Opinion issued May 7, 2015




                                   In The

                             Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                             NO. 01-14-00471-CV
                         ———————————
                   PATRICK D. MAHONEY, Appellant
                                     V.
   JANICE POUNCY SLAUGHTER AND SAMORI DIALLO, Appellees



                  On Appeal from the 270th District Court
                           Harris County, Texas
                     Trial Court Case No. 2011-30537


                      MEMORANDUM OPINION

     Appellant, Patrick Mahoney, appeals the trial court’s order granting

summary judgment in favor of appellees, Janice Pouncy Slaughter and Samori

Diallo, on Mahoney’s suit brought under the Texas Uniform Fraudulent Transfer
Act (“TUFTA” or “the Act”). 1 In his sole issue, Mahoney contends that the trial

court erred in granting appellees summary judgment and denying him summary

judgment because he raised a genuine issue of material fact regarding whether he is

a judgment creditor under TUFTA, and he conclusively proved all of the elements

of his fraudulent transfer claim. Appellees seek an award of attorney’s fees and

sanctions against Mahoney for filing a frivolous appeal. We deny the request for

attorney’s fees and sanctions and affirm the trial court’s judgment.

                                    Background

      On November 8, 2006, Slaughter filed suit to quiet title to real property

located at 3605 McGowen Street, in Houston, Texas (“McGowen property”).

Following service by publication, the trial court appointed Mahoney as the attorney

ad litem for the absent defendants.2          The appointment order contained the

following language: “The fees and expenses of the attorney ad litem shall be paid

by the plaintiff and taxed as costs in this case.” On January 29, 2008, the trial

court granted Mahoney’s motion for costs and ordered Slaughter to deposit $50 per




1
      See TEX. BUS. & COMM. CODE ANN. §§ 24.001–.013 (West 2015).
2
      See TEX. R. CIV. P. 244 (requiring court to appoint attorney ad litem on behalf of
      defendants when service is by publication).

                                          2
month into the registry of the court during the pendency of the suit to secure

payment of the ad litem fees. 3

      Following a bench trial, the court signed a final judgment on April 13, 2009,

in which it voided the defendants’ deeds to the McGowen property and determined

Mahoney’s reasonable and necessary attorney’s fees to be $7,500. The judgment,

however, did not order any party to pay these fees and did not assess costs against

any party. The defendants filed motions requesting that the court increase its

determination of reasonable attorney ad litem fees and assess the fees as costs to be

paid by Slaughter. On May 28, 2009, the trial court entered an amended final

judgment in which it assessed $7,500 in attorney ad litem fees “to be taxed as

costs” but did not specify which party was to pay them.             The trial court

subsequently signed an order permitting Slaughter to withdraw the money she had

deposited in the court’s registry.

      On April 17, 2009, Slaughter executed a general warranty deed conveying

the McGowen property to Diallo, her grandson. The deed was recorded on June

15, 2009.

      Mahoney subsequently appealed from the amended final judgment,

contending that the evidence was insufficient to support the trial court’s

determination of $7,500 as reasonable attorney ad litem fees and that the court

3
      The order also denied Slaughter’s motion requesting that Mahoney be dismissed
      as attorney ad litem in the case.
                                         3
erred by refusing to assess attorney ad litem fees as costs to be paid by Slaughter.

On April 15, 2011, the Fourteenth Court of Appeals issued a judgment reforming

the trial court’s amended final judgment and ordering Slaughter to pay “the $7,500

in ad litem’s fees assessed as costs,” and affirmed the judgment as modified.4

      On May 20, 2011, Mahoney filed suit against Slaughter alleging that she

fraudulently transferred the McGowen property to Diallo and conspired with

Diallo and her son, Wayne Slaughter, Jr., to defraud Mahoney, in violation of

TUFTA. On February 27, 2013, Slaughter deposited in the registry of the court the

$7,500 that had been assessed as costs in the underlying suit. The receipt issued to

Slaughter reflects that the $7,500 was a “payment per court order.”

      The parties thereafter filed cross-motions for summary judgment: Mahoney

asserted that Slaughter fraudulently transferred the McGowen property to Diallo,

and appellees argued that Mahoney was not a creditor under TUFTA. On May 13,

2014, the trial court granted appellees’ summary judgment motion. This appeal

ensued.

                               Standard of Review

      We review a trial court’s decision to grant or to deny a motion for summary

judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex.,

253 S.W.3d 184, 192, 199 (Tex. 2007) (citing rule for review of grant of summary

4
      Garza v. Slaughter, 331 S.W.3d 43, 49 (Tex. App.—Houston [14th Dist.] 2010, no
      pet.).
                                         4
judgment and reviewing denied cross-motion for summary judgment under same

standard). Although a denial of summary judgment is not normally reviewable, we

may review such a denial when both parties move for summary judgment and the

trial court grants one motion and denies the other. Id. at 192. When the trial

court’s ruling granting one summary judgment motion necessarily denies another

pending summary judgment motion on the same issue, such as here, we imply the

ruling of denial. See Frank’s Int’l, Inc. v. Smith Int’l, Inc., 249 S.W.3d 557, 559

n.2 (Tex. App.—Houston [1st Dist.] 2008, no pet.).        In our review of such

cross-motions, we review the summary judgment evidence presented by each

party, determine all questions presented, and render the judgment that the trial

court should have rendered. Tex. Mun. Power Agency, 253 S.W.3d at 192 (citing

Comm’rs Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)). If we determine that a

fact issue precludes summary judgment for either party, we remand the cause for

trial. See Univ. of Tex. Health Sci. Ctr. at Houston v. Big Train Carpet of El

Campo, Inc., 739 S.W.2d 792, 792 (Tex. 1987) (per curiam).

      To prevail on a summary judgment motion, a movant has the burden of

proving that it is entitled to judgment as a matter of law and there is no genuine

issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995). When a plaintiff moves for summary judgment on its claim, it

must establish its right to summary judgment by conclusively proving all the

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elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel,

997 S.W.2d 217, 223 (Tex. 1999); Anglo-Dutch Petroleum Int’l, Inc. v. Haskell,

193 S.W.3d 87, 95 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).                A

defendant moving for summary judgment must either disprove at least one element

of each of the plaintiff’s causes of action, or plead and conclusively establish each

essential element of its affirmative defense, thereby rebutting the plaintiff’s causes

of action. Cathey, 900 S.W.2d at 341; Rangel v. Lapin, 177 S.W.3d 17, 20 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied). When deciding whether there is a

disputed, material fact issue precluding summary judgment, evidence favorable to

the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546, 548–49 (Tex. 1985). Every reasonable inference must be indulged in favor of

the non-movant and any doubts must be resolved in its favor. Id. at 549.

                                     Discussion

   A. Fraudulent Transfer Claim

      On appeal, Mahoney contends that the trial court erred in granting appellees’

motion for summary judgment because Mahoney presented evidence raising a

genuine issue of material fact regarding whether he is Slaughter’s creditor under

TUFTA.     He also argues that the trial court erred in denying his summary

judgment motion because he conclusively proved all of the elements of his

fraudulent transfer claim as a matter of law.

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      The purpose of TUFTA is to prevent debtors from defrauding creditors by

placing assets beyond their reach. Corpus v. Arriaga, 294 S.W.3d 629, 634 (Tex.

App.—Houston [1st Dist.] 2009, no pet.); Tel. Equip. Network, Inc. v.

TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex. App.—Houston [1st Dist.]

2002, no pet.). TUFTA creates a statutory cause of action through which a creditor

may seek recourse against a fraudulent conveyance.5 See TEX. BUS. & COMM.

CODE ANN. §§ 24.001–.013 (West 2015); Connell v. Connell, 889 S.W.2d 534, 542

(Tex. App.—San Antonio 1994, writ denied). Under TUFTA, a “debtor” is a


5
      Section 24.005(a) of the Act provides:

      (a) A transfer made or obligation incurred by a debtor is fraudulent as to a
      creditor, whether the creditor’s claim arose before or within a reasonable
      time after the transfer was made or the obligation was incurred, if the
      debtor made the transfer or incurred the obligation:

      (1) with actual intent to hinder, delay, or defraud any creditor of the
      debtor; or

      (2) without receiving a reasonably equivalent value in exchange for
      the transfer or obligation, and the debtor:

             (A) was engaged or was about to engage in a business
             or a transaction for which the remaining assets of the
             debtor were unreasonably small in relation to the
             business or transaction; or

             (B) intended to incur, or believed or reasonably should
             have believed that the debtor would incur, debts
             beyond the debtor’s ability to pay as they became due.

TEX. BUS. & COMM. CODE ANN. § 24.005 (West 2015).

                                            7
person who is liable on a claim. TEX. BUS. & COMM. CODE ANN. § 24.002(6) (West

2015). A “creditor” is a person who has a claim. Id. § 24.002(4) (West 2015). A

“claim” means a right to payment or property, whether or not the right is reduced

to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,

disputed, undisputed, legal, equitable, secured, or unsecured.    Id. § 24.002(3)

(West 2015).

      In their summary judgment motion, appellees argued that Mahoney did not

have a claim against Slaughter at any time; in other words, no debtor-creditor

relationship existed between them. Similarly, in their response to Mahoney’s

summary judgment motion, appellees contended that Slaughter was not a debtor

and Mahoney was not a creditor under TUFTA. As evidentiary support for their

summary judgment motion and response to Mahoney’s motion, appellees relied on,

among other things, the trial court’s order granting Mahoney’s motion for costs,

the trial court’s amended final judgment, and the Fourteenth Court’s judgment and

mandate.

      In its order granting Mahoney’s motion for costs, the trial court ordered

Slaughter to deposit $50 per month into the court’s registry during the pendency of

the underlying suit to secure payment of the ad litem’s fees. In its May 28, 2009

amended final judgment, the trial court “determined [Mahoney’s] reasonable and

necessary attorney fees to be $7,500 to be taxed as costs” and marked through the

                                        8
proposed language stating “[t]he costs are to be taxed against Plaintiff.” The

Fourteenth Court’s judgment reformed the trial court’s amended judgment and

ordered Slaughter “to pay the $7500 in ad litem’s fees assessed as costs.” Thus,

although it is clear that Slaughter was required to pay the ad litem fees assessed as

costs, there is nothing in the summary judgment record reflecting that Slaughter

was ever ordered to pay any sum of money to Mahoney.                   Under these

circumstances, Slaughter was not a debtor as defined by TUFTA, and Mahoney

was not a creditor as to Slaughter. See Beal Bank v. Gilbert, 417 S.W.3d 704, 711

(Tex. App.—Dallas 2013, no pet.) (concluding where bank obtained judgment

against husband only and did not have right to payment from wife’s separate

property or sole management community property, wife was not debtor and bank

was not creditor as defined under TUFTA).

      Moreover, it is undisputed that Slaughter fully complied with the order to

pay the ad litem fees assessed as costs. On February 27, 2013, Slaughter deposited

$7,500 with the Harris County Clerk’s Office, and the receipt issued to her reflects

that $7,500 was a “payment per court order.” Appellees assert—and Mahoney

does not dispute—that those funds remain in an account in the District Clerk’s

office awaiting the court’s distribution.

      Because no debtor-credit relationship existed between Slaughter and

Mahoney, we conclude that the trial court properly granted summary judgment in

                                            9
favor of appellees and denied summary judgment to Mahoney on his fraudulent

transfer claim brought under TUFTA. We overrule Mahoney’s issue.

   B. Appellees’ Request for Damages

      Appellees seek an award of attorney’s fees and sanctions against Mahoney

for filing a frivolous appeal.   Under Rule of Appellate Procedure 45, we may

award “just damages” to a prevailing party in an appeal if we determine it is

frivolous after considering the record, briefs, or other papers filed. See TEX. R.

APP. P. 45; Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.]

2001, pet. denied). Recovery is authorized if an appeal is objectively frivolous and

injures an appellee. In re A.W.P., 200 S.W.3d 242, 245 (Tex. App.—Dallas 2006,

no pet.). An appeal is frivolous if when it is brought there were no reasonable

grounds to believe the judgment would be reversed or when it is pursued in bad

faith. Id. On review of the record and briefs, we deny appellees’ request for

attorney’s fees and sanctions.

                                   Conclusion

      We deny the request for attorney’s fees and sanctions on appeal and affirm

the trial court’s judgment.




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                                            Russell Lloyd
                                            Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.




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