Deutsche Bank National Trust Company, as Trustee for the HSI Asset Securitization Corporation 2006-OPT 3 Pass Through Certificates v. F&M Properties, Inc. and Stephen Callender

• Court: Court of Appeals of Texas
• Decided: July 15, 2022
• Docket: 05-21-01086-CV
• Status: Published

Opinion

DISMISS and Opinion Filed July 15, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01086-CV

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE HSI ASSET SECURITIZATION CORPORATION 2006-OPT 3 PASS THROUGH CERTIFICATES, Appellant V. F&M PROPERTIES, INC. AND STEPHEN CALLENDER, Appellees

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-04419-2020

MEMORANDUM OPINION Before Chief Justice Burns, Justice Goldstein, and Justice Smith Opinion by Chief Justice Burns Appellant Deutsche Bank National Trust Company (Bank) filed the

underlying bill of review proceeding seeking to set aside a default judgment in favor

of appellee F&M Properties, Inc. (F&M). Appellee Stephen Callender intervened

in that proceeding asserting claims in addition to seeking dismissal of the bill of

review. Bank appeals from the trial court’s order granting Callender’s motion for

summary judgment and dismissing the bill of review. We questioned our

jurisdiction over the appeal because it appeared Callender’s claims against Bank

remained pending. The parties filed letter briefs addressing the Court’s concern. Background

The default judgment Bank sought to set aside in the bill of review followed

F&M’s suit to quiet title to property and a declaration that it owned the property free

of any lien claimed by Bank or any predecessor or successor. In his first amended

petition in intervention, Callender asserted claims for declaratory judgment, trespass

to try title, suit to quiet title, and attorney’s fees.1 As to his claim for declaratory

judgment, Callender sought declarations that (1) his interest in the property is

superior to and takes priority over Bank as a good faith purchaser and the

predecessor-in-interest to F&M, (2) Bank has no valid lien on the property, (3) he is

the record title owner of the property and owns the property in fee simple, free and

clear of all liens and encumbrances, save taxes and assessments, (4) Bank has no

meritorious defense to the claims in the underlying proceeding, and (5) Bank failed

to act with diligence after being properly served by F&M. Callender also sought an

order quieting title to the property in his favor. Callender filed a motion for summary

judgment addressing only Bank’s bill of review. The trial court granted the motion,

dismissed the bill of review, and Bank appealed.

The Law

1 Callender asserted these identical claims against Bank in a separate lawsuit filed prior to the bill of review proceeding. Following this appeal, the trial court granted the parties’ agreed motion and consolidated Callender’s separate lawsuit against Bank into the underlying bill of review proceeding. –2– To be final for purposes of appeal, an order or judgment must dispose of all

parties and all claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.

2001). Although a presumption exists that an order or judgment rendered after a

bench or jury trial is final, no similar presumption exists for an order or judgment

rendered without a conventional trial on the merits, such as a summary judgment.

See id. at 199-200. Rather, an order or judgment rendered without a conventional

trial on the merits is final only if it actually disposes, or “clearly and unequivocally”

states it disposes, of all claims and all parties. See id. at 205. No “magic language”

is required, but in Lehmann v. Har-Con Corp., the Texas Supreme Court noted that

a trial court could express its intent to render a final order or judgment by including

a statement that the order or judgment “finally disposes of all parties and all claims

and is appealable.” See Bella Palma, LLC v. Young, 601 S.W.3d 799, 801 (Tex.

2020) (per curiam).

Discussion

The trial court’s order dismissed the bill of review but did not address

Callender’s claims in intervention or otherwise “clearly and unequivocally” state

that it disposed of all claims and all parties. In its letter brief, Bank asserts

Callender’s claims for declaratory judgment, trespass to try title, and suit to quiet

title were resolved by the trial court’s order dismissing its bill of review. While we

agree the dismissal of the bill of review effectively resolved Callender’s claims for

declaratory judgment that Bank has no valid lien on the property, no meritorious

–3– defense to the claims in the underlying proceeding, and that Bank failed to act with

diligence after being served by F&M, we disagree that the trial court’s order resolved

Callender’s remaining claims. The trial court’s order did not address Callender’s

claim for declaration that his interest in the property is superior to that of Bank and

that he is the record title owner to the property. Because the trial court did not resolve

the dispute as to the proper owner of the property, the judgment is not final.

We dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

211086F.P05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DEUTSCHE BANK NATIONAL On Appeal from the 416th Judicial TRUST COMPANY, AS TRUSTEE District Court, Collin County, Texas FOR THE HSI ASSET Trial Court Cause No. 416-04419- SECURITIZATION 2020. CORPORATION 2006-OPT 3 PASS Opinion delivered by Chief Justice THROUGH CERTIFICATES, Burns. Justices Goldstein and Smith Appellant participating.

No. 05-21-01086-CV V.

F&M PROPERTIES, INC. AND STEPHEN CALLENDER, Appellees

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellees F&M PROPERTIES, INC. AND STEPHEN CALLENDER recover their costs of this appeal from appellant DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE HSI ASSET SECURITIZATION CORPORATION 2006-OPT 3 PASS THROUGH CERTIFICATES.

Judgment entered July 15, 2022

–5–