Spigener v. Wallis
| Decision Date | 12 June 2002 |
| Docket Number | No. 10-00-101-CV.,10-00-101-CV. |
| Parties | Marian Wallis SPIGENER, Appellant, v. Imogene Marie WALLIS, et al., Appellees. |
| Court | Texas Court of Appeals |
Marian Wallis, Spigener, Alvarado, pro se.
Theresa Ann Gartman, Burleson, pro se.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
Imogene Marie Wallis and others filed a partition suit against Marian Wallis Spigener and Rose Lynn McCullough in 1994. The trial court signed a decree in December 1997 partitioning the property and appointing a receiver to sell it. Spigener and McCullough appealed. In August 1998, we dismissed Spigener's and McCullough's appeal for want of prosecution after they failed to file a brief. Spigener now appeals the trial court's order confirming the sale of the subject property by the receiver, distributing the proceeds of the sale, and discharging the receiver.
The trial court found in its December 1997 decree that Spigener had an undivided 1/12 interest in the subject property. The court appointed a local realtor as receiver. Because Spigener and McCullough1 failed to supersede this decree, the receiver proceeded to market the property during the pendency of the prior appeal. The receiver filed a report with the trial court in March 1998 indicating that she had executed sales contracts with two families for the purchase of the two tracts at $2,000 per acre.
The trial court conducted a hearing on December 20, 1999 to approve the sale. Prior to considering the receiver's report, the court heard and denied a continuance motion Spigener had filed five days before and a motion to disqualify and/or recuse the judge she had filed one day later.2
Based on the receiver's testimony, the court approved the proposed sale.
The receiver closed the sale with the purchasers on January 6, 2000 for $66,390.00. On March 29, she filed an application for confirmation of sale and discharge. She reported that the expenses of the sale amounted to $4,888.25. She requested $3,983.40 as compensation for her services. She asked that the court distribute the net proceeds of $57,518.35 to the parties and discharge her and her surety.
Spigener filed another disqualification/recusal motion on April 14. She filed a "contest" of the receiver's application for confirmation of sale and discharge five days later.
Upon Judge Kitzman's request, the Chief Justice of the Supreme Court assigned Judge Tom Crum to hear the recusal motion, which he did on May 2.3 See TEX. GOV.CODE. ANN. § 74.049 (Vernon 1998); TEX.R. CIV. P. 18a(c). After hearing Spigener's evidence, Judge Crum denied the motion.
Immediately following the recusal hearing, Judge Kitzman scheduled a May 16 hearing for the receiver's application for confirmation of sale and discharge. On May 9, Spigener filed a motion for Appellees' counsel G. David Davis to show his authority to act on their behalf.
At the final hearing, the trial court considered: (1) Spigener's challenge to Davis's authority to act as counsel; (2) Spigener's challenge to the receiver's authority to act; and (3) the receiver's application for confirmation of sale and discharge. After hearing evidence and argument, the trial court rejected Spigener's challenges to Davis's authority and to the receiver's authority.
Appellees requested that the trial court apply Spigener's share of the proceeds from the receiver's sale to pay court costs. The court signed an order confirming the sale, discharging the receiver, distributing the proceeds, and applying Spigener's share of the proceeds to court costs.
"A judicial partition involves two appealable orders." Campbell v. Tufts, 3 S.W.3d 256, 258 (Tex.App.-Waco 1999, no pet.); accord Griffin v. Wolfe, 610 S.W.2d 466, 466 (Tex.1980) (per curiam); Thomas v. McNair, 882 S.W.2d 870, 876 (Tex.App.-Corpus Christi 1994, no writ). By the first order, the court:
• determines "the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law and equity affecting the title to such land";
• decides whether the property is "susceptible to partition"; and if not,
• orders a sale of the property, "which sale shall be for cash, or upon such other terms as the court may direct, and shall be made as under execution or by private or public sale through a receiver."
See TEX.R. CIV. P. 760, 761, 770; see also Campbell, 3 S.W.3d at 258-59; Thomas, 882 S.W.2d at 876.
We discussed at some length the procedures for a judicial partition in Campbell. We observed:
Before rendering the first decree, the court has the authority "to adjust all equities between the parties." The court "applies the rules of equity in determining the broad question of how property is to be partitioned."
Thus, proof is made to the factfinder at trial of the existence and value of improvements to the property at the time of partition and of other equitable considerations which may warrant awarding a particular portion of the property to one of the parties....
. . . .
Texas courts have uniformly held that matters decided in the first hearing cannot be challenged in an appeal from the trial court's second order . . . .
Campbell 3 S.W.3d at 259 () (other citations omitted); accord Thomas, 882 S.W.2d at 877.
Bearing these considerations in mind, we must first determine which of Spigener's twelve points are properly before us in this appeal from the trial court's second order. Spigener claims in her twelve points that the judgment must be reversed because: (1) the sales price for the property was too low; (2) the court's prior determination of ownership is erroneous because Marie and Clyde Wallis did not have sufficient income to make the mortgage payments; (3) the court's prior determination of ownership is erroneous because Spigener did have sufficient income to make the payments; (4) the court failed to account for Spigener's cross: claims for back rent and maintenance expenses; (5) Judge Kitzman was disqualified and should have recused himself; (6) the judge erred by deciding his own recusal motions; (7) the judge held ex parte hearings and issued orders without proper notice in violation of due process and due course of law; (8) the judge engaged in ex parte communications; (9) the trial court improperly granted a non-suit of Rose McCullough though she had cross-claims pending; (10) the court erred by failing to appoint counsel; (11) the receiver had no authority to act because she is not an attorney; and (12) Appellees' counsel failed to give notice of substitution.
Spigener's second, third, fourth, and ninth points concern "matters decided in the first hearing." See Campbell, 3 S.W.3d at 259. Thus, they cannot be challenged in this appeal. Id. Accordingly, we overrule them.
Spigener contends in her first point that the sales price of $2,000 per acre is not the fair market value of the subject property. The receiver testified that it is. Spigener states in her brief that neighboring properties are valued at $4,400 per acre. She also claims that an unidentified person or persons burned several buildings on the property "under instructions from [the receiver] and [Appellees' counsel]" who sought to lower the value of the property. Spigener presented no evidence at trial to substantiate these claims. Accordingly, we overrule her first point. See Pfeffer v. Pfeffer, 269 S.W.2d 436, 438-39 (Tex.Civ. App.-Galveston 1954, writ ref'd n.r.e.).
Spigener argues in her fifth point that Judge Kitzman should have disqualified himself because he had an interest in the case sufficient to warrant his disqualification under article V, section 11 of the Texas Constitution. She claims in her sixth point that the judge erred by ruling on her motions to disqualify and/or recuse him rather than referring them to the Chief Justice of the Supreme Court.
A trial judge may be removed from presiding over a particular case for one of three reasons: (1) disqualification under article V, section 11 of the Texas Constitution; (2) disqualification under section 74.053 of the Government Code (); or (3) recusal under the procedural rules for civil trials and appeals. See In re Union Pac. Resources Co., 969 S.W.2d 427, 428 (Tex.1998) (orig. proceeding) (citing TEX. CONST. art. V, § 11; TEX. GOV.CODE. ANN. § 74.053(d) (Vernon 1998); TEX.R. CIV. P. 18a, 18b; TEN R.APP. P. 16).
Article V, section 11 provides in pertinent part, "No judge shall sit in any case wherein the judge may be interested. ..." TEX. CONST. art. V, § 11.4 "It is a settled principle of law that the interest which disqualifies a judge is that interest, however small, which rests upon a direct pecuniary or personal interest in the result of the case presented to the judge or court." Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex.1979); accord Chandler v. Chandler, 991 S.W.2d 367, 386-87 (Tex. App.-El Paso 1999, pet. denied). A party cannot create a constitutional disqualification by filing suit against the judge. Sec Cameron, 582 S.W.2d at 776; Blanchard v. Krueger, 916 S.W.2d 15, 19 (Tex.App.-Houston [1st Dist.] 1995, orig. proceeding).
A constitutional disqualification deprives a trial judge of the authority to act. See Davis v. State, 956 S.W.2d 555, 558-59 (Tex.Crim.App.1997) (); Thull v. State, 963 S.W.2d 879, 881 (Tex.App.-Texarkana 1998, no pet.).5 "[A]ny orders or judgments rendered by a judge who is constitutionally disqualified are void and without effect." Union Pac. Resources Co., 969 S.W.2d at 428. Thus, a constitutional disqualification may be raised at any stage of the proceedings and cannot be waived. See Buckholts Indep. Sch. Dist. v. Glaser, 632...
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