author: PER CURIAM.

text:
    Rachel Evette DUNCAN-ANDERSON, Respondent, v. Bonnie L. DUNCAN, Appellant.
    No. ED 93975.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 21, 2010.

      Bonnie L. Duncan, Hillsboro, MO, pro se.
    Rachel Evette, Dunean-Anderson, Herculaneum, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J„ and PATRICIA L. COHEN, J.
   PER CURIAM.

Introduction

Bonnie Duncan (Appellant) appeals the trial court’s judgment granting the respondent a full order of protection pursuant to the Adult Abuse Act, Sections 455.010 through 455.085. Appellant’s brief fails to comply with the rules of appellate procedure so substantially that we cannot review this appeal, and we therefore dismiss it.

We hold pro se appellants to the same standards as attorneys. Johnson v. Buffalo Lodging Assocs., 300 S.W.3d 580, 581 (Mo.App. E.D.2009). “Accordingly, pro se appellants must comply with Supreme Court Rules, including Rule 84.04, which sets forth mandatory rules for appellate briefing.” Id. “Failure to conform to the mandates of Rule 84.04 results in unpreserved allegations of error and constitutes grounds for dismissal of the appeal.” Id. This court finds Appellant’s brief deficient in numerous respects: The brief does not contain a table of cases, statutes, and other authorities cited; a jurisdictional statement; or a “fair and concise” statement of facts. Rule 84.04(a)-(c). Also, Appellant’s brief neither identifies the points relied on nor presents a legal argument in compliance with Rule 84.04(d) and (e).

Rule 84.04(c) requires “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). “Failure to provide a fair and concise statement of the facts that complies with Rule 84.04(c) is a basis for dismissal of the appeal.” In re Marriage of Smith, 283 S.W.3d 271, 274 (Mo.App. E.D.2009). Appellant’s statement of facts is not concise. In her brief, Appellant designates two separate sections “Facts of Case,” and these sections contain extensive discussion of matters not relevant to the issues on appeal. See, e.g., Smith, 283 S.W.3d at 273. Also, Appellant’s statement of facts is argumentative in that it accuses the respondent of misusing the Adult Abuse Act and raises irrelevant arguments about hate crimes, defamation, and the right to privacy. See, e.g., Thompson v. Flagstar Bank, 299 S.W.3d 311, 314 (Mo.App. S.D.2009). Finally, Appellant fails to support each of her factual statements with citations to the legal file or transcript, and she refers to matters not in the record. Rule 84.04(i); see, e.g., Johnson, 300 S.W.3d at 581 (“Rule 84.04(i)’s requirement that the appellant support factual statements in its brief with record citations is mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if factual assertions in the brief are supported by the record.”).

Next, we find that Appellant’s brief violates Rule 84.04(d), which requires that points relied on state briefly and concisely what actions or rulings of the court are challenged and why, in the context of the case, the legal reasons identified support the claim of reversible error. Rule 84.04(d); Falls Condos. Owners’ Assoc., Inc. v. Sandfort, 263 S.W.3d 675, 678 (Mo.App. S.D.2008). “The purpose of the briefing requirements regarding points relied on is to give notice to the party opponent of the precise matters which must be contended with and answered and to inform the court of the issues presented for resolution.” Thompson, 299 S.W.3d at 315 (quotation omitted). Nowhere in her brief does Appellant identify points relied on. “Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made.” Nelson v. Nelson, 195 S.W.3d 502, 514 (Mo.App. W.D.2006). Appellant’s failure to comply with Rule 84.04(d)’s requirements governing points on appeal warrants dismissal of her appeal. See, id.

Finally, the argument section of Appellant’s brief fails to comply with Rule 84.04(e), and likewise preserves nothing for review. Rule 84.04(e); see Smith, 283 S.W.3d at 275. The argument section does not begin with a restatement, or even an initial statement, of the point or points relied on. Rule 84.04(e). Nor does the argument state the applicable standard of review for any claim of error. Rule 84.04(e); see, e.g., Smith, 283 S.W.3d at 275. Finally, the argument is insufficient in that it does not explain why, in the context of the case, the law supports the claim of reversible error. See, e.g., Washington v. Blackburn, 286 S.W.3d 818, 821 (Mo.App. E.D.2009).

To determine whether Appellant is entitled to relief would require us to decipher her points, issues, and arguments, placing this court in the untenable position of acting as Appellant’s advocate. Clemens v. Eberenz Const. Co., Inc., 258 S.W.3d 458, 460 (Mo.App. E.D.2008). We therefore dismiss.

Conclusion

Appellant’s brief so substantially fails to comply with the briefing requirements of Rule 84.04 that it preserves nothing for review. See, e.g., Johnson, 300 S.W.3d at 582. Accordingly, the appeal is dismissed.

      . On this same date, we also dismiss a companion appeal filed by Bonnie Duncan for failure to comply with Mo. Rule Civ. P. 84.04. Daniel Duncan v. Bonnie Duncan, No. ED93966.


source: Caselaw Access Project

author: JANICE M. HOLDER, C.J.,

license: Public Domain

text:
    STATE of Tennessee v. Ralph Byrd COOPER, Jr.
    Supreme Court of Tennessee, at Knoxville.
    May 5, 2010 Session.
    Sept. 21, 2010.

      Mart S. Cizek, Clinton, Tennessee, for the appellant, Ralph Byrd Cooper, Jr.
    Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Rachel West Harmon, Assistant Attorney General, for the appellee, State of Tennessee.
   OPINION

JANICE M. HOLDER, C.J.,

delivered the opinion of the Court,

in which CORNELIA A. CLARK, GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

The defendant appeals his conviction for aggravated rape and his sentence as a repeat violent offender. We hold that the evidence is sufficient to support the defendant’s conviction and that the trial court did not err in relying on a certified judgment of another state’s court to determine beyond a reasonable doubt that the defendant is a repeat violent offender pursuant to Tennessee Code Annotated section 40-35-120. We conclude, however, that the State failed to comply with the notice requirements set forth in section 40-35-120(i)(2) and that the defendant’s sentence as a repeat violent offender therefore constitutes plain error. We affirm in part and reverse in part the judgment of the Court of Criminal Appeals and remand the case to the trial court for a new sentencing hearing.

I. Facts and Procedural History

On April 1, 2003, an Anderson County grand jury indicted the defendant, Ralph Byrd Cooper, Jr., for aggravated rape and aggravated assault. The State of Tennessee subsequently filed a “Notice of Intention to Use Prior Bad Acts for Impeachment and Enhancement of Sentence” on May 12, 2003. In pertinent part, the document states, “The State gives notice of defendant’s prior convictions,” and lists “Sodomy (felony) 3 counts” as a prior conviction of Mr. Cooper in the circuit court in Klamath Falls, Oregon. The notice does not mention Mr. Cooper’s status as a repeat violent offender. The case proceeded to trial in the Criminal Court of Anderson County on June 8 and 9, 2006.

According to the victim’s testimony at trial, she met Mr. Cooper while cruising in a Walmart parking lot in Oak Ridge, Tennessee, in December 2002. They later exchanged telephone numbers. On another occasion, the victim and Mr. Cooper visited his mother’s house, where he lived in a basement apartment.

On January 29, 2003, the victim called Mr. Cooper to ask if she and her friend could “hang out” with him. The victim and her friend went to Mr. Cooper’s apartment. After spending some time there, they left with Mr. Cooper in his truck to buy alcohol. While riding around, the victim drank both beer and Jack Daniel’s. They later went to a party.

The victim testified that she did not remember leaving the party because she was intoxicated. She woke up in Mr. Cooper’s bed. Mr. Cooper was on top of her, and they were both naked. He had his hands around her throat, and he threatened to kill her if she screamed. He attempted to have intercourse with her. She told him to stop. He left the room to obtain a lubricant. When he returned, he penetrated her vagina. They both fell asleep.

When the victim woke up in the morning, she hugged Mr. Cooper at his request and then left the house. Later that day, she reported the incident to the police. Photographs taken that day by the police show red marks on her neck and scratches on her face. Mr. Cooper’s defense at trial was that his sexual acts with the victim were consensual. After hearing the evidence, a jury found Mr. Cooper guilty of aggravated rape.

On June 21, 2006, the State filed a “Sentencing Position” in which it asserted that the conviction placed Mr. Cooper in the category of a “repeat violent offender” requiring a sentence of “imprisonment for life without possibility of parole” pursuant to Tennessee Code Annotated section 40-35-120 (2006), commonly referred to as the “three strikes” law. The State based this assertion on the notice “furnished ... on May 12, 2003[,] that it would use prior sodomy convictions in Oregon in 1995 for sentencing purposes.”

Mr. Cooper did not object at the sentencing hearing to the timing of the State’s notice of his status as a repeat violent offender. The trial court raised the issue sua sponte and concluded that Mr. Cooper had not shown that he was prejudiced by deficiencies in the State’s notice. On finding beyond a reasonable doubt that Mr. Cooper was a repeat violent offender, the trial court imposed the mandatory sentence of life without the possibility of parole pursuant to section 40-35-120(g). Mr. Cooper included the notice issue in his amended motion for new trial but did not raise the issue on appeal. The Court of Criminal Appeals, however, considered whether the post-verdict filing of the notice constituted plain error. See Tenn. R.App. P. 36(b) (allowing appellate courts to raise issues sua sponte affecting the substantial rights of a party). The intermediate appellate court held that the May 12, 2003 filing did not comply with the notice requirements of Tennessee Code Annotated section 40-35-120(i)(2) but that the requirements of plain error were not met. The Court of Criminal Appeals concluded that the “otherwise-reversible error’s effect, if any, on the defendant is not clear from the record.” The intermediate appellate court suggested that Mr. Cooper might be able to establish the prejudice necessary to challenge his conviction during post-conviction proceedings if he could prove that he was unaware of the State’s intent to pursue sentencing as a repeat violent offender and that he would have accepted the six-year plea offer mentioned during Mr. Cooper’s Momon hearing. See Momon v. State, 18 S.W.3d 152, 162 (Tenn.1999).

We granted Mr. Cooper’s application for permission to appeal.

II. Analysis

Mr. Cooper raises three issues on appeal, and we address them in the following order. Mr. Cooper first challenges the sufficiency of the evidence to support the conviction for aggravated rape. He next asserts that the trial court did not properly determine that he was a repeat violent offender pursuant to Tennessee Code Annotated section 40-35-120(g). Finally, Mr. Cooper appeals the determination of the Court of Criminal Appeals regarding the State’s notice of his status as a repeat violent offender.

A.

Because the guilty verdict removed Mr. Cooper’s presumption of innocence and replaced it with a presumption of guilt, Mr. Cooper bears the burden of demonstrating why the evidence presented at trial is insufficient to support the verdict. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.2003). We must reject Mr. Cooper’s challenge to the sufficiency of the evidence if, after considering the evidence in a light most favorable to the State, we determine that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn.1999). Mr. Cooper was convicted of aggravated rape, which is defined as “unlawful sexual penetration of a victim by the defendant” accompanied by the defendant’s causing bodily injury to the victim. Tenn.Code Ann. § 39-13-502(a)(2) (2006).

By convicting Mr. Cooper, the jury credited the victim’s testimony that Mr. Cooper choked her, that he had vaginal sex with her against her will, that she told him to stop and that he was hurting her, and that she believed that he would kill her if she did not cooperate. We are without authority to re-weigh the victim’s testimony. Evans, 108 S.W.3d at 236. Additionally, police photographs of the victim taken the day after the rape show red marks on her neck and scratches on her face. Viewing this evidence in a light most favorable to the State, the evidence is legally sufficient to support Mr. Cooper’s conviction for aggravated rape.

B.

We next consider whether the trial court properly determined Mr. Cooper to be a repeat violent offender for the purpose of sentencing. For this issue, we review the record de novo with a presumption that the trial court’s determinations are correct. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.1991). Pursuant to statute, the court must find “beyond a reasonable doubt that the defendant is a repeat violent offender” for purpose of sentencing. Tenn.Code Ann. § 40-35-120(g). On appeal, however, Mr. Cooper bears the burden of showing that the sentence is improper. Ashby, 823 S.W.2d at 169.

Mr. Cooper contends that the State did not prove beyond a reasonable doubt that he served a “separate period of incarceration,” which is a prerequisite to a trial court finding a defendant to be a repeat violent offender. TenmCode Ann. § 40-35-120(e). At the sentencing hearing, the trial court considered the certified Oregon judgment convicting Mr. Cooper of three counts of sodomy and sentencing him to a maximum of 111 months imprisonment. The trial court concluded that the judgment proved that Mr. Cooper had previously served a separate period of incarceration. Mr. Cooper does not dispute that his Oregon conviction for sodomy has elements similar to Tennessee’s “Rape of a Child” offense, compare Or.Rev.Stat. § 163.405 (West, Westlaw through 2010 Special Session) with Tenn.Code Ann. § 39-13-522 (Supp.2008), and therefore qualifies as a prior conviction pursuant to Tennessee Code Annotated section 40-35-120(e)(4). Mr. Cooper instead asserts that the State must prove the exact dates of his previous confinement.

The repeat violent offender statute defines “separate period of incarceration” to include “a sentence to a community correction program ..., a sentence to split confinement , or a sentence to a periodic confinement.” Tenn.Code Ann. § 40-35-120(e)(2). The judgment for Mr. Cooper’s 1995 sodomy conviction states that he was “sentenced to the custody of the Corrections Division of the State of Oregon for the crime of Sodomy in the First Degree, 3 counts, for a period not to exceed 111 months.” The trial court did not err in concluding that the certified Oregon judgment constituted proof beyond a reasonable doubt that Mr. Cooper had previously served a separate period of incarceration.

C.

Finally, we turn our attention to the notice requirements for sentencing as a repeat violent offender. The statute requires the district attorney general to “file a statement with the court and the defense counsel within forty-five (45) days of the arraignment ... that the defendant is a repeat violent offender.” Tenn.Code Ann. § 40 — 35—120(i)(2). The notice also must convey “the dates of the prior periods of incarceration, as well as the nature of the prior conviction offenses.” Tenn.Code Ann. § 40 — 35—120(i)(2). The only statutory remedy for non-compliance is a forty-five-day continuance “between receipt of notice and trial.” Tenn.Code Ann. § 40-35 — 120(i)(2). If the State does not comply with the notice provision, the defendant is not entitled to release from custody or dismissal of the charges. Tenn.Code Ann. § 40-36-120(0(3).

Mr. Cooper did not present the notice issue to the Court of Criminal Appeals. Because “[r]eview generally will extend only to those issues presented for review,” Tenn. R.App. P. 13(b), the Court of Criminal Appeals reviewed the notice issue pursuant to Rule 36(b), which states that “[w]hen necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal.” A court will grant relief for plain error pursuant to Rule 36(b) only when: “(1) the record clearly establishes what occurred in the trial court; (2) the error breached a clear and unequivocal rule of law; (3) the error adversely affected a substantial right of the complaining party; (4) the error was not waived for tactical purposes; and (5) substantial justice is at stake.” State v. Hatcher, 310 S.W.3d 788, 808 (Tenn.2010) (citing State v. Smith, 24 S.W.3d 274, 282-83 (Tenn.2000)). The Court of Criminal Appeals determined that plain error was not established. We apply a de novo standard of review to determine if the five criteria for plain error have been met.

The record clearly establishes what occurred in the trial court. Contrary to the mandate of Tennessee Code Annotated section 40-35-120(i)(2), the pretrial filing on May 12, 2003, failed to state that Mr. Cooper is a repeat violent offender. The pretrial filing also failed to set forth the nature of the sodomy conviction as a qualifying prior conviction and the dates of the prior period of incarceration, both of which are required by section 40-35-120(f)(2). As a result of these omissions, the May 12, 2003 filing did not qualify as notice pursuant to the repeat violent offender statute. The failure to file this notice prior to trial breached a clear and unequivocal rule of law that post-trial filing of the “Sentencing Position” failed to cure. Moreover, there is no indication that Mr. Cooper waived the issue for tactical reasons. Accordingly, the first, second, and fourth criteria for plain error have been established.

We therefore turn to the question of whether the breach of law adversely affected a substantial right of Mr. Cooper. A substantial right is one that is “so fundamental as to reflect upon ‘the fairness, integrity or public reputation of judicial proceedings.’” State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn.2007) (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

We have not previously addressed the effect of filing notice of the repeat violent offender status after trial and whether such notice affects a substantial right of the defendant. The notice requirement in the repeat violent offender statute is similar to that in Tennessee Code Annotated section 40-35-202(a) (2006), which requires the State to provide notice not less than ten days before trial of its intent to seek enhanced punishment. This Court has held that late filing of such notice on the date of the trial does not render the notice ineffective in the absence of prejudice, particularly when the defense counsel does not move for a continuance. State v. Stephenson, 752 S.W.2d 80, 81 (Tenn.1988). “Generally, if notice is filed late or is filed timely but is otherwise defective, the defendant must show prejudice before the notice will be rendered ineffective.” State v. Carter, 121 S.W.3d 579, 585 (Tenn.2003). Notice providing no relevant information, however, is ineffective. See State v. Adams, 788 S.W.2d 557, 559 (Tenn.1990). Failure to file any notice to seek enhanced sentencing pursuant to Tennessee Code Annotated section 40-35-202(a) is grounds for re-sentencing as a Range I offender. See State v. Pender, 687 S.W.2d 714, 719-20 (Tenn.Crim.App.1984) (holding that “the trial court was without authority to impose Range II sentences upon the defendant” because the State failed to provide notice of its intent to seek enhanced sentencing pursuant to Tennessee Code Annotated section 40-35-202(a) (1982)).

In light of the similar punishments, we find instructive our analysis of the notice requirement for intent to seek imprisonment for life without the possibility of parole for first degree murder. We have held that such notice must be filed before trial. See State v. Gilliland, 22 S.W.3d 266, 275-76 (Tenn.2000). In Gilliland, the State filed a notice of its intent to seek the death penalty, which, by statute, also provides notice that the state also intends to seek imprisonment for life without the possibility of parole as a possible punishment. The State withdrew its notice before trial. Id. at 275. After the defendant’s trial and conviction for felony murder, the State reaffirmed its intention to seek imprisonment for life without the possibility of parole. This Court held that the State’s withdrawal of the notice of intent to seek the death penalty also was a withdrawal of its notice of intent to seek imprisonment for life without the possibility of parole. We declined to hold that a lack of actual prejudice excused the failure to provide notice of the State’s intent. Id. at 276. Because of the importance of intangible considerations such as plea negotiations, “the state is always required to give notice before trial.” Id. (citing Tenn.Code Ann. § 39-13-208(b) (1997) (requiring that written notice be filed thirty days prior to trial)). The Court modified the defendant’s sentence to imprisonment for life. Id. (citing Tenn.Code Ann. § 39-13-208(c) (providing for a sentence of imprisonment for life “[i]f notice is not filed pursuant to subsection (a) or (b)”)). Our holding in Gilliland applies even when the defendant has not objected to the timing of the notice. See, e.g., State v. Dych, 227 S.W.3d 21, 45 (Tenn.Crim.App.2006).

Although the repeat violent offender statute does not have a provision mandating a remedy similar to that of Tennessee Code Annotated section 39-13-208(c), we believe that the severity of the sentence in this case — a mandatory sentence of imprisonment for life without parole — requires a similar result. We therefore conclude that the sentence of imprisonment for life without the possibility of parole was not authorized because the only substantially compliant notice was filed after trial and therefore was ineffective. We hold that the unauthorized sentence adversely affected a substantial right of Mr. Cooper and that remedying this error is in the interest of substantial justice. We therefore remand this case for re-sentencing in accordance with the notice filed on May 12, 2003, to seek enhanced punishment as a multiple, persistent, or career offender pursuant to Tennessee Code Annotated section 40-35-202. Carter, 121 S.W.3d at 585 (“[Fjailure to file any notice of sentencing is grounds for re-sentencing” (citing Pender, 687 S.W.2d at 719-20)).

III. Conclusion

We conclude that the evidence presented at trial was sufficient to support Mr. Cooper’s conviction for aggravated rape and that the trial court did not err in finding that the certified Oregon judgment constituted proof beyond a reasonable doubt that Mr. Cooper had served a separate period of incarceration, as required by the repeat violent offender statute. We further conclude that all five factors of the plain error analysis have been established and that Mr. Cooper’s sentence as a repeat violent offender was plain error. We therefore affirm in part and reverse in part the judgment of the Court of Criminal Appeals. The order of the trial court is vacated, and the case is remanded to the trial court for new sentencing consistent with this opinion. Costs of this appeal are assessed against the appellee, the State of Tennessee.

      . The latter charge was dismissed shortly before trial.

      . Tennessee Code Annotated section 40-35-120 is entitled "Repeat violent offenders— ‘Three strikes,'" but a defendant may be "out” after a second conviction and therefore subject to a mandatory sentence of imprisonment for life without the possibility of parole. See Tenn.Code Ann. § 40-35-120(a)(3)-(6), (e)(l)(B)-(C), (g). The nature of Mr. Cooper's prior conviction places him in the category of defendants who are "out” following a second conviction.


author: CHARLES D. SUSANO, JR., J„

text:
    John Robert HARRELL, et al. v. Elizabeth Barton HARRELL, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    December 7, 2009 Session.
    Jan. 27, 2010.
    Permission to Appeal Denied by Supreme Court Aug. 25, 2010.

      Douglas T. Jenkins, Rogersville, Tennessee, for the appellants, John Robert Harrell, Mildred Harrell, John Harvey Harrell, and Donald Harrell and wife, Debbie Harrell, individually and as parents and next friends of Heather Harrell.
    C. Christopher Raines, Jr., Mt. Carmel, Tennessee, for the appellee, Roma Harrell.
   OPINION

CHARLES D. SUSANO, JR., J„

delivered the opinion of the Court,

in which HERSCHEL P. FRANKS, P.J., and JOHN W. McCLARTY, J., joined.

H.C. Harrell died testate in 1954; he was survived by his wife and three sons, Henry Clay Harrell, James Milton Harrell and John Robert Harrell. His will, prepared by his banker, made provision for his wife and just debts, and left his 152 acre farm to sons James and John “only so long as each shall live.” The will further provides: “At the death of James Milton Harrell his share of the farm shall become the property of his children. At the death of John Robert Harrell his share of the farm shall become the property of his children.” James and John divided the farm by partition deeds in 1975. Henry Clay Harrell died in 1990 without issue, survived only by his wife, Roma Harrell. When James Harrell died in 2007 without issue, survived only by his wife Elizabeth Barton Harrell, John Harrell brought this action against James’ widow seeking a declaration that at James’ death, his interest in the farm reverted to John. Alternatively, John asked that the court hold that the partition deeds converted each brother’s interest in the farm to a fee simple interest. Roma Harrell, by order filed July 15, 2008, appeared and agreed to be bound by the court’s disposition of any interest she had in the subject property, but declined to participate in the proceedings. The case was tried on stipulated facts. The trial court held that the will created a “contingent remainder ... in favor of the ‘children’ of James Milton Harrell [which] failed, and the possibility of reverter passed to John Robert Harrell, James Milton Harrell, and Henry Clay Harrell, Jr. at the death of H.C. Harrell, Sr.” John appeals. We affirm.

I.

The trial court filed a memorandum opinion which concisely and accurately sets out the facts and procedural history, as follows:

The Plaintiffs ... filed [this] action ... on October 16, 2007. The Defendant [Elizabeth] Harrell ... filed an answer to the complaint on January 30, 2008.... Ms. Roma Harrell was determined to be an indispensable party to this declaratory judgment action.
The parties ... have requested that this Court address certain questions of law relative to will construction. By Agreed Order entered July 15, 2008, Ms. Roma Harrell, by counsel, has chosen not to participate in these proceedings. Briefs have been filed and the parties have not requested an additional hearing or oral arguments. Having considered the pleadings and technical record, this Court makes the following findings and conclusions of law.
Certain relevant facts are undisputed. On September 20, 1954, Mr. H.C. Harrell executed his last will and testament. Mr. Harrell died a citizen and resident of Hawkins County, Tennessee, on December 27,1954. His last will and testament was admitted to probate on January 15, 1955 and recorded in the County Court Clerk’s office of Hawkins County, Tennessee, in Will book 5, page 44.
At the time of the death of Mr. Harrell, his heirs at law included his wife, Grace Elkins Harrell, and three children, Henry C. Harrell, James Milton Harrell and John Robert Harrell. Grace Elkins Harrell died on April 6, 1972. Mr. Henry C. Harrell died on May 17, 1990 without issue and survived by his wife, Defendant Roma Harrell. Mr. James Milton Harrell died on September 14, 2007 without issue and survived by his wife, Defendant Elizabeth Harrell. Plaintiff John Robert Harrell is married to Mildred Harrell. They are the parents of Plaintiffs Donald Harrell and John Harvey Harrell. [Donald Harrell is married to Plaintiff Debbie Harrell and they are the parents of Heather Harrell.]
By partition deed dated December 15, 1975, Mr. John R. Harrell conveyed to James Milton Harrell all of his right, title and interest in certain real property. ... By separate partition deed dated December 15, 1975, Mr. James Milton Harrell and John R. Harrell conveyed to John R. Harrell and wife, Mildred M. Harrell, all of their right, title and interest in certain real property. ... At issue is the ownership of that parcel conveyed to James Milton Harrell....
The parties stipulate that the will of Mr. H.C. Harrell was drafted by a non-lawyer, Mr. W. Phipps Britton. The relevant provisions of the last will and testament of Mr. H.C. Harrell are contained in Paragraph Second as follows:
SECOND, After the payment of such debts and funeral expenses, I give, devise and bequeath to my two sons, James Milton Harrell and John Robert Harrell, my farm of one hundred and fifty two (152) acres, located in Carter’s Valley, in the 7th Civil District of Hawkins County, Tennessee, known as the Milton Harrell farm. If these two boys desire a division of the farm, then, such division shall be made by the two brothers as they see fit. However, the division shall be made in such manner that the dwelling, in which we now live, shall be the property of James Milton Harrell. This property shall remain the property of James Milton Harrell and John Robert Harrell, as their interests are stated herein, only so long as each shall live. At the death of James Milton Harrell his share of the farm shall become the property of his children. At the death of John Robert Harrell his share of the farm shall become the property of his children. But, as a condition of this bequest, it is my order that James Milton Harrell and John Robert Harrell each shall pay to Henry C. Harrell the sum of Twenty Five Hundred ($2500.00) Dollars, making a total of Five Thousand ($5000.00) Dollars. Any part of all of this indebtedness may be paid at any time after my death, but no part of the said sum shall be considered due and payable until twelve (12) months after the death of both myself and my wife, Grace Harrell, or until twelve (12) months after the said Grace Harrell shall cease to be my unremar-ried widow, (sic)
The will contains no residuary clause. With Mr. James Milton Harrell having died without children and survived by his spouse, the primary focus is upon the testator’s intention in the event of this factual circumstance.
In the case at bar, the “children” of James Milton Harrell constituted a potential class holding a contingent remainder. In the absence of any “children” existing in the class, the remainder interests failed. Further, no residuary clause exists. If a will contains no residuary clause, it makes no disposition of personal property of the estate other than that which is specifically bequeathed so that the property not specifically bequeathed passes as if the deceased has died intestate, In re: Estate of Jackson, 793 S.W.2d 259 ([Tenn.Ct.App.] 1990).
Based upon the foregoing analysis, this Court concludes that the contingent remainder created in favor of the “children” of James Milton Harrell established a distinct possibility that such would fail for lack of any class members in which to vest. The estate which would have descended to the children of James Milton Harrell instead reverted to the testator and must descend under the law of intestate succession through the estate of H.C. Harrell. The subsequent partition deeds were of no consequence as partition “does not create or confer on the parties thereto any new, different or additional title or enlarge or diminish the estate”, Manhattan Savings Bank v. Bedford [161 Tenn. 187], 30 S.W.2d 227 ([Tenn.] 1930).

(Emphasis and bracketed material added; [sic] and capitalization in original).

The trial court made and filed supplemental findings of fact and conclusions of law, most of which dealt with items of personalty, and none of which altered its opinion as to ownership of the farm. The court entered judgment on December 3, 2008, reciting that “[t]he contingent remainder created in favor of the ‘children’ of James Milton Harrell failed, and the possibility of reverter passed to John Robert Harrell, James Milton Harrell and Henry Clay Harrell, Jr. at the death of H.C. Harrell, Sr.” John filed a notice of appeal with respect to the trial court’s judgment. He subsequently reached a mediated settlement with James’ widow, Elizabeth. The trial court purported to dispose of the case as to Elizabeth by order entered January 22, 2009, approving the settlement. Roma Harrell briefed and argued the issues raised on appeal.

II.

John Harrell raises the following issues: Whether the “Class Gift Doctrine” applies to vest the remainder in the James Milton Harrell property in [the children of John Robert Harrell,] Donald Harrell and John Harvey Harrell, subject to John Robert Harrell’s life estate.
Whether T.C.A. [§ ] 66-1-106 converts the subject devise to a fee simple devise upon execution of the Partition Deeds in this matter.

III.

This case is before us on stipulated facts and exhibits. “When this Court is called upon to construe a will, and there is no dispute in the evidence as to any material fact, then the question on appeal is one of law. Accordingly, our review is de novo with no presumption of correctness accompanying the lower courts’ conclusions of law.” In re Estate of McFarland, 167 S.W.3d 299, 302 (Tenn.2005) (citations omitted).

The cardinal rule in construing a will is to ascertain the intent of the testator from the scope and tenor of the entire will. In re Estate of Vincent, 98 S.W.3d 146, 150 (Tenn.2003). The intent is to be ascertained from what the testator has written and not something he or she is believed to have had in his or her mind. In re Estate of Meade, 156 S.W.3d 841, 844 (Tenn.Ct.App.2004). Certain auxiliary rules have been created as aids to determining the intent of the testator, and are always subject to the limitation, “unless a contrary intention appear from the will.” Eckhardt v. Phillips, 176 Tenn. 34, 137 S.W.2d 301, 304 (1940).

IV.

Before addressing the issues briefed by the parties, we think it appropriate to address sua sponte whether we have jurisdiction in light of the purported dismissal as to Elizabeth Harrell and the prosecution of the appeal against Roma Harrell. See Huntington Nat’l Bank v. Hooker, 840 S.W.2d 916, 922 (Tenn.Ct.App.1991) (acknowledging an appellate court’s prerogative to raise the issue of jurisdiction sua sponte). As we have previously noted, the parties are entirely in agreement that this appeal is pursued only against Roma, and Roma has briefed the issues and participated in oral argument. We are unwilling, however, to assume, as the parties do, that substance will triumph over form, and that everything will work out. In this case, however, we are able under the Tennessee Rules of Appellate Procedure to treat Roma Harrell as the participating appellee and reach the substantive issues in the case.

On December 18, 2008, John Harrell filed notice that he was appealing the judgment filed “12-3-08.” He specifically listed “Elizabeth Barton Harrell” as an appellee but did not list Roma Harrell as an appellee. Upon the filing of the notice of appeal and the docketing of the case, Roma Harrell acquired the right to present to this Court “any question of law” that she saw fit without the need of filing a separate notice of appeal. Tenn. R.App. P. 13(a). The order of dismissal as to Elizabeth filed in the trial court after this court acquired jurisdiction of the case was ineffective. With certain exceptions, trial courts lose jurisdiction to consider motions made after the notice of appeal has been filed. Holladay v. Speed, 208 S.W.3d 408, 414 n. 3 (Tenn.Ct.App.2005). Further, even if the settlement was intended to effect a dismissal of the appeal as to Elizabeth, it was not handled in accordance with Tenn. R.App. P. 15, which, in conjunction with Tenn. R.App. P. 13(a), gives any remaining parties the right to prosecute an appeal to completion. The result of these observations is that we will allow the trial court to give effect to the settlement with Elizabeth on remand, but we will dispose of any issues between John Harrell and Roma Harrell.

John’s primary argument is “that the Will of H.C. Harrell shows the dominant intent and purpose of the testator ... was for the children of James Milton Harrell and John Robert Harrell to inherit the farm creating a ‘class gift’ in the grandchildren of H.C. Harrell.” He attempts to tie this argument to the Class Gift Statute codified at Tenn. Code Ann. § 32-3-104 (2007) to reach the conclusion that “the sons of John Robert Harrell — John Harvey Harrell and Donald Harrell — own the entire farm subject to the life estate of their father, John Robert Harrell.” Even if John is correct that the class is in the grandchildren, the Class Gift Statute would have no application to this case because no class member has died leaving issue. As interpreted in Rutherford, County v. Wilson, 121 S.W.Sd 591, 596 (Tenn.2003), the goal of the statute is to make an otherwise contingent remainder interest in a class member vest and pass to his or her issue. An essential element of the statute is that “a member of the class must die before the time for distribution and must have issue living at the time for distribution.” Id.

Even though we have concluded that the Class Gift Statute has no application to this case, that does not mean that the gift is this case was not a class gift. “A class gift is a gift to a group of persons who are not named, who have one or more characteristics in common, and whose number may vary.” Id. at 595. The question then is whether the gift is to a class, and, if so, what is the class. We agree with Roma that nowhere in the will is there a reference to “grandchildren” as a single class of beneficiaries. The description in the will is in terms of the children of each son, James and John. We also agree with Roma that the clear and express language of the will, once the boys divided the farm, creates two shares or classes, one in the children of James and one in the children of John.

We do not in any manner disregard or disagree with the general rules of construction argued by John. It is true that there is a general presumption in the law that a testator intends to dispose of all of his or her assets and not die partially intestate. Ledbetter v. Ledbetter, 188 Tenn. 44, 216 S.W.2d 718, 720 (1949). It is also true that wills written by non-lawyers will be construed liberally to effectuate the testator’s intent. See Davis v. Anthony, 53 Tenn.App. 495, 384 S.W.2d 60, 62 (1964). Finally, we acknowledge that there is a strong preference in the law for remainders to be treated as vested rather than contingent. See Rutherford County, 121 S.W.3d at 595. However, as we have previously observed, these general or auxiliary rules must give way to intention of the testator as expressed in the language of the will. Eckhardt, 137 S.W.2d at 304. We hold that the language of the will at issue shows a clear intent that each son is to have a life estate followed by a class gift to his children of his share of the farm.

The key question thus becomes what happens to the estate the testator attempted to create in the children of James when James died without issue. Roma refers us to two cases that answer the question. The first is Manhattan Savings Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227 (1930). The will of Virginia Bedford provided the following with regard to her 376 acre farm:

That Julian T. Bedford shall have the West half for life and at his death the remainder shall go to the heirs of his body; that William H. Bedford shall have the East half for life and the remainder shall go to the heirs of his body.

Id. at 228. Julian and William were Virginia’s sons. The will did not address what happened if either son died without issue. William died before Virginia leaving two sons. At Virginia’s death, one of the son’s creditors filed an action to claim the assets he would inherit. Id. at 227. This forced an interpretation of Virginia’s will. Our Supreme Court treated the interest in Julian as a life estate with a contingent remainder in his issue which, upon failing, results in an estate in reversion in the testatrix. Id. at 230-31.

The other case relied on by Roma is Fehringer v. Fehringer, 222 Tenn. 585, 489 S.W.2d 258 (1969). Mr. Fehringer’s will left a life estate in his farm to his two sons, and at either son’s death, his interest was devised to the “heirs of his body.” Son Louis died without children. Id. at 259. The Supreme Court held that the remainder left to the “heirs of [Louis’] body” failed and reverted to the estate of the testator to pass under a residuary clause in the will. Id. at 261-62.

We are persuaded that the present case is controlled by Bedford and Fehringer. The class gift to the children of James failed at his death without issue. The contingent estate then reverted to the estate of the testator. Fehringer, 439 S.W.2d at 262. Since there is no residuary clause in H.C. Harrell’s will, the reversion-ary interest passes by the law of intestate succession. In re Estate of Jackson, 793 S.W.2d 259, 260 (Tenn.Ct.App.1990). Roma Harrell, as the sole beneficiary of Henry Clay Harrell’s will, inherits the part of the farm that would have passed to her husband.

John argues, alternatively, that the power to divide the farm given to John and James in the will is an unlimited power of disposition which changes the life estate of each to a fee, leaving Roma with nothing. John relies on Tenn.Code Ann. § 66-1-106 (2004) for this transformation. The pertinent part of the statute is as follows:

When the unlimited power of disposition, qualified or unqualified, not accompanied by any trust, is given expressly, in any written instrument, to the owner of any particular estate for life or years, legal or equitable, such estate is changed into a fee absolute as to right of disposition ....

The problem with John’s argument is that partition deeds do “not create or confer on the parties thereto any new, different or additional title or enlarge or diminish the estate.” Manhattan Savings, 30 S.W.2d at 230. Thus, in Manhattan Savings, the Court held that beneficiaries who partitioned a farm that they held as co-tenants did not, by the partition, bestow on themselves a greater estate than they really held under the will. All they had the power to do was disclaim their interest in the other beneficiaries’ share. Id. The determinative question is not whether a life tenant is given power to work a deal with a cotenant, but whether the life tenant is given an unlimited power of disposition. Ogle v. Ogle, 880 S.W.2d 668, 669 (Tenn.1994). The cases finding an unlimited power of disposition all involve language expressing a clear intent that the life tenant have clear and unfettered discretion to use the life estate to the point of using it up or selling it, without regard to whether anything is left for the remainder-men. Id. (gathering and discussing cases). Thus, the devise in Ogle of a life estate to the wife “for her lifetime and at her death the remainder, if any at that time, to be divided equally” among the testator’s children, fell “far short” of the requirements of the statute. Id. at 670. The language in H.C. Harrell’s will is even less liberal with the life-tenants. We therefore hold that Tenn.Code Ann. § 66-1-106 does not transform the life estates into fee estates.

V.

The judgment of the trial court is affirmed. However, since the trial court was without jurisdiction to enter a post-judgment order disposing of the case against Elizabeth Harrell, that is a matter that will need to be addressed on remand. Costs on appeal are taxed to the appellants, John Robert Harrell, Mildred Harrell, John Harvey Harrell, Donald Harrell, Debbie Harrell, and Heather Harrell. This case is remanded, pursuant to applicable law, for such other proceedings as are necessary, including entry of an order giving effect to the settlement with Elizabeth, and collection of costs assessed below.

      . For ease of reference, we will sometimes refer to the sons by their first names. No disrespect is intended.

      . John's wife, sons, and their spouses and children were named as additional plaintiffs and appellants, but since John is the primary beneficiary through which all plaintiffs claim, we will refer only to John for simplicity and brevity.

      . The statute states as follows:
      Where a bequest, devise, conveyance, transfer or gift is made to a class of persons subject to fluctuation by increase or diminution of its number in consequence of future births or deaths, and the lime of payment, distribution, vestiture or enjoyment is fixed at a subsequent period or on the happening of a future event, and any member of the class dies before the arrival of that period or the happening of that event, and has issue surviving when the period arrives or the event happens, that issue shall take the share of the property that the member so dying would take if living, unless a clear intention to the contrary is manifested by the will, deed or other instrument.


author: EVELYN V. KEYES, Justice.

text:
    Allon R. HAHN, Individually and d/b/a Hahn’s Gulf Service, Appellant, v. Bertrand R. LOVE, Appellee.
    No. 01-07-00096-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 26, 2009.
    Rehearing Overruled Dec. 12, 2009,

      J. Richard Hall, Ross, Banks, May, Car-on & Cabin, P.C., Houston, TX, for Appellant.
    Charles E. Fitch, Law Office of Charles E. Fitch, P.C., Samuel Lee Milledge, The Milledge Law Firm, P.C., Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.
   OPINION

EVELYN V. KEYES, Justice.

We withdraw our November 6, 2008 opinion and judgment and issue the following in its stead. See Tex.R.App. P. 50.

Appellee Bertrand R. Love, the purchaser of a property located in Harris County, Texas, intervened in a lawsuit between appellant, Allon R. Hahn, individually and d/b/a Hahn’s Gulf Service (collectively, “Hahn”), and Mid-Town Roofing and Construction, Inc. (“Mid-Town”), seeking to enjoin Hahn from carrying out an execution sale on the property to satisfy a judgment lien against a third-party, O’Neal Session, and to remove Hahn’s claims as a cloud on the title. The trial court granted Love’s motion for summary judgment, removing Hahn’s claims as a cloud on Love’s title and dismissing Hahn’s counter-claims for fraudulent transfer and constructive trust against Love. Hahn appeals, contending in five issues that (1) a general warranty deed transferring the property from Session to Mid-Town, dated April 2002, after the expiration of Hahn’s judgment lien, and recorded January 2004, two days prior to revival of the judgment, is void as a matter of law because the description of the land is legally inadequate; (2) Hahn’s second abstract of judgment, filed in March 2004, after his revival of the judgment, attached to the property because no prior valid deed transferred the property from Session; (3) genuine issues of material fact exist as to whether Session fraudulently conveyed the property to Mid-Town and as to Love’s good faith and notice of the alleged fraudulent transfer when he purchased the property in April 2004, hence as to Love’s entitlement to summary judgment on Hahn’s fraudulent transfer claims against him and on Love’s suit to remove the cloud from his title; (4) a legal basis for a constructive trust exists against Love; and (5) the trial court erred in permitting Love to file his motion for summary judgment after the deadline in the docket control order had passed.

We reverse and remand.

Background

On October 20, 1988, Hahn won a judgment against O’Neal Session, C.J. Foreman, and Roofs by C.J., jointly and severally, for $77,136.05 plus interest. On April 16, 1992, Hahn filed an abstract of judgment, but the defendants in the 1988 judgment had no assets to seize at that time. Then, in August 2001, the property that is the subject of this suit was conveyed to O’Neal Session. Hahn’s judgment lien automatically attached to the property by virtue of a properly recorded and indexed abstract of judgment. Hahn’s judgment lien expired on April 16, 2002, however, and his judgment against Session, Foreman, and Roofs by C.J. became dormant.

On April 26, 2002, ten days after Hahn’s judgment lien expired, Session purportedly conveyed the property to Mid-Town, an entity that Hahn contends is owned and operated by members of Session’s immediate family, specifically Pamela Session and Toshoner Session Egans. This transfer was not recorded until January 2004.

In August 2003, after the purported execution of the 2002 deed conveying the property to Mid-Town, O’Neal Session and his wife Myria entered into a contract to sell the property to Walter Strickland for $350,000. Real estate broker Herman Gary was involved in this deal on behalf of Strickland, the purchaser. The deal to sell the property to Strickland fell through on December 2, 2003, when Fidelity National Title Company sent the title commitment to Session and Strickland and requested payoff of Hahn’s judgment lien and the Sessions refused to pay the amount of the judgment lien from the proceeds.

On December 10, 2003, Hahn filed a motion to revive his judgment against Session and sent notice of the hearing to the Sessions.

On January 7, the Sessions and Strickland signed another earnest money contract to convey the property to Strickland for $450,000 and delivered the contract to American Title for closing. This time, Gary acted as broker on behalf of the Sessions.

On January 21, 2004, a General Warranty Deed reflecting the conveyance of the property from Session to Mid-Town on April 26, 2002 was recorded (the “2002 deed”). That deed lacked a metes and bounds description of the property.

Two days later, on January 23, 2004, following a hearing, Hahn obtained an order for the revival of his 1988 judgment against O’Neal Session, C.J. Foreman, and Roofs by C.J. Hahn’s lawyer testified by affidavit:

I filed the motion to revive the judgment and served scire facias on Mr. O’Neal Session by Certified Mail, Return Receipt Requested.... On the date of the hearing before Judge Ken Wise, Mr. Session, Pamela Session, and [her lawyer] appeared and asked the Judge for more time to respond to the motion. They did not announce that two days before they [had] recorded a deed of the subject property from the Sessions to Mid-Town dated almost two years earlier.

On March 1, 2004, Hahn filed for record a second abstract of judgment, again listing O’Neal Session, C.J. Foreman, and Roofs by C.J. as the judgment debtors and creating a judgment lien against their real property.

On March 3, 2004, two days after Hahn refiled his abstract of judgment against O’Neal Session, Session executed a correction deed to clarify the April 26, 2002 conveyance of the property from himself to Mid-Town, which was filed on March 15, 2004. The correction deed added a metes and bounds description of the property.

In support of his motion for summary judgment, Love testified by affidavit that “shortly before April 14, 2004” he received a telephone call from Gary, the real estate broker who had initially represented Strickland and then the Sessions in the two attempted 2003 sales of the property by the Sessions to Strickland. Gary indicated that the property was available for purchase and that Love “would have to act relatively fast because the initial purchaser under a contract could not qualify to close and the contract was about to expire.” Love further testified by affidavit that, “[a]ccording to Mr. Gary, if [the contract expired] then the property would go back on the market.” Love testified by affidavit that, based on the success of his past dealings with Gary, he was interested in the investment opportunity and that he proceeded to purchase the property. Love sent a cashier’s check for $448,587.13 to American Title Company, and Gary took the necessary closing documents for Love to sign in New Orleans, Louisiana.

A few days later, on April 14, 2004, the transaction closed, and Mid-Town executed a deed that conveyed the property to Love. This deed was recorded on April 16, 2004.

In August 2004, Hahn attempted to proceed with an execution sale of the property to satisfy his judgment against Session. Mid-Town sued Hahn, seeking a temporary restraining order and a temporary and permanent injunction prohibiting the execution sale of the property. Love intervened in the suit, seeking an injunction prohibiting the sale of the property and seeking to remove the cloud from his title.

Hahn filed counter-claims against MidTown and Love and a third-party action against Session, his wife Myria Mae Session, and other members of the Session family, Pamela Session and Toshoner Session Egans, seeking a declaratory judgment that he had a valid lien against the property. Specifically, Hahn asked for a judgment declaring (1) that the conveyances of the property from Session to Mid-Town and from Mid-Town to Love were both void as fraudulent conveyances under Chapter 24 of the Texas Business and Commerce Code; (2) that the March 1, 2004 judgment lien attached to the property because the 2002 deed was void for lack of a sufficient legal description at the time the second abstract of judgment was filed for record; and (3) that the April 14, 2004, conveyance of the property from Mid-Town to Love was subject to Hahn’s judgment lien and to the imposition of a constructive trust because Love was not a bona fide purchaser for value, in good faith, and without notice of Hahn’s interest in the property. Hahn also sought an execution sale to satisfy the judgment lien and a money judgment for assets that had been fraudulently transferred.

On July 11, 2005, Love filed a motion for summary judgment, which he supplemented on May 12, 2006. On June 2, 2006, Love filed an amended motion for summary judgment, requesting that the trial court remove Hahn’s claims as a cloud on Love’s title to the property and that Hahn take nothing against him. Love contended that “no judgment lien existed that attached to the Property at the time Love acquired it” or thereafter. Rather, he contended that he took the property by a general warranty deed from Mid-Town, which had taken the property in 2002 by a valid general warranty deed unencumbered by Hahn’s judgment lien, which had expired, and, therefore, the cloud on his title should be removed and he should be dismissed from the suit. Love also claimed that he was entitled as a matter of law to summary judgment on Hahn’s fraudulent transfer claims and to removal of the cloud from his title because he was a bona fide purchaser of the property for value, in good faith, and without notice under section 24.009(a) of the Texas Business and Commerce Code and under section 13.001 of the Property Code. Therefore, Hahn was entitled to take nothing from him with respect to those claims.

Love’s motion for summary judgment was filed as both a traditional and no-evidence motion for summary judgment. The trial court granted Love’s motion for summary judgment on July 6, 2006. On January 12, 2007, the trial court severed the claims between Hahn and Love from the rest of the case, making the summary judgment in Love’s favor final and appeal-able. This appeal of the trial court’s July 2006 court order granting Love’s motion for summary judgment followed.

Standard of Review

We review de novo the trial court’s grant of summary judgment. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). We must make inferences, resolve doubts, and view the evidence in the light most favorable to the non-movant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). Love’s motion for summary judgment contained both traditional and no-evidence grounds for summary judgment. See Tex.R. Civ. P. 166a(c), (i).

A traditional summary judgment under Rule of Civil Procedure 166a(c) is properly granted only when the movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Knott, 128 S.W.3d at 215-16. Summary judgment is proper on claims for which the movant is the defendant only when the movant negates at least one element of each of the plaintiffs causes of action or when the movant conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); see also Rhone-Poulenc Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). If the movant conclusively negates an element of each of the plaintiffs causes of action or conclusively establishes its own cause of action the burden shifts to the non-movant to respond with evidence raising a genuine issue of material fact that would preclude summary judgment. See Rhone-Poulenc, 997 S.W.2d at 222-23. In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in favor of the non-movant. Knott, 128 5.W.3d at 215.

A no-evidence summary judgment motion asserts that no evidence exists as to at least one essential element of the non-movant’s claims on which the non-movant would have the burden of proof at trial. Bendigo v. City of Houston, 178 S.W.3d 112, 114 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (citing Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex.App.-Austin 1998, no pet.)). The trial court must grant the motion unless the non-movant produces summary judgment evidence that raises a genuine issue of material fact. Tex.R. Civ. P. 166a(i); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). The movant “must be specific in challenging the evi-dentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent’s case.” Tex.R. Civ. P. 166a(i), 1997 cmt.; Mott v. Red’s Safe and Lock Servs., Inc., 249 S.W.3d 90, 97 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Moreover, “[paragraph (i) does not apply to ordinary motions for summary judgment under paragraphs (a) or (b), in which the movant must prove that it is entitled to summary judgment by establishing each element of its claim or defense as a matter of law.” Tex.R. Civ. P. 166a(i), 1997 cmt.; Brown v. Hearthwood II Owner’s Ass’n, Inc., 201 S.W.3d 153, 157-58 & n. 7 (Tex.App.-Houston [14th Dist.] 2006, pet. denied).

In his amended motion for summary judgment, Love failed to identify any specific element of any of Hahn’s claims on which Hahn had the burden of proof and had produced no evidence. Therefore, we dismiss Love’s no-evidence motion for summary judgment as conclusory and address only his traditional motion for summary judgment. See Tex.R. Civ. P. 166a(i), 1997 cmt.; Brown, 201 S.W.3d at 157-58 & n. 7. When, as here, a trial court’s order granting summary judgment does not specify the grounds relied upon, we affirm the summary judgment if any of the summary judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex.2000).

Love’s Right to Summary Judgment on Hahn’s Claims Under the Fraudulent Transfer Act and Love’s Suit to Remove the Cloud from His Title

In his second and third issues, Hahn argues that Love was not entitled to summary judgment because Love did not prove as a matter of law either (1) that the conveyances of the property to Mid-Town and to Love were not fraudulent or (2) that Love himself was a bona fide purchaser of the property for value without notice and in good faith. We address these issues together with respect to both Hahn’s fraudulent transfer claims and Love’s suit to remove the cloud from his title.

1. Hahn’s Claims Under the Fraudulent Transfer Act

Love was awarded summary judgment on Hahn’s claims against him under the Fraudulent Transfer Act on the ground that he was entitled to the bona fide purchaser defense in the Act set out at section 24.009(a) of the Business and Commerce Code. See Tex. Bus. & Com.Code Ann. § 24.009(a) (Vernon 2002). Section 24.009(a) states that a “transfer or obligation is not voidable under Section 24.005(a)(1) of this code against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee.” Id.

Fraudulent Transfer

A fraudulent transfer is a transfer by a debtor with the intent to hinder, delay, or defraud his creditors by placing the debt- or’s property beyond the creditor’s reach. Tex. Bus. & Com.Code Ann. § 24.005(a)(1) (Vernon 2002) (“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 ... with actual intent to hinder, delay, or defraud any creditor of the debtor.”); Nobles v. Marcus, 583 S.W.2d 928, 925 (Tex.1976).

The actual intent to defraud is shown, among other things, by evidence that the transfer was made to an insider, including a relative; the transfer was concealed; the debtor was sued or threatened with suit before the transfer and the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred; the debtor was insolvent; and the transfer occurred shortly before or after a substantial debt was incurred. Tex. Bus. & Com.Code Ann. § 24.005(b) (Vernon 2002). A transfer to an insider is one of the factors in proving actual intent to defraud under the Fraudulent Transfer Act. See Tex. Bus. & Com. Code Ann. § 24.005(b)(1) (listing factors).

The facts and circumstances set out in section 24.005(b) that may be considered in determining fraudulent intent are non-exclusive and are considered mere “badges of fraud.” Flores v. Robinson Roofing & Const. Co., Inc., 161 S.W.3d 750, 755 (Tex.App.-Fort Worth 2005, pet. denied). Therefore, because “ ‘fraudulent intent is only to be deduced from facts and circumstances which the law considers as mere badges of fraud, and not fraud per se, these must be submitted to the trier of fact, which draws the inference as to the fairness or fraudulent character of the transaction.’ ” Id. (quoting Coleman Cattle Co., Inc. v. Carpentier, 10 S.W.3d 430, 433 (Tex.App.-Beaumont 2000, no pet.)); see also Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769, 774 (1957). Thus, “[t]he question of whether a debtor conveyed property with the intent to defraud creditors is ‘ordinarily a question for the jury or the court passing on the fact’” Flores, 161 S.W.3d at 755 (quoting Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.1986)); see also Equitable Trust Co. v. Roland, 644 S.W.2d 46, 51 (Tex.App.-San Antonio 1982, writ ref d n.r.e.) (pointing out that trial court’s decision to grant instructed verdict on fraudulent conveyance issues “was in contradiction of the general rule that the existence of a fraudulent conveyance is a question for the trier of the facts”). “Intent is a fact question uniquely within the realm of the trier of fact because it so depends upon the credibility of the witnesses and the weight to be given to their testimony.” Flores, 161 S.W.3d at 755.

If intent to defraud is proved, a creditor may obtain “avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim,” “an attachment or other provisional remedy,” “an injunction against further disposition by the debtor or a transferee, or both, of the asset transferred,” or “any other relief the circumstances may require.” Tex. Bus. & Com. Code Ann. § 24.008(a) (Vernon 2002). Also, “If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.” Id. § 24.008(b).

Bona Fide Purchaser Defense

The remedies provided creditors by the Act are, however, subject to the limitation in Section 24.009 of the Business and Commerce Code, providing for a bona fide purchaser defense. Specifically, section 24.009(a) of the Act states that a “transfer or obligation is not voidable under Section 24.005(a)(1) of this code against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obli-gee.” Id. § 24.009(a) (Vernon 2002). Good faith is thus an affirmative defense to a fraudulent transfer claim. Flores, 161 S.W.3d at 756. A person who invokes that affirmative defense “carries the burden of establishing good faith and the reasonable equivalence of the consideration obtained.” Id. (quoting UnifoRM Fraudulent Transfer Act § 8 cmt. 1, 7A II U.L.A. 352 (1999)). Thus, in seeking summary judgment on his bona fide purchaser affirmative defense, Love had the burden to prove as a matter of law that he took the property in good faith. See Flores, 161 S.W.3d at 756; Rhone-Poulenc, 997 S.W.2d at 223. To defeat summary judgment based on such proof, Hahn had to raise a material fact issue on Love’s good faith. See Rhone-Poulenc, 997 S.W.2d at 222-23.

A transferee who takes property with knowledge of such facts as would excite the suspicions of a person of ordinary prudence and put him on inquiry of the fraudulent nature of an alleged transfer does not take the property in good faith and is not a bona fide purchaser. See Wright v. Linn, 16 Tex. 34, 1856 WL 4851, at *5 (Tex.1856) (holding that lack of good faith is proved by any “competent” means, which affords any fair presumption or inferences as to the real object and intention of the parties, tending to show knowledge of “the fraudulent acts and intentions of the [transferor]”); First S. Props., Inc. v. Gregory, 538 S.W.2d 454, 457-58 (Tex.Civ. App.1976) (holding that transferee "without actual or constructive notice of circumstances tending to show fraudulent intent of transferor is bona fide purchaser); see also Flores, 161 S.W.3d at 756 (defining good faith as lack of awareness of transfer- or’s intent). Notice of fraudulent intent can be either actual or constructive. See Madison v. Gordon, 39 S.W.3d 604, 606 (Tex.2001); First S. Props., 538 S.W.2d at 457-58. Actual notice results from personal information or knowledge; constructive notice is notice the law imputes to a person not having personal information or knowledge. Madison, 39 S.W.3d at 606; see Carr v. Hunt, 651 S.W.2d 875, 880 (Tex.App.-Dallas 1983, writ ref'd n.r.e.) (finding no notice of actual knowledge of fraudulent acts or facts that would have put purchaser of property on further inquiry as to possible claims of fraud).

The question of whether a party has notice is a “question of fact which is foreclosed by the judgment of the trier of the facts; it becomes a question of law only when there is no room for ordinary minds to differ as to the proper conclusion to be drawn from the evidence.” OFerral v. Coolidge, 149 Tex. 61, 228 S.W.2d 146, 148 (1950). Thus a transferor’s notice of fraudulent intent is a question of fact that generally goes to the jury. See Wright, 16 Tex. 34, 1856 WL 4851, at *5 (because proof positive of actual knowledge of purchaser of property and fraudulent acts of vendor could seldom be obtained, evidence conducing to prove fraudulent intent should have been permitted to go to jury to decide whether assignment was fraudulent and whether purchaser “was party to and affected by the attempted fraud of his vendor”); see also Hardy Road 13.4 Joint Venture v. Med. Ctr. Bank, 867 S.W.2d 889, 893 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (noting that whether or not party had notice of title issues is generally fact issue and thus is inappropriate for resolution by summary judgment).

Application of the Law

The evidence shows that this case is no exception to the rule that fraudulent transfer and bona fide purchaser status are generally questions for the trier of fact that are inappropriate for summary judgment.

Love stated in his motion for summary judgment and in his affidavit that he purchased the property for nearly $450,000. Hahn does not dispute Love’s summary judgment evidence that Love paid a reasonably equivalent value for the property. However, Love also had to prove that he was a purchaser in good faith as a matter of law and was, therefore, entitled to summary judgment on Hahn’s claims.

Love argues that the alleged legal sufficiency of the 2002 deed proves that MidTown became the true owner of the property in 2002, when there was no judgment lien against Session attached to the property. Therefore, Love argues that the property was clear of Hahn’s lien when Session sold it to his predecessor, MidTown, which validly conveyed it to him in April 2004. The lien Hahn filed on the revived judgment in March 2004 was invalid because Session had sold the property when there was no judgment lien encumbering it, and therefore Love was not on notice of a valid lien. Love also states that he did not have actual or constructive knowledge of any intent to defraud in the transfer of the property from Session to Mid-Town or from Mid-Town to himself.

The only evidence Love presented to prove his lack of notice of Hahn’s claim was his own affidavit. In his affidavit, Love testified that at the time he purchased the property he did not know O’Neal Session, Pamela Session, Toshoner Session Egans, or Hahn and did not know anything about Mid-Town except that it was the owner of the property. Love testified, “Shortly before April 14, 2004, I received a telephone call from Herman Gary. Herman Gary is a local realtor in Houston who I have known for several years. In the past I have invested in real estate in Houston and have utilized Mr. Gary on several occasions.” Gary stated “that the property in question in this lawsuit was available for purchase and that it represented a good perspective [sic] investment,” and he “indicated that I would have to act relatively fast because the initial purchaser under a contract could not qualify to close and the contract was about to expire.” Love averred that he “purchased the property in good faith, for a valuable consideration and had no knowledge of any claim by Hahn whatsoever.”

However, in tension with his claim in his affidavit that he “had no knowledge of any claim by Hahn whatsoever,” Love also pled in his motion for summary judgment that Hahn had alleged that “Love’s father was a close personal friend of Herman Gary, the real estate broker, that Love had known Gary for 20 years and that Gary brought him many deals,” that he, Love, “had loaned Gary and Strickland [the initial intended buyer of the property] money on prior occasions” and that “Strickland bought other property from Love on prior occasions.” Love stated that because of the success of his past dealings with Gary, he was interested in the investment opportunity and proceeded to purchase the property by sending a cashier’s check for $448,587.13 to American Title Company— the same title company for the attempted sale of the property to Strickland as well as to Love — and that Gary took the necessary closing documents for Love to sign in New Orleans, Louisiana.

The Texas Rules of Civil Procedure provide that a summary judgment “may be based on uncontroverted testimonial evidence of an interested witness ... if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.” Tex.R. Civ. P. 166a(c). Love’s testimony is “clear, positive and direct,” but it is not “otherwise credible and free from contradictions and inconsistences” with regard to Love’s claimed lack of “knowledge of any claim by Hahn whatsoever.” Rather, Love acknowledged that he had past real estate deals with Gary, a realtor whom he had known for “several” years, and he acknowledged in his motion for summary judgment that Hahn had claimed that Love “had loaned Gary and Strickland (the initial intended buyer of the property) money on prior occasions,” and that “Strickland bought other property from Love on prior occasions,” while he also stated in his affidavit in support of that motion that he knew from Gary that he had “to act relatively fast because the initial purchaser under a contract could not qualify to close and the contract was about to expire.”

In addition to Love’s own averrals regarding his relationship with both Gary and Strickland, Hahn produced evidence of numerous facts raising an inference of fraudulent conveyance and of Love’s actual or constructive knowledge of fraudulent intent in the transfers of the property, including the following:

• The 2002 deed from O’Neal Session to Mid-Town, an alleged insider corporation controlled by Session’s daughter and/or granddaughter occurred immediately after Hahn’s original judgment lien on the property expired, yet it was not recorded until 2004, well after the second judgment lien on the property naming O’Neal Session as the debtor had attached.
• After the purported execution of the 2002 deed, O’Neal Session and his wife Myria — not Mid-Town — executed an earnest money contract on or about August 29, 2003, to convey the property to Strickland; Gary was the realtor who represented Strickland. O’Neal and Myria delivered the contract to Fidelity National Title Company. Fidelity asked for a judgment payoff for Hahn’s outstanding judgment lien. O’Neal and Myria announced withdrawal and cancellation of the contract for sale to Strickland on December 2, 2003.
• Hahn filed a motion to revive his judgment and lien a week later on December 10, 2003 and served scire facias on O’Neal Session.
• About January 7, 2004, O’Neal and Myria signed another earnest money contract for conveyance of the property to Strickland for $450,000. This time Gary was the realtor for O’Neal and Myria Session.
• On January 21, 2004, two days before the hearing on revival of the judgment, Pamela Session, recorded the 2002 deed conveying the Property to Mid-Town, with its allegedly defective legal description.
• On January 23, 2004, Hahn’s judgment was revived, and he filed an abstract of judgment listing O’Neal Session as the debtor on March 1, 2004.
• O’Neal and Myria Session filed a correction deed in the transfer of the property from them to Mid-Town on March 15, 2004.
• On April 14, 2004, Mid-Town conveyed the property to Love by general warranty deed pursuant to an earnest money contract that identified the sellers of the property as O’Neal and Myria. This time Gary served as the broker for Love, who, by his own admission, had known Gary and Strickland well for a long time and had done deals with them. No distribution of the proceeds of the sale was made to Hahn, despite his judgment lien against Session.

Hahn points out that Gary, the broker who acted as Love’s agent for the purchase of the property, had previously acted in the first abortive attempted sale of the property to Strickland in 2003 as the broker for Strickland and in the second abortive sale in January 2004 as the broker for both Strickland and the judgment debtor Session. The summary judgment record also reflects that both attempted sales by Session to Strickland in 2003 took place after the property was purportedly conveyed from Session to Mid-Town in 2002, and both attempted sales took place before the purported 2002 deed was recorded. It further reflects that the 2002 deed was recorded after Session received notice of Hahn’s suit to revive his judgment hen and that, similarly, the correction deed was filed after Hahn’s abstract of judgment lien against Session had been refiled in March 2002.

Gary as the broker for Love, Strickland, and Session in the three transactions necessarily had notice of each of these facts, as well as of both attempts by Session to sell the property to Strickland after the property was purportedly conveyed to Mid-Town in 2002, and, therefore, of Hahn’s interest in the property. These facts, as well as Love’s own statements and his adoption of the facts stated in Hahn’s pleadings, are inconsistent with Love’s claim that he had “no knowledge of any claim by Hahn whatsoever,” since he acknowledged that he knew about a prior contract for the sale of the property that had not gone through — namely, the prior contract between Session and Strickland, the “initial purchaser” — and that he had known both the broker Gary and Strickland for years and had done real estate deals with them and loaned them money.

The close nature of Love’s long-standing business relationship with Gary and Strickland and the nature of Gary’s obligations to Love as his broker raise fact questions as to whether Love had either actual or constructive notice that the Sessions’ conveyance of the property to MidTown was fraudulent and that Mid-Town might not have a clear title to the property. See Janes v. CPR Corp., 623 S.W.2d 733, 740 (Tex.App.-Houston [1st Disk] 1981, no writ) (“A broker is a fiduciary required to exercise fidelity in good faith toward his principal in all matters within the scope of his employment.... This requirement not only forbids conduct on the part of the broker which is fraudulent or adverse to his client’s interest, but also imposes upon him the positive duty of communicating all information he may possess or acquire which is, or may be, material to his employer’s advantage.”).

Because there are fact questions both as to whether the transfer of the property to Love was fraudulent and as to Love’s actual or constructive notice of facts and circumstances indicating the intent to defraud for purposes of the Fraudulent Transfer Act, we hold that Love failed to establish his entitlement to summary judgment on his bona fide purchaser affirmative defense under section 24.009(a) of the Texas Business and Commerce Code. We sustain Hahn’s second and third issues insofar as they relate to Hahn’s fraudulent transfer claims.

2. Love’s Right to Summary Judgment on his Suit to Remove Cloud on Title

Hahn also contends that material fact issues precluded summary judgment on Love’s suit to remove the cloud on his title based on Love’s claim to be a bona fide purchaser without notice of a valid claim against the property.

A bona fide purchaser is protected under Texas law against an interest in property, such as Hahn’s judgment creditor’s lien, unless the instrument was on file at the time of the purchase. Specifically, section 13.001 of the Texas Property Code states:

(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) (Vernon 2004).

“A cloud on title exists when an outstanding claim or encumbrance is shown, which on its face, if valid, would affect or impair the title of the owner of the property.” Angell v. Bailey, 225 S.W.3d 834, 838 n. 6 (Tex.App.-El Paso 2007, no pet.). “Any deed, contract, judgment or other instrument not void on its face that purports to convey an interest in or make any charge upon the land of a true owner, the invalidity of which would require proof, is a cloud upon the legal title of the owner.” Johnson v. Williams, No. 01-05-00445-CV, 2006 WL 1653656, at *4 (Tex.App.-Houston [1st Dist.] June 15, 2006, pet. denied) (mem.op.) (quoting Best Inv. Co. v. Parkhill, 429 S.W.2d 531, 534 (Tex.Civ.App.-Corpus Christi 1968, writ dism’d w.o.j.)); In re Stroud Oil Props., Inc., 110 S.W.3d 18, 26 (Tex.App.-Waco 2002, no pet.).

The principal issue in a suit to remove a cloud from a title, or a suit to quiet title, is the existence of a cloud that equity will remove. Johnson, 2006 WL 1653656, at *4; Bell, 606 S.W.2d at 952-53. An action to remove a cloud from title exists “to enable the holder of the feeblest equity to remove from his way to legal title any unlawful hindrance having the appearance of better right.” Bell, 606 S.W.2d at 952 (quoting Thomson v. Locke, 66 Tex. 383, 1 S.W. 112, 115 (1886)). In a suit to remove a cloud from his title, the plaintiff has the burden of supplying the proof necessary to establish his superior equity and right to relief. See Bell v. Ott, 606 S.W.2d 942, 952 (Tex.Appi-Waco 1980, writ ref'd n.r.e.). That is, the plaintiff must prove, as a matter of law, right, title, or ownership in himself with sufficient certainty to enable the court to see that he has a right of ownership and that the alleged adverse claim is a cloud on the title that equity will remove. See Johnson, 2006 WL 1653656, at *4; Wright v. Matthews, 26 S.W.3d 575, 578 (Tex.App.-Beaumont 2000, pet. denied) (citing Ellison v. Butler, 443 S.W.2d 886, 888-89 (Tex.App.-Corpus Christi 1969, no writ)).

Love argues that he is entitled to summary judgment removing the cloud from his title because he has proved as a matter of law that there was no lien on the property when it was validly conveyed to his transferor Midtown by general warranty deed in 2002 and, therefore, the property was free of Hahn’s lien when Love purchased the property from Mid-Town in April 2004. Thus, Love had no notice of a valid lien on the property.

Love’s argument is without merit. Hahn’s lien was an “instrument not void on its face that purport[ed] to ... make [a] charge upon the land of a true owner, the invalidity of which would require proof.” Johnson, 2006 WL 1653656, at *4; In re Stroud Oil Props., 110 S.W.3d at 26. It was, therefore, by definition, a cloud upon Love’s legal title. See Johnson, 2006 WL 1653656, at *4; In re Stroud Oil Props., 110 S.W.3d at 26. The Texas Supreme Court has held that “a purchaser is bound by every recital, reference and reservation contained in or fairly disclosed by any instrument which 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). The Westland Oil court stated:

The rationale for the rule is that any description, recital of fact, or reference to other documents puts the purchaser upon 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.

Id. (quoting Loomis v. Cobb, 159 S.W. 305, 307 (Tex.Civ.App.-El Paso 1913, writ ref'd)).

Here, a title search of the property would have indicated the nature of the conveyance from the Sessions to MidTown. See First S. Props., Inc. v. Vallone, 533 S.W.2d 339, 340 (Tex.1976) (outlining appellant’s title search as including “a courthouse search of the grantor-grantee indices, deed of trust records, lis pendens records, abstract of judgment records, mechanic’s and materialman’s lien records, and the federal bankruptcy records, and a search of indices to the same records at [a Houston title company]”). The chain of title clearly reflected the Sessions’ conveyance of the property to Mid-Town in 2002 — a conveyance that several title searches indicated was of questionable validity because the 2002 deed did not contain a metes and bounds description of the property. And it clearly indicated the March 15, 2004 filing of the correction deed that was executed on March 3, 2004, two days after Hahn’s judgment lien against O’Neal Session was refiled. Moreover, previous title searches had returned information regarding Hahn’s interest in O’Neal Session’s property. These facts also raise a fact question as to whether Love had, or should have had, notice of Hahn’s interest in the property. See Martin v. Cadle Co., 133 S.W.3d 897, 905 (Tex.App.-Dallas 2004, pet. denied) (holding that party “cannot be considered innocent purchasers without notice because, although they submitted affidavit testimony stating they purchased the property in good faith, they are charged with knowledge of all facts appearing in the chain of title to the property” and holding that suspicious circumstances in timing of transfer “put them on notice of the defects within their chain of title”).

Moreover, as shown above, Hahn produced summary judgment evidence, in addition to the information a title search would have shown, sufficient to raise material fact questions of facts and circumstances giving rise to the inference of fraud and of Love’s actual or constructive notice of those facts. Accordingly, we hold that the trial court erred in granting Love summary judgment on his suit to remove the cloud from his title. See Tex.R. Civ. P. 166a(e); Knott, 128 S.W.3d at 215-16 (holding that summary judgment is properly granted only when there are no genuine issues of material fact).

We sustain Hahn’s first, second, and third issues insofar as they relate to Love’s suit to remove the cloud from his title.

Love’s Right to Summary Judgment on Hahn’s Counter-Claim for a Constructive Trust

In his fourth issue, Hahn claims that a legal basis exists for imposing a constructive trust against Love. To be entitled to summary judgment on Hahn’s counterclaim that a constructive trust should be imposed on the property, Love was required to prove as a matter of law that Hahn failed to meet at least one of the requirements for imposing a constructive trust. Science Spectrum, Inc., 941 S.W.2d at 911. In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the non-movant, Hahn, must be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in favor of the non-movant. Knott, 128 S.W.3d at 215.

A constructive trust is an equitable remedy created by the courts to prevent unjust enrichment — a breach of duty or an actual or constructive fraud must be present in order to impose a constructive cause. See Medford, v. Medford, 68 S.W.3d 242, 248 (Tex.App.-Fort Worth 2002, no pet.). To establish that a constructive trust exists, the proponent must prove (1) breach of a special trust, fiduciary relationship, or actual fraud; (2) unjust enrichment of the wrongdoer; and (3) tracing to an identifiable res. Hubbard v. Shankle, 138 S.W.3d 474, 485 (Tex.App.-Fort Worth 2004, pet. denied) (citing Mowbray v. Avery, 76 S.W.3d 668, 681 n. 27 (Tex.App.-Corpus Christi 2002, pet. denied)).

Love argues in his motion for summary judgment that Hahn presented no evidence of any prior relationship between Hahn and Love and that strict proof of a prior confidential relationship between the parties is required. He cites Hamblet v. Coveney to support his contention. See 714 S.W.2d 126, 128 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.). In Hamblet, this Court stated, “Before a constructive trust can be imposed, there must be strict proof of a prior confidential relationship and unfair conduct or unjust enrichment on the part of the wrongdoer.” Id. However, Hamblet was not a case that involved actual fraud, and, therefore, it is distinguishable from the present case. See id. at 132.

The Texas Supreme Court has held, “Actual fraud, as well as breach of a confidential relationship, justifies the imposition of a constructive trust.” Meadows v. Bierschwale, 516 S.W.2d 125, 128 (Tex.1974). The appellant in Meadows made an argument similar to Love’s, namely, that a constructive trust was appropriate only when a breach of a fiduciary relationship was involved. Id. The Meadows Court stated that the appellant’s argument might have been the result of confusion arising from a previous case that had held that a fiduciary relationship must have arisen before and apart from the agreement made the basis of the suit. Id. at 129 (quoting Consolidated Gas & Equip. Co. v. Thompson, 405 S.W.2d 333, 336 (Tex.1966)). The Meadows Court went on to state that the language in its previous case “must be viewed in the context of the fact situation that gave rise to it.” Id.

Here, Hahn has alleged that Love, the Sessions, Gary, and Mid-Town were involved in an actual fraud. There are genuine issues of material fact as to whether an actual fraud took place and whether Love was unjustly enriched in his dealings with the Sessions and Mid-Town, as discussed above; furthermore, the property in question is an identifiable res. See Meadows, 516 S.W.2d at 129; Hubbard, 138 S.W.3d at 485. We conclude that summary judgment on this issue was not proper because Love failed to prove that Hahn failed to meet at least one of the requirements for imposing a constructive trust as a matter of law. See Science Spectrum, Inc., 941 S.W.2d at 911.

We sustain Hahn’s fourth issue.

Conclusion

We reverse the order of the trial court and remand the cause for proceedings consistent with this opinion.

      . The property consists of two lots in the City of Houston in Harris County, Texas, located at 1615 and 1621 Wheeler Street ("the properly”).

      . See Tex. Prop.Code Ann. §§ 52.001-.004 (Vernon 2007 & Supp.2008); Wilson v. Dvorak, 228 S.W.3d 228, 233-34 (Tex.App.-San Antonio 2007, no pet.) (outlining process for creating judgment lien and stating, "When properly recorded and indexed, an abstract of judgment creates a judgment lien that is superior to the rights of subsequent purchasers and lien holders.”).

      . See Tex. Prop.Code Ann. § 52.006 (Vernon Supp.2008) (governing length of time judgment lien is valid); Tex Civ. Prac. & Rem.Code Ann. § 34.001 (Vernon 2008) (governing length of time judgment is active and providing for renewal of judgment with writ of execution issued within ten years of previous writ).

      . See Tex. Civ Prac. & Rem.Code Ann. § 34.006 (Vernon 1997) ("A dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date that the judgment becomes dormant.”).

      . See Tex Bus. & Com.Code Ann. § 24.009 (Vernon 2002).

        . See Tex Prop.Code Ann. § 13.001 (Vernon 2004).

      . The Fraudulent Transfer Act states:
      An '‘Insider” includes:
      (A) if the debtor is an individual:
      (i) a relative of the debtor or a general partner of the debtor;
      (ii) a partnership in which the debtor is a general partner;
      (iii) a general partner in a partnership described in subparagraph (ii) of this paragraph; or
      (iv) a corporation of which the debtor is a director, officer, or person in control.
      (D) an affiliate, or an insider of an affiliate
      as if the affiliate were the debtor; and
      (E) a managing agent of the debtor.
      Tex. Bus. & Com.Code Ann. § 24.002(7).

      . When a transferee is an insider and knows the transferor is insolvent at the time of the transfer he cannot be a good faith transferee. Flores, 161 S.W.3d at 756; Putman v. Stephenson, 805 S.W.2d 16, 20 (Tex.App.-Dallas, 1991, no writ). Nor is insider status limited to the four subjects listed in section 24.002(7); rather, the list is provided "for purposes of exemplification.” Putman, 805 S.W.2d at 18. In general, an "insider” is “an entity whose close relationship with the debtor subjects any transactions made between the debtor and the insider to heavy scrutiny.” Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 609 (Tex.App.-Houston [1st Dist.] 2002, no pet.). In determining insider status, courts are to consider (1) the closeness of the relationship between the transferee and the debtor and (2) whether the transactions were at arm’s length. Id. (citing In re Holloway, 955 F.2d 1008, 1010 (5th Cir.1992)). However, it is not necessary to prove that a transferee is an insider in order to prove the transferee's knowledge of the transferor's fraudulent intent. See Tex Bus. & Com.Code Ann. § 24.005(b); Wright, 16 Tex. 34, 1856 WL 4851, at *5; Flores, 161 S.W.3d at 754 (listing, from Tex Bus. & Com Code Ann § 24.005(b), “facts and circumstances, known as badges of fraud, that may be considered in determining fraudulent intent” and opining that if " ‘fraudulent intent is only to be deduced from facts and circumstances which the law considers as mere badges of fraud and not fraud per se, these must be submitted to the trier of fact, which draws the inference as to the fairness or fraudulent character of the transaction.’ ”) (quoting Coleman Cattle Co. v. Carpentier, 10 S.W.3d 430, 434 (Tex.App.-Beaumont 2000, no pet.)).

      . In supplemental briefing, Love argues that Hahn bears the burden to prove that Love was not a good faith purchaser for value, and, in support, he cites Rucker v. Steelman. See 619 S.W.2d 5, 7 (Tex.App.-Houston [1st Dist.] 1981, writ ref'd n.r.e.) (“A creditor seeking to defeat a prior conveyance of a judgment debt- or must prove fraudulent intent on the part of the debtor at the time of the execution of the conveyance and then, if a valuable consideration is shown to have been paid for the property, the creditor must further prove that at the time of such payment the party taking the conveyance had notice of the debtor’s fraud”). However, Rucker was a suit to remove cloud on title in which the creditor was the plaintiff attempting to show that he was entitled to have a cloud on his title removed. Id. In a suit to remove cloud on title, the burden of proof is on the person seeking to remove the cloud from his title. If the cloud is a fraudulent transfer, the person asserting fraudulent transfer must prove fraudulent intent and notice on the part of the transferee. Id. Here, however, Love, the purchaser, not Hahn, the creditor, sought summary judgment on his own suit to remove the cloud from his title and on his affirmative defense that he was not subject to Hahn’s fraudulent transfer claims because he was a bona fide purchaser under the Texas Uniform Fraudulent Transfer Act. See Tex. Bus. & Com.Code Ann. §§ 24.001-013 (Vernon 2002 & Supp.2008). The TUFTA treats good faith raised by the party claiming to be a bona fide purchaser as an affirmative defense and places the burden of proving the defense on the party asserting it — in this case, on Love. See Flores v. Robinson Roofing & Const. Co., 161 S.W.3d 750, 756 (Tex.App.-Fort Worth 2005, pet. denied) (holding that burden of proving good faith rests on party invoking defense and that it is not appropriate basis for no-evidence summary judgment). Therefore, we analyze this potential ground for support of the trial court’s granting of summary judgment under Love's traditional motion for summary judgment because it is not an appropriate basis to grant a no-evidence summary judgment.

      . See Tex. Prop.Code Ann. § 52.001 (Vernon Supp.2008) (stating that procedures for establishing judgment lien apply to “a first or subsequent abstract of judgment” that is properly recorded and indexed). The parties agree that the second abstract of judgment is not retroactive. However, the Fraudulent Transfer Act provides relief for creditors when "the creditor’s claim arose before or within a reasonable time after the transfer was made.” Tex. Bus & Com.Code Ann. § 24.005(a) (Vernon 2002) (emphasis added).

      . In his motion for summary judgment, Love stated:
      Hahn alleges that the sale to Love was a sale to an insider. The basis for this allegation is that Love's father was a close personal friend of Herman Gary, the real es-
      tate broker, that Love had known Gary for 20 years and that Gary brought him many deals. Hahn also claims Love is an insider because he had loaned Gary and Strickland (the initial intended buyer of the property) money on prior occasions. Hahn alleges that Strickland bought other property from Love on prior occasions. For purposes of the Fraudulent Transfer Act, "insider” is defined in § 24.002(7) of the Tex. Bus. & Com.Code and none of the definitions or categories of insiders include the relationships or facts claimed by Hahn. As a matter of law, the claim that Love is an insider fails.
      It is clear that Love purchased in good faith and for a reasonably equivalent value and, therefore, no action lies against him under the Fraudulent Conveyance Act. Moreover, the transfer that Hahn seeks to set aside is not even one from the debtor.
      The debtor was O’Neal Session, the grantor in Love’s deed was Mid-Town.

      . See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994) (in evaluating motion for summary judgment on pleadings, court assumes that all allegations and facts in non-movant’s pleadings are true and indulges all inferences in nonmovant's pleadings in light most favorable to nonmovant); Emerald Oil and Gas, L.C. ex rel. Saglio P’ship Ltd. v. Exxon Corp., 228 S.W.3d 166, 169 (Tex.App.Corpus Christi 2005, no pet.) (same); see also Beta Supply, Inc. v. G.E.A. Power Cooling Sys., Inc., 748 S.W.2d 541, 542 (Tex.App.-Houston [1st Dist.] 1988, writ denied) ("assertions of fact, not pled in the alternative, in the live pleadings of a party are regarded as formal judicial admissions”).

      . Because the sufficiency of the legal description in the purported 2002 deed is not material to the proof of Love’s right to removal of the cloud from his title, we do not address Hahn's first issue, arguing that Love did not prove his entitlement to have the cloud removed from his title because the description of the land in the general warranty deed dated April 26, 2002, by which Session purported to convey the property to MidTown, was legally insufficient, and, therefore, the deed was void as a matter of law.

      . Because we reverse the order of the trial court granting Love's motion for summary judgment and remand this cause to the trial court, we do not need to address Hahn’s fifth issue regarding whether it was error for the trial court to overrule Hahn’s objection to Love's motion for summary judgment, which was filed after the deadline set out in the trial court's docket control order. See Tex R.App. P. 47.1.