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.

Balthazar & Sons Custom Homes and Remodeling, LLC v. Fuller

Court of Appeals of Texas, Fifth District, Dallas

June 25, 2018

BALTHAZAR & SONS CUSTOM HOMES AND REMODELING, LLC, RENOVAR CONSTRUCTION, LLC, JOHN BALTHAZAR, AND DEBORAH BALTHAZAR, Appellants
v.
MATTHEW FULLER AND MARTHA FULLER, Appellees

          On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-03303-2008

          Before Justices Lang, Myers, and Evans.

          MEMORANDUM OPINION

          LANA MYERS JUSTICE.

         Balthazar & Sons Custom Homes and Remodeling, LLC, Renovar Construction, LLC, and John and Deborah Balthazar appeal the trial court's judgment in favor of Matthew and Martha Fuller on the Fullers' claim for fraudulent transfer. John and Deborah Balthazar, who are the only appellants to file a brief on appeal, bring three issues contending (1) the trial court erred by granting the Fullers' motion for summary judgment on fraudulent transfer because the Balthazars established a statute of repose as a matter of law; (2) the Fullers failed to prove actual intent to defraud as a matter of law; and (3) the amount of damages in the judgment is improper as a matter of law because the damages were based on the amount of the Fullers' claim and not on the value of the assets fraudulently transferred. We sustain the Balthazars' third issue. We modify the trial court's judgment reducing the damages against the Balthazars to the value of the fraudulent transfers, we affirm the trial court's judgment as modified, and we remand the cause to the trial court for entry of judgment in accordance with this Court's opinion.

         BACKGROUND

         In 2007, the Fullers signed a contract with Balthazar Custom Homes, LLC[1] (BCH) for it to construct a home for them. BCH constructed the home, but the Fullers refused to approve the home and to make the final payment. On October 10, 2008, BCH sued the Fullers and demanded the dispute be arbitrated. The Fullers filed a counterclaim against BCH asserting BCH owed them "in excess of $400, 000 for construction delays, for construction defects and for the completion of items BCH did not perform under the contract." The parties arbitrated their claims, and the arbitrator found for the Fullers. The arbitrator ordered that BCH take nothing on its claims and that BCH pay the Fullers damages of $76, 510.01 and attorney's fees of $23, 341.81. On April 13, 2010, the trial court signed a judgment in accordance with the arbitration order. BCH did not appeal this judgment.

         From 2008, BCH made payments for the Balthazars' mortgage on another property and paid their utility and maintenance costs. On April 6, 2010, which was after the arbitration order and one week before the trial judge signed the judgment confirming the arbitration order, the Balthazars created a new entity, appellant Balthazar & Sons Custom Homes and Remodeling, LLC. After the April 2010 judgment, BCH did no more construction work, and it had no assets and no debts other than the Fullers' judgment. In 2014, BCH forfeited its charter for failure to pay taxes. On March 16, 2015, the Fullers sought a turnover order to aid in collecting the judgment against BCH. On October 29, 2015, the trial court awarded the Fullers sanctions of $37, 147.13 against BCH as a discovery sanction.

         On May 5, 2015, the Fullers filed suit against the Balthazars and their business entities asserting they made fraudulent transfers of assets to avoid paying the Fullers' judgment. This suit was consolidated with the turnover-order enforcement proceedings in the 2008 lawsuit.

         In 2017, the Fullers moved for summary judgment on their fraudulent-transfer cause of action. John Balthazar, who was pro se, was the only defendant to file a response to the motion for summary judgment. The trial court granted the Fullers' motion for summary judgment, awarding the Fullers damages in the amount of their claim against BCH, $182, 495.10, and attorney's fees of $4, 275.78.

         STATUTE OF REPOSE

         In their first issue, the Balthazars contend the trial court erred by granting the Fullers' motion for summary judgment on fraudulent transfer because the Balthazars established a statute of repose as a matter of law. Section 24.010 of the Business and Commerce Code requires that most forms of fraudulent transfers be brought within one, two, or four years of when the transfers were made, depending on the circumstances. See Tex. Bus. & Com. Code Ann. § 24.010 (West 2015). The transfers the Fullers alleged were fraudulent occurred more than four years before the Fullers filed suit. The Balthazars pleaded in their answer to the 2015 lawsuit, "Plaintiff's [sic] claims are barred in whole or in part by applicable statute of limitations."

         The limitations or repose periods in section 24.010 are affirmative defenses. See Walker v. Anderson, 232 S.W.3d 899, 910 (Tex. App.-Dallas 2007, no pet.). Affirmative defenses that are raised in a nonmovant's pleadings but that are not expressly asserted in a response or other answer to a motion for summary judgment cannot be considered on appeal as grounds for reversal. KBG Invs., LLC v. Greenspoint Prop. Owners' Ass'n, Inc., 478 S.W.3d 111, 114 (Tex. App.- Houston [14th Dist.] 2015, no pet.); see City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) ("The new rule requires that contentions be expressly presented in the written motion or in a written answer or response to the motion, and pleadings are not to be considered in determining whether fact issues are expressly presented in summary judgment motions.").

         Deborah Balthazar did not file a response to the motion for summary judgment. John Balthazar's response to the motion for summary judgment did not mention section 24.010 or any statute of limitations or repose. Because the Balthazars did not assert section 24.010 in a response to the motion for summary judgment, they may not assert it as a ground for reversal on appeal. KBG Invs., 478 S.W.3d at 114.

         We overrule the Balthazars' first issue.[2]

         SUFFICIENCY OF THE EVIDENCE

         In their second issue, the Balthazars contend the trial court erred by granting the Fullers' motion for summary judgment because the Fullers' failed to prove their fraudulent transfer cause of action as a matter of law. The standard for reviewing a traditional summary judgment is well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 825 (Tex. App.-Dallas 2010, no pet.). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 549; In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.-Dallas 2009, no pet.). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. Denied). When the summary judgment order does not state the ground on which summary judgment was granted, the summary judgment will be affirmed if any of the grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

         Suits for fraudulent transfers are governed by chapter 24 of the Business and Commerce Code. Section 24.005 and 24.006 set out ...


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.