Sandra L. Sims v. Tina Thomas

• Court: Court of Appeals of Texas
• Decided: August 20, 2019
• Docket: 05-18-00730-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed August 20, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00730-CV

SANDRA L. SIMS, Appellant V. TINA THOMAS, Appellee

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-16409

OPINION Before Justices Whitehill, Partida-Kipness, and Pedersen, III Opinion by Justice Whitehill

This is a restricted appeal from an order authorizing a receiver to sell real property although

the trial court did not conduct a hearing on the receiver’s sale motion. We conclude that it is

apparent on the face of the record that the trial court erred by rendering the order without a hearing.

Accordingly, we reverse the order and remand the case for further proceedings.

I. BACKGROUND AND PROCEDURAL POSTURE

We draw these facts from the clerk’s record and the trial evidence.

Three sisters, all adults, inherited a house in south Dallas from their mother in 2010. The

sisters are appellee Tina Thomas, appellant Sandra Sims, and Simone Johnson. Trial evidence

indicated that Sims lived in the house, at least intermittently, after their mother died.

Dallas County sued all three sisters for delinquent property taxes. Thomas filed this suit against Johnson and Sims, seeking an order to sell the property and

partition the proceeds among the sisters.

Sims answered Thomas’s suit and filed a counterclaim for reimbursement of property taxes

and money she had spent maintaining and improving the property.

The case was tried to the bench in July 2017. Thomas was represented by counsel, while

Sims and Johnson appeared pro se.

Thomas testified that when she last checked, about $5,000 in property taxes were still

owed. Sims and Johnson were the only other witnesses at trial. Sims opposed sale and partition

of the property. Johnson supported the sale and partition.

On August 24, 2017, the trial judge signed the final judgment. The judgment granted each

sister a one-third interest in the property and granted Sims $2,500 in reimbursement for

improvements to the property. It also gave Sims thirty days to attempt to negotiate a buy-out with

her sisters, failing which the property would be sold by a receiver, Rosalita Lucas. The judgment

required Lucas to file an oath and post a $500 bond, and it recited that “the Receivership shall not

commence until the Oath is filed and the bond posted.” The judgment further provided that, after

any sale of the property, the net proceeds would be “returned to the court to be partitioned in

proportion to the parties’ respective interests.”

The clerk’s record reflects that Lucas posted the $500 bond, but it does not show that she

ever filed the required oath.

More than thirty days after the judgment was signed, Lucas filed a report reciting that Sims

had failed to negotiate a buy-out with her sisters.

The clerk’s record contains an unfilemarked copy of a letter and proposed order from Lucas

dated January 18, 2018. The letter is unclear, but it seems to ask the court to require the parties to

–2– sign all documents necessary to close a sale of the property. The proposed order refers to a

“Motion for final approval to close this case,” apparently referring to the letter.

On January 22, 2018, an associate judge signed an order authorizing Lucas to accept a cash

bid on the property from Thomas and directing Lucas to proceed with the sale.

On April 26, 2018, an attorney filed a notice of appearance for Sims.

On June 21, 2018, Sims filed a notice of restricted appeal stating that she desired to appeal

both the August 2017 final judgment and the January 2018 order authorizing sale. The notice of

appeal was missing the second page. The next day she filed an amended notice of restricted appeal

that included the missing page.

In September 2018, after inviting and receiving jurisdictional letter briefs, we dismissed

the appeal in part, concluding it was untimely to the extent it attacked the August 2017 judgment.

Sims filed an appellant’s brief. Thomas and Johnson, pro se, each filed a letter essentially

asking us to affirm the sale order.

Meanwhile, Dallas County and other local taxing authorities prevailed in their tax lawsuit

against the sisters, Sims took a restricted appeal from that judgment, and we affirmed. Sims v.

Dallas Cty., No. 05-18-00712-CV, 2019 WL 2004054 (Tex. App.—Dallas May 7, 2019, pet. filed)

(mem. op.).

We then sent the parties a letter asking them to submit letter briefs addressing whether the

January 2018 order authorizing sale was a final, appealable order. Sims submitted a letter brief

arguing that appellate jurisdiction is proper.

II. APPELLATE JURISDICTION

As a general rule, an appeal may be taken only from a final judgment. Lehmann v. Har-

Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment rendered after a conventional trial on

–3– the merits is presumed final. Id. at 199. Here, a final judgment was rendered and signed on August

24, 2017.

In a receivership, however, there can be more than one final, appealable order. “[An] order

that resolves a discrete issue in connection with any receivership has the same force and effect as

any other final adjudication of a court, and thus, is appealable.” Huston v. Fed. Deposit Ins. Corp.,

800 S.W.2d 845, 847 (Tex. 1990). The Huston court compared receiverships to probate

proceedings, in which “[an] order is appealable if it finally adjudicates a substantial right, whereas

if it merely leads to further hearings on the issue, it is interlocutory.” Id. at 848. To come within

this exception to the final-judgment rule, the order appealed from must finally dispose of all issues

in a discrete part or phase of the receivership. Art Inst. of Chicago v. Integral Hedging, L.P., 129

S.W.3d 564, 572 (Tex. App.—Dallas 2003, no pet.).

Eighty-five years ago, we held that an interlocutory order directing a receiver to sell

specific personal property is not appealable. Bean v. Peurifoy, 74 S.W.2d 126, 126 (Tex. App.—

Dallas 1934, no writ). More recently, we held that an order authorizing a receiver to sell

unspecified assets in order to pay specified fees was “not sufficient to make the order a final

determination subject to appeal.” Art Inst. of Chicago, 129 S.W.3d at 571 n.9.

But the Houston Fourteenth Court of Appeals has held that an order approving a receiver’s

sale of a specific asset is an appealable final order under Huston. Lee v. Lee, 528 S.W.3d 201, 208

(Tex. App.—Houston [14th Dist.] 2017, pet. denied). But see Rogers v. Rogers, No. 01-16-00791-

CV, 2017 WL 117322, at *1 (Tex. App.—Houston [1st Dist.] Jan. 12, 2017, no pet.) (per curiam)

(mem. op.) (holding that order authorizing receiver to sell property was not appealable, but not

mentioning Huston). Another appellate court has held that a probate order for the public sale of

specific real estate is an appealable order. Vineyard v. Irvin, 855 S.W.2d 208, 209–11 (Tex.

App.—Corpus Christi–Edinburg 1993, orig. proceeding).

–4– We conclude that the trial court’s order authorizing the sale of property resolves a discrete

issue and disposes of all issues for this particular phase of the receivership, namely, whether the

house should be sold on the terms obtained by the receiver. Once the house is sold, the receiver’s

expenses and commission will be paid, and then the court will partition the net proceeds among

the sisters. But we view those matters as separate from the discrete issue of whether the house

should be sold as the receiver requested. Accordingly, the order is appealable under Huston.

To the extent our 1934 Bean v. Peurifoy decision is to the contrary, we conclude that

Huston effectively disapproved it. We need not address whether Art Institute of Chicago is

correctly decided because that case did not involve an order authorizing a receiver to sell a specific

piece of property.

III. ANALYSIS

A. Issues Presented

Sims presents three issues attacking the order authorizing sale: (i) the receiver did not file

an oath, (ii) no hearing was held on the receiver’s motion for authorization and no notice was given

of the motion or any hearing, and (iii) the motion and order did not state the terms of the sale.

B. Restricted Appeal Elements

To prevail on a restricted appeal, the appellant must establish that (i) she filed the appeal

within six months after judgment was signed, (ii) she was a party to the lawsuit, (iii) she did not

participate in the hearing that resulted in the judgment complained of and did not timely file any

postjudgment motions or requests for findings of fact and conclusions of law, and (iv) error is

apparent on the face of the record. Sims, 2019 WL 2004054, at *1; see also TEX. R. APP. P. 30

(“Restricted Appeal to Court of Appeals in Civil Cases”).

There is no question that Sims meets the first two elements of a restricted appeal: she timely

filed her notice of restricted appeal, and she was a party to the lawsuit.

–5– C. Does Sims satisfy the third element of a restricted appeal?

Yes. She did not timely file any postjudgment motions or requests for findings of fact and

conclusions of law. See TEX. R. APP. P. 30. Therefore, the question is whether she participated in

the “decision-making event” that resulted in the judgment being appealed from. Texaco, Inc. v.

Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). The record shows she did not, so she

satisfies the third element of a restricted appeal.

Although Sims participated at the bench trial, the resulting judgment is not the order that

she attacks in this restricted appeal. Rather, she attacks the subsequent order authorizing sale.

The record shows that the order authorizing sale was signed without a hearing.

First, the order does not recite that any hearing was held; instead, it recites, “Came on for

consideration Receiver’s Request to Sell House to Highest Bidder. The Court is of the opinion

that the request is well-taken and should be authorized.” The clerk’s record does not contain a

“Receiver’s Request to Sell House to Highest Bidder,” but it does contain the receiver’s January

18, 2018 submission in which she (i) advised the trial court that she had an offer she wanted to

“move forward” on and (ii) asked the trial court to “have Sandra Lynn Sims sign all documents to

close on this file.”

Second, the docket sheet, which notes other hearings in the case, shows no hearings

between the receiver’s January 18 submission and the January 22 order authorizing sale.

Third, Sims asserts in her appellate brief that no hearing was held on the receiver’s request

submission. No one contradicts this assertion, so we take it as true. See TEX. R. APP. P. 38.1(g).

Because Sims did not respond to the receiver’s application to sell the property and there

was no hearing on that application, we conclude that Sims did not participate in the proceeding

that led to the signing of the order authorizing sale. See Ex parte Egan, No. 13-16-00618-CV,

2018 WL 3151489, at *2 (Tex. App.—Corpus Christi–Edinburg June 28, 2018, no pet.) (mem.

–6– op.) (DPS entitled to restricted appeal when there was “no record of any hearing or proceedings in

which [it] could have participate[d].”) (internal quotations and citation omitted). The third

restricted appeal element is satisfied.

D. Has Sims shown error on the face of the record?

Yes. As discussed above, the docket sheet and the order authorizing sale show that the

trial court did not hold a hearing on the receiver’s application to sell the property before it rendered

the order authorizing the sale. This was error.

By statute, the general rule is that “the rules of equity govern all matters relating to the

appointment, powers, duties, and liabilities of a receiver and to the powers of a court regarding a

receiver.” TEX. CIV. PRAC. & REM. CODE § 64.004.

The Houston Fourteenth Court of Appeals, construing § 64.004’s predecessor statute, has

held that when a receiver seeks to sell property, the rules of equity require (i) an application for

sale pertaining to a specific buyer, (ii) notice to all interested parties, and (iii) “a hearing conducted

on the sale.” Harrington v. Schuble, 608 S.W.2d 253, 256 (Tex. App.—Houston [14th Dist.] 1980,

no writ). The court held that the trial court erred by granting a receiver’s application to sell real

property without notice or a hearing, and it vacated the sale. Id. at 255–57. We are persuaded by

Harrington.

Here, the record shows that there was no hearing on the receiver’s application to sell the

property. This was error. Accordingly, Sims has shown error apparent on the face of the record,

and she is entitled to relief by this restricted appeal.

IV. DISPOSITION

We sustain Sims’s second issue and need not address her first and third issues.1

1 We note, however, that Sims appears to be correct when she argues under her first issue that the receiver never filed an oath as the trial court’s judgment requires.

–7– We reverse the trial court’s Order Authorizing Sale and remand the case for further

proceedings consistent with this opinion.

/Bill Whitehill/ BILL WHITEHILL JUSTICE

180730F.P05

–8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

SANDRA L. SIMS, Appellant On Appeal from the 160th Judicial District Court, Dallas County, Texas No. 05-18-00730-CV V. Trial Court Cause No. DC-16-16409. Opinion delivered by Justice Whitehill. TINA THOMAS, Appellee Justices Partida-Kipness and Pedersen, III participating.

In accordance with this Court’s opinion of this date, the trial court’s January 22, 2018 Order Authorizing Sale is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with the opinion. The obligations of Kristina L. Page, Esq. and Kathryn S. Page as sureties on appellant’s supersedeas bond are DISCHARGED.

It is ORDERED that appellant Sandra L. Sims recover her costs of this appeal from appellee Tina Thomas.

Judgment entered August 20, 2019.

–9–