

Opinion issued June 14, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00264-CV
———————————
Allon R. Hahn, Individually and d/b/a Hahn’s Gulf Services, Appellant
V.
Bertrand R.
Love, Appellee

 

 
On Appeal from the 157th District Court
Harris County, Texas

Trial Court Case No. 2004-40554
 

 
O P I N I O N
          Appellee
Bertrand R. Love, the purchaser of a property located at 1615 and 1621 Wheeler
Street in Harris County, Texas (“the Property”), intervened in a lawsuit
between appellant, Allon R. Hahn, individually and d/b/a Hahn’s Gulf Services
(collectively, “Hahn”), and Mid-Town Roofing and Construction, Inc.
(“Mid-Town”), seeking to enjoin Hahn from carrying out an execution sale on the
Property to satisfy a judgment lien against a third party, O’Neal Session, and
to remove Hahn’s claims as a cloud on the title.  Hahn filed counterclaims against Mid-Town and
Love and a third-party action against O’Neal, Myria,
and Pamela Session for claims under the Texas Uniform Fraudulent Transfer Act (“Fraudulent
Transfer Act” or “TUFTA”),[1] and he sought a declaratory
judgment that he had a valid lien on the Property.  Following an interlocutory summary judgment
and a trial to a jury, the trial court entered final judgment in favor of Love
on his claims, and it entered judgment against the Sessions and Mid-Town in
favor of Hahn.[2]  
In five issues, Hahn argues that
(1) & (2) the evidence supporting the jury’s verdict was legally and
factually insufficient; (3) the charge was erroneous; (4) the trial court
abused its discretion in excluding certain testimony and documentary evidence;
and (5) the trial court erred in granting Love’s motion for partial summary
judgment on the ground that the 2002 deed transferring the property from
Session to Mid-Town was legally sufficient to pass title.
We affirm.
                                                                                                                                                                
Background
In 1988, Hahn won a judgment against O’Neal Session for
$77,136.05 plus interest.  On April 16,
1992, Hahn filed an abstract of judgment, but Session had no assets to seize at
that time.  Then, in August 2001, the
Property was conveyed to Session.  Hahn’s
judgment lien automatically attached to the Property by virtue of a properly
recorded and indexed abstract of judgment.[3]  However, Hahn’s judgment lien expired on
April 16, 2002, and his judgment against Session became dormant.[4]
By a general warranty deed dated April 26, 2002 (“2002
Deed”), Session conveyed the Property to Mid-Town, an entity owned and operated
by Session’s daughter Pamela.  The deed
lacked a metes and bounds description of the property, but it provided the
following description: 
TR
11 (00 TR 4) HOLMAN OUTLOT 68; also known as 1615 Wheeler, Houston, Texas 77004
and situated in Harris County, Texas.
 
TR
15A(001) (TR 15a) HOLMAN OUTLOT 68; also known as 1621 Wheeler, Houston, Texas
77004 and situated in Harris County, Texas.
This transfer was not recorded
until January 2004.
Between August 2003 and January 2004, the Sessions and
Mid-Town made two attempts to sell the Property to Walter Strickland.  The first sale fell through when Fidelity
National Title Company sent the title commitment to Session and Strickland,
requesting payoff of Hahn’s judgment lien, and the Sessions refused to pay the
amount of the judgment lien from the proceeds. 
Real estate broker Herman Gary was involved in the first attempted sale
as Strickland’s broker.  Gary then acted
as a broker for the Sessions in a subsequent attempted sale, which also fell
through.
On December 10, 2003, Hahn filed a motion to revive his
judgment against Session and sent notice of the hearing on the motion to the
Sessions.
On January 21, 2004, the 2002 Deed reflecting the
conveyance from Session to Mid-Town was recorded.  Two days later, on January 23, 2004,
following a hearing, Hahn obtained an order for the revival of his 1988
judgment against Session.  On March 1,
2004, Hahn filed for record a second abstract of judgment, again creating a
judgment lien against Session’s real property.
On March 3, 2004, Session executed a correction deed to
clarify the 2002 conveyance of the Property to Mid-Town (“2004 Correction
Deed”).  This correction deed was filed
on March 15, 2004, and contained a metes and bounds description of the
Property.
In early April 2004, Gary, the real estate broker,
contacted Love about purchasing the Property.  Love purchased the Property sight unseen by
arranging for a cashier’s check for $448,587.13 to be sent to American Title
Company.  Gary took the necessary closing
documents to Love to sign in New Orleans. 
The parties later stipulated that Love’s purchase price constituted a
“reasonably equivalent value” for the Property.
On April 14, 2004, Mid-Town executed a deed that conveyed
the Property to Love.  This deed was
recorded on April 16, 2004.
In August 2004, Hahn attempted to proceed with an
execution sale of the Property to satisfy his judgment against Session.  Mid-Town sued Hahn, seeking a temporary
restraining order and a temporary and permanent injunction prohibiting the
execution sale of the Property.  Love
intervened in the suit, seeking an injunction prohibiting the sale of the Property
and seeking to remove the cloud from his title.
Hahn filed counterclaims against Mid-Town and Love and a
third-party action against Session, his wife Myria
Session, and other members of the Session family, Pamela Session and Toshoner Session Egans,[5]
seeking a declaratory judgment that he had a valid lien against the
property.  Specifically, Hahn asked for a
judgment declaring (1) that the conveyances of the Property from Session to
Mid-Town and from Mid-Town to Love were both void as fraudulent conveyances
under TUFTA; (2) that the March 1, 2004 judgment lien attached to the Property
because the 2002 Deed was void for lack of sufficient legal description at the
time the second abstract of judgment was filed for record; and (3) that the
April 14, 2004 conveyance of the property from Mid-Town to Love was subject to
Hahn’s judgment lien and to the imposition of a constructive trust because Love
was not a bona fide purchaser for value in good faith and without notice of
Hahn’s interest in the Property.  Hahn
also sought an execution sale to satisfy the judgment lien and a money judgment
for assets that had been fraudulently conveyed.
Love moved for summary judgment, requesting that the trial
court remove Hahn’s claims as a cloud on Love’s title to the Property and that
Hahn take nothing against him.  Love
argued that he was entitled to the bona fide purchaser defense set out in
section 24.009 of the Fraudulent Transfer Act. 
The trial court granted that motion and severed Love’s claims, and Hahn
appealed that ruling to this Court.  
We reversed the trial court’s summary judgment, observing
that the issue of a party’s notice of fraudulent intent is a question of fact
that generally goes to a jury and concluding that fact questions existed “both
as to whether the transfer of the [P]roperty to Love
was fraudulent and as to Love’s actual or constructive notice of facts and
circumstances indicating the intent to defraud for purposes of the Fraudulent Transfer
Act.”  Hahn v. Love, 321 S.W.3d 517, 531 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied).  We likewise concluded that genuine issues of
material fact precluded Love’s right to summary judgment on his suit to remove
the cloud on his title.  Id. at 532–33.  We further stated that “[b]ecause the sufficiency of the legal description in the
purported 2002 deed is not material to the proof of Love’s right to removal of
the cloud from his title, we do not address [it].”  Id. at 533 n.13. 
On remand to the trial court, Love moved for partial
summary judgment on the legal sufficiency of the description contained in the
2002 Deed.  Love argued that the 2002 Deed
contained a description of the property that was legally sufficient to satisfy
the statute on conveyances, and, therefore, “no judgment lien attached to the
Property in Love’s hands.”  Hahn likewise
moved for partial summary judgment, arguing that the 2002 Deed was insufficient
to convey the Property and was void, and, thus, “Love . . . had constructive
notice of Hahn’s Judgment Lien when he purchased the property.”  The trial court denied Hahn’s motion and
granted Love’s.  The trial court
subsequently signed a declaratory judgment that “the General Warranty Deed
dated April 26, 2002, from O’Neal Session and [Myria]
Mae Session, as grantors, to Mid-Town Roofing Construction, Inc., as grantee,
and recorded under Clerk’s File No. X340658 in the Official Public Records of
Real Property of Harris County, Texas, contains a sufficient legal description
such that the property in question could be located and identified with
reasonable certainty.” 
The parties proceeded to trial on the remaining
issues.  Relevant to the issues between
Love and Hahn,[6]
Love testified that he moved from Houston to the Atlanta area in approximately
2003.  He testified that he had purchased
more than twenty properties for investment purposes through Gary and that he
purchased the Property with his own funds for the purpose of reselling it at a
profit.  Love testified that Gary called him
in Atlanta about buying the Property and told Love “that it was a good deal and
somebody else’s financing didn’t go through and we could get it and, you know,
turn around and sell it.”  Love testified
that Gary did not tell him, and he did not know, anything
about who was selling the Property.  He
“slept on it” and decided to proceed with the purchase the next day.  His decision was based on Gary’s
recommendation that they could make money reselling the Property and on his
successful investments in properties selected by Gary in the past.  
Love testified that, before he bought the Property and
became involved in the underlying suit, he had never met or heard of O’Neal
Session, any of Session’s family, or Hahn. 
He testified that, before he purchased the Property, he did not know
anything about Mid-Town and had had no previous business dealings with Mid-Town
or any of the Sessions.  He also
testified that, as far as he was aware at the time he purchased the Property,
he believed Gary’s only interest in the deal was earning a commission as the
broker.  He also testified that Gary
typically earned another commission when Love resold an investment property.
Love testified that he had met Gary twenty or twenty-five years
previously through his father.  He also
testified that he had had prior dealings with Walter Strickland but did not
“really know him personally.”  Love
testified that, several years previously, he had personally financed a sale of property
to Strickland in an arrangement set up by Gary, but he did not know until he
became involved in the current lawsuit that Strickland had been the previous
purchaser of the Property whose financing had fallen through.  He further testified that he did not conduct
his own search of the property records related to the Property, but instead
relied on the title company to check the relevant records.
The jury found, in Questions One and Two, that O’Neal and Myria Session transferred the Property to Mid-Town with the
actual intent to hinder, delay, or defraud their creditors, and that they did
so without receiving a reasonable equivalent value in exchange for the
transfer.  In Question Three, the jury
also found that, in connection with their transfer of the Property to Mid-Town,
O’Neal and Myria Session engaged in a transaction for
which their remaining assets were unreasonably small in relation to the
transaction.  In Question Four, the jury
found, with respect to the transfer of the Property to Mid-Town, that Pamela
Session and Mid-Town were both insiders. 
The jury found that Love was not an insider.  In Question Five, the jury found that Love
purchased the Property from Mid-Town in good faith.  Finally, the jury found that Pamela Session
was responsible for the conduct of Mid-Town and that Hahn was owed $224,822.36
as a result of the fraud found in Questions One through Four.  Finally, the jury awarded Hahn $177,000 in
attorney’s fees for “preparation and trial with respect to the Sessions and
Mid-Town,” but it awarded no attorney’s fees for preparation and trial with
respect to Love.  
Hahn moved for a directed verdict, arguing that Mid-Town
had not established its entitlement to a permanent injunction prohibiting him from
conducting an execution sale of the Property. 
On November 10, 2010, Hahn moved for judgment
notwithstanding the verdict against Love as well as against Mid-Town and the
Sessions, and he sought legal rulings on the issues of Mid-Town’s injunction,
Love’s action to remove the cloud on his title, and Hahn’s affirmative defense
of unclean hands, constructive trust cause of action, and attorney’s fees
against Love, Mid-Town, and the Sessions.  Hahn also moved to disregard the jury findings
on Questions Four and Five.
On November 12, 2010, the trial court signed the final judgment.  It awarded Hahn $224,822.36 plus $177,000 in
attorney’s fees against the Sessions and Mid-Town, jointly and severally, and
it ordered that Hahn take nothing against Love. 
The judgment also contained a declaration removing Hahn’s lien as a
cloud on Love’s title.
On November 18, 2010, Hahn requested findings of fact and
conclusions of law pursuant to Texas Rules of Civil Procedure 296 and 297.  On November 22, 2010, the trial court denied
the request with a notation that “this case was tried
to a jury.”  Hahn subsequently filed a
notice of past due findings of fact and conclusions of law on December 9, 2010,
specifically arguing that the Fraudulent Transfer Act provides that the trial
court determines equitable and just attorney’s fees and that the trial court
“decides as a matter of law the following equitable relief: declaratory
judgment, constructive trust, removal of cloud from title.”
On December 13, 2010, Hahn moved for a new trial, arguing that
the jury charge was defective and that the jury’s findings that Love was not an
insider and was a good-faith purchaser, as well as its finding that he was owed
no attorney’s fees by Love, were not supported by sufficient evidence.  Hahn’s motion for new trial also complained
of the various evidentiary rulings excluding Love’s testimony on his knowledge
of American Title’s duty to search the title records and exhibits 7, 27, 28,
59, 62, 68, 70, 71, and 72.  The trial
court denied Hahn’s motion for a new trial on January 25, 2011.  Hahn subsequently appealed, complaining of
the portions of the trial court’s judgment that he take nothing on his claims
against Love and that his interest in the Property be removed as a cloud on
Love’s title.
                                                                      
Partial Summary Judgment on Sufficiency of 2002
Deed
In his fifth issue, Hahn argues that the trial court erred
in granting Love’s partial summary judgment on the issue that the description
of the Property in the 2002 Deed transferring the Property from O’Neal and Myria Session to Mid-Town was legally sufficient to pass
title from the Sessions to Mid-Town.[7]
A.              
Standard
of Review
We review de novo the trial court’s ruling on a summary
judgment motion.  Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009).  To prevail on a
traditional summary judgment motion, a movant has the burden of proving that he
is entitled to judgment as a matter of law and that no genuine issues of
material fact exist.  Tex. R. Civ. P. 166a(c); Little
v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004).  A party moving for summary judgment on his own claim must conclusively prove all essential elements
of the claim.  See Tex. R. Civ. P. 166a(a); Rhone-Poulenc,
Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).  A matter is conclusively established if
reasonable people could not differ as to the conclusion to be drawn from the
evidence.  See City of Keller v. Wilson, 168 S.W.3d
802, 816 (Tex. 2005).
If the movant meets his burden, the burden then shifts to
the nonmovant to raise a genuine issue of material
fact precluding summary judgment.  See Centeq
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
(Tex. 1995).  To determine if the nonmovant has raised a fact issue, we review the evidence
in the light most favorable to the nonmovant,
crediting favorable evidence if a reasonable factfinder
could do so, and disregarding contrary evidence unless a reasonable factfinder could not. 
Fielding, 289
S.W.3d at 848.  We indulge every
reasonable inference and resolve any doubts in the nonmovant’s
favor.  Sw. Elec. Power Co. v. Grant, 73 S.W.3d
211, 215 (Tex. 2002).  When the
trial court’s summary judgment does not state the basis for the court’s
decision, we must uphold the judgment if any of the theories advanced in the
motion are meritorious.  Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
B.              
Sufficiency
of the Legal Description
To be valid, a conveyance of
real property must contain a sufficient description of the property to be
conveyed.  A property description is
sufficient if the writing furnishes within itself, or by reference to some
other existing writing, the means or data by which the particular land to be
conveyed may be identified with reasonable certainty.  AIC Mgmt.
v. Crews, 246 S.W.3d 640, 645 (Tex. 2008) (holding that both voluntary and involuntary conveyances of land require
property description that would allow individual to locate conveyed property
with reasonable certainty).  In AIC
Management, the Texas Supreme Court discussed its previous holding in Morrow v. Shotwell,
477 S.W.2d 538 (Tex. 1972), that the essential elements of a property
description may not be supplied by reference to a survey that did not exist at
the time the deed was executed.  Id. at 648.  The court stated, however, that “[Harris
County Appraisal District (“HCAD”)] records are not
the type of extrinsic evidence we rejected in [Morrow].”  Id. (“The ‘TR 12’ in the property
descriptions is an explicit reference, within the four corners of the deed, to
existing writings, such as tax tract maps, within HCAD records. The property
description in the constable's deeds references ‘TR 12 AB 659 T.S. Roberts *
situated in Harris County,’ which is a division within the HCAD tax rolls that
can be used to assist a surveyor in locating the land. . . . [I]f records still
in existence from 1989 could identify the tract and where it overlapped the Crewses’ property, the description would be sufficient.”).
The supreme court also stated, “We have held that deeds in
which the property is described as simply ‘my property’ are sufficient when
extrinsic evidence shows that the party owns only one tract of land answering
the description.”  Id. at 648 (citing Pickett v. Bishop, 223 S.W.2d 222, 223
(Tex. 1949)).  It also cited Sanderson v. Sanderson, which upheld as
sufficient “a contract that simply described the property as ‘Mrs. Kelton’s farm in Haskell County’ so long as that evidence
established that Mrs. Kelton owned only one farm in
Haskell County at the time.”  Id. at 648–49 (citing Sanderson v.
Sanderson, 109 S.W.2d 744, 746, 748 (Tex. 1937)).
We are also
mindful that a deed should not be declared void for uncertainty if it is
possible, by any reasonable rules of construction, to ascertain from the
description, aided by extrinsic evidence, what property the parties intended to
convey.  Teledyne Isotopes, Inc. v. Bravenec, 640 S.W.2d 387, 389 (Tex. App.—Houston [1st Dist.]
1982, writ ref=d n.r.e.); cf. AIC Mgmt.,
246 S.W.3d at 645 (“Texas law does not require courts to scrutinize the
proceedings of a judicial sale with a view to defeat them; instead, ‘every
reasonable intendment will be made in their favor, so as to secure, if it can
be done consistent with legal rules, the object they were intended to
accomplish.’”).  Every presumption should
be indulged to reach the conclusion that some interest should be passed by a
deed.  Templeton v. Dreiss,
961 S.W.2d 645, 657 (Tex. App.—San Antonio 1998, pet. denied).
The 2002 Deed contained the legal description of the land
used by HCAD.  The parties do not contest
that HCAD had, and still has, records that contain information about the exact
size and location of the lot.  See AIC Mgmt., 246 S.W.3d at 645, 648
(holding that property description is sufficient if
writing furnishes within itself, or by reference to existing writing, means by
which particular land to be conveyed may be identified with reasonable
certainty, and indicating that HCAD records may constitute such extrinsic,
existing writings).  Furthermore, the
deed also contained a complete street address. 
See id. at
648–49; see also Apex Fin. Corp. v. Garza,
155 S.W.3d 230, 237 (Tex. App.—Dallas 2004, pet. denied) (“We have held that a
street address or a commonly-known name for property may be sufficient property
description if there is no confusion.”). 
Here, the parties alleged no confusion as to which parcels of land or
which portions of the land were to be conveyed. 
Rather, the issue raised by Hahn was whether the fraudulent intent in
the Sessions’ and Mid-Town’s conveyance of the land affected the validity of
the sale to Love.
Thus, we conclude that the
description of the property in the 2002 Deed was sufficient to transfer the
interest from O’Neal Session to Mid-Town.
Hahn argued to the trial court that this Court’s opinion in Reiland v. Patrick Thomas Properties, Inc., 213
S.W.3d 431 (Tex. App.—Houston [1st Dist.] 2006, pet. denied), supports his
contention that the property description was inadequate, and, therefore, the
2002 Deed was void.  In Reiland,
the appellant contended that an alleged right of first refusal was void as a
matter of law due to an inadequate legal description of the property involved
because there was no metes and bounds description of the 3.0152-acre tract that
was subject to that right.  213 S.W.3d at 436.  Reiland “argued that the Right of First Refusal was
deficient as a matter of law because ‘(1) there is nothing in the description
that would allow an individual to identify the three-acre tract with reasonable
certainty, and (2) the document wholly fails to define the size, shape or
boundaries of the land to which it relates.’” 
Id.  This Court agreed with Reiland’s contentions and observed that nothing “indicat[ed] the shape of the
block or the courses and lengths of its border lines or those of the 3.0152
acres.”  Id. at
437.  We stated:
[T]o
locate the 3.0152 acres with definiteness, it is necessary to first fix the
location of the piece of land of which it is a part, and then to locate the
3.0152 acres by boundaries, or metes and bounds of some character “adjoining on
the east side that certain 1.984 tract.”
 
Id.  
          In
the present case, the legal description used by HCAD and the street address of
the property conveyed were included in the deed itself.  No party disputes that the HCAD records were
existing at the time the 2002 Deed was executed and recorded and could be used
to identify the property with reasonable certainty.  This case is thus distinguishable from Reiland, where the exact location and shape of the
3.0152-acre tract was identified in no other way than as “adjoining on the east
side that certain 1.984 acre tract” conveyed by another document and by a
general reference to the property being “3.0152 acres in the William Walters
Survey, Abstract 851, Harris County, Texas.” 
See id. at
436.  Thus the references to extrinsic
documents in Reiland
failed to identify the size, shape, or boundaries of the relevant parcel of
land with reasonable certainty, unlike the deed here.
We conclude
that Love conclusively established that the property description in the 2002
Deed was legally sufficient.  See City of Keller, 168 S.W.3d at 816.  Hahn failed to raise a genuine issue of
material fact regarding the sufficiency of the property description.  See Siegler, 899 S.W.2d at 197.  Thus, the trial court did not err in granting
Love’s partial summary judgment on this issue.
C.              
Legal
Effect of Summary Judgment
Hahn complains that the ruling that the description of the
Property in the 2002 Deed was legally sufficient “moved the goal posts” for him
and erroneously allowed Love to claim that he had no duty to examine the 2004
Correction Deed “to determine any adverse claim to the property he was
purchasing.”  Hahn argues that Love had
such a duty because the insufficiency of the description of the Property in the
2002 Deed put Love on notice that the Property was still owned by Session and
that, therefore, Hahn’s judgment lien on the Property was valid.  
First, the trial court’s legal ruling on the sufficiency
of the 2002 Deed to convey title to the Property from Session to Mid-Town was
correct.  The Property was conveyed to
Mid-Town in 2002 and the transfer was recorded in January 2004.  Second, the effect of the transfer of title
by the 2002 Deed was (1) that Hahn’s first judgment lien disappeared when it
expired, he failed to revive it, and the Property was transferred by Session to
Mid-Town with no judgment lien attached; and (2) that Hahn’s second abstract of
judgment, which he filed for record on March 1, 2004, did not create a judgment
lien attached to the Property and appeared in Love’s chain of title.
Hahn’s first judgment lien expired on April 16, 2002.  See Tex. Prop. Code Ann. § 52.006 (Vernon
Supp. 2011) (governing length of time judgment lien is valid).  The transfer from Session to Mid-Town,
according to the 2002 Deed, was executed on April 26, 2002, when no valid lien
was recorded against Session, the debtor. 
See id.  The 2002 Deed was recorded on January 21,
2004.  Two days later, Hahn obtained the
order reviving his 1988 judgment against Session, and on March 1, 2004, he
recorded his second abstract of judgment, thereby creating a new lien on any
real property belonging to Session, the debtor, but not on the Property, which belonged
to Mid-Town.  See Tex. Prop. Code Ann.
§ 52.001 (Vernon Supp. 2011) (“[A]
first or subsequent abstract of judgment, when it is recorded and indexed in accordance with this chapter, if the
judgment is not then dormant, constitutes a lien on and attaches to any real
property of the defendant. . . .”) (emphasis
added); Wilson v. Dvorak, 228 S.W.3d
228, 233 (Tex. App.—San Antonio 2007, no pet.) (holding
that no lien is created by mere rendition of judgment, but is only created when
judgment creditor complies with Property Code chapter 52, beginning with
obtaining an abstract of judgment).
When the second lien was created—on March 1, 2004—the
Property had already passed out of Session’s hands by virtue of the 2002
Deed.  That second lien based on the
revived judgment never attached to the Property.  Therefore, the Property passed to Mid-Town
unencumbered by the first lien against Session, which had expired, or the
second lien, which only attached to real property owned by Session, the
judgment debtor, at the time the lien attached. 
See Tex. Prop. Code Ann. § 52.001 (providing that properly
recorded and indexed abstract of judgment constitutes lien and attaches to any
real property of defendant-judgment debtor), § 52.004(a)–(b) (Vernon 2007)
(requiring county clerk to record properly authenticated abstracts of judgment
in county real property records and enter on alphabetical index to real
property records name of each plaintiff and defendant, along with volume and
page or instrument number in records in which abstract is recorded); Murray v. Cadle
Co., 257 S.W.3d 291, 296–97 (Tex. App.—Dallas 2008, pet. denied) (“The
purpose of the index is to provide notice to subsequent purchasers of the
existence of the judgment and to indicate the source from which the full
information about the judgment may be obtained.”).  
“Chain of title refers to the documents which show the
successive ownership history of the land,” and includes “‘the successive
conveyances, commencing with the patent from the government, each being a
perfect conveyance of the title down to and including the conveyance to the
present holder.’”  Munawar v. Cadle Co., 2 S.W.3d 12, 20 (Tex.
App.—Corpus Christi 1999, pet. denied) (emphasis omitted) (quoting Reserve Petroleum Co. v. Hutcheson, 254
S.W.2d 802, 806 (Tex. Civ. App.—Amarillo 1952, writ ref’d
n.r.e).  A
purchaser of property is not charged with notice of deeds involving the same
property which are recorded outside of his chain of title.  Andress v. Condos,
672 S.W.2d 627, 631 (Tex. App.—Fort Worth 1984, writ ref’d
n.r.e.); see
also Swanson v. Grassedonio, 647 S.W.2d 716, 719
(Tex. App.—Corpus Christi 1982, no writ) (holding that when person takes
conveyance from another who holds under first deed from his grantor, that
purchaser is not bound to look further for subsequent deeds from that same
grantor).  
Thus, Love is not charged with notice of the 2004
Correction Deed, because it was recorded outside his chain of title.  Furthermore, just as a party has no
obligation to search for subsequent deeds from the original grantor of the
property, a purchaser has no obligation to search for subsequent liens entered
against the original grantor after the Property has been transferred.  See
Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex. 1982)
(“[A] purchaser is bound by every recital, reference and reservation contained
in or fairly disclosed by any instrument which forms an essential link in the
chain of title under which he claims.”).
Following the trial on the merits, Hahn obtained a
judgment against the Sessions and Mid-Town based on his claims under the
Fraudulent Transfer Act.  To achieve his
goal of executing on the Property owned by Love that had been transferred in
violation of the Fraudulent Transfer Act, Hahn had to establish that Love had actual
or constructive notice either of the fraudulent intent of Session’s and
Mid-Town’s transfers of the Property or of Hahn’s interest in the Property.  He failed to carry this burden.
We overrule Hahn’s fifth issue.
                                                                                                                                   
Sufficiency of the Evidence
In his first two issues, Hahn argues that the evidence
supporting the jury’s findings that Love was not an insider and that he
purchased the Property in good faith was legally and factually insufficient and
that the trial court erred in denying his motion to disregard these jury
answers.[8]  He also argues that the trial court erred in
denying his motion for judgment notwithstanding the verdict; his motion for new
trial; his claims for constructive trust, declaratory judgment, and attorney’s
fees; and his affirmative defense of unclean hands.  Finally, he argues that the trial court erred
in removing Hahn’s claims as a cloud on Love’s title to the Property.
A.              
Standard
for Reviewing Jury Findings and Trial Court’s Ruling on Motion to Disregard
We review the grant or denial of a motion for judgment
notwithstanding the verdict or a motion to disregard jury findings as a
legal-sufficiency challenge.  See City of Keller, 168
S.W.3d at 823.  In conducting a
legal-sufficiency review, we credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a
reasonable factfinder could not.  Id. at 827; Brown v. Brown,
236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  We consider the evidence in the light most
favorable to the finding under review and indulge every reasonable inference
that would support it.  City of Keller, 168
S.W.3d at 822.  We sustain a
no-evidence contention only if: (1) the record reveals a complete absence of
evidence of a vital fact; (2) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact;
(3) the evidence offered to prove a vital fact is no more than a mere
scintilla; or (4) the evidence conclusively establishes the opposite of the
vital fact.  Id. at 810; Merrell Dow Pharms., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997).
In reviewing a challenge to the factual sufficiency of the
evidence, we must consider and weigh all the evidence and should set aside the
judgment only if it is so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust.  Arias v. Brookstone,
L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)
(citing Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986)).  When an appellant
attacks the factual sufficiency of an adverse finding, he must demonstrate that
the finding is against the great weight and preponderance of the evidence.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).  
Whether reviewing the evidence for legal or for factual
sufficiency, we assume that jurors decided questions of credibility or
conflicting evidence in favor of the finding if they reasonably could do so.  City of
Keller, 168 S.W.3d at 819.  We do not substitute our judgment for that of
the factfinder if the evidence falls within this zone
of reasonable disagreement.  Id. at 822.
Hahn sought to set aside the transfers from Session to
Mid-Town and from Mid-Town to Love under the provisions of the Fraudulent
Transfer Act.  A fraudulent transfer is a
transfer by a debtor with the intent to hinder, delay, or defraud his creditors
by placing the debtor’s property beyond the creditor’s reach.  Hahn,
321 S.W.3d at 524–25 (citing Tex. Bus.
& Com. Code Ann. § 24.005(a)(1) (Vernon 2009)
and Nobles v. Marcus, 533 S.W.2d 923,
925 (Tex. 1976)).  As we previously
stated,
If
intent to defraud is proved, a creditor may obtain “avoidance of the transfer
or obligation to the extent necessary to satisfy the creditor’s claim,” “an
attachment or other provisional remedy,” “an injunction against further
disposition by the debtor or a transferee, or both, of the asset transferred,”
or “any other relief the circumstances may require.”
 
Id. at 526 (quoting Tex. Bus. & Com. Code Ann. § 24.008(a) (Vernon 2009)).  Also, a creditor who has obtained a judgment
on a claim against the debtor may levy execution on the asset transferred or
its proceeds.  Id.
However, the remedies provided creditors by the Fraudulent
Transfer Act are subject to the limitation in section 24.009, which provides a
defense for bona fide purchasers.  Id. 
Section 24.009 provides that a “transfer or obligation is not voidable
under Section 24.005(a)(1) of this code against a
person who took in good faith and for a reasonably equivalent value or against
any subsequent transferee or obligee.”  Tex.
Bus. & Com. Code Ann. §
24.009(a) (Vernon 2009). 
Thus, good faith is an affirmative defense to a fraudulent transfer
claim.  Hahn, 321 S.W.3d at 526 (citing Flores
v. Robinson Roofing & Constr. Co., 161 S.W.3d 750, 756 (Tex. App.—Fort
Worth 2005, pet. denied)).  A person
invoking that affirmative defense “carries the burden of establishing good
faith and the reasonable equivalence of the consideration obtained.”  Id.
Here, Love asserted the good faith affirmative defense to
Hahn’s claims against him under the Fraudulent Transfer Act.  The parties stipulated that Love paid a
reasonably equivalent value for the Property. 
See id. at
527.  Therefore, the only issue for Love
to establish at trial was that he purchased the property in good faith.
B.              
Jury’s
Finding that Love Was Not an Insider
Hahn argues that Love was an insider as a matter of law
and that “no evidence of probative force or inference supports the jury’s
answer” finding that Love was not an insider. 
Hahn also argues that the jury’s answer on this issue was against the
great weight and preponderance of the evidence and was manifestly unjust.
A transfer to an insider is one of the factors relevant to
proving actual intent to defraud under the Fraudulent Transfer Act.  Id. at 525 (citing Tex. Bus. & Com. Code Ann. § 24.005(b)).  When a transferee is an insider and knows the
transferor is insolvent at the time of the transfer, he cannot be a good faith
transferee.  Id. at 525 n.8 (citing Flores, 161 S.W.3d at 756 and Putman v. Stephenson, 805 S.W.2d 16, 20
(Tex. App.—Dallas 1991, no writ)). 
In general, an insider is “an entity whose close relationship with the
debtor subjects any transactions made between the debtor and the insider to
heavy scrutiny.”  Id. (quoting Tel. Equip.
Network, Inc. v. TA/Westchase Place, Ltd., 80
S.W.3d 601, 609 (Tex. App.—Houston [1st Dist.] 2002, no pet.)).  In determining insider status, courts are to
consider (1) the closeness of the relationship between the transferee and the
debtor and (2) whether the transactions were at arm’s length.  Id.;
see also Tex. Bus. & Com. Code Ann. § 24.002(7) (Vernon 2009)
(providing that “insider” to individual debtor includes, among others, “a
relative of the debtor or a general partner of the debtor,” “a partnership in
which the debtor is a general partner,” or “a corporation of which the debtor
is a director, officer, or person in control”).
Here, Hahn points to no evidence that Love had a close
relationship with O’Neal Session, the debtor, or with any of Session’s family
or the related entity, Mid-Town. 
Instead, Hahn’s argument that Love was an insider focused on the
relationship among Gary, Strickland, and Love. 
The evidence established that Gary and Love had known each other for
more than twenty years and had completed more than twenty real estate
transactions together.  The evidence also
established that, in one of those previous transactions, Gary presented
Strickland as a potential purchaser for one of Love’s investment
properties.  Love sold that property to
Strickland and personally financed the sale. 
Love testified that he did not know O’Neal Session or any of his family
prior to the filing of their lawsuit, and he had had no prior dealings with any
of the Sessions or Mid-Town.  Love
further testified that he was unaware that Strickland was the person who had
attempted to purchase the Property before his funding fell through.
The evidence does not establish the existence of a close
relationship between Love, as the transferee, and O’Neal Session, the debtor,
or any parties related to Session, like Mid-Town.  See
Hahn, 321 S.W.3d at
525 n.8.  Furthermore, the
record contains no evidence suggesting that any of the transactions in which
Love was involved, whether with Gary, Strickland, or the Sessions and Mid-Town,
were not arm’s length transactions.  See id.
Thus, we conclude that the evidence supporting the jury’s
finding that Love was not an insider is supported by legally and factually
sufficient evidence.  See City of Keller, 168
S.W.3d at 819–20; Francis, 46
S.W.3d at 242.
However, it is not necessary to prove that a transferee is
an insider to prove the transferee’s knowledge of the transferor’s fraudulent
intent.  Hahn, 321 S.W.3d at 525 n.8.  Accordingly, we turn to Hahn’s argument that
the jury’s finding that Love was a good faith purchaser was not supported by
legally and factually sufficient evidence.
C.              
Love’s
Status as a Bona Fide Purchaser in Good Faith
A transferee who takes property with knowledge of such
facts as would excite the suspicions of a person of ordinary prudence and put
him on inquiry of the fraudulent nature of an alleged transfer does not take
the property in good faith and is not a bona fide purchaser.  Id. at 527.  Notice of
fraudulent intent or any third-party claim or interest can be either actual or
constructive.  See Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001); Hahn, 321 S.W.3d at 527.  Actual notice results from personal
information or knowledge; constructive notice is notice the law imputes to a person
not having personal information or knowledge. 
Madison, 39
S.W.3d at 606; Hahn, 321
S.W.3d at 527.  Thus, Love was required
to prove that he had no actual or constructive notice of the fraudulent intent
of the transferor of the Property, Mid-Town, of the transferor to Mid-Town,
Session, or of Hahn’s interest in the Property.
Hahn argues that there is no evidence as a matter of law,
or no more than a scintilla of evidence, supporting the jury’s finding that
Love was a bona fide purchaser in good faith; rather, the evidence presented at
trial showed as a matter of law that Love had actual and constructive knowledge
of Hahn’s adverse interest in the Property. 
Hahn also argues that the jury’s finding of Love’s good faith was
against the great weight and preponderance of the evidence.
                  
i.                       
Love’s actual notice
Hahn argues that Love had actual notice of the fraudulent
nature of the Sessions’ and Mid-Town’s transfers and of his interest in the
Property because, in the attempted sale to Strickland, the Sessions were
presented with payoff information at the closing and Pamela Session refused to
pay it.  Hahn further argues that Gary,
who acted as the broker for Strickland in the first failed sale and for
Strickland and the Sessions in the second failed sale, had knowledge of Hahn’s
interest in the Property that is imputed to Love.  However, he cites no evidence to support his
contention. [9]  
There is no evidence in the record that Love was aware of
these transactions and the related circumstances.  Love testified that he had no previous
knowledge of or dealings with the Sessions or Mid-Town.  He also testified that Gary provided him with
limited details regarding the transaction: Gary told him the contract price and
general location of the Property; he indicated that he believed it was a good
investment for Love; and Gary told him that he needed to act quickly because
his contract on the property was about to end after the previous purchaser’s
financing fell through.  Love also
testified that he did not complete any kind of title search or investigation
into the property records.  See City of Keller, 168 S.W.3d at 819,
822 (holding that we must assume that jurors decided questions of credibility
or conflicting evidence in favor of finding if they reasonably could do so and
must not substitute our judgment for that of factfinder).
Thus Love’s testimony established that he had no actual
notice or personal knowledge of the fraudulent nature of the Sessions’ and
Mid-Town’s transfers, nor did he have actual notice of Hahn’s interest in the
Property.  Hahn presented no testimony or
documentary evidence contradicting Love’s testimony.
                
ii.                       
Love’s constructive notice
Hahn also argues that Love had constructive knowledge of
Hahn’s interest through the documents recorded in the chain of title under
which Love took the Property.  See Hahn, 321 S.W.3d at 532 (holding
that “a purchaser is bound by every recital, reference and reservation
contained in or fairly disclosed by any instrument which forms an essential
link in the chain of title under which he claims,” regardless of his actual notice
of such recitals) (quoting Westland Oil Dev. Corp., 637 S.W.2d at
908).
Specifically, Hahn argues that: (1) he revived his
judgment against Session and recorded it before the Property was transferred to
Love, so that Love was charged with notice of his second lien; and (2) the
deficient nature of the 2002 Deed and the 2004 Correction Deed meant that the
Property was still owned by Session, the judgment debtor, when Hahn revived the
judgment, and put Love on inquiry notice into the fraudulent nature of the transfer
of the Property from Session to Mid-Town. 

We have already held that the trial court properly ruled
that, as a matter of law, the property description in the 2002 Deed was
adequate.  The 2002 Deed served to
transfer the Property from the judgment debtor, O’Neal Session, to Mid-Town after
Hahn’s first judgment lien against Session had expired and before Hahn recorded
his second abstract of judgment.  Therefore,
the second lien, which attached only to real property owned by Session, did not
attach to the Property at issue here, which was not then owned by the judgment
debtor, Session, and, thus, it would not have appeared in Love’s chain of
title.  See Tex. Prop. Code Ann.
§ 52.001 (holding that recorded and indexed abstract of judgment constitutes
lien on and attaches to any real property of judgment debtor); Wilson, 228 S.W.3d at 233 (holding that
no lien is created by mere rendition of judgment, but is only created when
judgment creditor complies with chapter 52). 

We have likewise concluded that Love was not charged with
notice of the 2004 Correction Deed, as it was a subsequent deed from the
original grantor that was recorded outside his chain of title.  See Andress, 672 S.W.2d at 631; Swanson, 647 S.W.2d at 719.  As we discussed above, nothing in the chain
of title under which Love took the Property gave him constructive notice of
Hahn’s interest in the Property.
We conclude that the jury’s finding that Love was a bona
fide purchaser of the Property in good faith is supported by legally and
factually sufficient evidence.  See City of Keller, 168
S.W.3d at 810; Francis, 46
S.W.3d at 242.
D.              
Remaining
Legal Claims
In the remainder of his first and second issues, Hahn
argues that the trial court erred: (1) in denying his claims for a constructive
trust, for a declaratory judgment that he had a valid lien on the Property, and
for attorney’s fees and his affirmative defense of unclean hands; (2) in
granting Love’s claim to remove Hahn’s cloud on his title; and (3) in denying
his motions for judgment notwithstanding the verdict and motion for new trial.
Hahn’s claims for constructive trust, declaratory judgment,
and unclean hands all depend upon a finding that Love was not a good faith
purchaser for value of the Property.  We
have already held that the evidence supporting the jury’s finding that Love
purchased the Property in good faith was legally and factually sufficient.  Furthermore, Hahn did not prevail on any of
his claims against Love for which attorney’s fees are recoverable.  Therefore, Hahn was not entitled to any
attorney’s fees from Love, and the trial court did not err in denying these
claims.
To prove
his claim for removal of the cloud from his title, Love had to establish, as a
matter of law, that he had a right of ownership and that Hahn’s adverse claim was
a cloud on the title that equity would remove. 
See Hahn, 321 S.W.3d at 531.  A suit to clear title or quiet title—also known as a
suit to remove cloud from title—relies on the invalidity of the defendant’s
claim to the property.  Longoria v. Lasater,
292 S.W.3d 156, 165 n.7 (Tex. App.—San Antonio 2009, pet. denied).  It exists “to enable the holder of the
feeblest equity to remove from his way to legal title any unlawful hindrance
having the appearance of better right.”  Bell v. Ott,
606 S.W.2d 942, 952 (Tex. Civ. App.—Waco 1980, writ ref’d
n.r.e.) (quoting Thomson v. Locke, 1 S.W. 112, 115 (Tex. 1886));
see also Hahn, 321 S.W.3d at 531 (quoting
Bell, 606 S.W.2d at 952).  “A cloud on title exists when an outstanding
claim or encumbrance is shown, which on its face, if valid, would affect or
impair the title of the owner of the property.” 
Hahn, 321
S.W.3d at 531.  The effect of a
suit to quiet title is to declare invalid or ineffective the defendant’s claim
to title.  See id.; Bell, 606 S.W.2d
at 952 (holding that quiet title enables holder of feeblest equity to remove
unlawful hindrance).  “[T]he plaintiff has the burden of
supplying the proof necessary to establish his superior equity and right to
relief.”  Hahn, 321 S.W.3d at 531; see Bell,
606 S.W.2d at 952.  
Here, we
have already held that Hahn’s judgment lien created by his recording of the
second abstract of judgment did not attach to the Property.  See Tex. Prop. Code Ann. § 52.001; Wilson,
228 S.W.3d at 233.  Hahn’s
only remaining claim to the Property was based on his allegations under the
Fraudulent Transfer Act.  We have upheld
the jury’s findings that Love was not an insider and that he purchased the
Property in good faith.  The parties
stipulated that Love paid a reasonably equivalent value for the Property.  Thus, Love established that he was entitled
to the bona fide purchaser defense of section 24.009 of the Fraudulent Transfer
Act.  See
Tex. Bus. & Com. Code Ann.
§ 24.009(a) (providing that “a transfer or obligation is not voidable under
Section 24.005(a)(1) of this code against a person who
took in good faith and for a reasonably equivalent value or against any
subsequent transferee or obligee.”).  Thus, Love established that he had a right of
ownership and that Hahn’s adverse claim was a cloud on the title that equity could
remove.  See Hahn, 321 S.W.3d at 531.
 
We conclude that the trial court did not err in removing
Hahn’s claims as a cloud on Love’s title to the Property.
Finally, for the reasons we have already stated, we
conclude that the trial court did not err in denying Hahn’s motions for
judgment notwithstanding the verdict and for a new trial on the issues of
constructive trust, declaratory judgment, attorney’s fees, unclean hands, and
removal of Hahn’s cloud on Love’s title.[10]
We overrule Hahn’s first and second issues.
                                                                                                                                         
Evidentiary Complaints
In his fourth issue, Hahn argues that the trial court
erred in excluding Love’s testimony about whether he was aware “that American
Title Co., which closed the sale of the property from Mid-Town to Love, had no
duty to examine the courthouse records to determine any adverse interest in the
property he was purchasing.”  Hahn also
argues that the trial court erred in excluding several documents.  
A.              
Standard of Review
The trial court determines preliminary questions about
admitting or excluding evidence, and we review its rulings for an abuse of
discretion.  Tex. R. Evid. 104(a);
State v. Bristol Hotel Asset Co., 65
S.W.3d 638, 647 (Tex. 2001).  A
trial court abuses its discretion when it acts without regard to any guiding
rules or principles.  Bristol Hotel, 65
S.W.3d at 647.  Whether a trial
court abused its discretion in making an evidentiary ruling is a question of
law.  Id.  
In general, relevant evidence is admissible.  Tex.
R. Evid. 401, 402.  Evidence is relevant if it has “any tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable.” 
Tex. R. Evid.
401. 
However, Rule 403 provides that “[a]lthough
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.”  Tex. R. Evid. 403.
“For the exclusion of evidence to constitute reversible
error, the complaining party must show (1) that the trial court committed error
and (2) that the error was reasonably calculated to cause and probably did
cause rendition of an improper judgment.” 
McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992);
see also Tex. Dep’t of Transp. v. Able,
35 S.W.3d 608, 617 (Tex. 2000) (holding that even if trial court erred in
excluding evidence, challenging party still must show that error was harmful
and stating, “To put it another way, a successful challenge to evidentiary
rulings usually requires the complaining party to show that the judgment turns
on the particular evidence excluded or admitted”) (citing Tex. R. App. P. 61.1).
In determining if the excluded evidence probably resulted
in the rendition of an improper judgment, a court must review the entire
record.  Able, 35 S.W.3d at 617 (citing McCraw, 828 S.W.2d at 758).  Generally, we will not reverse a judgment for
erroneous rulings on admissibility of the evidence when the evidence is
cumulative and not controlling on a material issue dispositive to the
case.  Id.
B.              
Love’s Testimony on American Title Co.’s Duty
and Exhibits 27 and 28
Hahn argues that the trial court erred in excluding Love’s
testimony regarding the nature of American Title’s duty to perform a title
search and related issues.  He argues on
appeal that failure to allow this testimony “left the jury with the false
impression that either Love had no duty to examine courthouse records or that
the title examination was done by American Title and nothing was found.”
In his bill of exceptions on this topic, Hahn questioned
Love about whether he was aware that the title company’s title search was for
the company’s own purposes and whether Love was aware that he had a separate
duty to perform his own search of the title records.  Love testified that he believed the title
company would inform him of anything it found in its title search.  Love also testified that he was not aware of
the contents of the title company’s title examination records and that he did
not know that the law charged him with the responsibility to conduct his own
title examination.  
A title insurance policy is a contract of indemnity, and
the only duty imposed by a title insurance policy is the duty to indemnify the
insured against losses caused by defects in title.  Chicago Title Ins. Co. v. McDaniel, 875 S.W.2d 310, 311 (Tex.
1994).  A title insurance company,
like American Title, is not a title abstractor and owes no duty to examine
title.  See Martinka v. Commonwealth Land Title Ins.
Co., 836 S.W.2d 773, 777 (Tex. App.—Houston [1st Dist.] 1992, writ denied)
(citing Tamburine v. Center Sav. Ass’n, 583
S.W.2d 942, 947 (Tex. Civ. App.—Tyler 1979, writ ref’d
n.r.e.)). 
“In the search for information upon which must depend
the decision to either issue or decline to commit itself to issue a policy, the
insurance company obviously investigates that title for its own use and benefit
to determine whether it will undertake the risk.”  Tamburine, 583 S.W.2d at 948–49.  However, such an examination is not
undertaken for the prospective grantee or lienholder to whom the policy will
finally issue.  Id. at 949.  Nor would any information discovered by
American Title in its own title research for purposes of issuing a title policy
be imputed to Love.  See Martinka, 836 S.W.2d at 777 (holding that title company owes no
duty to point out any outstanding encumbrances to insured); Tamburine, 583 S.W.2d at 949 (holding that any notice of adverse
claim acquired by title company was acquired while it was acting on its own
behalf, not as agent of purchaser, and thus, such notice is not imputable to
purchaser so as to defeat status as bona fide purchaser).
We conclude that Love’s awareness or knowledge of the
title company’s limited obligation in conducting a title search or of any duty
of his own to search the title records was irrelevant to determining whether
Love had actual or constructive knowledge of Hahn’s interest in the
Property.  Moreover, Hahn failed to
establish that Love had any duty to conduct his own title records search or any
obligation to discern whether he had such a duty.  Therefore, Love’s testimony on such an
alleged duty would be both irrelevant and misleading.  The issues actually before the trial court
involved Love’s actual or constructive knowledge of Hahn’s interest in the
Property.  
We hold that the trial court could have properly excluded
this evidence as irrelevant and that, even if there was error in excluding it, the
error did not cause the rendition of an improper judgment.  See McCraw, 828 S.W.2d at 757.
Hahn also complains that the trial court erred in
excluding exhibits 27 and 28, title run sheets from American Title’s file.  However, after Hahn initially sought to admit
these exhibits, the trial court deferred discussion on their admissibility, and
Hahn never attempted to introduce them again and never presented any argument
to the trial court regarding why they were properly admissible.  Therefore, Hahn waived his complaint with
respect to these two exhibits.  See, e.g., Tex. R. App. P. 33.1; see
also Tex. Prop. & Cas.
Guar. Ass'n v. Nat’l Am. Ins. Co., 208 S.W.3d
523, 546 (Tex. App.—Austin 2006, pet. denied) (holding that to preserve error
in exclusion of evidence, party must attempt to introduce evidence and if
objection is raised, specify purpose of which evidence is offered and give
trial court reasons why evidence is admissible, and obtain ruling from trial
court).
C.              
Remaining Exhibits
Hahn complains that the trial court erred in excluding the
following documents: exhibit 7, Hahn’s second abstract of judgment recorded on
March 1, 2004; exhibit 49, a fax from Josie Chapa, an escrow assistant at
Fidelity National Title, to Hahn’s attorney requesting a payoff amount for
Hahn’s judgment lien or a copy of the release, if it had been released, in
relation to the first attempted sale of the property to Strickland; exhibit 50,
a fax dated November 14, 2003, to Pamela Session from Hahn’s attorney containing
payoff information for Hahn’s judgment lien; exhibit 59, deed of trust and
security agreement from a 1993 property transaction Gary completed on Love’s
behalf; exhibit 68, a March 9, 2004 fax with a settlement statement from an
employee of American Title to Herman Gary and O’Neal Session that does not
include any mention of Hahn’s interest in the Property; and exhibits 70, 71,
and 72, faxes from Gary to John Tamburello at
American Title, dated March 2004, transmitting copies of the 2004 Correction Deed.
Regarding the second abstract of judgment recorded on
March 1, 2004, Hahn argues that it was relevant to a controlling issue and not
cumulative because it showed that his lien was contained in Love’s chain of
title.  Love argues that the second abstract
was inadmissible, in part, because it was recorded after Session conveyed the
Property to Mid-Town, and, therefore, it failed to attach to the Property.  We have already concluded that the second
lien created by Hahn’s second abstract of judgment did not attach to the
Property, and, thus, admission of this abstract of judgment was irrelevant and
potentially confusing to the jury as to the claims between Hahn and Love.  See Tex. R. Evid.
401, 403.
Regarding the fax from Josie Chapa, requesting a payoff
amount for Hahn’s judgment lien, and the fax to Pamela Session with payoff
information in relation to the first attempted sale of the property to
Strickland, neither of these documents is evidence that Love had knowledge of
Hahn’s interest in the Property or of the Sessions’ intention to transfer the
Property in avoidance of Hahn’s lien.  They
relate to a transaction in which Love was not involved and are irrelevant and
potentially confusing to the jury.  See Tex.
R. Evid. 401, 403.
Likewise, the March 9, 2004 fax to Herman Gary and O’Neal
Session with a settlement statement from an employee of American Title does not
indicate that Love had any knowledge of that document, nor did the settlement
statement include any mention of Hahn’s interest in the Property.  Thus, these documents were irrelevant to
proving Love’s actual knowledge of Hahn’s interest in the Property.  See Tex. R. Evid.
401.
The deed of trust and security agreement from the 1993
property transaction that Gary completed on Love’s behalf was duplicative of
Love’s own testimony, among other testimony and documents, that he and Gary had
a long-standing relationship in which Love worked with Gary to purchase more
than twenty properties for investment purposes. 
Thus, the trial court could properly have excluded the documents as needlessly
cumulative.  See Tex. R. Evid. 403.
Finally, we conclude that the trial court did not commit
reversible error in excluding the three faxes from Gary to John Tamburello at American Title dated March 2004, transmitting
copies of the 2004 Correction Deed.  Hahn
argues that these faxes demonstrate that Gary knew of problems with the
validity of 2002 Deed and of Hahn’s interest in the Property.  He argues that this evidence was material and
relevant because Gary’s knowledge was imputed to Love.  However, as we have already discussed, he
cites no evidence to support his contention. 
Love testified that he had no personal knowledge of the 2004 Correction
Deed or of the circumstances under which the previous transactions had fallen
through, aside from Gary’s statement to him that the previous purchaser could
not obtain financing.  These faxes make
no reference to Love and do not in any way indicate that Love had any knowledge
of their existence or that he had any knowledge of the previous attempted sales
or potential problems with the 2002 Deed.
We conclude the trial court could have properly excluded
this evidence as irrelevant and that, even if there was error in excluding it,
that error did not cause the rendition of an improper judgment.  See McCraw, 828 S.W.2d at 757.
We overrule Hahn’s fourth issue.
                                                                                                                                                              
Charge Error
In his third issue, Hahn argues that the trial court erred
because Questions Four and Five of the jury charge were defective.  Hahn argues that Question Four improperly
restricted the jury’s consideration regarding who was an insider to the transfer
of the Property from the Sessions to Mid-Town and did not include the transfer
to Love.  Hahn further argues that the
trial court, in submitting Question Five to the jury, improperly refused Hahn’s
instruction on Love’s duty to examine courthouse records for adverse claims and
his instruction that Love’s title company had no duty to search the courthouse
records for Love.
A.              
Standard
of Review
The standard of review for alleged error in the jury
charge is abuse of discretion.  Shupe v. Lingafelter,
192 S.W.3d 577, 579 (Tex. 2006) (per curiam).  “When a trial court refuses to submit a
requested instruction on an issue raised by the pleadings and evidence, the
question on appeal is whether the request was reasonably necessary to enable a
jury to render a proper verdict.”  Id.  Therefore,
we will not reverse a jury verdict for the trial court’s refusal to submit a
question unless the refusal probably caused the rendition of an improper
judgment or probably prevented the complaining party from presenting the case
on appeal.  Columbia Rio Grande Healthcare, L.P. v.
Hawley, 284 S.W.3d 851, 856 (Tex. 2009); Shupe, 192 S.W.3d at 579.  “Error in the omission of an issue is harmless
‘when the findings of the jury in answer to other issues are sufficient to
support the judgment.’”  Shupe, 192 S.W.3d
at 579–80 (quoting Boatland of Houston, Inc. v. Bailey, 609 S.W.2d
742, 750 (Tex. 1980)).
B.              
Question
Four on Love’s Insider Status
Question Four stated,
With respect to the transfer of the Property to Mid-Town, [was] any
of the following an insider?
 
“Insider”
includes, but is not limited to, (a) a relative or general partner of the
debtor; or (b) a partnership in which the debtor is a general partner; or (c) a
corporation in which the debtor is a director, officer, or person in control.”
 
Answer “Yes” or
“No” as to each of the following:
a.       Pamela Session
b.       Mid-Town
c.       Bertrand Love
 
Hahn’s proposed jury question on this issue asked more
generally, “Who were the insiders in this case?” and gave more detailed
instructions on the definition of an insider, including statements of law taken
from Hahn’s previous appeal that an insider under the Fraudulent Transfer Act is
an entity whose close relationship with the debtor subjects any transactions
made between debtor and the insider to heavy scrutiny and that courts are to
consider the closeness of the relationship between the transferee and debtor
and whether the transactions were at arm’s length.
According to the pleadings and evidence, the only
transaction that involved an alleged transfer of property from a debtor was the
one from O’Neal and Myria Session to Mid-Town.  It is undisputed the Mid-Town owed no debt to
Hahn.  Thus, the trial court did not
abuse its discretion by phrasing the question in terms of the transaction from
the Sessions to Mid-Town.  Furthermore,
we cannot conclude that the definition submitted to the jury by the trial court
defining “insider” was incomplete so as to cause the jury to render an improper
verdict.  Hawley, 284 S.W.3d at 856; Shupe, 192 S.W.3d
at 579.
We overrule this portion of Hahn’s third issue.
C.              
Question
Five on Love’s Status as a Purchaser in Good Faith
Question Five stated in its
entirety, “Did Bertrand Love purchase the Property from Mid-Town in good
faith?  Good faith means honesty in fact
in the transaction.”  Hahn’s proposed
jury question on this issue asked, “Did Bertrand Love purchase the property in
good faith without notice of Hahn’s interest in the property?”  Hahn also sought to include an instruction
that stated in part, 
A purchaser is bound by
every recital, reference and reservation contained in or fairly disclosed by
any instruments which forms an essential link in the chain of title under which
he claims. . . .  When a transferee is an
insider and knows the transferor is insolvent at the time of the transfer he
cannot be a good faith transferee.
 
Neither the pleadings nor the
evidence raised an issue regarding whether Mid-Town, the entity that
transferred the property to Love, was insolvent.  Furthermore, we have already concluded that,
as a matter of law, the legal effect of the trial court’s partial summary
judgment was that nothing in Love’s chain of title would have put him on notice
of Hahn’s interest in the Property.  Thus,
we cannot conclude that the trial court’s exclusion of Hahn’s proposed phrasing
and additional instruction probably caused the rendition of an improper judgment.  See Hawley,
284 S.W.3d at 856; Shupe, 192 S.W.3d at 579.
We overrule the remainder of Hahn’s third issue.
                                                                                                                                                                   
Conclusion
We affirm the judgment of the trial court.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Chief Justice Radack and Justices Jennings and Keyes.
 




[1]           See
Tex. Bus. &
Com. Code Ann. §§ 24.001–.013 (Vernon 2009).
 


[2]           The Sessions and Mid-Town are not
parties to this appeal, and Hahn does not challenge the trial court’s judgment
as it relates to them.


[3]           See Tex. Prop. Code Ann. §§ 52.001B.004 (Vernon 2007 & Supp. 2011); Wilson v.
Dvorak, 228 S.W.3d 228, 233B34 (Tex. App.—San Antonio 2007, no pet.) (outlining process
for creating judgment lien and stating, “When properly recorded and indexed, an
abstract of judgment creates a judgment lien that is superior to the rights of
subsequent purchasers and lien holders”).
 


[4]           See Tex. Prop. Code Ann.
§ 52.006 (Vernon Supp. 2011) (governing length of time judgment lien is valid);
Tex. Civ. Prac.
& Rem. Code Ann. § 34.001 (Vernon Supp. 2011) (governing length of
time judgment is active and providing for renewal of judgment with writ of
execution issued within ten years of previous writ).


[5]           Hahn eventually nonsuited Toshoner Session Egans.


[6]           O’Neal and Pamela Session also
testified regarding their role in these transactions.  Hahn also testified.


[7]           This Court refused to address the
sufficiency of the legal description in the opinion on Hahn’s interlocutory
appeal, stating that “[b]ecause the sufficiency of
the legal description in the purported 2002 deed is not material to the proof
of Love’s right to removal of the cloud from his title, we do not address
[it].”  Hahn v. Love, 321 S.W.3d 517, 533 n.13
(Tex. App.—Houston [1st Dist.] 2009, pet. denied).  In his appellate brief, Hahn repeatedly cites
this opinion as the “law of the case.”  The law of the case doctrine is defined as “that
principle under which questions of law decided on appeal to a court of last
resort will govern the case throughout its subsequent stages.”  Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006).  It applies only to questions of law and does
not apply to questions of fact.  Hudson v. Wakefield, 711
S.W.2d 628, 630 (Tex. 1986).  This
Court’s previous opinion in Hahn
addressed the issues in the case in the summary judgment context and concluded
that genuine issues of material fact precluded summary judgment.  We did not make a legal holding regarding the
sufficiency of the description of the Property in the 2002 Deed that would be
subject to the law of the case doctrine. 
See id.


[8]           Hahn also argues that the trial court
erroneously refused to make findings of fact and conclusions of law pursuant to
Texas Rules of Civil Procedure 296 and 297. 
However, Rule 296 provides, “In any case tried in the district or county
court without a jury, any party may
request the court to state in writing its findings of fact and conclusions of
law.”  Tex.
R. Civ. P. 296 (emphasis added). 
Rule 297 provides the deadline by which the trial court must file its
findings and conclusions.  Tex. R. Civ. P. 297.  This case was tried
to a jury, so the provisions of Rules 296 and 297 do not apply.


[9]           In his pleadings, Hahn alleged that
Gary acted as an express or implied agent of the Sessions, Mid-Town, Strickland,
and Love.  However, Hahn did not obtain a
jury finding on the issue of agency, and he does not raise any arguments or
cite any authority regarding the existence or effect of an agency relationship
between Gary and Love or any of the other parties.  Thus, this issue is waived.  See Tex. R. App. P. 38.1(i).  Furthermore, Hahn neither alleged nor argued
at trial or on appeal any other legal theory that would allow Gary’s knowledge
to be imputed to Love.
 


[10]         As we discuss below, we likewise
conclude that the trial court did not err in denying Hahn’s motion for new
trial on the ground that the trial court erred by excluding evidence.


