
NO. 07-03-0517-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 11, 2003

______________________________


IN RE DOUBLE ACE, INC., ALYSSA WOMACK, 

MATTHEW POPE, AND DONNA POPE, RELATORS


_________________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

 Following the rendition of an amended order granting a temporary injunction by the
District Judge of Hockley County on November 25, 2003, in Cause Number 02-12-19019,
styled Double Ace, Inc., Matthew Pope, and Alyssa Pope v. Bennie Dale Pope and
Michael Deardorff v. Donna Pope.  Relators Double Ace, Inc., Alyssa Womack, and
Matthew Pope, represented by counsel, and Donna Pope, proceeding pro se, seek a writ
of mandamus to compel the trial court to vacate its order of November 25, 2003.  Based
upon the rationale expressed herein, we must dismiss the petition for writ of mandamus.
	A temporary injunction is an interlocutory order appealable pursuant to section
51.014(4) of the Texas Civil Practice and Remedies Code.  Mandamus is an extraordinary
remedy available only in limited circumstances involving manifest and urgent necessity
and not for grievances that may be addressed by other remedies.  Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992).  A relator is eligible for mandamus relief only when he can
establish two prerequisites:  (1) he has no other adequate remedy at law, and (2) under
the relevant law and facts, the act he seeks to compel is ministerial.  Stotts v. Wisser, 894
S.W.2d 366, 367 (Tex.Cr.App. 1995).  Because the order granting the temporary
injunction is reviewable by accelerated appeal, relators are not entitled to mandamus
relief.  See Reynolds, Shannon, Miller v. Flanary, 872 S.W.2d 248 (Tex.App.--Dallas
1993, no writ). 
	An accelerated notice of appeal must be filed within 20 days after the judgment or
order is signed.  Tex. R. App. P. 26.1(b).  Additionally, Rule 26.3 provides a 15-day
extension in which to do so. 
	Accordingly, the petition for writ of mandamus is dismissed without prejudice to the
filing of a timely accelerated notice of appeal per the Texas Rules of Appellate Procedure.
							Per Curiam						
 

to pay off the land and she did not
object.  Phylis testified that she did not learn until afterwards that Dalton had paid off the
property.   
	On October 8, 1990, the VLB issued its deed conveying the twelve acres to Ronald,
but expressly subject to the divorce decree.  Dalton testified that Ronald gave him a quitclaim
for his interest in the property.  Dalton also obtained his son's interest through a constable's
deed on August 28, 1990, which enforced a $15,000 judgment Dalton obtained against
Ronald on his 1976 note.  Thus, Dalton claims a one-half undivided interest in the twelve
acres as a tenant in common with Phylis.  Phylis has remained in possession.  She and
Dalton had no express agreement concerning reimbursement to him for the funds he paid
the VLB, nor has she signed any document giving Dalton a lien on the property.  
	On December 21, 2000, Dalton filed his original petition in the trial court, seeking the 
imposition of an equitable lien on Phylis's half interest in the property based on his payment
of the $15,000 to the VLB.  After a bench trial, the trial court issued findings of fact and
conclusions of law and found, in part, that (1) after Ronald and Phylis defaulted in the
payments to the VLB, Dalton "paid the principal due and owing on their behalf to keep the
property from being foreclosed upon" and (2) Phylis accepted the benefits of Dalton's act and
payment to save the property from foreclosure and has not reimbursed any of the purchase
money to him.  The trial court concluded that Dalton could not be restored to his former rights
of reimbursement without an equitable lien being imposed on the property for the purchase
price so that unjust enrichment will not result to Phylis.  
	The court later signed the final judgment made the subject of this appeal, in which it
gave Dalton an equitable lien against the twelve acres "in the amount of $7,500.00."
Equitable Lien
	Case law says an equitable lien is not an estate in the thing to which it attaches, but
merely an encumbrance against the property to satisfy a debt.  Day v. Day, 610 S.W.2d 195,
199 (Tex.Civ.App.-Tyler 1980, writ ref'd n.r.e.).  An equitable lien arises when the
surrounding circumstances indicate the parties to the transaction intended that certain
property would secure the payment of a debt.  Bray v. Curtis, 544 S.W.2d 816, 819
(Tex.Civ.App.-Corpus Christi 1976, writ ref'd n.r.e.).  The fundamental element necessary
to create an equitable lien is the existence of an express or implied contract.  Id.  It is not
necessary that a lien is created by express contract or by operation of statute.  First Nat'l
Bank in Big Spring v. Conner, 320 S.W.2d 391, 394 (Tex.Civ.App.-Amarillo 1959, writ ref'd
n.r.e.).  Courts of equity will apply the relations of the parties and the circumstances of their
dealings in establishing a lien based on right and justice.  Id.; Bray, 544 S.W.2d at 819.
Limitations
	In the trial court, Phylis contended Dalton's effort to impose an equitable lien was
barred by limitations.  She renews that contention in her first issue on appeal.  We agree. 
	Dalton argues section 16.004 of the Texas Civil Practice and Remedies Code has no
application because his suit was one to impose an equitable lien and not to enforce a debt. 
However, it does not follow that there is no applicable statute of limitations. (3)  As a general
rule, statutes of limitations apply to actions seeking equitable relief.  Railroad Commission
v. Beacon, 227 S.W.2d 293, 296 (Tex.Civ.App.-Austin 1950, writ ref'd n.r.e.); Huggins v.
Johnston, 3 S.W.2d 937, 941 (Tex.Civ.App.-Waco 1927, writ granted), aff'd, 35 S.W.2d 688
(Tex. 1931); see Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998) (the residual four-year
statute of limitations contained in section 16.051 of the Texas Civil Practice and Remedies
Code applies to equitable bills of review).  See also Burnham v. Todd, 139 F.2d 338, 343 (5th
Cir. 1943) (article 5529, the predecessor statute to section 16.051 of the Texas Civil Practice
and Remedies Code, applies in Texas to rights of an equitable nature); Isaacs v. Neese, 75
F.2d 566, 569 (5th Cir. 1935) (for a suit in equity for which no specific limitations statute is
provided, the general limitation of four years applies).  See generally 50 TEX. JUR. 3D
Limitation of Actions § 15 (2000) (the law of limitations applies alike in equity cases as in
cases at law); 34 TEX. JUR. 3D Equity § 41 (2002) (statutes of limitations apply to equitable
actions).  We see no reason why section 16.051 of the Texas Civil Practice and Remedies
Code, containing the residual four-year statute of limitations, would not apply here. (4) 
	Dalton refers us to two opinions that he contends refute the application of limitations
to his claim. (5)  The first is Adams v. Jones, 107 S.W.2d 450 (Tex.Civ.App.-Texarkana 1937,
writ dism'd).  In Adams, plaintiffs recovered title and possession of 130 acres of land under
a trust theory but appealed that part of the judgment granting the defendant an equitable lien
to secure his reimbursement for a prior mortgage debt the defendant paid.  Responding to
the plaintiffs' contention that the equitable lien was barred because more than four years had
elapsed since the defendant paid the debt, the appeals court noted that the plaintiffs had
waited more than ten years to assert the alleged trust agreement, and equity would permit
the defendant to assert his equitable lien under that circumstance.  Id.  Dalton is not in the
position of a defendant against whom a ten-year-old claim has been brought.  Too, as Phylis
points out, the court's analysis of the parties' contentions in Adams was cut short because
of briefing inadequacies.  Id. at 451.  Adams does not support an assertion that limitations
does not apply to Dalton's claim.
	Dalton next refers us to Turner v. Hunt, 116 S.W.2d 688 (Tex. 1938), which we also
find distinguishable from the matter before us.  In Turner, owners of an 82-acre tract of land
conveyed 24 described acres out of the tract to Neal Turner in 1924.  Id. at 689.  As a part
of the conveyance, Turner also was permitted to select an additional acre for a home site. 
Turner made no selection of the additional acre until 1934 after oil wells had been completed
on the 82-acre tract.  The one acre selected was the land in controversy.  Id.  
	The Turner defendants argued the evidence demonstrated plaintiffs were barred from
asserting a right to the land in controversy by laches.  The court found Neal Turner acquired
(aside from the 24 acres) only an equitable right to choose and have surveyed the additional
one-acre tract.  Id. at 690.  The court further found that Turner's delay of a little less than ten
years did not defeat his right to select the one-acre tract.  Id. at 691.  
	We do not deal here with the question whether laches bars the exercise of an
equitable right to select a tract of land, but whether limitations bars Dalton's suit for imposition
of an equitable lien.  The language of the Turner opinion itself points out the distinction.  The
court there noted, "The question is not strictly one of delay in instituting suit after the accrual
of the cause of action, which is usually determinable by the period of limitation fixed by
statute. Here the delay is in asserting the right by making selection of the particular acre." 
Id. at 691. (6) 
	Dalton's claim to an equitable lien on Phylis's interest in the property is based on his
payment to the VLB, which undisputedly occurred before the date of the VLB's deed to
Ronald on October 8, 1990.  Nothing prevented his initiation of suit at any time after he paid
off the property.  Limitations barred his doing so in December 2000.  We sustain Phylis's first
issue.   

Conclusion
	Because the first issue on appeal is dispositive, we do not address Phylis's second
issue by which she challenges the sufficiency of the evidence supporting the judgment.  We
reverse the judgment of the trial court and render judgment that appellee Dalton McCormick
take nothing.   

						James T. Campbell
					  	         Justice










1.  For convenience and brevity, we will refer to the three by their first names.
2.  The parties agree that following the divorce decree Ronald and Phylis owned the
twelve acres as tenants in common. 
3.  We review the application of limitations to the undisputed facts as a question of
law.  Musgrave v. Brookhaven Lake Property Owners Ass'n, 990 S.W.2d 386, 397 (Tex.
App.-Texarkana 1999, pet. denied).
4.  Section 16.051 provides, "Every action for which there is no express limitations
period, except an action for the recovery of real property, must be brought not later than
four years after the day the cause of action accrues."
5.  Dalton elsewhere cites Richards v. Suckle, 871 S.W.2d 239 (Tex. App.-Houston
[14th Dist.] 1994, no pet.), a case applying the doctrine of equitable subrogation.  Dalton has
not asserted he was equitably subrogated to the VLB's position under its installment
contract with Ronald. 
6.  Indeed, Turner has been cited for the proposition that statutes of limitations apply
to equitable actions as well as to legal actions.  See Culver v. Pickens, 176 S.W.2d 167,
170 (Tex. 1943). 
