                                       IN THE
                               TENTH COURT OF APPEALS

                                       No. 10-12-00105-CV

SHERRIE LOUISE TAYLOR,
                                                                       Appellant
v.

FOREMOST LLOYDS OF TEXAS,
ALVIN LANCE LOUGH
AND BANK OF AMERICA, NA,
                                                                       Appellees



                                From the 18th District Court
                                  Johnson County, Texas
                                Trial Court No. C200900407


                               MEMORANDUM OPINION


      Appellant, Sherrie Louise Taylor, challenges the trial court’s summary judgment

in favor of appellees, Alvin Lance Lough and Bank of America, N.A. (the “Bank”).1 In

one issue, Taylor asserts that the trial court erred in granting summary judgment in

favor of the Bank and denying her summary-judgment motion. We affirm.



      1   Though named as a party to the judgment and appeal, Lough has not filed a brief in this matter.
Taylor v. Foremost Lloyds of Texas   Page 2
                                     I.   BACKGROUND

       The dispute in this case centers on who is entitled to insurance proceeds

associated with a house that burned down. Taylor claims that she is entitled to the

proceeds because, among other things, she and Lough lived together in a house located

at 116 Wood Dale in Burleson, Texas, from 2005 to 2007. Apparently, Taylor continued

living in the house after the couple broke up and Lough moved out in mid-2007.

       In any event, on March 1, 2007, Lough, an “unmarried person,” executed a

homestead lien contract and deed of trust with the Bank for a loan secured by the

property at issue in this case—the proceeds of which, according to Taylor, were used to

buy land to move Lough’s feed store. The contract and deed of trust specifically stated

that Lough granted the Bank a lien . . . “in and to the following described real property,

together with all improvements, all proceeds (including without limitation premium

refunds) of each policy of insurance relating to any of the improvements, or the Real

Property . . . .”

       As of March 1, 2007, the Johnson County property records indicated that title to

the property was vested in Lough. The terms of the contract and deed of trust required

Lough to purchase and maintain “policies of fire insurance with standard extended

coverage endorsements” for the property, including “an endorsement providing that

coverage in favor of Lender will not be impaired in any way by any act, omission or

default of Owner or any other person.” The contract and deed of trust also stated that:

“Whether or not Lender’s security is impaired, Lender may, at Lender’s election, receive

and retain proceeds of any insurance and apply the proceeds to the reduction of the

Taylor v. Foremost Lloyds of Texas                                                  Page 3
indebtedness, payment of any lien affecting the Property, or the restoration and repair

of the Property.”

       Thereafter, Lough purchased a fire insurance policy from Foremost Lloyd’s of

Texas (“Foremost”). On the declarations page of the insurance policy, Lough was listed

as the insured and the Bank was identified as the mortgagee. The “Mortgage Clause” of

the insurance policy provided the following:

       b. We will pay for any covered loss of or damage to buildings or
       structures to the mortgagee shown on the declarations page as interests
       appear.

       c. The mortgagee has the right to receive loss payment even if the
       mortgagee has started foreclosure or similar action on the building or
       structure.

               ....

       e. If we pay the mortgagee for any loss or damage and deny payment to
       you [Lough] because of your acts or because you fail to comply with the
       terms of this policy:

               ....

               (2) the mortgagee’s right to recover the full amount of the
               mortgagee’s claim will not be impaired.

Nowhere in the insurance policy is Taylor listed as an insured.

       In her third amended petition for declaratory relief, Taylor alleged that Lough

executed a quitclaim deed to the property in favor of her on January 29, 2007. However,

Taylor did not record this deed until September 17, 2007.          Furthermore, the Bank

contends in its brief that Lough and Taylor executed reciprocal quitclaim deeds to the




Taylor v. Foremost Lloyds of Texas                                                 Page 4
property on or about January 29, 2007; thus, Taylor did not have a clear ownership

interest in the property.2

        In July 2007, the relationship between Lough and Taylor soured, and a dispute

arose over ownership of the property. After Taylor recorded her deed, Lough filed suit,

seeking a declaration that he is the owner of the property and that Taylor’s deed is

void.3 After several settings, the trial court signed a final judgment in favor of Taylor

on May 26, 2009. Specifically, the final judgment stated that Taylor owned the property

in question pursuant to the quitclaim deed.

        On May 30, 2009, the property was damaged by fire. Thereafter, Taylor sued

Lough and Foremost to recover the proceeds from the insurance covering the property.

The Bank intervened, seeking a declaration that it was entitled to the insurance

proceeds pursuant to the terms of the insurance policy.                      Foremost deposited the

insurance proceeds into the registry of the court and was subsequently non-suited.

        Later, the Bank filed traditional and no-evidence motions for summary

judgment, arguing that it was entitled to the insurance proceeds because: (1) the Bank

is a third-party creditor beneficiary under the insurance policy with standing to enforce

its rights to the proceeds; (2) Taylor lacks standing to challenge the enforceability of the

insurance policy because she is a stranger to the contract; and (3) even if Taylor has

standing, her challenges to the enforceability of the insurance policy fail as a matter of

        2 The record does not contain a copy of the quitclaim deed allegedly executed by Taylor in favor

of Lough. However, Lough directs us to an affidavit he executed and deposition testimony, wherein he
alleged that “Sherrie Taylor simultaneously executed a quitclaim deed of the same property back to me.”
Taylor disputes this assertion.

        3   The Bank was originally named as a party to Lough’s suit, but it was subsequently non-suited.

Taylor v. Foremost Lloyds of Texas                                                                  Page 5
law. The Bank’s summary-judgment motion was scheduled to be heard on February 2,

2012.

        On January 27, 2012, Taylor responded to the Bank’s summary-judgment

motions and also filed a “counter motion” for summary judgment, wherein she argued

that the Bank’s lien is invalid because the Bank had notice of Taylor’s homestead rights

and did not obtain her consent to the lien; the Bank had actual and constructive notice

of Taylor’s ownership interest in the property; res judicata and collateral estoppel

barred the Bank from disputing Taylor’s ownership interest; and the Bank’s lien

violated the Texas Constitution’s prohibitions governing liens on homesteads.

        The Bank objected to Taylor’s “counter motion” for summary judgment because

it was not served at least twenty-one days before the scheduled hearing. See TEX. R. CIV.

P. 166a(c). The record does not contain an explicit ruling on the Bank’s objection.

        On February 2, 2012, the trial court conducted a hearing on the Bank’s

“Amended Traditional and No[-]Evidence Motion for Summary Judgment, Plaintiff’s

Response, Intervenor’s Reply, the evidence on file, and the arguments of counsel.” The

trial court made no mention of Taylor’s “counter motion.” In any event, the trial court

granted the Bank’s summary-judgment motion without specifying the grounds. As a

result of the trial court’s judgment, the Bank was awarded the insurance proceeds

deposited in the court’s registry, and Taylor took nothing.

        Taylor subsequently filed a motion for new trial and a motion for

reconsideration, both of which were denied by the trial court. This appeal followed.




Taylor v. Foremost Lloyds of Texas                                                    Page 6
                                     II.   STANDARD OF REVIEW

       The purpose of a declaratory action is to establish the existing rights, status, or

other legal relationships between the parties. City of El Paso v. Heinrich, 284 S.W.3d 366,

370 (Tex. 2009); see TEX. CIV. PRAC. & REM. CODE ANN. § 37.002(b) (West 2008). Suits for

declaratory judgment are intended to determine the rights of parties when a

controversy has arisen, but before any wrong has been committed. See Armstrong v.

Hixon, 206 S.W.3d 175, 179 (Tex. App.—Corpus Christi 2006, pet. denied); Montemayor v.

City of San Antonio Fire Dep’t, 985 S.W.2d 549, 551 (Tex. App.—San Antonio 1998, pet.

denied).

       Declaratory judgments are reviewed under the same standards as other

judgments and decrees. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.010 (West 2008);

Hawkins v. El Paso First Health Plans, Inc., 214 S.W.3d 709, 719 (Tex. App.—Austin 2007,

pet. denied). We look to the procedure used to resolve the issue at trial to determine the

standard of review on appeal. See Hawkins, 214 S.W.3d at 719; Armstrong, 206 S.W.3d at

179; see also City of Galveston v. Tex. Gen. Land Office, 196 S.W.3d 218, 221 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied).         Because the trial court determined the

declaratory judgment through summary judgment proceedings, we review the

propriety of the trial court’s declarations under the same standards that we apply to

summary judgments. See City of Galveston, 196 S.W.3d at 221; City of Austin v. Garza, 124

S.W.3d 867, 871 (Tex. App.—Austin 2003, no pet.); Lidawi v. Progressive County Mut. Ins.

Co., 112 S.W.3d 725, 730 (Tex. App.—Houston [14th Dist.] 2003, no pet.).



Taylor v. Foremost Lloyds of Texas                                                   Page 7
        The function of a summary judgment is to eliminate patently unmeritorious

claims and untenable defenses, not to deprive litigants of the right to a trial by jury.

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). We review the

grant or denial of a 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); see also Provident Life &

Accident Ins. Co., 128 S.W.3d 211, 215 (Tex. 2003). If the trial court’s order granting

summary judgment does not specify the ground or grounds relied upon for the ruling,

we will affirm the judgment on appeal if any of the theories advanced by the movant

are meritorious.4 Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

        Here, the Bank filed traditional and no-evidence motions for summary judgment

in response to Taylor’s request for a declaration that she is entitled to the insurance

proceeds. When a party moves for both a traditional and a no-evidence summary

judgment on the same ground, we first review the trial court’s judgment under the

        4  Taylor urges us to apply the standard governing instances where both parties have filed
motions for summary judgment. We decline to do so for two reasons. See, e.g., Mid-Continent Cas. Co. v.
Global Enercom Mgmt., 323 S.W.3d 151, 153-54 (Tex. 2010) (stating that when both parties move for
summary judgment and the trial court grants one motion and denies the other, the reviewing court
should review the summary-judgment evidence presented by both sides, determine all questions
presented, and render the judgment the trial court should have rendered). First, the record reflects that
Taylor filed her “counter motion” for summary judgment on January 27, 2012, which was less than
twenty-one days before the scheduled hearing on the motions. See TEX. R. CIV. P. 166a(c) (providing that
the summary-judgment motion and any supporting affidavits shall be filed and served at least twenty-
one days before the time specified for hearing); see also Rutledge v. Miller, No. 10-05-00018-CV, 2006 Tex.
App. LEXIS 889, at **2-3 (Tex. App.—Waco Feb. 1, 2006, no pet.) (mem. op.). Therefore, because Taylor’s
“counter motion” for summary judgment was not filed in compliance with the Rules of Civil Procedure,
the trial court was not required to consider it at the February 2, 2012 hearing. See TEX. R. CIV. P. 166a(c);
see also Etheredge v. Hidden Valley Airpark Assoc., 169 S.W.3d 378, 383 (Tex. App.—Fort Worth 2005, pet.
denied) (noting that summary judgment is a harsh remedy and that courts must strictly construe the
notice requirements of Texas Rule of Civil Procedure 166a). This brings us to the second reason why we
decline to apply the standards suggested by Taylor. The trial court, in its final judgment specifically
noted that it only considered the Bank’s traditional and no-evidence motions for summary judgment,
Taylor’s response, the Bank’s reply, the evidence on file, and the arguments of counsel. Nowhere in the
final judgment does the trial court state that it considered Taylor’s “counter motion” for summary
judgment. Therefore, we decline to apply the summary-judgment standards suggested by Taylor.

Taylor v. Foremost Lloyds of Texas                                                                    Page 8
standards of rule 166a(i) pertaining to no-evidence motions for summary judgment.

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); All Am. Tel., Inc. v. USLD

Commc’ns, Inc., 291 S.W.3d 518, 526 (Tex. App—Fort Worth 2009, pet. denied); see TEX.

R. CIV. P. 166a(i). If the non-movant failed to produce more than a scintilla of evidence

under that burden, then there is no need to analyze whether the movant’s summary-

judgment proof satisfied the rule 166a(c) burden for traditional motions for summary

judgment. See Ridgway, 135 S.W.3d at 600; see also All Am. Tel., Inc., 291 S.W.3d at 526.

       We review a no-evidence motion for summary judgment under the same legal

sufficiency standard used to review a directed verdict. King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 750-51 (Tex. 2003). After an adequate time for discovery has passed, a party

without the burden of proof at trial may move for summary judgment on the ground

that the nonmoving party lacks supporting evidence for one or more essential elements

of its claim. See TEX. R. CIV. P. 166a(i); Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d

675, 682-83 (Tex. App.—Dallas 2000, no pet.). Once a no-evidence motion for summary

judgment has been filed, the burden shifts to the nonmoving party to present evidence

raising an issue of material fact as to the elements specified in the motion. Mack Trucks,

Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006). The trial court should not grant a no-

evidence motion for summary judgment if the nonmovant brings forth more than a

scintilla of probative evidence to raise a genuine issue of material fact on the challenged

element. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009). More than a scintilla of

evidence exists if the evidence would enable reasonable and fair-minded jurors to differ

in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam);

Taylor v. Foremost Lloyds of Texas                                                       Page 9
Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.] 1999, no

pet.) (noting that less than a scintilla of evidence exists when the evidence is “so weak

as to do no more than create a mere surmise or suspicion” (citing Kindred v. Con/Chem,

Inc., 650 S.W.2d 61, 63 (Tex. 1983))). We review the evidence presented by the motion

and response in the light most favorable to the party against whom the summary

judgment was rendered, crediting evidence favorable to that party if reasonable jurors

could, and disregarding contrary evidence unless reasonable jurors could not. Tamez,

206 S.W.3d at 581-82; King Ranch, Inc., 118 S.W.3d at 750.

                                      III.   ANALYSIS

       In what appears to be a multifarious argument, Taylor contends that the trial

court erred in granting the Bank’s summary judgment for reasons previously stated in

her “counter motion” for summary judgment. The Bank counters that Taylor lacks

standing to challenge the enforceability of the insurance policy because she is a stranger

to the contract. The Bank further argues that it is a third-party creditor beneficiary

pursuant to the insurance policy, and as such, it is entitled to the insurance proceeds as

a matter of law.

A.     Third-Party Beneficiaries to Insurance Contracts

       Insurance policies are contracts, so the rights and duties they create and the rules

governing their interpretation are those generally pertaining to contracts. Ulico Cas. Co.

v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008).      Under the general law of

contracts, a party must show either privity or third-party-beneficiary status in order to



Taylor v. Foremost Lloyds of Texas                                                  Page 10
have standing to sue. OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d

726, 728 (Tex. App.—Dallas 2007, pet. denied).

       To qualify as a third-party beneficiary, a third party must show that it is either a

donee or creditor beneficiary of the contract, and not one who is benefited only

incidentally by its performance. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d

647, 651 (Tex. 1999). The intention of the contracting parties is controlling. Id. “The

intention to contract or confer a direct benefit to a third party must be clearly and fully

spelled out or enforcement by a third party must be denied.” Id.; accord Basic Capital

Mgmt., Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894, 900 (Tex. 2011). We glean the

parties’ intention from the words of their contract, and not from what they allegedly

meant. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006);

see also Ostrovitz & Gwinn, LLC v. First Specialty Ins. Co., No. 05-11-00143-CV, 2012 Tex.

App. LEXIS 10379, at *16 (Tex. App.—Dallas Dec. 13, 2012, no pet.). “All doubts must

be resolved against conferring third-party beneficiary status.”        Tawes v. Barnes, 340

S.W.3d 419, 425 (Tex. 2011); see First Union Nat’l Bank v. Richmont Capital Partners I, L.P.,

168 S.W.3d 917, 929 (Tex. App.—Dallas 2005, no pet.) (“If there is any reasonable doubt

as to the intent of the contracting parties to confer a direct benefit on the third party,

then the third-party beneficiary claim must fail.”).       Texas courts have occasionally

recognized third-party beneficiaries in the insurance context when the policy language

so requires. See, e.g., Paragon Sales Co. v. N.H. Ins. Co., 774 S.W.2d 659, 660-61 (Tex. 1989)

(per curiam).



Taylor v. Foremost Lloyds of Texas                                                     Page 11
B.     Discussion

       Here, the evidence indicates that Lough and Foremost entered into the insurance

contract to directly benefit the Bank. In fact, as a condition of the loan, Lough was

required to secure the fire-insurance policy specifically for the Bank’s benefit.

Furthermore, the insurance policy at issue identifies the Bank as the mortgagee and

states that, in the event of damage or loss to the property, the Bank, as mortgagee, is

entitled to the insurance proceeds. Thus, it is clear from the document itself that the

parties intended for the Bank to be a third-party creditor beneficiary to the insurance

policy so long as the Bank’s mortgage encumbered the property. See Stine v. Stewart, 80

S.W.3d 586, 589 (Tex. 2002) (“In contrast, an agreement benefits a ‘creditor’ beneficiary

if, under the agreement, ‘that performance will come to him in satisfaction of a legal

duty owed to him by the promise. This duty may be an indebtedness, contractual

obligation[,] or other legally enforceable commitment owed to the third party.” (internal

citations omitted)). It is also clear from the insurance policy that Lough was the only

named insured. Further, the contract and deed of trust between Lough and the Bank

identifies Lough as the sole owner of the property at the time both documents were

executed.

       Despite this, Taylor asserts that she was the true owner of the property when the

deed of trust and insurance policy were executed, and thus, the insurance policy and

deed of trust are invalid and the Bank is not entitled to the insurance proceeds.

However, in asserting these arguments, Taylor did not proffer probative evidence

indicating that she has standing to challenge the insurance policy. She does, however,

Taylor v. Foremost Lloyds of Texas                                                Page 12
rely on the quitclaim deed, which was signed on January 29, 2007, prior to the execution

of the insurance policy.

       Taylor’s contentions in this case resemble those made in another case—

Automobile Insurance Company of Hartford, Connecticut v. Young, 85 S.W.3d 334 (Tex.

App.—Amarillo 2002, no pet.). In Young, the tenant appellee tried to obtain insurance

proceeds associated with the landlord’s fire-insurance policy that covered the property

where the tenant lived. Id. at 335-36. The tenant “conceded that she was not designated

as an insured under the policy.” Id. at 337. Instead, she “claimed that she was entitled

to recover from Hartford [the insurance company issuing the policy] under constructive

trust or creditor beneficiary theories because she also had an insurable interest in the

property.” Id. Reversing the trial court’s summary-judgment order, the Amarillo Court

of Appeals noted that “a fire insurance policy is a personal contract between the insurer

and the insured named in the policy and a stranger to the policy may not ordinarily

maintain a suit on it” and concluded that the tenant “was a ‘stranger’ to the policy” and,

thus “could not maintain a suit thereon.” Id. at 336-37 (citing St. Paul Lloyd’s Ins. Co. v.

Huang, 808, S.W.2d 524, 527 (Tex. App.—Houston [14th Dist.] 1991, writ denied); Duval

County Ranch Co. v. Alamo Lumber Co., 663 S.W.2d 627, 632 (Tex. App.—Amarillo 1983,

writ ref’d n.r.e.)).

       In this case, Taylor did not produce any evidence showing that she was a named

insured or a party to the insurance policy. Furthermore, the insurance policy does not

indicate that Taylor is a third-party beneficiary of the policy. As such, we agree with

the Bank that Taylor is a “stranger” to the insurance policy and therefore lacks standing

Taylor v. Foremost Lloyds of Texas                                                   Page 13
to challenge its enforceability. See id. at 336-37; Huang, 808 S.W.2d at 527; Duval County

Ranch Co., 663 S.W.2d at 632; Travelers Fire Ins. Co. v. Steinmann, 276 S.W.2d 849, 851

(Tex. Civ. App.—Dallas 1955, no writ) (noting that “by the terms of the policies, the

insurer is not to be liable beyond the interest of the insured in the property, a stranger

to the contract cannot collect thereon simply because he was the owner of an undivided

interest in the property”); see also Campbell v. Auto Ins. Co., No. 07-06-0158-CV, 2007 Tex.

App. LEXIS 3643, at *5 (Tex. App.—Amarillo May 9, 2007, no pet.) (“With respect to

property insurance policies, Texas law has long held that a party who is a complete

stranger to the contract is not in a legal position to recover any interest in the policy

proceeds.”).        Thus, we cannot say that Taylor has raised a material fact issue

challenging the Bank’s status as third-party-creditor beneficiary under the insurance

policy and its entitlement to the insurance proceeds. See Francis, 46 S.W.3d at 242

(noting that when the trial court does not specify the grounds upon which it relies in

granting summary judgment, the summary-judgment order will be affirmed on appeal

if any of the theories advanced by the movant are meritorious).

          In any event, we also note that Taylor’s reliance on the quitclaim deed does not

create a material fact issue about who is entitled to the insurance proceeds. The record

demonstrates that Taylor did not record her deed until September 17, 2007, which was

after (1) Lough and the Bank entered into the insurance contract and deed of trust; and

(2) the Bank recorded its deed of trust in Johnson County.5 See TEX. PROP. CODE ANN. §


   5    The Bank recorded its lien in the “Official Public Records of Johnson County, Texas” on August 9,
2007.


Taylor v. Foremost Lloyds of Texas                                                               Page 14
13.001(a) (West 2004).6           In fact, the Bank included as an exhibit to its summary-

judgment motion a copy of a “Property Report” conducted by Nationwide Appraisal

Services Corporation. The report listed that title to the property was vested in Lough

and that the property was free and clear of any other judgments or liens.

          Based on the foregoing, we conclude that Taylor failed to produce more than a

scintilla of summary-judgment evidence to raise a genuine issue of material fact

regarding her lack of standing to challenge the enforceability of the insurance policy

and her entitlement to the insurance proceeds. See Smith, 288 S.W.3d at 424; Hamilton,

249 S.W.3d at 427; Ridgway, 135 S.W.3d at 600; see also All Am. Tel., Inc., 291 S.W.3d at

526.      Accordingly, we cannot say that the trial court erred in granting summary

judgment in favor of the Bank. See King Ranch, Inc., 118 S.W.3d at 750-51; see also Francis,

46 S.W.3d at 242. We therefore overrule Taylor’s sole issue on appeal.




    6   Section 13.001 of the Texas Property Code provides, in relevant part, that:

    (a) A conveyance of real property or an interest in real property or a mortgage or deed of
        trust is void as to a creditor or to a subsequent purchaser for a valuable consideration
        without notice unless the instrument has been acknowledged, sworn to, or proved and
        filed for record as required by law.

    (b) The unrecorded instrument is binding on a party to the instrument, on the party’s heirs,
        and on a subsequent purchaser who does not pay a valuable consideration or who has
        notice of the instrument.

TEX. PROP. CODE ANN. § 13.001(a)-(b) (West 2004).

Taylor v. Foremost Lloyds of Texas                                                                 Page 15
                                     IV.    CONCLUSION

       Having overruled Taylor’s sole issue on appeal, we affirm the judgment of the

trial court.




                                               AL SCOGGINS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 7, 2013
[CV06]




Taylor v. Foremost Lloyds of Texas                                           Page 16
