out of an illegal contract is not recognized as sufficient under the law to support any obligation).

The subsequent purchaser bears the burden of proving that she gave valuable consideration for the property. See Raposa v. Johnson, 693 S.W.2d 43, 46 (Tex. App. Fort Worth 1985, writ ref d n.r.e.). Mere recitals of consideration in the deed, standing alone, are not sufficient to meet this burden of proof. Id. at 47. // In her affidavit, Allen states that the consideration for the subject property was a $10,000.00 credit toward child support arrearage of more than $22,000.00 owed to her by James Allen.

Parties may enter into written agreements concerning child support obligations, but such agreements must be approved by the court with jurisdiction over the matter after considering the best interests of the child. See Tex. Fam. Code Ann. 154.124 (Vernon Supp. 2004 05). The legislature intended that courts exercise independent judgment in matters affecting children including the support obligation. Williams v. Patton, 821 S.W.2d 141, 143 (Tex. 1991). Thus, parties are prohibited from settling claims concerning child support arrearage without court approval. Id.

In the case at hand, the consideration to which Allen refers in her affidavit amounts to an agreement to satisfy a portion of James Allen s child support obligation to her. Yet, without evidence that such an agreement was approved by the court with jurisdiction over the matter, Allen did not supply the trial court with sufficient evidence to meet her burden of proof that her purchase of the subject property was for valuable consideration inasmuch as doing of an unlawful act is not valid consideration. See Seeligson, 65 Tex. at 222 23. We conclude that Allen did not demonstrate that she was entitled to judgment as a matter of law. Thus, the trial court erred in granting summary judgment in Allen s favor. Ballard s first issue is sustained. //

Conclusion

Having sustained Ballard s first issue, we reverse the judgment of the trial court and remand the matter for further consideration consistent with this opinion.

SAM GRIFFITH

Justice

Opinion delivered May 4, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)