IN THE
TENTH COURT OF APPEALS
No. 10-11-00095-CV
MARY BLANCHE BOEGNER, AS EXECUTRIX
OF THE ESTATE OF ALLAN PATRICK
(A.P.) BOEGNER AND AS TRUSTEE
OF THE BETTY BLANCHE BOEGNER
REVOCABLE TRUST,
Appellants
v.
CHRISTOPHER C. KIRK, SHERIFF BRAZOS
COUNTY, TEXAS AND REVERE FINANCIAL
CORPORATION,
Appellees
From the County Court at Law No. 2
Brazos County, Texas
Trial Court No. 10-002037-CV-CCL2
MEMORANDUM OPINION
By two issues, appellant, Mary Blanche Boegner, as executrix of the estate of Allan
Patrick (“A.P.”) Boegner and as trustee of the Betty Blanche Boegner revocable trust,
challenges the trial court’s February 24, 2011 final judgment in favor of appellees,
Christopher C. Kirk, Sheriff Brazos County, Texas, and Revere Financial Corporation
(“Revere”). We reverse and remand.
I. BACKGROUND
Mary a/k/a Betty Blanche Boegner was married to A.P. until his death in 1994.
On April 21, 1994, the County Court at Law No. 2 of Brazos County entered an “Order
Admitting Will to Probate and Authorizing Letters Testamentary” for A.P.’s estate.
Mary was appointed as the Independent Executrix of A.P.’s estate.
In 1995, Revere sued A.P.’s estate, among others, in Monroe County, New York,
for default on a note and to foreclose on collateral associated with the note. Mary made
an appearance and was represented by counsel in the New York lawsuit.1 After a
foreclosure sale of the underlying property in the New York lawsuit and a motion filed
by Mary to dismiss Revere’s motion for a deficiency judgment, the New York Court, on
March 24, 2000, entered a deficiency judgment against Mary, as executrix of A.P.’s
estate, for $15,657.07 plus interest from the date of the foreclosure sale.2
In August 2002, Revere filed a petition in the County Court at Law No. 2 of
Brazos County, seeking to domesticate the New York judgment in the State of Texas.
Mary made an appearance in her capacity as executrix of A.P.’s estate and was
represented by counsel.
1 Referring to Defendant’s Exhibit 3, Revere alleges that Mary appeared in the New York lawsuit
as the executrix of A.P.’s estate. However, it is unclear from Defendant’s Exhibit 3 as to the capacity in
which Mary made her appearance or the capacity in which she was sued.
2 In its deficiency judgment, the New York Court stated that Mary appeared in both her
individual capacity and her capacity as executrix of A.P.’s estate. Nevertheless, the deficiency judgment
was assessed against Mary in her capacity as executrix of A.P.’s estate.
Boegner v. Kirk Page 2
On May 5, 2006, the county court granted summary judgment in favor of Revere
and ordered Mary, as executrix of A.P.’s estate, to pay $15,657.07 plus interest as
provided in the New York judgment, $2,500 in reasonable attorney’s fees, costs of court,
and pre and post-judgment interest to Revere. On May 16, 2006, Revere’s judgment
was abstracted and recorded in Brazos County.
Revere located two parcels of land located in Brazos County, which, according to
the property records of Brazos County, were owned by A.P. and/or Mary, as executrix
of A.P.’s estate.3 Revere sought a writ of execution to allow the sheriff to sell the located
properties to satisfy the abstracted judgment. The writ of execution was issued on
October 29, 2009.
Thereafter, a “Notice of Sheriff’s Sale” was issued by Kirk. The notice of sale
provided that the Brazos County Sheriff’s Office will “sell for cash to the highest bidder,
all of the right, title and interest of the Defendant [Mary, as executrix of A.P.’s estate] in
and to” three parcels of land on August 3, 2010.
Days before the Sheriff’s Sale, Mary filed an original petition and motions for a
temporary restraining order and temporary and permanent injunction to stop the
sheriff’s sale of the properties. In this filing, Mary indicated that she was filing suit in
both her capacity as executrix of A.P.’s estate and as trustee of the Betty Blanche
Boegner Revocable Trust. The county court granted Mary a temporary restraining
3 At the trial on this matter, Mary asserted that she owned the properties in her individual
capacity under A.P.’s will. A.P.’s will was not included in the record.
Boegner v. Kirk Page 3
order and set the matter for a hearing. In accordance with the provisions of the
temporary restraining order, Mary posted a $10,000 bond in the county court’s registry.4
On November 19, 2010, the county court held a bench trial in this matter.5 In a
letter ruling dated January 14, 2011, the county court stated that Mary “does not have
standing to enjoin Revere.” The county court subsequently entered a final judgment,
which ordered that Mary “take nothing by way of her claims for affirmative relief, if
any, against Revere.” The judgment further stated that Mary “is not entitled to any
injunctive relief against Revere . . . and was not entitled to any injunctive relief at the
time the Temporary Restraining Order was issued . . . ” and that “Revere is allowed all
writs and processes necessary to collect this judgment.” This appeal followed.
II. STANDING
In her first issue, Mary contends that the trial court erred in concluding that she
lacked standing to seek injunctive relief against Revere in order to clear title to the
properties involved in this matter. With regard to both her capacities as executrix and
as trustee, Mary asserts that she has a justiciable interest in this matter because her
contractual obligations require her to bring suit to defend and warrant title to the
properties. Revere responds that Mary, as executrix of A.P.’s estate, had no ownership
interest in the properties. Revere also argues that Mary, as trustee of the Betty Blanche
4 The trial court’s judgment specifically noted that it “does not resolve any claims, if any, to the
Attorney Bond posted by Boegner and her attorney in this case.”
5At trial, the parties focused almost exclusively on whether Boegner retained an interest in the
properties in question.
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Boegner Revocable Trust, lacked standing because the properties were allegedly sold
and the deeds were not recorded.
A. Applicable Law
Standing "focuses on whether a party has a sufficient relationship with the
lawsuit so as to have a 'justiciable interest' in its outcome." Austin Nursing Ctr., Inc. v.
Lovato, 171 S.W.3d 845, 848 (Tex. 2005). Essentially, a plaintiff has standing when she is
personally aggrieved, regardless of whether she is acting with legal authority. See
Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996)
(holding that the standing doctrine requires that there be (1) "a real controversy
between the parties," that (2) "will be actually determined by the judicial declaration
sought"). The complained-of injury "must be concrete and particularized, actual or
imminent, not hypothetical." DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304-05
(Tex. 2008) (footnotes omitted); see Tex. Lottery Comm'n v. Scientific Games Int'l, Inc., 99
S.W.3d 376, 380 (Tex. App.—Austin 2003, pet. denied) (holding that "[t]o establish
standing, one must show a justiciable interest by alleging an actual or imminent threat
of injury peculiar to one's circumstances and not suffered by the public generally"); see
also Elizondo v. Tex. Natural Res. Conservation Comm'n, 974 S.W.2d 928, 932 (Tex. App.—
Austin 1998, no pet.) (citing Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 2204-05,
45 L. Ed. 2d 343 (1975) (noting that the general standard for determining whether a
plaintiff has standing is whether she has such a personal stake in the outcome of the
controversy as to warrant invocation of the court's jurisdiction and to justify exercise of
the court's remedial powers on her behalf)).
Boegner v. Kirk Page 5
Standing is implicit in subject-matter jurisdiction and cannot be waived. See
Lovato, 171 S.W.3d at 849; see also Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 443 (Tex. 1993). As such, challenges to standing can be raised at any time,
including for the first time on appeal. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849,
850 (Tex. 2000).
B. Discussion
The record indicates that Mary entered into a contract to sell the first property—a
tract of land located at 207 Trant in Bryan, Texas—to Mario and Sandra Gonzales on
September 14, 1994, several months before Revere filed suit in New York.6 The
purchase price was $38,500, with Mary providing seller financing. The Gonzaleses were
required to pay Mary monthly installments of $342.60 for twenty years or until the
balance of the note was paid in full. Attached to the contract was the following
addendum, which was signed by both parties: “The conveyance of this property shall
be AS IS, WHERE IS, and Agents, Brokers and Seller [Mary] hereby expressly disclaim
and negate: (a) Any implied or express warranty of merchantability, (b) Any implied or
express warranty of fitness for a particular purpose, and (c) Any implied or express
warranty whatsoever[.]”
The second property—identified as a 3.86-acre tract in Block 21 of the A.P.
Boegner subdivision—was conveyed pursuant to a warranty deed with vendor’s lien on
November 11, 1997, to Ole and Linda Sanchez. And the record does not contain any
6The September 14, 1994 contract is unclear as to Mary’s capacity at the time of the contract. She
signed the contract as “Mary E. Boegner” without any designation as Executrix of A.P.’s estate or as
Trustee of the Betty Blanche Boegner Revocable Trust.
Boegner v. Kirk Page 6
evidence regarding the alleged third property. None of the contracts or deeds have
been recorded in the property records.
Mary’s appellate complaints center on the first parcel of land. Mary argues that
the contract for deed required her to “bring suit to defend and warrant title to the
property,” which, ostensibly, conferred standing on her in this matter. We note that
Mary’s contention is undermined by one of the addenda attached to the September 14,
1994 contract, in which Mary specifically disclaimed and negated “[a]ny implied or
express warranty whatsoever.” The language contained in this addendum suggests
that Mary did not intend to warrant title to the Gonzaleses.
Nevertheless, we find that Mary retains an interest in the property by nature of
the contract. As was the case in Texas American Bank/Levelland v. Resendez, the grantor—
Mary, here—entered into a contract for sale with the grantees—the Gonzaleses—who
agreed to pay for the property by monthly installments of $342.60. See generally 706
S.W.2d 343 (Tex. App.—Amarillo 1986, no writ). The contract provided that the
Gonzaleses had twenty years from the date of the contract—September 14, 1994—to pay
for the property, and Mary testified that the Gonzaleses had not yet paid in full.
Similarly, in Resendez, a third party—Loveta Alford—sold the surface rights of a
piece of property to the grantees—the Resendezes—for $4,000, of which $500 was paid
at the time of execution of the instrument and the remainder was paid in monthly
installments. Id. at 344. This transaction was not immediately recorded, though it was
eventually done. Id. at 344-45. However, prior to recording the transaction, appellant
obtained a judgment of $1,860.61 against Alford. Id. at 345. Appellant then tried to
Boegner v. Kirk Page 7
assert a lien against Alford’s property. Id. at 344-45. After reviewing cross motions for
summary judgment, the trial court granted summary judgment in favor of the
Resendezes and vested title to the property in the Resendezes free and clear of any lien
in favor of appellant. Id. at 344.
In affirming the trial court’s judgment, the Amarillo Court of Appeals explained:
A contract of sale, such as the one here in question, is not effective as a
conveyance, but is an executory contract for the sale of land. Federal Life
Ins. Co. v. Martin, 157 S.W.2d 149, 152 (Tex. Civ. App.—Texarkana 1941,
writ ref’d). Thus, the contract was not such an instrument that passed an
interest in the realty. Similar to the contract in Jensen v. Bryson, 614 S.W.2d
at 933, it merely specified the conditions for the future passing of the
seller’s interest to appellees. Until appellees had performed their
covenant by the payment of the purchase price, they possessed but an
equitable right. Johnson v. Wood, 138 Tex. 106, 157 S.W.2d 146, 148 (1941);
Guzman v. Acuna, 653 S.W.2d 315, 319 (Tex. App.—San Antonio 1983, writ
dism’d).
Id. at 345. Implicit in the Resendez court’s conclusion is that Alford retained an interest
in the property because the contract was executory in nature. See id. And until
appellees performed their covenant by payment of the purchase price, Alford retained
an interest in the property. See id.
In the present case, Boegner testified that the Gonzaleses were still making
installment payments pursuant to the executory contract, and the contract itself states
that such payments would be made for twenty years from September 14, 1994 or until
the note is paid off. Based on these facts, we conclude that Boegner retained an interest
in the first property at the time of trial, and as such, we hold that she has a justiciable
interest in this matter. See Lovato, 171 S.W.3d at 848; Nootsie, Ltd., 925 S.W.2d at 661.
Boegner v. Kirk Page 8
Accordingly, we sustain Boegner’s first issue. Furthermore, we do not reach the second
issue.
III. CONCLUSION
Because we have sustained Boegner’s issue as to standing, we reverse the
judgment of the trial court and remand for proceedings consistent with this opinion.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and remanded
Opinion delivered and filed June 27, 2012
[CV06]
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