      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-06-00429-CV



                            Fairfield Financial Group, Inc., Appellant

                                                  v.

                       Connie Synnott, Individually and as Trustee of the
                       Connie Synnott Revocable Living Trust, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
      NO. D-1-GN-06-0032, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING



                                            OPINION


               Fairfield Financial Group, Inc. appeals from a judgment declaring that

Connie Synnott’s homestead is not subject to a judgment lien in connection with a separate judgment

rendered solely against Glenn Synnott, her ex-husband. While married, the Synnotts bought the

property in question and designated it as their homestead. Fairfield later obtained and abstracted

a judgment against Glenn Synnott, individually. Although Glenn Synnott conveyed his interest to

appellee pursuant to their divorce decree, Fairfield contends that his former ownership share in

the form of a community interest in the property remains subject to Fairfield’s judgment lien.

Fairfield also contends that the trial court erred by denying its objection to the admissibility of

Glenn Synnott’s assertion in his affidavit that he continued to claim the property as his homestead

during the pendency of the divorce action. Fairfield also asserts that the trial court erred by awarding
attorneys’ fees to appellee because this suit was essentially a suit to quiet title rather than a true

declaratory judgment action. We affirm.

               The Synnotts purchased the house in Travis County in 1984. Fairfield obtained a

judgment against Glenn Synnott and filed an abstract of that judgment in 1992. Appellee asserted

without contradiction that the judgment debt is owed solely by Glenn Synnott. In the fall of 1997,

Glenn Synnott moved out of the house to Hays County and filed for divorce. In late October 1997,

his attorney drafted an Agreement Incident to Divorce that included the agreement that

Glenn Synnott would convey his interest in the house to appellee. Although the contents of the

draft agreement evolved over the next few months, the agreement regarding the house never

changed. In January 1998, Glenn Synnott executed an Agreement Incident to Divorce, the court

signed the decree, and then Glenn Synnott signed a special warranty deed conveying his interest

in the property to appellee. By special warranty deed dated September 15, 1999, appellee conveyed

the house to the Connie L. Synnott Revocable Trust. She lives in the house and claims it as

her homestead.

               Appellee filed this suit seeking a declaration that Fairfield has no interest in the

property through a lien or otherwise. She also sought sanctions and attorneys’ fees. The court

declared that the property is “the homestead of Connie Synnott and . . . not subject to the judgment

lien asserted by [Fairfield] arising out of the judgment obtained by it in Cause No. 91-13310.” The




                                                  2
court awarded $15,915.82 for trial attorneys’ fees, plus additional fees in the event of appellate

procedures.1 It did not award sanctions.

               Fairfield asserts that the following portion of Glenn Synnott’s affidavit should

have been struck as improper summary judgment evidence: “[A]t all times prior to January 21,

1998, I considered the property as my homestead and continued to claim it as such, including with

the local taxing authorities.” Fairfield contends that this was inadmissible as a statement from

an interested witness that was no more than an opinion, expression of belief, and a conclusion,

citing Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); Brownlee v. Brownlee,

665 S.W.2d 111, 112 (Tex. 1984); and Harley-Davidson Motor Co. v. Young, 720 S.W.2d 211, 216

(Tex. App.—Houston [14th Dist.] 1986, no writ).

               We review a trial court’s rulings concerning the admission of summary judgment

evidence under an abuse of discretion standard. Wolfe v. C.S.P.H., Inc., 24 S.W.3d 641, 646

(Tex. App.—Dallas 2000, no pet.). Affidavits in support of summary judgment motions must be

made on personal knowledge, set forth such facts as would be admissible in evidence, and show

affirmatively that the affiant is competent to testify to the matters stated. Tex. R. Civ. P. 166a(f).

The challenged statements by Glenn Synnott are statements of fact, not mere belief or opinion. In

the challenged portion, he states that he considered the house his homestead and continued to claim

it as such. He does not assert in the affidavit that he was correct to consider the house his homestead

or to claim it as such. Whether he actually considered it his homestead and whether the underlying




       1
          Judge Stephen Yelenosky ruled on the merits of the petition. Judge William E. Bender
ruled on the attorneys’ fees issue.

                                                  3
belief was well-founded and his actions proper and effective is a question for the courts. The

trial court did not abuse its discretion by overruling this objection to this portion of his affidavit.

                The core of Fairfield’s appeal is its assertion that the summary judgment is erroneous

because there is a genuine issue of material fact regarding whether Glenn Synnott abandoned

the homestead, thereby allowing Fairfield’s judgment lien to attach to his share of the community

ownership of the house. To prevail, a summary-judgment movant must demonstrate that there is

no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ.

P. 166a(c). We review the summary judgment de novo. Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 156 (Tex. 2004). We take all evidence favorable to the non-movant as true while

deciding whether a disputed issue of material fact exists that would preclude summary judgment,

and we indulge every reasonable inference and resolve any doubts in favor of the non-movant.

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

                Under Texas law, judgment liens that have been properly abstracted cannot attach to

a homestead while that property remains a homestead. Wilcox v. Marriott, 103 S.W.3d 469, 473

(Tex. App.—San Antonio 2003, pet. denied); see also Cadle Co. v. Harvey, 46 S.W.3d 282, 285

(Tex. App.—Fort Worth 2001, pet. denied); Barrera v. State, No. 14-04-01030-CR, 2005 Tex. App.

LEXIS 5634, at *18-19 (Tex. App.—Houston [14th Dist.] July 21,2005, pet. ref’d). This statement

of the law differs from a previous interpretation by this Court. See Exocet Inc. v. Cordes, 815

S.W.2d 350, 352 (Tex. App.—Austin 1991, no writ) (concluding that recording and indexing of

abstract of judgment perfected lien attached to homestead, although homestead remained exempt

from foreclosure while homestead exemption remained in place). On reviewing the relevant



                                                   4
statutory and case law, however, we are compelled to revisit our previous interpretation.

Constitutional homestead rights protect citizens from losing their homes, and statutes relating to

homestead rights are liberally construed to protect the homestead. Kendall Builders, Inc. v. Chesson,

149 S.W.3d 796, 807 (Tex. App.—Austin 2004, pet. denied). Homestead rights have historically

enjoyed great protection in our jurisprudence. See id. (citing Mills v. Von Boskirk, 32 Tex. 360, 362

(1869)). The property code states that a homestead is “exempt from seizure for the claims of

creditors except for encumbrances properly fixed on homestead property.” Tex. Prop. Code Ann.

§ 41.001(a) (West Supp. 2008). The code then lists the types of encumbrances that may be “properly

fixed” upon homestead property, including those for mortgage financing for the property, taxes on

the property, and improvements to the property. Id. § 41.001(b). The implication is that types of

encumbrances not listed may not be “properly fixed” on homestead property. This interpretation is

consistent with the holdings of other courts of appeals regarding the effect of the homestead

exemption on most liens and provides greater protection to the homestead. See Wilcox, 103 S.W.3d

at 473; Harvey, 46 S.W.3d at 285; Barrera, 2005 Tex. App. LEXIS 5634, at *18-19. We join these

courts of appeals in holding that, other than the types listed in property code section 41.001(b),

judgment liens that have been properly abstracted nevertheless cannot attach to a homestead while

that property remains a homestead. Under this rule, a judgment debtor may sell property claimed

as homestead and pass title free of any judgment lien, and the purchaser may assert that title against

the judgment creditor. Harvey, 46 S.W.3d at 285. A judgment lien may attach to the judgment

debtor’s interest, however, if he abandons the property as his homestead while he owns it and while

there is a properly abstracted judgment lien against him. Id.



                                                  5
               Fairfield contends that Glenn Synnott abandoned his homestead interest and that

Fairfield’s lien attached to his ownership interest in the home before he transferred his ownership

interest to appellee. Fairfield contends that there is at least a fact question regarding when

Glenn Synnott abandoned his homestead interest. Thus, Fairfield contends, the trial court erred by

granting summary judgment that appellee owns the property free from Fairfield’s liens based on its

judgment against Glenn Synnott.

               We conclude, however, that the timing and effect of Glenn Synnott’s actions are

irrelevant because the property remained at all relevant times protected by appellee’s undivided

homestead interest in the property. Fairfield argues, correctly, that one spouse may abandon his

homestead interest while his spouse retains her homestead interest. See Taylor v. Mosty Bros.

Nursery, Inc., 777 S.W.2d 568, 569 (Tex. App.—San Antonio 1989, no writ); Julian v. Andrews,

491 S.W.2d 721, 727 (Tex. Civ. App.—Fort Worth 1973, writ ref’d n.r.e.); Sakowitz Bros.

v. McCord, 162 S.W.2d 437, 438-39 (Tex. Civ. App.—Galveston 1942, writ ref’d). The United

States Supreme Court wrote that the Texas constitution gives:


       each spouse in a marriage a separate and undivided possessory interest in the
       homestead, which is only lost by death or abandonment, and which may not be
       compromised either by the other spouse or by his or her heirs. It bears emphasis that
       the rights accorded by the homestead laws vest independently in each spouse
       regardless of whether one spouse, or both, actually owns the fee interest in the
       homestead.




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United States v. Rodgers, 461 U.S. 677, 685 (1983) (footnote omitted). Although a lien attaches

to property when it loses its homestead character,2 the Julian and Sakowitz courts held that the

property is wholly exempt from the attachment of liens (other than those listed in property code

section 41.001(b)) so long as the remaining spouse retains her homestead interest. Julian,

491 S.W.2d at 727;3 Sakowitz, 162 S.W.2d at 438-39.4 Therefore, because appellee retained her

homestead interest in the home, the trial court did not err by granting summary judgment and


       2
          See Posey v. Commercial Nat’l Bank, 55 S.W.2d 515 (Tex. Comm’n App. 1932,
judgm’t adopted).
       3
           In Julian, a husband abandoned his homestead interest in property while judgment
liens were pending against him. Julian v. V. A. Andrews, 491 S.W.2d 721, 724 (Tex. Civ.
App.—Texarkana 1973, writ ref’d n.r.e.). His wife retained her interest in the property and filed
for divorce. Id. While the divorce was pending, a third party foreclosed on a mechanic’s and
materialman’s lien on the property. Id. The mechanic’s and materialman’s lienholder then sold
the property, after which the property was subdivided and one lot was sold to Eddie Julian. Id.
at 724-25. At this point, the ex-husband notified Julian that liens based on judgments against
him had attached to the property. Id. at 725. Ultimately, the court concluded that the husband’s
abandonment of the homestead had not allowed the third-party judgment liens to attach to the
property while the wife still held her homestead interest. Id. at 727. Accordingly, title passed from
the wife to the foreclosing lienholder and subsequent buyers unencumbered by the interest of those
who held liens based on judgments against the husband. Id.
       4
           In Sakowitz, a wife’s action in barring her husband from their homestead as prelude
to divorce deprived him of his homestead rights, but did not expose his share of the property to
liens based on the couple’s personal debts. Sakowitz Bros. v. McCord, 162 S.W.2d 437, 438-39
(Tex. Civ. App.—Galveston 1942, writ ref’d). While the divorce action was pending, two creditors
took judgments against the couple, and the couple sold the homestead to A. H. McCord. Id. at 438.
McCord sued to have the couple’s creditors’ liens removed. Id. The court of appeals expressly
rejected the proposition that the liens attached to the husband’s non-homestead half interest, holding
instead that the property retained its homestead character because the wife continued to live
on the property as her homestead. Id. at 438-39. The wife’s undivided homestead interest protected
the entire property from forced sale for personal debts. Id. (citing Crow v. First Nat’l Bank,
64 S.W.2d 377, 379-80 (Tex. Civ. App.—Waco 1933, writ ref’d) (widow’s homestead exemption
was undivided and served to protect all of a 300-acre tract, even though she could only spare
200 acres from personal creditors)). The court of appeals concluded that McCord held title to the
property and that the creditors did not have an interest in the property. Id. at 439.

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declaring that Fairfield’s lien based on its judgment against Glenn Synnott has not attached to the

property at issue.

               Fairfield relies heavily on the Taylor case for the contrary proposition. 777 S.W.2d

at 569. In that case, after a nursery obtained a judgment against a husband, the husband abandoned

his interest in the homestead by conveying it to his wife and leaving the state.5 Id. While not

ordering a sale of the property, the trial court placed a constructive trust on that part of any

sale proceeds represented by the husband’s interest conveyed to his wife. Id. The court of appeals

modified the trial court’s order by invoking the property code’s homestead protections and declaring

that, if the owner sold the property, she would have six months thereafter during which the proceeds

would be exempt from execution by the nursery, and that she could reinvest the entire proceeds in a

new homestead. Id. at 570; see also Tex. Prop. Code Ann. § 41.001(c) (West Supp. 2008). Fairfield

argues that this holding shows that the proceeds would be subject to seizure thereafter, and that the

property therefore was encumbered by the lien.

               We do not share Fairfield’s interpretation of the Taylor opinion. The court of appeals

did not state that the creditor’s lien attached to the property. Rather, the contrary is indicated. By

statute, the proceeds from the sale of homestead property retain their exempt status for six months

after a homestead is sold or transferred. See Tex. Prop. Code Ann. § 41.001(c). The proceeds will


       5
           Although the court found that the husband abandoned his homestead interest, the
facts indicate not mere abandonment but divestment of all interest. Taylor v. Mosty Bros. Nursery,
Inc., 777 S.W.2d 568, 569 (Tex. App.—San Antonio 1989, no writ). The opinion states, “Sidney
abandoned his interest in the homestead by conveying his interest to Mary by deed dated April 17,
1987 and by leaving the State of Texas.” Absent a fraudulent conveyance that can be set aside—not
mentioned as an issue in the opinion—there is no ownership interest by the husband in the property
to which the creditor’s lien could properly attach.

                                                  8
continue to have exempt status if reinvested in a new homestead within the statutory time frame.

See id. § 41.001. This suggests that a judgment lien does not attach to homestead property or its

proceeds until it ceases being a homestead and the statutory time frame runs if it is sold. The court’s

judgment forbidding the creditor from pursuing the proceeds for six months and holding that the wife

may invest all of the proceeds in a new homestead within six months under section 41.001(c)

also strongly implies that a homestead exemption protected the entire property. Whether the creditor

could seek to seize her unreinvested cash proceeds after six months does not bear on whether

a lien attached to the real property. After six months, the cash is a non-exempt personal asset

subject to execution by creditors of the cash’s owner. We conclude that the court of appeals’s

application in Taylor of homestead protections to the wife and the entire proceeds from her sale

of the property supports the view that the judgment lien against the husband did not attach to the

homestead property.

               Whether Glenn Synnott abandoned his homestead interest before divesting

his ownership interest, it is undisputed that appellee had a homestead interest in the property. Her

homestead interest protected the entire property, and the judgment liens did not attach to any portion

of the property. The trial court did not err by granting appellee’s motion for summary judgment and

declaring that ownership of the property is unencumbered by Fairfield’s lien.

               Fairfield contends finally that the trial court erred by awarding attorneys’ fees

to appellee. Attorneys’ fees are recoverable in declaratory judgment actions. See Tex. Civ. Prac.

& Rem. Code Ann. § 37.009 (West 2008). This suit was filed and adjudicated as a declaratory

judgment action. Fairfield asserts that this suit is instead a suit to quiet title, to remove a cloud



                                                  9
on title, or for trespass to try title in which attorneys’ fees are not recoverable, citing cases such

as John G. & Marie Stella Kennedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 289 (Tex. 2002),

and Sani v. Powell, 153 S.W.3d 736 (Tex. App.—Dallas 2005, no pet.). The Kennedy Foundation

case is distinguishable because it found attorneys’ fees inappropriate because the declaratory relief

requested was merely incidental to a dispute over title and those circumstances did not justify an

award of attorneys’ fees against the State. Kennedy Foundation, 90 S.W.3d at 289. This Court has

previously distinguished Sani and similar cases, concluding that attorneys’ fees are recoverable under

the declaratory judgment act even when the effect of a declaration is to quiet title. Florey v. Estate

of Linda McConnell, 212 S.W.3d 439, 449 (Tex. App.—Austin 2006, pet. denied). The central issue

in Florey was whether the homestead interest was abandoned, thereby allowing a judgment lien to

attach. Id. at 442-43. The trial court concluded that the homestead interest was in place when the

owner executed a promissory note for attorneys’ fees secured by a deed of trust on the homestead

property, that such a note and deed of trust were not among the encumbrances that can be properly

affixed to homestead property, and that the lien based on the deed of trust was invalid. Id. at 443.

This Court affirmed that decision and further concluded that, even though the judgment had an effect

similar to that of a suit to quiet title, the use of the declaratory judgment act was permissible as was

the awarding of attorneys’ fees based thereon. Id. at 448-49. This Court opined that the “ban” on

awards of attorneys’ fees in suits to quiet title might be limited to cases that were essentially trespass

to try title suits. In this suit, the central question is whether the homestead had been abandoned such

that an encumbrance other than one of those listed in property code section 41.001(b) could properly




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be affixed on or attach to the property at issue. We conclude that this suit is substantially similar to

Florey and, therefore, that attorneys’ fees could properly be awarded in this suit. Fairfield has not

demonstrated error in the trial court’s award of attorneys’ fees.6

                Affirmed.




                                                G. Alan Waldrop, Justice

Before Justices Puryear, Waldrop and Henson

Affirmed

Filed: August 5, 2009




        6
        Fairfield does not challenge the amount of fees awarded, but merely whether attorneys’ fees
are permitted by law to be awarded in this suit.

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