Villarreal v. Laredo National Bank

In did not analysis, the final this We hold that the actions Smith Court con search, expectation cludes that an constitute a and therefore his ob- individual’s servations could be considered in privacy determin- airplane in an is akin to an individ ing sufficiency of the search warrant. expectation ual’s privacy in an automo addition, stated, his observations bile and therefore is afforded only satisfy requirements more than protection limited by the Fourth probable Accordingly, cause. the district Amendment. In United Sigal, States v. (10th ruling 500 F.2d court erred Cir.1974), otherwise. court observed: reversed, The and the cause are not here concerned with the is remanded for new trial.

[W]e home, airplane, search of a but of an mobile, certainly if not more

which is as

so, The than an automobile. search of automobile, example,

an is far less Amendment

intrusive on Fourth person

than the search of one’s or home. Additionally, the court in v. United States VILLARREAL, Appellant, Irma Rocha Gooch, (10th Cir.1979) 603 F.2d v. noted: BANK, Appellee. NATIONAL LAREDO Maroney, as the Insofar Chambers [v. No. 04-83-00073-CV. 399 U.S. 26 L.Ed.2d 419 S.Ct.

(1970) expec- Texas, rule turns on the reduced Appeals ] Court privacy in his tation of one has automo- Antonio. San bile, most of what was said in Chadwick 27, 1984. June Chadwick, States v. 433 U.S. [United Aug. Rehearing Denied (1977)] 97 S.Ct. 53 L.Ed.2d 538 concerning applies to air- automobiles

planes airplane’s Thus an ‘func- as well. transportation it

tion is seldom repos- as one’s residence or as the

serves Although

itory personal effects.’ ... ‘public thoroughfares

it does not travel occupants

where both its and its contents view,’ plain ordinarily it lands at

are

airports open public to the its oc- where similarly are visi-

cupants and contents pervasive regulation of automo-

ble. their ... is even exceed-

biles and drivers regulation airplanes and

ed pilots.

their Smith,

The fact that present Officer

case, had to wing climb onto the in order to paramount

see inside is not a consequence.

Although specifically not ap- raised

pellee, trespass, if there were a technical very significance analysis.

is of little in our State, Long supra; State,

See Turner v. (Tex.Cr.App.1973). S.W.2d 182 See — States, U.S. -,

also Oliver v. United (1984).

104 S.Ct. L.Ed.2d

fiQl C. Rocha and were mar- ried 1966. In couple resided at Laredo, Aldama Street Coun- Webb Texas, ty, claiming and were the residence 30, 1973, their homestead. On they executed a Builder’s and Mechanic’s $30,000.00 Lien Note in the amount of Priolo, contractor, Guisseppe con- improvements struction of to their home- stead. The note was secured a Build- er’s and Mechanic’s Lien.1 Jr., Dallas, “Bumper” Hornberger, J.G. The note and lien were subsequently as- appellant. signed appellee day. bank on the same Garcia, Laurel, Julio Dist. Atty., Alonzo 8, 1974, Rochas, On February the while Jr., Laredo, appellee. for living still property claiming on the it and homestead, as their executed and delivered

OPINION appellee promissory a note deed of and trust lien were a which renewal and exten CANTU, Justice. sion of the Builder’s and Mechanic’s Lien Motion, On the Court’s This Case Was note and The note February Lien. is dated Heard En Banc. 13, 1974, and the Deed of Trust is dated appeal This is an from granting an order 8, 1974. February Trust, The Deed of how summary judgment in of appellee, favor ever, given it recites that is the to secure Laredo Bank National and from an order payment of a of even presum note date but denying summary judgment a in favor of ably note February refers to the dated appellant, Irma Rocha Villarreal. 1974. Appellant filed suit to enjoin foreclo- note, Under the terms the involving sure sale on which she Roger obligated pay and themselves to the and her three minor children residing. were of thirty-five sum thousand at dollars nine Alternatively in sought, the event and percent monthly one-half interest in injunctive denied, relief was an order re- payments installment including $365.50 quiring that foreclosure subject and sale be beginning interest on March 1974. to her rights. court, The trial $30,000.00 The note further recites that early stages litigation, granted represents prin- of the note renewal a temporary restraining order and subse- cipal on promissory balance due note quently temporary converted into a in- 30, 1973, August dated and that the addi- junction. $5,000.00 represents improve- tional other entry The trial court’s of its orders on performed by ments the contractor at the summary judgment motions for in ef- request of the Rochas. permanent injunction fect denied sought appellant. Nevertheless, acknowledges by specifically note injunction court the temporary granted continued in the lien under the note and Deed full force effect pending August and outcome of Trust executed on is renewed, appeal. of this merged extended and with a provides payment thirty non-payment, protest 1. The note for the and notice thereof and days ninety diligence bringing against any party thousand dollars within with inter- suit percent. hereto, est they, jointly severally, at the rate of nine and one-half and con- any sent to extension hereof in whole or in Additionally, following the note contains part, indulgencies granted and to language: payment Makers, makers in the hereof and consent severally sureties and endorsers given thereof need them. presentment payment, notice not be waive for notice of $29,900.92 at in the amount of with interest given under the Deed of Deed of Trust lien payable in percent rate of twelve February 1974. Trust dated monthly installments of commenc- $365.00 by agreed further Appellant and September 1980.2 The note re- ing on at the note that could the terms of that the “maker ... of this note ex- cites years from the date of any time after five notices, pressly waives all demands note, mature balance execution of no- presentations payment, payment, giving appellant and due on the note to accelerate the maturi- tices of intention notice of accel- Roger three months written protest, as to this ty, protest and notice of eration. each, every and all install- note and as the 201st Judicial On ments hereof.” Texas, County, en- District of Travis Court granted a Deed of Trust Roger further divorce interlocutory decree tered an foregoing note. The secure the lien to No- proceeding the Rochas. On between plate is but contains Deed of Trust boiler divorce a final decree of vember that the note which the added notations entered the court. and extension given secured is in renewal provided, pertinent decree The divorce $29,900.02 owing and left of the sum of part: upon the note in unpaid by grantor (Roger) hereby FINDS and ORDERS The Court $35,000.00 original dated Febru- sum of following property awarded be recites ary The notation further (Husband), sub- to ROGER C. ROCHA the lien Roger acknowledges that any encumbrances thereon: ject to in Trust dated Febru- granted the Deed of located community 1. 1974, is 13, valid lien and ary remains a Aldama, Laredo, Texas. Said at 1810 in full renewed, continued extended and however, is aside the property, set the note payment the of force to secure occupancy IRMA C. ROCHA use and of 10, 1981, 8, July August 1980. On dated children until the minor and 8, 1980, per its matured as August note eigh- age child reaches the youngest of pay to unable terms and own and in- Mortgage payments, taxes teen. Consequently the remaining balance. paid property are to be in said surance Trust trustee, the Deed of pursuant to youngest child by Husband until note, gave notice given to secure the eighteen. (Emphasis age reaches the to then filed suit Appellant sale. trustee’s ours.) enjoin the sale. the time of noteworthy prior It is the court erred Appellant contends that divorce, living at the appellant was summary judg- denying her motion for mi- her three residence with Aldama Street granting appellee’s motion ment and Moreover, appellant and children. nor summary summary judgment because premises live on the continued to children conclusively established proof judgment exemption under to claim a homestead void of trust lien was appellee’s deed by the divorce decree. terms awarded appellant’s or inferior 1980, exercised appellee bank August In foreclosed. property sought to be in the due on option to accelerate balance its was en- that she Appellant further asserts note in the 1974 per note as the terms enjoining injunction permanent to a titled maturity anytime after five permitting the trustee’s foreclosure sale because years. void and because notice of sale was residing is upon which she 8,1980, appel- property Roger, without On under the laws from forced sale consent, exempt executed a knowledge or lant’s of Texas. Constitution payable note Estate Lien Real interest, not payment principal and if payments final $365.00 note recites that 2. The payable on the paid, due and shall be "until the sooner month continue each calendar shall ours.) (Emphasis July except day fully paid, 10th principal and interest are 1981."

605 reviewing In summary judg Moreover, ap when faced with an record, ment it is duty appellate peal containing summary judgment two apply following motions, courts to appeals should, rules: the court of if properly preserved, error is all determine 1. The movant for summary judgment questions presented. If error is reversible has the showing burden of that there is no found, the court should judg render such genuine issue of material fact and that it is ment as the trial court should have ren judgment entitled to as a matter of law. Garcia, 58, dered. See Tobin v. 159 Tex. Wilcox v. Mary’s St. University San 396, (1958). 316 S.W.2d Antonio, 589, (Tex. 531 S.W.2d 592-593 1975); TEX.R.CIV.P. 166-A. A hearing on a summary motion for judgment purely is one of law and no oral deciding 2. whether or not there is a testimony Therefore, is allowed. the court disputed material fact precluding issue must moving party decide whether the summary judgment, evidence favorable to entitled to plead based on the the nonmovant will be taken as true. Wil- ings, depositions, interrogato answers to cox, 593; 531 S.W.2d at see also Cowden v. admissions, ries and together affi Bell, 44, 157 Tex. 300 S.W.2d Nix, davits. Cronen v. 611 S.W.2d (1957). (Tex.Civ.App. [1st Dist.] — Houston Every reasonable inference must be n.r.e.), denied, writ ref’d cert. indulged in favor of the nonmovants and U.S. 102 S.Ct. L.Ed.2d any doubts resolved their favor. Wil- (1981). cox, 593; 531 S.W.2d at Hudnall v. Tyler The statement of facts Co., and docu Bank & Trust 458 S.W.2d mentary developed prior evidence (Tex.1970); trial Penn, Gulbenkian v. Tex. can properly be considered the trial (1952); 252 S.W.2d Womack ruling upon court in summary a motion for Co., Allstate Insurance 156 Tex. judgment. Jewelry, Sturm Inc. v. First (1956). 296 S.W.2d Bank, Franklin, National 593 S.W.2d In considering propriety of the trial 1980, (Tex.Civ.App. writ). 815 no — Waco court’s granting appellee’s motion for hearing At the on the motions for sum- summary judgment, we by abide the fore- mary judgment, appellant appellee en- going rules. stipulation tered into a providing that the However, failure of appellee to dis summary judgment proof would include charge its burden on its motion would not the statement hearing of facts from on necessarily appellant entitle summary to the temporary injunction plead- and that all judgment on her motion appel nor would ings pertained and orders which appel- to lant be entitled to summary judgment on individually lant automatically per- would her simply motion negates because she appellant tain to as next friend of her three summary judgment proof by appel offered minor children. lee. Rio Bravo Oil Co. v. Hunt Petrole The appellee’s summary judgment proof Corp., (Tex.1970). um 455 S.W.2d 727 contains the affidavit of an executive vice president appellee bank. The affiant parties Since both moved for sum states he was aware of the Rocha’s divorce mary judgment, accompa all the evidence Roger and that had prop- been awarded the nying both motions should be considered erty question Roger at the time executed deciding grant whether or not either Moreover, the note in of 1980. he party’s State, Sorsby motion. v. by Roger states that the note executed (Tex.Civ.App. S.W.2d — Houston July alone matured its own terms on 1981, writ); Highway no see also [1st Dist.] Contractors, Equip Inc. v. Texas West Co., (Tex.Civ. ment 617 S.W.2d deposition stipulated evidence App. writ). motion, parties no attached to — Amarillo effect, party’s bank ex- disclosed that elected to each contention in fa- opposition vor of its motion and to the note option ercise its to accelerate the 1974 party’s other motion mirror each other. owing and to mature the balance sometime elapsed after from date of years had its Thus, upon the motions called the trial execution. decide, law, court to as a matter of validity exemption a homestead claim Appellant’s position is that never she was upon and the of a deed of trust effect lien given ma- notice of the bank’s intention to that claim. Appellee ture know the balance. did not We first the propriety address of the given appellant whether had been the re- granting appellee’s trial court’s motion for quired notice, nor did it seek to controvert summary judgment. appellant’s of lack notice. contention Roger he had re- believed received the The uncontroverted evidence es quired appellant notice but did not know if tablished that an awarded had. sustaining a capable estate property claim in real separate of her Appellee sought Rog- solely to deal years through term of ex-husband for a er in the matter of the renewal note even decree of It is well settled that a divorce. aware, through officers, though it was its property divorce may court set aside as the appellant’s premis- continued use of the the wife and children for a homestead of appellee’s position es a residence. It is certain period though of time even party was not a interested property separate of the property be the property because was made the Hedtke, husband. Hedtke v. 248 S.W. See sole fee via the de- owner of the divorce (Tex.1923); Nelson, Nelson v. cree. (Tex.Civ.App. S.W.2d — Dallas Appellant appellee’s seeks to defeat en- 1969, Smith, writ); no v. 187 S.W.2d Smith summary judgment by arguing titlement to 119 (Tex.Civ.App. Worth — Port proof summary judgment that the conclu- writ). rule, complete general no As a sively deed of trust breaking established up family cause by appellee nullity lien operate foreclosed on does not to forfeit the homestead right of exemp- acquired one who has and contin because it affected ues to as his use the home. See tion. Bank, 118 Tex. Woods Alvarado State hand, Appellee, justifies on the other its (1929). S.W.2d summary judgment by argu- entitlement Moreover, the claim of homestead conclusively ing proof that the established exemption depend unquali does not on an appellant not entitled to a home- ownership fied fee of the land involved. and, therefore, exemption deed of stead the 255, v. 210 S.W.2d 258 Montgomery, Gann Moreover, ap- trust lien was valid. since 1948, ref’d (Tex.Civ.App. Worth writ — Fort right in pellant not have a homestead did n.r.e.).3 property, the she was not entitled subject re- to notice of an extension and state, receive long has In this been debt preexisting newal nor was of in the law a wife has an interest although may consent needed to validate the renewal title property, homestead husband, may rightfully in rest and she note. 1978, writ); Civ.App. v. required no Cleveland is to validate 3. Some title or interest — Austin Mitchell, 120, 472, Milner, Rutledge the homestead claim. See v. 170 S.W.2d 475 Tex. 1135, (Tex.Civ.App. (1943), 1136 present possession, 91 S.W.2d right and a of Atkins — Austin 1936, dism’d). 412, have err. Sufficient interests Schmid, (Tex.Civ.App.— 414 v. 129 S.W.2d common, tenancy been in found in a Stevenson Duke, 1939, writ); v. 107 Dallas Dillard no 317, Wilson, (Tex.Civ.App.— v. 130 S.W.2d 321 1937, 414, (Tex.Civ.App. no S.W.2d 418 — Waco will, 1939, ref’d), tenancy err. a at Eastland writ). Kubena, 382, (Tex. Shepler 563 S.W.2d 386 v.

607 an action note prosecute protect to that interest. unless such intention of the parties. v. presumption Citizens’ State Bank Lindale Nor is there of the of Jef 317, 2 (Tex.Civ.App.— S.W.2d fries, extinguishment original 320 paper by 1927, ref’d). Texarkana writ The home delivery execution and of a new The note. right stead thus created constitutes an es burden of novation proving a is on the in privilege tate land rather than Crichet, a mere of person asserting Chapman it. v. exemption possession. or 360, Andrews v. (1936). Se 127 Tex. 95 363 S.W.2d curity Falls, Nat. Bank 121 Wichita of 253, involved, notes are When renewal (1932); 50 Tex. S.W.2d 256 Woods may the holder either original sue on the Bank, supra; v. Alvarado State Sakowitz note or on the renewal note. Clark v. (Tex. McCord, v. Bros. S.W.2d Southwest, Amarillo, Bank Civ.App.—Galveston writ). no (Tex.Civ.App.—Amarillo S.W.2d decree, entry At the of the divorce 1966, writ); no Smith First Pasadena created, two estates in the were Bank, (Tex.Civ. 401 S.W.2d State years reversionary an estate for in App.—Houston 1966, writ). no suspended right terest possession. We see reason depart no to Therefore, parties unless the in principles from established of homestead appellant tended to discharge on the exist simply exemption law because a homestead ing renewal, prior appellant note was not upon is claimed a court created estate as discharged by an extension the note opposed to court continued decree fol original without her consent where note lowing the dissolution of the marriage. provided agreed that the makers to all ex generally McGarraugh See v. McGar Southwest, tensions. Clark v. Bank raugh, (Tex.Civ.App.— S.W.2d supra at 193. dism’d). Amarillo writ We therefore hold, however, hold that has a sufficient We interest that the afore upon ground rules, which to rights. they apply mentioned to the case bar, impair existing at do not extend to We must now validity ap- decide the rights. pellee’s lien as appellant’s exemption. §XVI, provides TEX. CONST. Art. At the time improvements were pertinent part: homestead, placed on a family, homestead of or of a Roger both participated placing be, single person, adult shall and is here- the Builder’s and Lien Mechanic’s on the sale, protected forced $30,000.00. from for the property to secure the note for payment except pur- of all for the debts It is well un settled debts thereof, money part chase or a of such during marriage presumed dertaken are purchase thereon, money, taxes due community be debts. Cockerham v. Cock or for work and material used in con- erham, (Tex.1975); 527 S.W.2d thereon, structing improvements and in Royce, Anderson v. 624 S.W.2d this only last case when the work and (Tex.Civ.App.—Houston Dist.] [14th material in writing, are contracted for n.r.e.). Thus, community proper ref’d writ spouses, with the consent both by ty reachable creditors for debts incurred family case of a homestead during marriage liable after a sub remains sequent divorce of the parties partition ^{[*] [*] [*] [*] [*] [*]} community A of of the estate. division deed, mortgage, No trust or other lien on community upon effect estate has no a valid, except the homestead shall ever be recovery rights. creditor’s therefor, money purchase for the or im- thereon, provements giv is also well that the made ... whether settled It deed, ing by mortgage, a new note for a such or trust or other of a debt evidenced lien, extinguish by former note does not the old shall have been created the own- alone, together against or her an existing er or with his homestead? We think in ease the is married. ... not. spouse, owner power 50 restricts of the holder of Section Appellant’s use of continuous encumbering right in or the homestead property through as a not homestead is a alienating ex- the homestead interest and permissive occupancy. right mere It is empts the homestead interest from forced land, cognizable rather a estate in the exist

sale in satisfaction judgments. dependent upon ence of which is the terms upon the of its creation rather than con Roger alone and extended When renewed rights tinuing Roger. Shepler fee in v. 8, 1980, appellee the note on was Cf. Kubena, (Tex.Civ.App.— S.W.2d appellant signatory to the aware that awas 1978, writ). Austin no original undertaking that she contin- premises occupy ued to under a home- Appellee position takes the that there right though stead even the fee title was in duty upon no or responsibility was Roger. appellant advise note had been called and was renewed and being extended long has held that a hus been It longer on different “as she no had terms power a alone has no to renew debt band responsibility interest in any for or against homestead, pay time of extend brief, 13, 14. Appellee’s note.” ment, same after change or wise advocates, appellee Further “... knowl- right perfected. the homestead has been edge appellant occupying sub- Asphalt Hightower, Rock v. Uvalde Co. ject premises, or lack of such knowl- (Tex. 140 Tex. S.W.2d necessary par- edge, would not her a make App.1942, adopted); opinion Comm’n Sud so as ty to the extension and renewal Bose, Tex.Civ.App. v. Du duth impose duty a on the to consult her of bank (1906, writ); Antonio S.W. no San such action.” Estate, Loan Ass’n v. Building Real & Stewart, Tex.Civ.App. 65 S.W. quite think the not so sim- We resolution (writ ref’d). ple. Moreover, necessary party the wife is a hold if We that even proceeding a foreclosure of a mechanic’s note, original of liability released on the lien on the and a ob- homestead cases, Roger on the aforementioned based making party in a case without a tained against could not renew the home debt Estate, void. San Real would be Antonio impair as would stead or do such other act Building & Loan Ass’n at 667. Appellee’s appellant’s interest. homestead Roger’s right upon to foreclose interest recognize the aforemen- While we way appel can in no affect a husband- specifically tioned cases address remaining lant’s homestead estate for situation, we the above rules wife hold that its far as the foreclo period of tenure. So applicable to a in which are situation stated, sale, attempted sure under the facts spouse has occurred contin- divorce and one interest, appellant’s the acts to terminate interest. ues to assert appellee were errant. it is immate- purposes opinion For this will appellant’s possessory estate be rial whether not of the from forced sale and will be protected forward after dissolution carried Unlike by affected sale of the fee title. marriage or were created virtue pos Kubena, Appellee’s supra, time Shepler lien at the divorce decree. more than an estate at will. valid encumbrance sessed of divorce constituted a therefore, compliance it, property. crucial absence upon the Is requirements appellant’s title estate placing if the fee foreclosure to determine Roger’s alone, divorce, judicial dis- foreclosure following will survive property sale the and the appellant’s partici- need interest and of pensed with the for property the of a debt new fee title owner will take in a renewal extension pation and

609 DIAL, Justice, TIJERINA, appellant’s joined by homestead burdened Jus- the estate in the tice, concurring. for balance the created Henry, Zable v. See decree divorce. Appellee’s summary judg- motion for 136, 1983, (Tex.App. S.W.2d no — Dallas ment, appellee granted, was said was which Kunkel, writ); Kunkel v. 515 S.W.2d judgment as matter of law entitled to .a (Tex.Civ.App. writ — Amarillo the because evidence established the ab- Crockett, n.r.e.); Davis v. ref’d 398 S.W.2d and, appellant’s right sence of homestead (Tex.Civ.App. no — Dallas thus, duty absence of a “to the advise Brown, writ); Lewis v. 321 S.W.2d [appellant] of the and renewal of extension (Tex.Civ.App. Worth ref’d writ — Fort debt_” pre-existing Appellee is valid n.r.e.); Cooper, Weinert v. 107 S.W.2d of a correct in its contention lack of a (Tex.Civ.App. writ — Texarkana defense to a claim based on the homestead dism’d). These decisions reflect the appellant February 1976 note to which Texas courts the strictly have adhered to party, any right because homestead is principle one-spouse homestead trans improve- a lien from inferior to derived void, merely actions are not inoperative but the homestead. But this does ments to not property non-signing while the remains the duty give the to eliminate of the bank the spouse’s homestead. three months written notice of acceleration Contrary expressed by to the view Jus- according February to the the terms of concurring tice Dial in opinion, his dowe appellant’s 1976 note. Before interest appellee’s not hold that homestead interest extinguished, property can be she is only will survive until such time as three entitled to months written notice to gives appropriate notice and oth- meets all give the opportunity satisfy her requirements orig- er for foreclosure on the right possessory debt. Her to continue her note. of appellee’s expressed inal view property interest in the derives not from its position on the original note that character, from the but lack of longer no responsible, appel- is insofar as prior attempted notice to the foreclosure. concerned, is question lant of notice She have notice a party must and be made requirements, think, and foreclosure we prior successful foreclosure of the passed have out case. San Antonio Real Es lien. mechanic’s judgment, In its the trial court denied tate, Building & Loan Association v. appellant’s application permanent for in- Stewart, Tex.Civ.App. 65 S.W. junction and summary motion for judgment ref’d). (writ Fenimore Gonzales Cf. at granting while the same time appellee’s Association, Savings County & Loan summary judgment. motion for (Tex.App. S.W.2d 213 Antonio — San judgment, denying The correctly while n.r.e.) (Notice writ ref’d under TEX.REV. permanent however, injunction, fails to 5810). CIV.STAT.ANN. art. recognize the interest of in her permits I concur appel- result that possessory Appellant en- homestead. possession lee to remain in until such time partial titled to at least relief on her motion gives as appropriate the bank notice is, summary judgment. judgment all requisites meets other for foreclo- therefore, provide appel- modified to original sure on the note. lant’s homestead interest under facts subject presented is not to forced sale Justice, BUTTS, dissenting disposition; appellee bank and her homestead estate on concurring the merits. judicial survive foreclosure of deed will trust and sale I majority concur with the statements of of its duration term. rely upon law which TEX. CONST. art. § Judgment construing XVI and the cases the trial court is modified to Texas indicated, modified, right extent superior Irma Ro I affirmed. cha Villarreal. further concur with en- conclusion that the Bank has a viable by lien on the

cumbrance deed of trust WENDELL, Al., Appellants, Yvonne Et property which is now former husband’s by simple long fee title. as the his So (until homestead interest continues AND CENTRAL POWER LIGHT youngest marriage child of the becomes COMPANY, Appellee. eighteen), there can be no forced sale. No. 13-82-362-CV. I agree What do not and believe is is, misleading judgment, is this court’s Texas, Appeals Court of disposition. granted The trial court Christi, Corpus summary judgment Bank’s for “in motion respects” all and denied Villarreal’s June 1984. nothing” An “take order. examination Rehearing Aug. 1984. Denied Bank it the motion of the reveals addresses right; only question of the homestead

it does not ask for relief as to its course,

under the deed of trust lien.1 Of

there was no reason for the Bank to ask judgment, for it its lien knew title. The

viable as to the husband’s solely

Bank’s motion directed to the claim, granted and the court

motion.

By “modifying” affirming judg- and holding Bank success-

ment we are

ful in its motion. But what is left after away only relief it

this court takes

asked for: a denial of the homestead claim. modify? Nothing.

What is left to We are writing judgment

then and NOT new penalizing

modifying. Further we are party, TEX.R.CIV.P.

successful Villarreal. not do. 448. This we should judgment should be reversed have de-

rendered. The trial court should

nied the Bank’s motion. The trial court relief granted

should have asked for perma- exception with the

Villarreal reversing injunction. By

nent and render- recognize the homestead es-

ing we would in effect until the

tate and that remains marriage

youngest child of becomes Therefore,

eighteen. I reverse and would

render. obligation summary judgment the Laredo National Bank on The Bank's motion specific ground: plaintiff renew- sets out its advise of the extension and pre-existing obtain her judgment al of a valid debt and as a matter Defendant is entitled to essence, summary there is of law because the uncontradicted consent to such action. any legal duty evidence establishes as a matter of owed no shown a violation of following law the absence of the element plaintiff. plaintiffs cause of action: a homestead duty right subject property in the and thus a

Case Details

Case Name: Villarreal v. Laredo National Bank

Court Name: Court of Appeals of Texas

Date Published: Jun 27, 1984

Citation: 677 S.W.2d 600

Docket Number: 04-83-00073-CV

Court Abbreviation: Tex. App.