Drake Interiors, Inc. v. Thomas

544 S.W.3d 449
CourtCourt of Appeals of Texas
DecidedFebruary 13, 2018
DocketNO. 14–17–00374–CV
StatusPublished
Cited by8 cases

This text of 544 S.W.3d 449 (Drake Interiors, Inc. v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drake Interiors, Inc. v. Thomas, 544 S.W.3d 449 (Tex. Ct. App. 2018).

Opinion

Tracy Christopher, Justice

The question in this case is whether a husband and wife abandoned their homestead before they divorced. If the answer is no, then the wife, who was awarded the home in the divorce, took the home free and clear of a judgment lien arising out of the husband's premarital debt. On the other hand, if the answer is yes, then the lien attached during the marriage, and the judgment creditor may now be able to execute against the home.

The wife was granted a summary judgment on the ground that the home never lost its homestead protection. Because the creditor produced some evidence of abandonment in its summary-judgment response, we hold that the wife is not entitled to judgment as a matter of law. We also hold that the creditor is not entitled to judgment on its cross-motion for summary judgment because the evidence of abandonment is not conclusive. Consequently, we reverse the trial court's judgment and remand for additional proceedings.

BACKGROUND

Four years ago, these same parties appeared before us in a related appeal. We begin by discussing the facts and disposition of that appeal because they directly bear on the motions for summary judgment that are under review now.

I. The First Appeal

The origin of this case dates back to the year 2000, when Rob Thomas signed a promissory note to the predecessor-in-interest of Drake Interiors, Inc. The note arose out of the sale of goods, which were supposed to be used in the opening of a nightclub that Rob intended to manage. According to Drake, Rob only made a single payment under the note. To collect the outstanding balance, Drake sued Rob in 2002 and obtained a final judgment against him in 2004.

Rob got married during the pendency of Drake's suit. In 2003, he and his wife, Andrea, purchased a home, which we identify as "Asbury." That home is also where Rob and Andrea started their family.

In 2006, while still living at Asbury, Andrea purchased a second home in her name only. This home, which we identify as "Queenswood," became Andrea's sole management community property. Andrea demolished the home on Queenswood to make room for the construction of a luxury custom home for her and her family.

In January 2008, Drake abstracted its 2004 judgment against Rob. When the abstract was recorded, Rob and Andrea were still occupying Asbury, but construction on the new Queenswood residence was underway.

In February 2008, Rob and Andrea separated due to marital difficulties. Rob vacated Asbury and began living with a friend at the friend's apartment. Andrea remained at Asbury, along with the two children born of the marriage. In May 2008, Andrea petitioned for divorce.

On August 1, 2008, and while still separated from Rob, Andrea moved into the newly completed Queenswood residence, along with her children. On that same date, Andrea leased Asbury to a third party.

*452Rob and Andrea divorced on December 31, 2008, when the family court rendered a final decree of divorce. Under the decree, Rob was divested of all interests he owned in Asbury and Queenswood, and Andrea was awarded full ownership of both properties. Andrea designated Queenswood as her homestead for tax purposes effective January 1, 2009.

In April 2009, Drake filed an action for declaratory relief, seeking declarations that its abstract of judgment created a valid lien against Asbury and that Drake was entitled to execute against Asbury. After the commencement of Drake's suit, Andrea and the children moved back into Asbury. In a 2011 pleading, Andrea asserted her homestead rights in Asbury as an affirmative defense to Drake's claims.

In a separate pro se appearance, Rob filed a general denial. Aside from that answer, he filed no other pleadings or motions in connection with the case.

Andrea moved for summary judgment on several grounds, but her primary argument was that Asbury could not be liable for a premarital debt incurred by Rob alone. Andrea did not specifically move for summary judgment on the basis that Asbury was protected as her homestead.

Drake filed a cross-motion for summary judgment, arguing that Asbury could be liable for Rob's premarital debt. Drake also argued, as a counter-affirmative defense, that its abstract of judgment attached to Asbury because Rob and Andrea abandoned Asbury as their homestead. Drake asserted two possible dates for attachment: the first being in January 2008, when the abstract of judgment was recorded; and the second being in August 2008, when neither Rob nor Andrea was living at Asbury.

The trial court granted Andrea's motion and denied Drake's motion. On appeal to this court, we held that Andrea was not entitled to summary judgment on any of the grounds asserted in her motion. We explained that Asbury was joint management community property, which meant that if it lost its homestead protection during the marriage, then it could be used to satisfy Rob's premarital debt.

We also held that Drake was not entitled to judgment on its cross-motion. We explained that abandonment required proof of two elements: discontinued use and an intent never to return. We determined that Drake conclusively established the first element, at least as of August 1, 2008. However, we determined that Drake did not conclusively establish the second element. On that point, we specifically noted that the record contained no evidence of Rob's intentions regarding Asbury.

Having decided that neither side was entitled to judgment as a matter of law, we reversed and remanded for additional proceedings. See Drake Interiors, L.L.C. v. Thomas , 433 S.W.3d 841, 855 (Tex. App.-Houston [14th Dist.] 2014, pet. denied).

II. Proceedings Since the First Appeal

On remand, the parties refined their arguments in light of our opinion, and they moved for summary judgment again.

Andrea filed a combined traditional and no-evidence motion. In the traditional portion of her motion, Andrea argued that she and Rob established Asbury as their homestead; that Asbury remained their one and only homestead for the entire course of their marriage; and that upon divorce, Rob's interest in Asbury passed to her free and clear of Drake's judgment lien. In the no-evidence portion of her motion, Andrea asserted that Drake had no evidence that she and Rob abandoned Asbury during their marriage.

*453Drake filed a response, arguing that there was at least a fact question on the issue of abandonment. In support of its claim that Rob had abandoned Asbury, Drake referred to a mediated settlement agreement that Rob and Andrea had executed on August 1, 2008, the same date that Andrea had moved into the new home on Queenswood. In the MSA-which had not been included as evidence in the previous summary-judgment record-Rob agreed that Andrea should be awarded complete ownership of Asbury in the divorce. Because Rob had already vacated Asbury at the time of the MSA, Drake argued that the MSA manifested Rob's intent to never return to Asbury.

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544 S.W.3d 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-interiors-inc-v-thomas-texapp-2018.