Court of Appeals of Texas, Ninth District, Beaumont
JUAN A. HERNANDEZ II, Appellant
v.
GINA KAY JOHNSON AND JAY WRIGHT, Appellees
Submitted on September 12, 2018
On
Appeal from the 284th District Court Montgomery County, Texas
Trial Cause No. 17-03-03674-CV
Before
McKeithen, C.J., Horton and Johnson, JJ.
MEMORANDUM OPINION
HOLLIS
HORTON, JUSTICE
In this
appeal, Juan A. Hernandez II argues the trial court erred by
issuing a judgment that declares his ex-spouse, Gina Johnson,
has an owelty lien[1] on his homestead. The judgment from which
Hernandez appeals is based, in part, on the trial court's
rulings on the parties' cross-motions for summary
judgment. For the following reasons, we affirm the judgment.
Background
Hernandez
and Johnson married in March 2006. After marrying, they built
a home and a swimming pool on a lot located in Montgomery
County Texas. Hernandez's parents gave him the lot, and
it was his separate property when Hernandez and Johnson
decided to build their home there. To finance the work needed
to construct the improvements, Johnson and Hernandez obtained
loans. They ultimately converted the loans into a
mortgage.[2]
In
September 2016, after approximately ten years of marriage,
Johnson and Hernandez divorced. Ultimately, they resolved
their disputes in the divorce through an agreed decree. Under
the agreed decree, the trial court confirmed the lot, which
is located on South Rayburn Drive, as Hernandez's
separate property. The agreed decree, however, required
Hernandez to give Johnson a promissory note for $20, 000,
secured by an owelty lien burdening the lot.[3] To comply with
the terms in the agreed decree, Hernandez gave Johnson a $20,
000 promissory note. To secure the obligations that Hernandez
owed Johnson under the note, he also gave Johnson a deed of
trust. The deed of trust identifies the property as the lot
on South Rayburn Drive. The deed of trust names Johnson as
the beneficiary of the trust, and it gave the trustee the
right to sell the property on South Rayburn Drive if
Hernandez defaulted on his note.
Hernandez
used the property on South Rayburn Drive to secure his
obligation to pay the note. The terms of the note allowed
Johnson to accelerate Hernandez's debt if he failed to
make the payments required by the terms of the note. One of
the provisions in the deed of trust states: "This deed
of trust is given to impose an owelty of partition against
the entirety of [the tract identified as lot six] in order to
comply with the [agreed decree.]" Another provision in
the deed of trust gave Johnson the right to foreclose her
owelty lien if Hernandez defaulted on the note.[4]
In
March 2017, Johnson notified Hernandez that he had defaulted
on his note and of her intent to accelerate the debt and
foreclose. Seeking to stop the foreclosure, Hernandez sued
Johnson and the attorney who represented Johnson in her
divorce, Jay Wright. In his petition, Hernandez asked that
the court grant injunctive and declaratory relief based on
his argument that Johnson's deed of trust did "not
create a valid lien on [his] homestead[.]"[5] In response,
Johnson filed a general denial and a counterclaim, alleging
she was entitled to have the trial court render a judgment
declaring that she had the right to foreclose on
Hernandez's property under the express terms in the
agreements used to create the owelty lien on Hernandez's
property on South Rayburn Drive.
According
to the court's docket sheet, in April 2017,
Hernandez's attorney appeared in court and announced he
was dismissing Hernandez's claims against Jay Wright.
About three weeks later, Johnson filed a traditional motion
for summary judgment on Hernandez's claims. In her
motion, Johnson alleged that Hernandez had agreed to
stipulate that he was in default on the $20, 000 promissory
note. Johnson asked the trial court to declare she has the
right to foreclose on the note even though Hernandez was
asserting homestead rights to the property on South Rayburn
Drive. She also asked that the trial court dismiss
Hernandez's claim against her with prejudice, and that it
grant her counterclaim seeking to recover attorney's
fees.
In May
2017, Hernandez filed a motion for summary judgment on his
claims against Johnson. In Hernandez's motion, he asked
the trial court to declare the owelty lien and deed of trust
invalid. According to Hernandez's motion, the language
the parties used in the agreed decree when they divorced
failed to create a valid owelty lien on his homestead.
In June
2017, the trial court denied Hernandez's motion for
summary judgment. Then, during a hearing on Johnson's
motion for summary judgment in July 2017, the trial court
advised the parties that Johnson's motion for summary
judgment would be granted in part and denied in part. In
August 2017, the trial court signed a judgment declaring
Hernandez in default on his note. The judgment also declares
that Johnson has a valid, enforceable owelty lien on the
property on South Rayburn Drive and that his property is
subject to foreclosure based on Johnson's "Owelty
Deed of Trust Lien." Although Johnson prevailed on her
declaratory judgment claims, the trial court denied her
request for attorney's fees. The judgment then states the
trial court was denying "all other relief" and the
judgment is final and could be appealed.[6]
On
appeal, Hernandez argues that he signed the note and deed of
trust solely so the court that handled his divorce could
affect a just and equitable division of his and Johnson's
marital estate. He claims the court handling his divorce did
not have the right to create an owelty lien burdening his
separate property because it has always been his homestead.
According to Hernandez, the district court handling the case
that is the subject of this appeal committed error when it
concluded the language in the agreed decree had effectively
created a valid owelty lien on his home. He contends the term
"owelty lien," as used in the agreed decree, was
misused because the lot is now and was at the time of the
divorce his separate property. Hernandez concludes the trial
court should have granted his motion, declared the lien
invalid, and denied the motion Johnson filed.
In
response to these arguments, Johnson contends Hernandez
should not be allowed to collaterally attack the language in
the agreed decree. She also claims the summary-judgment
evidence authorized the trial court to declare the owelty
lien is valid because the summary-judgment evidence
established the home and pool were built on the property with
community funds.[7] Johnson points to the language in the
agreed decree, the $20, 000 note, and the deed of trust to
support her arguments that the evidence proved the court
handling the divorce required Hernandez to sign the note to
settle the reimbursement claims she made in the divorce.
Johnson concludes the ...