Opinion

Michael Quebe and Kathryn Quebe v. Vivienne Mooney

Court
Texas Court of Appeals, 3rd District (Austin)
Filed
Oct 30, 1996
Status
Published
Cited by
0 cases
Authority
More cited than 35.8%

The opinion

Quebe v. Mooney

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-96-00319-CV

Michael Quebe and Kathryn Quebe, Appellants

v.

Vivienne Mooney, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL

DISTRICT

NO. 94-282-C277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING

Michael and Kathryn Quebe, appellants, sued Vivienne Mooney, appellee, seeking a

judgment declaring the parties' rights under an agreement by which they had settled an earlier dispute. The

trial court rendered summary judgment in favor of Mooney and awarded attorney's fees. In three points

of error, the Quebes contend that the trial court erred by ruling that (1) the agreement was unambiguous,

(2) there were no genuine issues of material fact as to the interpretation of the agreement, and (3) there

were no genuine issues of material fact as to the reasonableness of the Quebes' attorney's fees. We will

affirm the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In order to resolve an adversary proceeding brought by Mooney while the Quebes were

under bankruptcy protection, the Quebes and Mooney entered into a Compromise and Settlement

Agreement ("Agreement") dated July 9, 1992. Mooney had brought the action after the Quebes defaulted

on an obligation arising out of the Quebes' purchase of Mooney's furniture business. The Agreement called

for the payment of a total of $120,000.00 in monthly payments and included as security, first, property

under the sole or joint control of Michael Quebe and, second, property under the control of Kathryn

Quebe. The Agreement also stated:

The Plaintiff [Mooney] may abstract the judgment, but will not otherwise attempt to

execute on the judgment; provided however , if at any time the Defendants [the Quebes]

are 60 days past due on any payment, Plaintiff may execute on the entire judgment. If

Defendants make three or more payments in any calendar year after the expiration of the

grace period for each of those payments, then Plaintiff may execute on the entire judgment.

If Plaintiff is entitled to execute upon the judgment, such execution shall first be against

property under the sole or joint control of Michael Quebe. If there is insufficient property

under the sole or joint control of Michael Quebe which is subject to execution for

satisfaction of the judgment, then and only then will Plaintiff execute against the property

under the control of Kathryn Quebe.

In February 1994, Kathryn Quebe attempted to sell property she held under her maiden

name, Kathryn Chunn. The Quebes were not in default under the Agreement. Because of the judgment

lien abstracted on this property as a result of the Agreement, the title company refused to insure the title

for transfer. After subsequent negotiations, Mooney agreed to release the lien against the property in

question for $8,000.00, which the Quebes then paid to Mooney. One month later, the Quebes filed this

suit for declaratory judgment, asserting that the Agreement does not permit Mooney to demand that the

Quebes pay her before she will sign a release for property that is subject to Mooney's abstract of judgment,

and that such a demand effectively constitutes a prohibited execution on the judgment.

The trial court granted summary judgment for Mooney, concluding that the language of the

Agreement did not require Mooney to release her judgment lien upon demand by the Quebes without

consideration or without payment of the judgment abstracted. The summary judgment also ordered

payment of $8,000.00 by the Quebes to Mooney as reasonable attorney's fees.

DISCUSSION

In their first two points of error, the Quebes contend that the trial court erred by ruling that

the Agreement unambiguously permitted Mooney to demand payment for release of the judgment lien on

Kathryn Quebe's property. The Quebes assert that such a demand is the equivalent of an execution on the

judgment. Under the Agreement, execution on the judgment is permitted only upon default by the Quebes,

an event that had not occurred. Because of this question, the Quebes contend that there is ambiguity as

to the meaning of the phrase "execute on the judgment" and present several dictionary definitions of the

phrase. They also present affidavits from Mr. Quebe and the attorney representing the Quebes in making

the Agreement regarding their understanding of the phrase "execute on the judgment" and its use in the

Agreement.

Focusing on the definition of "execute on the judgment" is inconsequential here, because

Mooney has not sought to execute on the judgment. The Quebes have confused the rights granted to

Mooney by the Agreement. One right is to execute on the judgment upon default, and the other is merely

to abstract the judgment. Mooney exercised only the latter right. The Agreement does not qualify the right

to abstract the judgment. Nor is there any requirement that the judgment lien be removed before the

judgment has been fully satisfied. The construction of the Agreement sought by the Quebes would allow

them to demand release of the judgment lien any time they desired to sell part of the property that was

pledged as security under the Agreement, as long as they were not then in default. This would have the

effect of allowing the Quebes, at their discretion, to completely destroy any benefit that Mooney could gain

by virtue of her right to abstract the judgment. We reject this construction.

When construing a contract, the language must be given its ordinary meaning in light of

surrounding circumstances. Praeger v. Wilson , 721 S.W.2d 597, 601 (Tex. App.Fort Worth 1986,

writ ref'd n.r.e.). A trial court should not add qualifying language to a contract that would alter the ordinary

meaning of the writing. Id. Here, the Quebes' interpretation would change the ordinary meaning of the right

to abstract the judgment by qualifying that right where no such qualification appears in the contract. The

trial court correctly rejected such a construction.

Mooney may not demand full or partial payment of the judgment before it is due, but

likewise is not required to remove the abstract before she is paid in full. However, Mooney had the right

to release the lien on the property without having obtained full satisfaction. See Rutherford v. Watson , 52

S.W.2d 85, 89 (Tex. Civ. App.--Fort Worth 1932, writ ref'd) (holding that release was supported by

sufficient consideration). The agreement between the Quebes and Mooney was not a premature execution

on the judgment, but rather an agreement to release the valid judgment lien on property owned by Kathryn

Quebe in exchange for valuable consideration. A contract is not ambiguous if it is so worded that a court

may give it a definite legal meaning. Universal C. I. T. Credit Corp. v. Daniel , 243 S.W.2d 154, 157

(Tex. 1951). The trial court easily distinguished between the rights of abstracting the judgment and

executing on the judgment, giving each a definite legal meaning. Points of error one and two are overruled.

In their third point of error, the Quebes challenge the attorney's fees granted by the trial

court. The Quebes contend that the affidavit in support of summary judgment presented by Mooney's

attorney, Donna Brown, presents conclusory and unsubstantiated testimony as to the reasonableness of the

fees. Brown's affidavit is accompanied, however, by eighteen pages of time and billing records. The

Quebes filed an objection to the attorney's fees, but offered no evidence to controvert Brown's affidavit.

Even the Quebes' attorney did not present an affidavit of his opinion on the requested fees.

While uncontroverted testimony of an interested witness normally does no more than create

a fact issue, there is an exception if the evidence is clear, positive, and direct, otherwise credible, free from

contradictions and inconsistencies, and could have been readily controverted. Tex. R. Civ. P. 166a(c).

The affidavit of an interested witness can support summary judgment if it meets the requirement of rule

166a(c). Anderson v. Snider , 808 S.W.2d 54, 55 (Tex. 1991). Brown's affidavit, along with the eighteen

pages of billing information, satisfies the requirements of rule 166a(c) and thus supports the summary

judgment.

If an interested expert witness presents legally sufficient evidence in support of a motion

for summary judgment, the opposing party must produce other expert testimony to controvert the claims.

Id . In the present case, although an objection to the motion was made, the Quebes presented no evidence

controverting Brown's testimony. Because the summary-judgment evidence is uncontroverted and is

sufficient to support the judgment, we overrule point of error three.

CONCLUSION

Having overruled all of the Quebes' points of error, we affirm the trial court's summary

judgment.

J. Woodfin Jones, Justice

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: October 30, 1996

Do Not Publish

een fully satisfied. The construction of the Agreement sought by the Quebes would allow

them to demand release of the judgment lien any time they desired to sell part of the property that was

pledged as security under the Agreement, as long as they were not then in default. This would have the

effect of allowing the Quebes, at their discretion, to completely destroy any benefit that Mooney could gain

by virtue of her right to abstract the judgment. We reject this construction.

When construing a contract, the language must be given its ordinary meaning in light of

surrounding circumstances. Praeger v. Wilson , 721 S.W.2d 597, 601 (Tex. App.Fort Worth 1986,

writ ref'd n.r.e.). A trial court should not add qualifying language to a contract that would alter the ordinary

meaning of the writing. Id. Here, the Quebes' interpretation would change the ordinary meaning of the right

to abstract the judgment by qualifying that right where no such qualification appears in the contract. The

trial court correctly rejected such a construction.

Mooney may not demand full or partial payment of the judgment before it is due, but

likewise is not required to remove the abstract before she is paid in full. However, Mooney had the right

to release the lien on the property without having obtained full satisfaction. See Rutherford v. Watson , 52

S.W.2d 85, 89 (Tex. Civ. App.--Fort Worth 1932, writ ref'd) (holding that release was supported by

sufficient consideration). The agreement between the Quebes and Mooney was not a premature execution

on the judgment, but rather an agreement to release the valid judgment lien on property owned by Kathryn

Quebe in exchange for valuable consideration. A contract is not ambiguous if it is so worded that a court

may give it a definite legal meaning. Universal C. I. T. Credit Corp. v. Daniel , 243 S.W.2d 154, 157

(Tex. 1951). The trial court easily distinguished between the rights of abstracting the judgment and

executing on the judgment, giving each a definite legal meaning. Points of error one and two are overruled.

In their third point of error, the Quebes challenge the attorney's fees granted by the trial

court. The Quebes contend that the affidavit in support of summary judgment presented by Mooney's

attorney, Donna Brown, presents conclusory and unsubstantiated testimony as to the reasonableness of the

fees. Brown's affidavit is accompanied, however, by eighteen pages of time and billing records. The

Quebes filed an objection to the attorney's fees, but offered no evidence to controvert Brown's affidavit.

Even the Quebes' attorney did not present an affidavit of

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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