Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McClain v. McClain

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 20, 2017

CALVIN WAYNE McCLAIN, Appellant,
v.
DIANA ALAMAR McCLAIN, Appellee.

         On appeal from the 430th District Court of Hidalgo County, Texas.

          Before Justices Contreras, Longoria, and Hinojosa

          MEMORANDUM OPINION

          LETICIA HINOJOSA JUSTICE

         Appellant Calvin Wayne McClain appeals the dismissal of claims for breach of contract, fraud, and constructive trust in favor of appellee Diana Alamar McClain.[1] In eight issues, which we treat as four, Calvin complains that the trial court erred in dismissing claims for (1) breach of contract, (2) fraud, (3) constructive trust, and (4) a "gift." We affirm.

         I. Background[2]

         A. The Divorce Decree

         On July 9, 2009, the trial court signed a final divorce decree in Cause No. F-1223-09-J. It provided the following:

7. Division of Marital Estate . . . .
Property to Wife
IT IS ORDERED AND DECREED that the wife, Diana Alamar McClain, is awarded the following as her sole and separate property, and the husband is divested of all right, title, interest, and claim in and to that property including any and all improvements and attachments:
W-1. Lot 122 Block 3, La Homa Ranch Citrus Groves Sub'[d]., Unit No. 2 Hidalgo County, Texas
Also known as 21037 N. Moorefield Rd.
. . . .
8. Real Property
The real property described as the following:
Lot 122, Block 3, La Homa Ranch Citrus Groves Sub'[d]., Unit No.2 Hidalgo County, Texas
Also known as 21037 N. Moorefield Rd.
As long as Calvin Wayne McClain lives on the real property described above, he shall be responsible for the property taxes and the maintenance on the property. It is Ordered that the real property described above is the sole and separate property of Diana Alamar McClain.

         No appeal was taken from the final divorce decree.

         B. The Post-Decree "Affidavit of Community Division"

         On July 22, 2009, Diana signed a document, bearing a notary's signature and seal, titled, "Affidavit of Community Division" (hereinafter "the affidavit"). It provides in relevant part:

I, DIANA ALAMAR McCLAIN agree that as part of the community division under the divorce proceeding styled "In the Matter of the Marriage of Diana Alamar McClain and Calvin Wayne McClain; F-1223-09-J", I will here agree that after the sale of property described as Lot 122, Block 3, La Homa Ranch Citrus Groves Sub'D., Unit No.2 Hidalgo County, Texas, Also known as 21037 N. Moorefield Rd.; I will give 50 percent of the net sale proceeds to Calvin Wayne McClain.

C. The Claims

         Nearly four years later, Calvin filed a "Petition for Declaratory Judgment" in the same trial court. The petition was assigned Cause No. C-4008-13-J. The petition requested "a declaratory judgment for Two Hundred Fifty Thousand dollars" and attorney's fees. Diana answered, asserted a general denial, and pleaded several affirmative defenses, including lack of consideration and estoppel. The clerk's record contains an "Order of Dismissal" providing:

BE IT REMEMBERED, that on this the 4th day of June, 2014, came on for consideration, the Respondent's Motion to Dismiss. The Court after hearing the arguments of counsel is of the opinion that Respondent's Motion to Dismiss should be GRANTED only as to the Bill of Equitable Review. The remaining Common Law causes of action(s) Fraud, Breach of Contract and Constructive Trust shall remain on the Court's docket.
IT IS THEREFORE, ORDERED, ADJUDGED and DECREED that the above-styled and numbered cause this [sic] action is here Dismissed only as to the Bill of Equitable Review and the Court shall set the remaining causes of action(s) for Docket Control Conference . . . .[[3]

(Emphasis in original).

         D. The Bench Trial

         After the order of dismissal was signed, the trial court conducted a bench trial at which only Calvin and Diana testified regarding, among other things, the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.