Sue Walston v. David L. Lockhart, Rebecca G. Lockhart and Larry Walston

Sue Walston v. David L. Lockhart Rebecca G. Lockhart & Larry Walston

  IN THE

TENTH COURT OF APPEALS

No. 10-00-362-CV

     SUE WALSTON,

                                                                         Appellant

     v.

     DAVID L. LOCKHART,

     REBECCA G. LOCKHART

     AND LARRY WALSTON,

                                                                         Appellees

From the 170th District Court

McLennan County, Texas

Trial Court # 99-3504-4

O P I N I O N

      Sue Walston and her former husband, Larry, were divorced on January 11, 1994. Walston appealed. Larry filed a separate suit for partition of the real estate they had occupied as their home, asking that the proceeds be distributed according to the divorce decree. The court in which the suit for partition was filed appointed a receiver, Jim Stewart, to sell the property. Walston appealed from that order. On January 24, 1995, the trial court signed an order (1) approving a contract whereby David and Rebecca Lockharts agreed to purchase the property and (2) authorizing the receiver to sell it. On February 6, 1995, the receiver conveyed the property to the Lockharts. Over three years later, on November 9, 1999, Walston sued Larry and the Lockharts in trespass to try title. She claims that, because Stewart did not strictly comply with the terms of the order authorizing the sale, the deed is void.

      The Lockharts filed a motion for summary judgment, which the court granted in part on their assertion that Walston lacks standing to maintain the suit. Because we find the standing question dispositive, we do not reach Walston’s issues on the merits.

      Briefly, the standards for reviewing a summary judgment are:

      (1)  The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.

      (2)  In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

      (3)  Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We review a summary judgment de novo. Rucker v. Bank One, 36 S.W.3d 649, 652-53 (Tex. App.—Waco 2000, pet. filed).

      The requirement of standing is implicit in the Texas Constitution's open courts provision, which contemplates access to the courts only for those litigants suffering an injury. The M.D. Anderson Cancer Center v. Novak, - - - S.W.3d - - -, - - - (Tex. 2001) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)). Standing is a prerequisite to subject-matter jurisdiction, and subject-matter jurisdiction is essential to a court's power to decide a case. Id. (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000)). "[S]tanding focuses on the question of who may bring an action." Id. (citing Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998)). Standing, as a component of subject matter jurisdiction, is an issue that may be raised by the court for the first time on appeal; it may not be waived by the parties. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). Subject matter jurisdiction is never presumed. Id. at 444.

      A discussion of the standing issue must begin with the proposition that from the moment the court appointed the receiver over the property, the property was in custodia legis. Tex Trunk Ry. Co. v. Lewis, 81 Tex. 1, 16 S.W. 647, 649 (1891) (“We understand the courts to hold, almost without dissent, that, after the appointment of a receiver, the property to which the receivership relates is to be deemed in the custody of the law, and this seems to us the correct rule.”); see also First S. Props., Inc. v. Vallone, 533 S.W.2d 339, 341 (Tex. 1976).

      The deed which Walston attacks was between the court-appointed receiver and the Lockharts. When she filed this suit she had no ownership interest in the affected land, because her interest had been sold by the receiver. Accordingly, even if the sale was not made in strict compliance with the terms of the order authorizing it, Walston was not "personally aggrieved." See Marburger v. Seminole Pipeline Co., 957 S.W.2d 82, 89-90 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (husband who had no ownership interest in his wife's separate real property did not have standing to contest validity of easement over land); Hollar v. Jowers, 310 S.W.2d 721, 724 (Tex. Civ. App.—Eastland 1958, writ ref'd n.r.e.) (party who had no ownership in land was not entitled to bring suit to cancel deeds).

      Walston can obtain no relief in the form she seeks, which is the recovery of title to the property. Nothing about the present suit can change the order appointing the receiver and placing the property in the receivership. That order, along with the order authorizing the sale and the order discharging the receiver and closing the receivership, is final. Furthermore, although there may have been irregularities in the sale, as alleged, yet, as Walston was a party to the receivership proceedings, any irregularities could only be timely called into question by an appeal from the court's ruling upon proper motion made and filed in that cause, not in an independent action in trespass to try title to the land as done here. See Sherwood v. Kelly, 257 S.W. 278, 279 (Tex. Civ. App.—San Antonio 1923, writ dism’d).

      We conclude that, under these circumstances, Walston does not have standing to bring this action claiming title to the real estate. In so finding, we do not reach her issues on appeal. We render the judgment that the trial court should have rendered. The cause is dismissed for lack of jurisdiction.

                                                             PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Judgment rendered dismissing the cause

Opinion delivered and filed November 14, 2001

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[CV06]

/i>, 800 S.W.2d at 547-48 (discussing requirements for preservation of error in outcry cases); Norris, 788 S.W.2d at 68; Poole v. State, 974 S.W.2d 892, 899 (Tex. App.—Austin 1998, no pet. h.); Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a)(1)(A).

      Even if Cochran had preserved this issue, this Court has recently concluded that article 38.072 does not require a court to articulate findings of reliability on the record. Gabriel v. State, 973 S.W.2d 715, 718 (Tex. App.—Waco 1998, no pet.). We issued Gabriel shortly after the parties filed their briefs in Cochran’s case. Because Cochran presents an argument not made in Gabriel, we write further to address his contention.

      Cochran analogizes the article 38.072 requirement that a court find the victim’s statement reliable to the requirement of article 38.22, section 6 that a court make written findings of fact and conclusions of law in cases where the voluntariness of an accused’s statement is challenged. Compare Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b)(2) with Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 1979). We disagree.

      Article 38.22, section 6 expressly requires a court to make written findings and conclusions. Tex. Code Crim. Proc. Ann. art. 38.22, § 6; State v. Acosta, 948 S.W.2d 555, 556 (Tex. App.—Waco, order), disp. on merits, 951 S.W.2d 291 (Tex. App.—Waco 1997, pet. ref’d). To the contrary, article 38.072, section 2(b)(2) does not expressly require written findings. Thus, the latter is more analogous to rule 403 of the Rules of Evidence, which requires a court to balance the extent to which the probative value of evidence is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or undue delay or needless cumulation. Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1990) (op. on reh’g); Tex. R. Evid. 403.

      A trial court need not make express findings on the record when conducting the balancing test required by rule 403. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). We hold that a trial court similarly does not have to make findings on the record when making the reliability determination required by article 38.072, section 2(b)(2).

CONCLUSION

      Cochran failed to preserve for our review the issue presented. Even if he had, we find from the record that the court did not abuse its discretion in finding that J.F’s outcry to Morrison was reliable. We overrule Cochran’s sole issue and affirm the judgment.

                                                                               REX D. DAVIS

                                                                               Chief Justice

Before Chief Justice Davis

            Justice Cummings (not participating)

            And Justice Vance

Affirmed

Opinion delivered and filed March 24, 1999

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