                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-330-CV


MARK DISANTI                                                 APPELLANT

                                        V.

WACHOVIA BANK,                                                 APPELLEE
NATIONAL ASSOCIATION
                                    ------------

           FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                I. INTRODUCTION

      Appellant Mark DiSanti appeals the summary judgment entered against

him and in favor of Appellee Wachovia Bank, National Association. We will

affirm.




      1
          … See Tex. R. App. P. 47.4.
                  II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      In 2001, deed restrictions for the housing development known as

Saddlebrook Village in Denton County were recorded in Denton County. The

deed restrictions provided for a property owner’s association that would charge

and collect certain dues from owners of lots within the subdivision.

      In 2002, Saddlebrook Homes, L.P. purchased Lot 39, Block 17 in the

subdivision (the “Property”).   Washington Mutual Bank, FA subsequently

extended a revolving line of credit to Saddlebrook Homes and other entities

pursuant to a Guidance Line Loan Agreement. The Washington Mutual loan

agreement was secured by a deed of trust and a supplemental deed of trust

(collectively, the “Washington Mutual Deed of Trust”), which created a security

interest in the Property. The Washington Mutual Deed of Trust was properly

recorded in Denton County in 2003.

      In April of 2004, Saddlebrook conveyed the Property to Sok Jo Lee and

Kim Sook Young. Lee and Young executed a promissory note secured by a

deed of trust in favor of Argent Mortgage Company, LLC to finance the

purchase of the Property. The deed from Saddlebrook to Lee and Young also

created a vendor’s lien retained for the benefit of Argent. Both the deed of

trust securing the promissory note (the “Argent Deed of Trust”) and the deed




                                      2
to Lee and Young were recorded in Collin County, rather than in Denton

County.

      In September of 2005, Argent assigned to Ameriquest Mortgage

Company, LLC the note from Lee and Young and the liens securing payment of

that note. Ameriquest then assigned the note and liens securing its payment

to Chase Manhattan Mortgage Corporation. Both of these assignments—to

Ameriquest and to Chase—were incorrectly recorded in Collin County.

      Lee and Young failed to pay certain assessments to the homeowners

association as required by the deed restrictions. As a result, on January 24,

2006, the homeowners association foreclosed its assessment lien against the

Property. At the time of the foreclosure sale, Denton County’s real property

records contained the deed to Saddlebrook and the Washington Mutual Deed

of Trust, but not the deed to Lee and Young or the Argent Deed of Trust.

DiSanti purchased the Property at the foreclosure sale, and an Assessment Lien

Trustee’s Deed conveying the Property to him was recorded in Denton County

on May 4, 2006.

      On October 31, 2006, the deed to Young and Lee, the Argent Deed of

Trust, and the two assignments of the promissory note and the liens securing

payment of that note were filed in Denton County for the first time. In April of

2007, Chase assigned to Wachovia the promissory note from Lee and Young

                                       3
and the corresponding liens on the Property. This assignment was properly

recorded in Denton County.

      Wachovia brought suit against DiSanti,2 requesting a declaration that its

interest in the Property (via assignment of the promissory note from Lee and

Young and corresponding liens) is superior to DiSanti’s interest, that it has the

right to an accounting from DiSanti of amounts past due pursuant to section

209.011(e)(2) of the Texas Property Code, and that it has the right to redeem

the Property.

      Wachovia moved for summary judgment on its request for a declaration

that its lien is superior to DiSanti’s interest in the Property.3 Wachovia argued

in its summary judgment motion that DiSanti’s interest was subordinate to

Wachovia’s for three reasons: (1) Wachovia was equitably and contractually

subrogated to Washington Mutual’s superior lien position, (2) the deed to

DiSanti provided that the conveyance was made subject to “any and all rights

of prior lienholders” and, consequently, DiSanti’s interest was subject to



      2
       … Wachovia also included claims against Lee and Young in its petition;
after Lee and Young failed to answer, the trial court entered default judgment
against them. They are not parties to this appeal.
      3
        … In its summary judgment motion, Wachovia sought final, rather than
partial, summary judgment because a determination that its interest in the
Property is superior to DiSanti’s interest renders its claims for redemption moot
and fully resolves the case.

                                       4
Wachovia’s lien even though its lien was not of record in Denton County at the

time of the foreclosure sale, and (3) the vendor’s lien reserved in the deed to

Lee and Young and assigned to Wachovia is superior to and prior to DiSanti’s

interest in the Property. DiSanti filed a response to Wachovia’s motion, arguing

that he was a bona fide purchaser for value, without notice of the lien in favor

of Wachovia or any of its predecessors, and that the doctrine of equitable

subrogation did not apply to Wachovia. The trial court, without stating the

specific grounds for its ruling, granted summary judgment for Wachovia, finding

that W achovia’s lien is superior to and prior to DiSanti’s Assessment Lien

Trustee’s Deed.

                           III. S TANDARD OF R EVIEW

      A plaintiff is entitled to summary judgment on a cause of action if it

conclusively proves all essential elements of the claim. See Tex. R. Civ. P.

166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). When

reviewing a summary judgment, we take as true all evidence favorable to the

nonmovant, and we indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v.

Mason, 143 S.W.3d 794, 798 (Tex. 2004).




                                       5
                    IV. W ACHOVIA’S INTEREST IN THE P ROPERTY
                        IS S UPERIOR TO D IS ANTI’S INTEREST


      In his third issue, DiSanti argues that the trial court erred by granting

summary judgment for Wachovia because Wachovia failed to meet its burden

of proof. Specifically, DiSanti contends that in order for the trial court to grant

summary judgment for Wachovia, it had to find (1) that Wachovia’s lien was

superior to DiSanti’s interest in the Property and that DiSanti had knowledge of

Wachovia’s lien on the day of the foreclosure sale, or (2) that Wachovia was

equitably subrogated to the lien rights of Washington Mutual. DiSanti also

argues in his first issue that he had neither actual nor constructive notice of the

lien claimed by Wachovia. 4




      4
        … Wachovia contends on appeal that DiSanti waived his appeal because
he failed to challenge every possible ground asserted by Wachovia for summary
judgment. Specifically, Wachovia argues that DiSanti failed to address
Wachovia’s arguments that the Assessment Lien Trustee’s Deed expressly
subordinates DiSanti’s interest to the rights of prior lienholders and that
Wachovia’s vendor’s lien interest is superior to DiSanti’s interest in the
Property. However, DiSanti’s argument that he was a bona fide purchaser
without notice of Wachovia’s interest in the Property adequately challenges
these grounds. See Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001).
Additionally, in his third issue, DiSanti makes a general assertion that the trial
court erred by granting summary judgment for Wachovia and argues all of the
reasons why it erred by doing so. See Malooly Bros. v. Napier, 461 S.W.2d
119, 121 (Tex. 1970). Therefore, we hold that DiSanti did not waive his
appeal.

                                        6
      A person who acquires property in good faith, for value, and without

notice of any third-party claim or interest is a bona fide purchaser. Fletcher v.

Minton, 217 S.W.3d 755, 758 (Tex. App.— Dallas 2007, no pet.); City of

Richland Hills v. Bertelsen, 724 S.W.2d 428, 429 (Tex. App.—Fort Worth

1987, no writ). A bona fide purchaser acquires a property interest without

being subject to prior claims. Houston First Am. Sav. v. Musick, 650 S.W.2d

764, 769 (Tex. 1983).      Status as a bona fide purchaser is an affirmative

defense to a title dispute. Madison, 39 S.W.3d at 606.

      There is no dispute concerning DiSanti’s purchase of the property in good

faith and for value.   Thus, the bona fide purchaser issue here centers on

whether DiSanti had actual or constructive notice of Wachovia’s interest. See

Fletcher, 217 S.W.3d at 758–59. “Notice” is broadly defined as information

concerning a fact actually communicated to a person, derived by him from a

proper source, or presumed by law to have been acquired. Flack v. First Nat’l

Bank of Dalhart, 148 Tex. 495, 499, 226 S.W.2d 628, 631 (1950). Notice

may be actual or constructive. Id. Actual notice exists when a person actually

knows the facts or should have known them if he had inquired about them after

learning of facts that put him on inquiry.     Bertelsen, 724 S.W.2d at 430.

Constructive notice is notice the law imputes to a person not having personal




                                       7
information or knowledge. Madison, 39 S.W.3d at 606; Flack, 226 S.W.2d at

631–32.

      As a general rule, an unrecorded interest in real property is binding on

those who have knowledge of the interest.         See Tex. Prop. Code Ann. §

13.001(b) (Vernon 2004); Burris v. McDougald, 832 S.W.2d 707, 709 (Tex.

App.—Corpus Christi 1992, no writ). Likewise, an instrument relating to real

property that is not recorded in the deed records of the county in which the

property is located is binding on a subsequent purchaser who has notice of the

instrument. Tex. Prop. Code Ann. § 13.003 (Vernon 2004).

      A purchaser is bound by every recital, reference, and reservation

contained in or fairly disclosed by an instrument that forms an essential link in

the chain of title under which he claims. Westland Oil Dev. Corp. v. Gulf Oil

Corp., 637 S.W.2d 903, 908 (Tex. 1982). Thus, every purchaser of land is

charged with knowledge of all facts appearing in the chain of title through

which he claims that would place a reasonably prudent person on inquiry as to

the rights of other parties in the property conveyed. Williams v. Jennings, 755

S.W.2d 874, 882 (Tex. App.—Houston [14th Dist.] 1988, writ denied) (citing

Blocker v. Davis, 241 S.W.2d 698, 700 (Tex. Civ. App.—Fort Worth 1951,

writ ref’d n.r.e.). The rationale of this rule is that any description, recital of

fact, or reference to other documents in an instrument puts the purchaser upon

                                        8
inquiry, and he is bound to follow up this inquiry, step by step, from one

discovery to another and from one instrument to another, until the whole series

of title deeds is exhausted and a complete knowledge of all the matters referred

to and affecting the estate is obtained. Waggoner v. Morrow, 932 S.W.2d

627, 632 (Tex. App.—Houston [14th Dist.] 1996, no writ) (citing Westland Oil

Dev. Corp., 637 S.W.2d at 908).

      In this case, Wachovia holds a vendor’s lien on the Property through a

series of assignments. If a vendor’s lien encumbers the land, legal title does

not pass to the vendee; instead, the vendee owns the equitable interest along

with a contract for the purchase of land. See Flag-Redfern Oil Co. v. Humble

Exploration Co., 744 S.W.2d 6, 8 (Tex. 1987); see also Walton v. First Nat’l

Bank of Trenton, 956 S.W.2d 647, 651 (Tex. App.—Texarkana 1997, pet.

denied) (noting that when an express vendor’s lien is retained to secure unpaid

purchase money, the vendor retains the superior title).      Because Wachovia

claims legal title to the Property by virtue of its vendor’s lien, DiSanti had the

burden of proving that he was a bona fide purchaser for value, without notice

of other claims to the title.   See, e.g., Bellaire Kirkpatrick Joint Venture v.

Loots, 826 S.W.2d 205, 209 (Tex. App.—Fort Worth 1992, writ denied);

Phillips v. Latham, 523 S.W.2d 19, 24 (Tex. Civ. App.—Dallas 1975, writ ref’d




                                        9
n.r.e.) (noting general rule that one claiming to be a bona fide purchaser has the

burden of proof on that issue).

      Certainly, if the deed conveying the Property to Lee and Young and

Wachovia’s deed of trust, as well as the assignments of the promissory note

from Lee and Young and corresponding liens, had been properly recorded in

Denton County prior to the foreclosure sale, DiSanti’s interest in the Property

would have been subject to Wachovia’s vendor’s lien and deed of trust. See

Tex. Prop. Code Ann. §§ 13.001(a)–(b), .003; Walton, 956 S.W.2d at 651.

But because these interests were not of record in Denton County at the time

of the foreclosure sale, we examine the summary judgment evidence to

determine whether DiSanti nonetheless had notice of this interest when he

purchased the Property at the foreclosure sale.5 See Tex. Prop. Code Ann. §§

13.001(a)–(b), .003; Fletcher, 217 S.W.3d at 758 (citing Bertelsen, 724

S.W.2d at 429).




      5
       … The Assessment Lien Trustee’s Deed provided that DiSanti purchased
the Property subject to “any and all rights of prior lienholders.” Wachovia
argues that because this exception language in DiSanti’s deed is not limited to
the rights of prior lienholders of record, DiSanti’s interest is subject to
Wachovia’s interest. Wachovia’s argument essentially creates an exception to
both the bona fide purchaser defense and the recording requirement, but we
need not address this contention because we hold that DiSanti had notice of
Wachovia’s interest.

                                       10
      The Assessment Lien Trustee’s Deed conveying the Property to DiSanti

states, “[A]ccording to the records of the Association, the present owner(s) of

the above described Property [are] Sok Jo Lee and Kim Sook Young (per Collin

County land records) & Saddlebrook Homes, L.P. (per Denton County land

records).”   The conveyance language of the deed conveys the Property to

DiSanti “together with all and singular the rights and appurtenances thereto in

anywise belonging unto Sok Jo Lee and wife Kim Sook Young & Saddlebrook

Homes, L.P., the prior owner(s) of [the] Property.”

      Because DiSanti is bound by every reference contained in or fairly

disclosed by the Assessment Lien Trustee’s Deed and because that deed

references Lee and Young’s interests in the Property “per Collin County land

records,” DiSanti was placed on inquiry as to the rights of Lee and Young. See

Westland Oil Dev. Corp., 637 S.W.2d at 908; Williams, 755 S.W.2d at 882.

Consequently, DiSanti was charged with constructive notice of Lee and

Young’s interests and, in turn, with notice of every reservation contained in the

deed to Lee and Young. See Waggoner, 932 S.W.2d at 632. Because the

deed to Lee and Young reserved a vendor’s lien for the benefit of Argent,

DiSanti was also charged with constructive notice of that prior and superior

vendor’s lien, which was ultimately assigned to Wachovia. See id. Applying

the appropriate standard of review, indulging every reasonable inference and

                                       11
resolving any doubts in DiSanti’s favor, we conclude that the summary

judgment record conclusively demonstrates that DiSanti had constructive notice

of the vendor’s lien in favor of Wachovia, which defeated his bona fide

purchaser status. See Mason, 143 S.W.3d at 798.

      For these reasons, we hold that Wachovia conclusively established that

its vendor’s lien interest in the Property is superior to DiSanti’s interest in the

Property.6 Thus, we overrule DiSanti’s first and third issues. Because the trial

court’s order granting summary judgment does not state the ground on which

it was granted, DiSanti was required on appeal to negate every possible ground

asserted by Wachovia for summary judgment. See State Farm Fire & Cas. Co.

v. S.S., 858 S.W.2d 374, 381 (Tex. 1993). Because we have held that the

trial court properly granted Wachovia’s summary judgment on the ground that

Wachovia’s vendor’s lien interest is superior to DiSanti’s interest, we must

affirm the trial court’s summary judgment and need not address DiSanti’s other

challenges to the summary judgment based on contractual and equitable



      6
       … Regardless of who had the burden of proof on the bona fide purchaser
issue—i.e., whether DiSanti had the burden to prove such status or Wachovia
had the burden to disprove such status—DiSanti’s contention that he was a
bona fide purchaser without notice of Wachovia’s interest in the Property is
defeated as a matter of law by the references and recitals contained in his
Assessment Lien Trustee’s Deed. Thus, the summary judgment record
establishes that DiSanti had constructive notice of Wachovia’s interest and,
consequently, was not a bona fide purchaser. See Tex. R. Civ. P. 166a(c).

                                        12
subrogation. See Tex. R. App. P. 47.1; FM Props. Operating Co. v. City of

Austin, 22 S.W.3d 868, 872–73 (Tex. 2000).

                               V. C ONCLUSION

      Having overruled DiSanti’s first and third issues and having held that

Wachovia conclusively established its right to summary judgment, we affirm the

trial court’s judgment.


                                                SUE WALKER
                                                JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

DELIVERED: May 14, 2009




                                     13
