the Cadle Company and Cadleway Properties, Inc. v. Mary Ester Ortiz and Husband, David Ortiz

NUMBER 13-06-282-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THE CADLE COMPANY AND

CADLEWAY PROPERTIES, INC., Appellants,

v.

MARY ESTER ORTIZ AND

DAVID ORTIZ, Appellee.

On appeal from the 24th District Court of Calhoun County, Texas.

DISSENTING OPINION

Before Justices Yañez, Rodriguez, and Benavides

Dissenting Opinion by Justice Yañez

The majority holds that: (1) the mechanic's lien asserted by Cadle is invalid because it was signed only by Ms. Ortiz, not by Mr. Ortiz, as required by the Texas Constitution; and (2) because Cadle failed to defeat Mr. Ortiz's homestead claim, the foreclosure was wrongful. I conclude that because Ms. Ortiz's misrepresentations created the facts supporting the argument that the lien is invalid, the Ortizes are estopped from denying the validity of the lien. Accordingly, I respectfully dissent.

Standard of Review and Applicable Law

The majority has correctly stated the applicable standard of review. Cadle asserted the affirmative defense that the Ortizes were estopped from denying the validity of the lien because Ms. Ortiz intentionally misrepresented that she was the sole owner of the home. Thus, Cadle had the burden to prove that the Ortizes were estopped from denying the validity of the lien. ⁽¹⁾ The ultimate issue of whether Cadle had a valid lien on the property owned by the Ortizes in light of the asserted homestead status is a question of law. ⁽²⁾

"Texas law recognizes two different mechanic's liens: the statutory mechanic's lien and the constitutional mechanic's lien." ⁽³⁾ "It is well-settled that neither a constitutional lien nor a statutory mechanic's lien may be enforced against a homestead unless a written contract for the work and material to be supplied is signed by all owners prior to the work commencing and is recorded." ⁽⁴⁾ The issue in the present case is the absence of Mr. Ortiz's signature on the written contract, a requirement for both a constitutional and statutory lien. ⁽⁵⁾ Thus, it is unnecessary to determine whether the lien is a constitutional or statutory mechanic's lien.

The doctrine of equitable estoppel or estoppel in pais is grounded on the condition that justice forbids one to gainsay his own acts or assertions. ⁽⁶⁾ "[T]he formal equitable estoppel or estoppel in pais--arises when one is not permitted to disavow his conduct which induced another to act detrimentally in reliance upon it." ⁽⁷⁾ "[O]ne who by his conduct has induced another to act in a particular manner should not be permitted to adopt an inconsistent position and thereby cause loss or injury to the other." ⁽⁸⁾ Thus, it is well settled that estoppel may arise from conduct or from a failure to act. ⁽⁹⁾

An assignee of notes and lien given upon a homestead (here, Cadle) may not enforce them if it appears that the assignee knew, or had such notice as would put him upon inquiry, which, if pursued, would have disclosed to him that the property was a homestead. ⁽¹⁰⁾

Analysis

The Ortizes argue that because Mr. Ortiz did not sign the contract, a proper lien did not attach to the property and the foreclosure was therefore wrongful. They also argue that the Assumption Deed, which identifies only Ms. Ortiz as the purchaser of the property, is not deceptive.

At the bench trial, Ms. Ortiz testified that at the time she purchased the property and executed the Assumption Deed (February 24, 1994), she was married to Mr. Ortiz, and she assumed that the property was community property. ⁽¹¹⁾ Ms. Ortiz testified that she intentionally listed herself as the sole owner of the property on the deed in order to avoid losing the house due to potential back child support owed by Mr. Ortiz. When asked if it was her "intention to mislead the people of the State of Texas as to the true ownership so [she] could avoid losing a house for potential back child support," Ms. Ortiz responded, "Yes." The "Credit Application for Property Improvement Loan" identifies the "applicant" as Ms. Ortiz and states her marital status as "unmarried." ⁽¹²⁾ The document bears Ms. Ortiz's signature, directly below a statement that the applicant certifies the information in the document as "true, accurate, and complete." Another statement appears at the bottom of the application, noting, "If this application is prepared by someone other than the applicants, that person must sign below. I certify that the statements made herein are based upon information given to me by the applicants and are true, accurate and complete to the best of my knowledge and belief." The form is signed by "Rose Gomez," representing National Home Services. Ms. Ortiz testified that when she signed the application, it had not been filled out. She denied telling Dean Bostic, the National Home Services salesman, that she was single.

The Contract for Labor and Materials and Trust Deed ("Trust Deed"), executed in connection with the loan for the home improvements on June 13, 1996, identifies only Ms. Ortiz as "Owner." The Trust Deed was recorded in the real property records of Calhoun County, Texas, on July 30, 1996. The original holder of the Trust Deed was Statewide Mortgage Company. Statewide Mortgage Company assigned and transferred the Note and Trust Deed to Green Country Bank; the assignment was recorded on August 27, 1996. On October 27, 1999, the successor to Green Country Bank assigned the Note and Trust Deed to Cadle; the assignment was recorded on December 2, 1999. Thus, Cadle purchased the Note and Trust Deed from an intermediate purchaser more than three years after the Trust Deed was recorded.

Cadle asserts it is an innocent purchaser that acquired rights to the lien without knowledge of the deception perpetrated by the Ortizes. ⁽¹³⁾ Cadle also asserts that it is entitled to rely on the accuracy of real property records. According to Cadle, because its actions in purchasing the loan were induced by Ms. Ortiz's false representation that she was the sole owner of the property, the Ortizes are estopped from challenging the validity of the lien.

The record contains an "Assignment of Contract for Labor and Materials and Trust Deed," which states that the successor to Green Country Bank transferred its interest in the Trust Deed to Cadle, "an Ohio Corporation located at 100 North Center Street, Newton Falls, Ohio" "for value received," effective September 30, 1999. The record contains no other evidence regarding the circumstances by which Cadle purchased the Trust Deed.

The Texas Supreme Court has set out three categories in which a homestead claimant would be estopped from claiming his homestead:

(1) when the owners, not actually occupying the property, or so using it that its status is dubious at the time the mortgage is executed, represent that it is not their homestead; (2) when the owners create a lien by entering into a simulated transaction which has all the outward appearance of a valid, unconditional sale, but which is in fact a mortgage; (3) when the owners represent that existing notes are valid mechanic's lien notes for improvements, secured by a mechanic's lien contract properly executed. ⁽¹⁴⁾

In Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 515 (Tex. 1998), the Texas Supreme Court also held that, "[w]hen an innocent third party relies upon the validity of a lien that includes the parties' recitations that no labor or materials were furnished before the execution of the contract, those parties are estopped from later contesting the validity of the lien as a defense to foreclosure." ⁽¹⁵⁾ Here, Cadle was an innocent third party that relied on the validity of a lien that included Ms. Ortiz's recitation that she was the sole owner of the property.

I conclude there is sufficient evidence that Ms. Ortiz's false misrepresentations that she was unmarried and the sole owner of the property induced Cadle to purchase the Trust Deed from a subsequent purchaser three years after the Trust Deed was recorded in the property records of Calhoun County. Accordingly, I would hold that Ms. Ortiz is estopped from challenging the validity of the lien.

The majority concludes that "[r]egardless of Cadle's ability to defeat Ms. Ortiz's homestead exemption, it has shown nothing to defeat Mr. Ortiz's homestead exemption." I disagree. Because estoppel may arise from conduct or a failure to act, ⁽¹⁶⁾ I conclude that

Mr. Ortiz is also estopped from challenging the validity of the lien. At trial, Mr. Ortiz testifed that he learned Ms. Ortiz had purchased the property solely in her name "[a]fter she had done it." He also testified that he knew (from Mr. Bostick) that he was supposed to sign the Trust Deed, but he did not do so. I conclude that because Mr. Ortiz admitted that he failed to act when he knew he was required to, he is also estopped from challenging the validity of the lien.

I would reverse the trial court's judgment and render judgment in favor of Cadle. I would also reverse the trial court's judgment awarding attorneys' fees to the Ortizes.

LINDA REYNA YAÑEZ,

Justice

Dissenting opinion delivered and filed

this the 17th day of May, 2007.

1. See Tex. Farmers Ins. Co. v. Murphy, 996 S.W.2d 873, 879 (Tex. 1999) (noting that party asserting affirmative defense of fraud had burden to plead, prove, and secure findings to sustain defensive plea of fraud).

2. Florey v. Estate of McConnell, 212 S.W.3d 439, 445 (Tex. App.--Austin 2006, pet. denied).

3. Cavazos v. Munoz, 305 B.R. 661, 668 (Bankr. S.D. Tex. 2004) (citing Apex Financial Corp. v. Brown, 7 S.W.3d 820, 830 (Tex. App.--Texarkana 1999, no writ) ("[a] statutory lien exists through compliance with the applicable statutes, while a constitutional lien arises by virtue of the Constitution without the aid of the statutes.") (citations omitted)). After reviewing the cases construing the constitutional and statutory provisions pertaining to mechanic's liens, I agree with the observation of the Cavazos Court that "the body of case law on such liens is not a model of clarity, and it is doubtful that all the germane cases could be reconciled." Id. at 668.

4. Id. at 684 n.33.

5. Tex. Const. art. XVI, § 50 (a)(5); Tex. Prop. Code Ann. § 53.254 (Vernon 2007). Article 16, section 50 of the Constitution was amended in 1997, effective January 1, 1998, to add additional requirements, and amended again in 2001, effective January 1, 2002. Section 53.254 of the property code was also amended in 1997, effective September 1, 1997. See Act of May 31, 1997, 75th Leg., R.S., ch. 526, § 23, 1997 Tex. Gen. Laws 1887. The Contract for Labor and Materials and Trust Deed at issue in the present case was executed on June 13, 1996, and is therefore governed by the law prior to the amendments. However, because the subsequent constitutional and statutory amendments are both inapplicable and irrelevant to my analysis of the issues, it is unnecessary to address them. See Cavazos, 305 B.R. at 676-77 (explaining effect of amendments).

6. Wallace v. McKinzie, 869 S.W.2d 592, 595 (Tex. App.--Amarillo 1993, writ denied) (quoting Campbell v. Pirtle, 790 S.W.2d 372, 374 (Tex. App.--Amarillo 1990, writ denied)).

7. Id. (quoting Campbell, 790 S.W.2d at 374).

8. Id. (quoting Fabrique, Inc. v. Corman, 796 S.W.2d 790, 792 (Tex. App.--Dallas 1990, writ denied)).

9. Id. (citing Clear Lake Dev. Corp. v. Blackstock, 450 S.W.2d 678, 684 (Tex. App.--Houston [14th Dist.] 1970, writ ref'd n.r.e.)).

10. Fest v. Williams, 89 S.W.2d 1072, 1074 (Tex. Civ. App.--San Antonio 1935, no writ)..

11.

Ms. Ortiz assumed correctly that because the property was purchased during her marriage to Mr. Ortiz, it was community property, not separate property. See Tex. Fam. Code Ann. § 3.002 (Vernon 2006) ("Community property consists of the property, other than separate property, acquired by either spouse during marriage."); § 3.003(a) ("Property possessed by either spouse during or on dissolution of marriage is presumed to be community property."); Panozzo v. Panozzo, 904 S.W.2d 780, 786 (Tex. App--Corpus Christi 1995, pet. denied) ("with a few exceptions, all property acquired during a marriage is presumed to be community property."); Duncan v. United States, 247 F.2d 845, 849 (5th Cir. 1957) (noting that "[t]he presumption that property purchased during the marriage is community property is very cogent, and can only be repelled by clear and conclusive proof that it was with the individual money or property of one of the partners.").

12.

At the bench trial, twenty "agreed exhibits" were admitted into evidence. The exhibits are included in the record.

13. At the bench trial, the only two witnesses were Ms. Ortiz and Mr. Ortiz. Although Cadle attempted to present one witness, counsel for the Ortizes objected, and the witness did not testify. Accordingly, Cadle must rely solely on the Ortizes' testimony and the documents in the record to support its claim of estoppel.

14. In re Niland, 825 F.2d 801, 809 (5th Cir. 1987) (quoting Lincoln v. Bennett, 138 Tex. 56, 59, 156 S.W.2d 504, 505 (Tex. 1941)).

15. Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 515 (Tex. 1998).

16.

McKinzie, 869 S.W.2d at 595.