Steenland v. Texas Commerce Bank Nat. Ass'n

• Decision Date: 03 March 1983
• Docket Number: No. 12-81-0051-CV,12-81-0051-CV
• Citation: 648 S.W.2d 387
• Parties: Nelson C. STEENLAND, Appellant, v. TEXAS COMMERCE BANK NATIONAL ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 387

648 S.W.2d 387

Nelson C. STEENLAND, Appellant, v. TEXAS COMMERCE BANK NATIONAL ASSOCIATION, Appellee.

No. 12-81-0051-CV.

Court of Appeals of Texas,

Tyler.

March 3, 1983.

Rehearing Denied March 31, 1983.

George H. Tarpley, Sheinfeld, Maley & Kay, Houston, for appellant.

William W. Ogden, Liddell, Sapp, Zivley, Brown & LaBoon, Houston, for appellee.

SUMMERS, Chief Justice.

This appeal is from an order of the trial court appointing a receiver to sell appellant's homestead property and apply the excess nonexempt value (as determined by the court in a nonjury hearing) to satisfy a final judgment previously obtained by appellee herein.

Initially, appellant Nelson C. Steenland was sued on certain promissory notes in a separate but related action by appellee, Texas Commerce Bank National Association (hereafter "the Bank"). On August 1, 1980, judgment was recovered by appellee Bank against Steenland in such action for the sum of $511,996.62, exclusive of interest and additional costs. This judgment was abstracted and recorded in the Real Property Records of Harris County on August 27, 1980, was not appealed and became final.

Thereafter, the Bank sought to collect its judgment from the excess nonexempt value which it believed existed in Steenland's homestead property. In doing so, the Bank on November 24, 1980, commenced the instant action with the filing of a motion for a post-judgment order of sale. This motion sought a court order authorizing the sale of Steenland's homestead, citing Art. 3827a ¹ as authority for the court's jurisdiction to determine the extent of Steenland's homestead exemption. On January 2, 1981, Steenland made a written demand and fee deposit for a jury trial on the matters raised in the Bank's motion for post-judgment order of sale, and then on January 8, 1981, filed his opposition to the Bank's motion contending that the motion should be denied because he (Steenland) was entitled to a jury trial on the merits for a determination of the disputed factual issues raised by said motion. Subsequently, the Bank's motion was amended with an application for the appointment of a receiver under Art. 3827a in addition to the request for an order authorizing the forced sale of Steenland's homestead. It was on this amended application that the matter came on for hearing before the trial court on February 23, 1981. Steenland's counsel urged his timely request for a jury trial on the issue of excess value including the current value of the property exclusive of improvements, but the court denied appellant's request for a jury trial. Thereupon, counsel for Steenland moved the court for a continuance upon the grounds of surprise, inability to have an appraiser, client not present because they were before the court on a motion and not on the merits, and time was needed for discovery; this motion was likewise overruled and appellant was put to a nonjury hearing on the Bank's amended application alleging that pursuant to Art. 3827a the court had jurisdiction to (1) determine the extent of Steenland's homestead exemption in subject property and (2) to appoint a receiver for the management and sale of the property.

At the hearing before the court sitting without a jury, it was established that Steenland owned certain real property, located at 5 Long Bow Lane in the Memorial area of Houston; that such property was Steenland's homestead, having been purchased by him in 1956. Over Steenland's objections, the court proceeded to hear evidence on the issue of whether there existed any nonexempt excess value in the homestead. In his order appointing a receiver, the court made findings that the homestead had excess nonexempt value and authorized the receiver to proceed with a sale of the homestead property. The implementation of this order was stayed by the trial court pending the outcome of this appeal.

We reverse and render.

The appellant has brought forward two points of error. He asserts that the trial court erred (1) in hearing and ruling on the merits of a cause of action seeking a declaratory judgment that a homestead has excess, nonexempt value in a hearing on an application for the appointment of a receiver under Art. 3827a; (2) in ruling that the defendant/appellant was not entitled to a jury trial on the issue of excess value in the homestead property.

Both parties have conceded that subject property is Steenland's homestead and have treated the time of homestead designation to coincide with the acquisition date in 1956. Since the homestead is exempt from execution unless there is excess value, the next question to be addressed is the issue of excess value. In his first point appellant contends that it was improper for the Bank to raise the issue of excess value in the context of a simple motion to appoint a receiver under Art. 3827a. Steenland contends that said article is a procedural device to be used as an aid to creditors in the collection of their judgments but that it provides no vehicle for a determination of excess value. Appellant's position thus is that the Bank must first secure a determination of excess value in a new and independent suit before invoking Art. 3827a. Steenland further contends that in such separate suit the Bank would be required to plead and prove the amount, if any, of such excess value.

Article 3827a ² is a newly enacted statute and our review shows it has only been construed by one court decision, namely Pace v. McEwen, 617 S.W.2d 816 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ). Like the instant case, Pace involved an appeal from a post-judgment order. In Pace, supra, the court held that Art. 3827a gave the court jurisdiction to determine the exempt status of property which was claimed to be homestead. Unlike the instant case, no request for a jury trial was made in Pace, supra. The only issue in Pace was whether or not the particular property was or was not homestead property. There was no issue, as in the instant case, of excess nonexempt value of the property in question.

Appellant relies on the case of O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976), wherein the Supreme Court stated:

... that where a homestead right is asserted and established, a creditor of the homestead debtor seeking to subject any excess value to the payment of his debt must allege and prove such excess value and seek a corresponding partition of the property. (Citations omitted.) (Emphasis added.)

Although the initial burden of proving the existence of the homestead is upon the homestead claimant, the creditor has the burden of alleging and proving the excess nonexempt value before he can resort thereto in satisfaction of his debt. See Burk Royalty Company v. Riley, 475 S.W.2d 566, 568 (Tex.1972); Engbrock v. Haidusek, 95 S.W.2d 520, 521-22 (Tex.Civ.App.--Austin 1936, writ ref'd).

Appellee Bank contends that the trial court correctly ruled that it had jurisdiction to determine the excess value issue under Art. 3827a; that the property here qualifies as "Article 3827a property" since the property sought to be sold is nonexempt and is not capable of being levied upon by ordinary legal means; that it is within the power of the legislature to create new ancillary remedies for judgment creditors and this the legislature has done by the enactment of Art. 3827a; that there is nothing in the article that suggests that a separate trial must be had on the issue of "determining" excess value. He further urges that appellant's answers in response to appellee's request for admissions have established that appellant's homestead property has value in excess of the constitutional exemption; that Steenland acquired the homestead property as unimproved real estate in 1956 for a consideration of $25,000.00; ³ that the current value of the property, with improvements, exceeds $800,000.00.

Where excess nonexempt value of a homestead is at issue, it is necessary that the current value (at time of trial) of the homestead lot exclusive of improvements be established. If no such determination is made, it is impossible to apply the...