File: 061481HF - From documents transmitted: 04/25/2008
AFFIRM IN PART and REVERSE IN PART and REMAND; Opinion Filed
April 25, 2008.
Court of Appeals
Fifth District of Texas at Dallas
MICHAEL O. MURRAY AND WHITNEY W. MURRAY, Appellants
THE CADLE COMPANY, Appellee
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-02998-M
OPINION ON REHEARING
Before Justices Richter, Francis, and Lang-Miers
Opinion By Justice Lang-Miers
We deny appellants' motion for rehearing. We withdraw our opinion of March
6, 2008 and vacate our judgment of that date. This is now the opinion of the Court. This is an
appeal from a lawsuit to declare the priority of liens and to foreclose a judgment lien. We affirm
the trial court's judgment in part and reverse in part and remand for further proceedings.
In November 1992, the Federal Deposit Insurance Corporation obtained a
judgment in excess of $1 million against James H. Moore, III. The FDIC filed an abstract of that
judgment in February 1993. Through a series of assignments, appellee The Cadle Company
acquired the judgment in September 2001. Cadle issued a writ of execution on the judgment on
June 6, 2002. It also filed a second abstract of judgment a week later, on June 13, 2002, and
Cadle issued a second writ of execution on March 22, 2004. Both writs were returned nulla
Meanwhile, in February 2002, the judgment debtor, Moore, purchased
property in Dallas for $625,000 from his daughter and son-in-law. Moore borrowed $500,000
from Countrywide Home Loans to purchase the property and executed a deed of trust on the
property in favor of Countrywide. The evidence suggests that the remaining $125,000 purchase
price was paid by Brunswick Homes, a real estate investment company owned in part and
managed by Moore. See Footnote 1 Several months later, Moore deeded the
property to Brunswick Homes by special warranty deed and without consideration “because it
was a Brunswick transaction.” See Footnote 2 Moore said he purchased the home in
his name because he was able to personally obtain the loan through a no-documentation loan
program and “it was easier that way.” Moore continued to be the principal obligor on the
Countrywide mortgage, and the deed of trust lien remained on the property.
At some point, Moore met David Baxter, an escrow agent and fee attorney
with LandAmerica Commonwealth Title of Dallas. He told Baxter that he wanted to use Baxter
to close transactions for Brunswick Homes. Sometime in October 2003, Moore called Baxter
about the property involved in this case. Baxter did not recall the conversation, but said that his
notes indicate Moore may have called him about the judgment lien and whether it would appear
in a title report on the property. Baxter asked the title department to run a report. The judgment
lien did not appear in the chain of title. Baxter testified it was not his job to “examine behind the
Title Report” and “what [Moore] says and what my title department says -- I rely on the title
department.” A few months later, on April 26, 2004, appellants Michael O.
Murray and his wife, Whitney W. Murray, purchased the property for $545,000. For some
reason not reflected in the evidence, the Murrays thought they were purchasing the property
from Moore, not Brunswick Homes. They purchased the property with primary and secondary
purchase-money loans from two different lenders in the total amount of $429,650 and executed
deeds of trust in favor of those lenders. The Murrays used the proceeds from those loans and
$77,277.76 of their own money to pay off Moore's loan from Countrywide.
In March 2005, Cadle sued the Murrays for declaratory judgment and to
foreclose on its judgment lien. The parties filed competing motions for summary judgment. Cadle
argued that its judgment lien is superior to the purchase-money liens filed by the Murrays'
lenders because it was filed prior in time. The Murrays argued that Cadle's judgment lien is
invalid because the first abstract of judgment expired on February 2, 2003, and the second
abstract of judgment was not properly recorded and indexed. They also contended that they and
their lenders are subrogated to the Countrywide lien. See Footnote 3 The trial court
granted Cadle's motion on the ground that Cadle's judgment lien is valid and the superior lien
against the property and ordered a sale of the property to satisfy the judgment lien. In three
issues, the Murrays appeal the trial court's judgment granting Cadle's motion and denying their
own. In a fourth issue, they argue that the trial court erred by allowing Cadle to supplement its
summary judgment evidence two months after the hearing on the motions without affording them
an opportunity to present rebuttal evidence.
Standard of Review
When both parties move for summary judgment, each bears the burden of
establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas
Morning News, 22 S.W.3d 351, 356 (Tex. 2000). If the trial court grants one motion and
denies the other, the non-prevailing party may appeal the prevailing party's motion as well as its
own motion. Holmes v. Morales, 924 S.W.2d 920, 922 (Tex. 1996). We review the summary
judgment evidence presented by both parties and determine all questions presented. Dallas
Morning News, 22 S.W.3d at 356.
Validity of Cadle's Judgment Lien
In a subpart of their first and second issues, the Murrays argue that the trial
court erred by denying their motion for summary judgment because Cadle's judgment lien is
invalid as a matter of law. The parties do not dispute that the lien created by the recording and
indexing of the first abstract of judgment expired before the Murrays purchased the property.
However, the Murrays contend that the second abstract of judgment Cadle filed on June 13,
2002 did not create a valid lien on the property because that abstract was not properly issued,
recorded, and indexed. See Footnote 4 We cannot agree.
Under Texas law, a judgment creditor must comply with the statutory
mechanisms providing for the creation of judgment liens to acquire a lien on real property owned
by the judgment debtor. Tex. Prop. Code Ann. §§ 52.001 et seq. (Vernon 2007 & Supp.
2007); Citicorp Real Estate, Inc. v. Banque Arabe Internationale D'Investissement, 747
S.W.2d 926, 929 (Tex. App.-Dallas 1988, writ denied). Because a judgment lien is created by
statute, substantial compliance with the statutory requirements is mandatory before a judgment
creditor's lien will attach. Citicorp Real Estate, 747 S.W.2d at 929. The party seeking to
foreclose a judgment lien has the burden of proving the abstract of judgment was properly
recorded and indexed. Allied First Nat'l Bank of Mesquite v. Jones, 766 S.W.2d 800, 801
(Tex. App.-Dallas 1988, no writ).
An abstract of judgment recorded in accordance with the provisions of the
property code, if the judgment is not dormant, “constitutes a lien on the real property of the
defendant located in the county in which the abstract is recorded and indexed, including real
property acquired after such recording and indexing.” Tex. Prop. Code Ann. § 52.001. The
property code requires the county clerk to record properly authenticated abstracts of judgment
in the county real property records and, at the same time, “enter the abstract on the
alphabetical index to the real property records, showing: (1) the name of each plaintiff in the
judgment; (2) the name of each defendant in the judgment; and (3) the volume and page or
instrument number in the records in which the abstract is recorded.” Tex. Prop. Code Ann. §
52.004(a)-(b). The purpose of the index is to provide notice to subsequent purchasers of the
existence of the judgment and to indicate the source from which the full information about the
judgment may be obtained. Wilson v. Dvorak, 228 S.W.3d 228, 234 (Tex. App.-San Antonio
2007, pet. denied); Thompson v. Clay, 367 S.W.2d 917, 920 (Tex. Civ. App.-Amarillo 1963,
writ ref'd n.r.e.).
The Murrays initially contend that Cadle did not prove that the second abstract
of judgment was properly issued on the certificate of the clerk of the federal court because it
lacked the clerk's seal. However, Cadle submitted a copy of the second abstract of judgment to
support its motion for summary judgment and that copy showed the seal of the clerk. We
conclude that the summary judgment evidence shows the abstract of judgment was properly
The Murrays next contend that Cadle did not prove the abstract of judgment
was properly recorded and indexed. See Footnote 5 To support its motion for
summary judgment, Cadle offered the affidavit of Yolanda Craig, a deputy clerk of Dallas
County for over forty years, who testified about how abstracts of judgment are recorded in
Abstracts of Judgment are recorded in [the] Index to the Real Property
Records of Dallas County, Texas, in the same manner as other documents affecting
ownership of real property, and have been so recorded during my entire period of
employment as a Deputy Clerk of Dallas County, Texas, in the Recording Division.
The Index to Real Property Records is an alphabetical index. After they
are filed, Abstracts of Judgment are recorded in the Index to the Real Property Records.
The abstract on the alphabetical index to the real property records shows the name of each
plaintiff in the judgment, the name of each defendant in the judgment, and the volume and
page or instrument number in the records in which the abstract is recorded. The plaintiff is
listed under the heading, “Grantor,” and the defendant is listed under the heading,
Craig also testified specifically about Cadle's second abstract of judgment:
The Abstract of Judgment was indexed in Volume 2002 115, Pages
00761-00763 of the Dallas County Real Property Records. This Abstract of Judgment is
indexed alphabetically in the Dallas County Real Property Records in the name of the
Plaintiff, FDIC, under the heading “Grantor” and in the name of the Defendant, James H.
Moore, III under the heading “Grantee.”
The Murrays argue that the property code requires the abstract of judgment to
be indexed by plaintiff and defendant and that Craig's affidavit establishes as a matter of law that
the abstract of judgment was not properly recorded and indexed because it was indexed by
grantor and grantee. The Murrays do not cite any authority to support their argument that the
property code requires indexing by plaintiff and defendant. It requires indexing by “the name of
each plaintiff” and “the name of each defendant.” But the language of the statute does not
mandate, or prohibit, particular headings for the alphabetical index to the real property records.
See Tex. Prop. Code Ann. § 52.004(b); see Von Stein v. Trexler, 23 S.W. 1047, 1048-49
(Tex. Civ. App.-San Antonio 1893, no writ).
Additionally, the Murrays argue that a valid lien was not created because the
abstract was indexed “backwards” by identifying the FDIC, the judgment creditor, as
“grantor” and Moore, the judgment debtor, as “grantee.” They contend that the FDIC should
have been indexed under the “grantee” heading and that Moore should have been indexed
under the “grantor” heading.
The Murrays argue that reversing the names of the grantor and grantee does
not comply with the requirement of section 193.003(b) of the local government code that a
cross-index be kept in alphabetical order by the names of grantors and grantees. See Tex. Local
Gov't Code Ann. § 193.003(b) (Vernon 2008). As with section 52.004(b) of the property
code, section 193.003(b) also does not require that a county use the headings “grantor” and
“grantee.” Instead, it states that the cross-index must contain “the names of the grantors and
grantees in alphabetical order.” See Footnote 6 See id.
They also cite Reynolds v. Kessler, 669 S.W.2d 801 (Tex. App.-El Paso
1984, no writ) as support for their position. In that case, the Kesslers sued Reynolds to remove
the cloud of Reynolds' federal judgment lien on their property. Id. at 803. In the underlying
lawsuit, John Hancock Mutual Life Insurance sued Reynolds and Charlie Dennis. Reynolds filed
a crossclaim against Dennis and obtained a judgment against him. But Reynolds' abstract of
judgment was not indexed showing Reynolds as judgment plaintiff and Dennis as judgment
defendant. Id. at 805. Instead, the indexing showed only John Hancock as plaintiff and Reynolds
and Dennis as defendants. Id. Consequently, in dicta, the court held that the abstract of
judgment did not create a valid lien. Id.
Unlike the indexing in Kessler, in this case the Murrays do not dispute that the
FDIC and Moore were indexed opposite each other. See id. Instead, their complaint is about the
heading under which the parties were indexed. As we have noted, the statute does not address
headings under which a judgment plaintiff and a judgment defendant must be indexed. Craig
testified that Cadle's abstract of judgment was recorded in the alphabetical index; that it showed
the name of the plaintiff, the FDIC; and that it showed the name of the defendant, Moore.
Cadle's summary judgment evidence shows that the abstract was indexed in accordance with
the statute. See Footnote 7 See Tex. Prop. Code Ann. § 52.004(b). And we cannot
conclude that an otherwise valid judgment lien is invalid because the FDIC was listed under the
heading “grantor” instead of “grantee” and Moore was listed under the heading “grantee”
instead of “grantor.” See Footnote 8
We conclude that the abstract was entered on the alphabetical index to the real
property records showing the FDIC as plaintiff in the judgment and Moore as defendant in the
judgment, that it substantially complied with the statutory requirements, and that a reasonable
search of the Dallas County real property records would have revealed the judgment lien against
Moore. See Wilson, 228 S.W.3d at 236. Accordingly, we conclude that the summary judgment
evidence showed, as a matter of law, that Cadle's judgment lien is a valid lien.
We resolve this subpart of appellants' first and second issues against them.
a separate subpart of their first and second issues and in their third
issue, the Murrays argue that the trial court erred by denying their motion for summary judgment with
regard to their claim for equitable subrogation. See Footnote 9 They contend that they
conclusively proved, or at least raised a material fact issue, regarding whether they were entitled
to equitable subrogation.
Equitable subrogation “is a legal fiction” whereby “an obligation,
extinguished by a payment made by a third person, is treated as still subsisting for the benefit of
this third person, so that by means of it one creditor is substituted to the rights, remedies, and
securities of another.” First Nat'l Bank of Houston v. Ackerman, 70 Tex. 315, 319-20, 8
S.W. 45, 47 (1888). It essentially allows a subsequent lienholder to take the lien-priority status of
a prior lienholder. Id. at 319-20, 8 S.W. at 46-47; Farm Credit Bank of Tex. v. Ogden, 886
S.W.2d 305, 310 (Tex. App.-Houston [1st Dist.] 1994, no writ). The general purpose of
equitable subrogation is to prevent unjust enrichment of the debtor. First Nat'l Bank v. O'Dell,
856 S.W.2d 410, 415 (Tex. 1993). It “does not depend on a contract but arises in every
instance in which one person, not acting voluntarily, has paid a debt for which another was
primarily liable and which in equity should have been paid by the latter.” Mid- Continent Ins.
Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 774 (Tex. 2007). Texas courts are particularly
hospitable to the doctrine. Interfirst Bank Dallas, N.A. v. U.S. Fid. & Guar. Co., 774
S.W.2d 391, 397 (Tex. App.-Dallas 1989, writ denied); LaSalle Bank Nat'l Ass'n v. White,
217 S.W.3d 573, 580 (Tex. App-San Antonio 2006), rev'd in part on other grounds, 246
S.W.3d 615 (Tex. 2007) (per curiam). Texas courts have also given the doctrine “a liberal
application . . . broad enough to include every instance in which one person, not acting
voluntarily, has paid a debt for which another was primarily liable and which in equity and good
conscience should have been discharged by the latter.” Forney v. Jorrie, 511 S.W.2d 379,
386 (Tex. Civ. App.-San Antonio 1974, writ ref'd n.r.e.); see also, e.g., Diversified Mortgage
Investors v. Lloyd O. Blaylock Gen. Contractor, Inc., 576 S.W.2d 794, 807 (Tex. 1978)
(op. on reh'g).
There are two key elements to equitable subrogation: (1) the person whose
debt was paid was primarily liable on the debt, and (2) the claimant paid the debt involuntarily.
See Harrison v. First Nat'l Bank, 238 S.W. 209, 210 (Tex. Comm'n App. 1922, judgm't
adopted); Fears v. Albea, 69 Tex. 437, 439-40, 6 S.W. 286, 289 (1887); 68 Tex. Jur.
Subrogation § 11 (West 2003). A “volunteer” is one “who has paid the debt of another,
without any assignment or agreement for subrogation, without being under any legal obligation to
make payment, and without being compelled to do so for the preservation of any rights or
property of his own.” O'Dell, 856 S.W.2d at 415 (quoting Oury v. Saunders, 77 Tex. 278,
280, 13 S.W. 1030, 1031 (1890)); Harrison, 238 S.W. at 210-11. The burden is on the party
claiming equitable subrogation to establish he is entitled to it. Monk v. Dallas Brake & Clutch
Service Co., 697 S.W.2d 780, 782 (Tex. App.-Dallas 1985, writ ref'd n.r.e.).
Additionally, each case turns on its own facts when the issue is one of purely
equitable subrogation. Providence Inst. for Sav. v. Sims, 441 S.W.2d 516, 519-20 (Tex.
1969). The trial court must balance the equities in view of the totality of the circumstances to
determine whether a party is entitled to equitable subrogation. See id.; Ackerman, 70 Tex. at
319-20, 8 S.W. at 47-48; Esparza v. Scott & White Health Plan, 909 S.W.2d 548, 552
(Tex. App.-Austin 1995, writ denied), abrogated in part on other grounds by Fortis
Benefits v. Cantu, 234 S.W.3d 642 (Tex. 2007). Factors a court may consider in conducting
this balancing test are the negligence of the party claiming subrogation, whether that party had
notice of the intervening lien, and whether the intervening lienholder will be prejudiced if
equitable subrogation is allowed. See Sims, 441 S.W.2d at 519 (negligence, notice); Ogden,
886 S.W.2d at 311 (prejudice). When prejudice is shown, a court should consider the entire
circumstances in determining the weight to give the prejudice. Fleetwood, 786 S.W.2d at 555
n.2 (Tex. App.-Austin 1990, writ denied). A trial court should consider whether the subrogation
results in additional debt having priority over the intervening interest, whether it results in a
material change in the terms of the superior interest, the foreseeability of the potential prejudice,
and whether the party claiming prejudice could have avoided the prejudicial effect. Id.
(foreseeability, avoidance); Med Ctr. Bank v. Fleetwood, 854 S.W.2d 278, 286 (Tex.
App.-Austin 1993, writ denied) (additional debt, material change). A junior lienholder does not
suffer prejudice merely because it is not elevated in priority. See Sanger Bros. v. Ely & Walker
Dry Goods Co., 207 S.W. 348, 350 (Tex. Civ. App.-Fort Worth 1918, writ ref'd).
When a case is governed solely by equitable principles, a trial court must be
cautious in resolving these issues by summary judgment. Fleetwood, 786 S.W.2d at 557.
Because a trial court has discretion in deciding cases involving equitable relief, the court should
not exercise that discretion unless the evidence has been fully developed. Id. We will not disturb
a trial court's ruling balancing the equities unless it is shown that it would be inequitable not to do
so. Osborne v. Jauregui, Inc., No. 03-04-00813-CV, 2008 WL 1753553 at *3 (Tex.
App.-Austin Apr. 17, 2008, no pet. h.) (en banc) (op. on reh'g) (citing Esparza, 909 S.W.2d at
552); see Tex. Ass'n of School Boards, Inc. v. Ward, 18 S.W.3d 256, 261 (Tex. App.-Waco
2000, pet. denied). However, a trial court abuses its discretion if it grants or denies equitable
relief when material fact issues are in dispute. See First Nat'l Bank of Seminole v. Hooper, 48
S.W.3d 802, 809 (Tex. App.-El Paso 2001), rev'd on other grounds, 104 S.W.3d 83 (Tex.
Unresolved Fact Issues
We conclude that the Murrays have met the two key elements to a claim for
equitable subrogation. First, the Murrays showed that the person whose debt was paid, Moore,
was primarily liable on the debt. See Harrison, 238 S.W. at 210. Next, the Murrays showed
that they were not “mere volunteers” because they paid the Countrywide debt using all of the
loan proceeds and $77,277.76 of their own money and did so at the request of the debtor,
Moore, and the property owner, Brunswick Homes. See Footnote 10 See Harrison,
238 S.W. at 210-11 (any person having subsequent interest in premises who pays off mortgage
for which he is not primarily liable becomes equitable assignee of it and may keep mortgage alive
and enforce lien for his benefit). But that does not end our inquiry. Because this is a claim for
equitable relief, we examine the totality of the circumstances to determine whether the trial
court's decision to deny the Murrays' claim for equitable subrogation was arbitrary,
unreasonable, and unsupported by guiding rules and principles. See Sims,
441 S.W.2d at 519-20.
One of the factors a
trial court may consider in balancing the equities is whether the party
claiming a right to equitable subrogation had notice of the judgment
Sims, 441 S.W.2d at 519 (recognizing that some courts take position that constructive notice of
intervening lien is sufficient basis for denying subrogation while others take contrary position).
And negligence on the part of the one claiming a right to equitable subrogation is relevant to this
inquiry. See Sims, 441 S.W.2d at 519 (“Negligence on the part of one seeking subrogation is
of some importance when the right is wholly dependent upon equitable principles.”). The
Murrays at least had constructive notice of the judgment because, as we previously concluded,
the judgment lien is valid. See Tex. Prop. Code Ann. § 13.002 (Vernon 2004); Hoffman, 74
S.W.3d at 909.
Cadle offered evidence of alleged improprieties in the transaction between Brunswick Homes and the Murrays by offering evidence that the Murrays had actual
knowledge that they were purchasing the property from Brunswick Homes but were paying off
Moore's loan from Countrywide, and did nothing to investigate this discrepancy. Cadle argues
that the Murrays blindly turned the transaction over to Baxter, Baxter was the Murrays' agent,
he knew about Moore's judgment lien, and his knowledge was imputed to the Murrays.
Conversely, the Murrays argue that Baxter was not their agent and his
knowledge is not imputed to them as a matter of law. They cite Tamburine v. Center Savings
Ass'n, 583 S.W.2d 942 (Tex. Civ. App.-Tyler 1979, writ ref'd n.r.e.) to support their
argument. In that case, the court explained the difference between a party hiring an abstract
company to investigate title and a party hiring a title company to issue a title insurance policy. See
id. at 946-50. Here, however, the evidence is conflicting about the nature of the relationship
between Baxter and the Murrays. For example, Baxter testified that as an escrow agent for
LandAmerica, he served only as the Murrays' closing agent. But Whitney Murray testified that
she hired LandAmerica to investigate the title and relied on LandAmerica to tell her if there was
anything wrong with the title. And Michael Murray testified that he was a customer buying a
product from LandAmerica, he looked to Baxter to make sure the documents were prepared
properly, he expected LandAmerica to make sure there were no problems with the title to the
property, and he would have wanted to know that Baxter and Moore had conversations back in
October 2003 about the judgment lien against Moore.
The Murrays also point out that if they are subrogated to the Countrywide lien,
Cadle's judgment lien would still be the junior lien and that Cadle would be in no worse position
than it occupied when Countrywide held the first lien. See id.; Ricketts v. Alliance Life Ins.
Co., 135 S.W.2d 725, 735 (Tex. Civ. App.-Amarillo 1939, writ dism'd judgm't cor.) (op. on
reh'g). In fact, Cadle concedes that its judgment lien was junior to the $500,000 Countrywide
lien before Brunswick Homes sold the property to the Murrays. Although Cadle argues that it
would be “severely prejudiced” if the Murrays are subrogated to the Countrywide lien, it did
not offer any evidence to show how it would be prejudiced. See Med Ctr. Bank, 854 S.W.2d
at 285-86. Cadle also contends that, even if the Murrays are subrogated to the Countrywide
lien, their lien cannot be given priority over its judgment lien because the Murrays did not file
their lien in accordance with the property code. See Tex. Prop. Code Ann. § 13.001 (Vernon
2004). But Cadle has not cited, and we have not found, any cases holding that a lien arising by
operation of law under equitable principles is subject to the recording statutes. See Park Cent.
Bank of Dallas v. JHJ Invs. Co. of Little Elm, 835 S.W.2d 813, 814-15 (Tex. App.-Fort
Worth 1992, no writ) (section 13.001 applies only to instruments in writing and not to equitable
rights in realty).
We conclude that what the parties knew and intended are all relevant factors in
balancing the equities involved in this case. See Sims, 441 S.W.2d at 519. We further conclude
that the evidence creates a fact issue about whether Baxter was the Murrays' agent such that his
knowledge should be imputed to them. Issues of knowledge and intent are rarely appropriate for
summary judgment. Fleetwood, 786 S.W.2d at 556. The trial court's judgment
does not state the basis of its ruling. But after reviewing the summary judgment evidence, we
cannot conclude that the equities weigh in favor of Cadle and against the Murrays' claim for
equitable subrogation as a matter of law. And these same fact issues preclude us from rendering
summary judgment for the Murrays on that claim. Instead, we conclude that material fact issues
remain in deciding this claim for equitable relief. As a result, the trial court abused its discretion
when it entered judgment concluding that there was “no genuine issue of material fact and that
[Cadle] is entitled to judgment as a matter of law.”
sustain appellants' first, second, and third issues as they relate to
whether the Murrays are equitably subrogated to the superior Countrywide lien, and remand this issue to
the trial court for further proceedings.
Admission of Expert Testimony
their fourth issue, the Murrays argue that the trial court erred by
admitting Cadle's expert affidavit two months after the hearing on the summary judgment motions without
giving them an opportunity to present evidence in rebuttal. Cadle offered the affidavit of a title
examiner to support its contention that the judgment lien would have been discovered through a
proper search of the Dallas County property records. However, we did not consider this
expert's affidavit in reaching our decision about whether the judgment lien was valid and whether
the trial court erred by granting Cadle's summary judgment motion on this ground. Because of
our disposition of the case, we do not need to address this issue.
We affirm that part of the trial court's judgment declaring that The Cadle
Company's judgment lien is a valid lien against the property. We reverse that part of the trial
declaring that The Cadle Company's judgment lien is a superior judgment lien against the
property and ordering foreclosure of that lien and remand to the trial court for further
Footnote 1 When Moore testified about this transaction, he stated, “I did not put any of
these funds in . . . Brunswick put those funds up.” The evidence showed Moore owned 1% of
Brunswick Homes and JHM Properties, a company owned by Moore's wife, owned 50%. The
remaining 49% was owned by a company named EnMark Parent Corp. The record is silent
about the ownership of EnMark.
Footnote 2 Although Moore testified he deeded the property to Brunswick Homes subject
to the Countrywide lien, the special warranty deed does not refer to that lien.
Footnote 3 The Murrays' lenders are not and have never been parties in this lawsuit.
Footnote 4 The Murrays make additional arguments and cite other evidence attached to their
motion for new trial. However, those arguments and evidence were not before the trial court
when it ruled on the motions for summary judgment, and the Murrays do not appeal from the
denial of their motion for new trial. We do not consider those arguments or evidence. See Tex.
R. Civ. P. 166a(c).
Footnote 5 Neither party attached a copy of the index at issue in this case as summary
Footnote 6 It also states that if the deed is made by a sheriff, the index entry must contain the
name of the sheriff and the defendant in execution. Tex. Local Gov't Code Ann. § 193.003(b).
And it addresses other situations in which property is conveyed: if a deed is made by an
executor, administrator, or guardian, the index entry must contain the name of that person and
the name of the person's testator, intestate, or ward; if the deed is made by an attorney, the
index entry must contain the name of the attorney and the attorney's constituents; and if the deed
is made by a commissioner or trustee, the index entry must contain the name of the
commissioner or trustee and the name of the person whose estate is conveyed. See id. Under
this statute, names other than the names of the grantors or grantees are included in the
Footnote 7 It is undisputed that the index entry also showed the volume and page where the
instrument could be found.
Footnote 8 Although this issue was not raised in Wilson v. Dvorak, we note that in that case
the judgment creditor was indexed under “grantor” and the judgment debtor was indexed
under “grantee,” as in this case. See Wilson, 228 S.W.3d at 231.
Footnote 9 In rendering summary judgment for Cadle, the trial court necessarily rejected the
Murrays' claim that they are equitably subrogated to the Countrywide lien.
Footnote 10 Cadle initially contends that a property owner cannot be equitably subrogated
to a lien on his own property. But Cadle does not cite any authority to support this proposition.
Next, Cadle contends that the Murrays did not offer evidence that they paid the debt at the
instance of the owner of the property or the holder of the encumbrance. We disagree. Although
the Murrays thought Moore owned the property and they were purchasing it from him, the
settlement statement showed that Brunswick Homes owned the property and showed a
“reduction in amount due the seller” of $496,927.76 as “payoff first mortgage Countrywide
Home Loans.” The statement was signed by James Moore as Manager of Brunswick Homes.
We conclude this sufficiently evidences a request by both Moore, the debtor, and Brunswick
Homes, the property owner, to pay off the Countrywide debt. See Leonard v. Brazosport Bank
of Tex., 628 S.W.2d 216, 219 (Tex. App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.).
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