Vanguard Equities, Inc. v. Sellers

Decision Date30 August 1979
Docket NumberNo. 1438,1438
Citation587 S.W.2d 521
PartiesVANGUARD EQUITIES, INC., and Testor, Inc., Appellants, v. W. Harold SELLERS, Trustee, Appellee.
CourtTexas Court of Appeals
OPINION

NYE, Chief Justice.

This is a suit to quiet title. W. Harold Sellers, Trustee, owner of the legal title to a certain 1,252 acre tract of land located in Cameron County, Texas, filed suit against Testor, Inc. (Testor), and Vanguard Equities, Inc. (Vanguard), to remove as a cloud on the title to his property, a certain "Assignment of Trust" executed by Vanguard. This Assignment purported to convey to Testor some equitable interest Vanguard allegedly owned in the property. Vanguard did not file an answer or participate in the trial. Testor defended under a general denial. After a trial to the court the judge entered a default judgment as to Vanguard, cancelled the Assignment, thereby quieting the owner's title as to Vanguard and Testor. Testor and Vanguard appealed.

The record discloses that Vanguard was an Illinois corporation formed for the purpose of acquiring property for speculative purposes. Vanguard was incorporated sometime in 1973, by an attorney named Stanley Durka. Durka, Ward Saylor, and Robert D. McNeil served in varying capacities as the officers of Vanguard. The record shows that Durka and Saylor were the primary shareholders of Vanguard. Testor is a Delaware corporation which was also incorporated by Durka sometime in May of 1976, as a closely held family corporation. Neither McNeil nor Saylor were shareholders of Testor.

The land in question is part of an area located in Cameron County which is commonly called Boca Chica Beach. Record title to the property was held by Harold Sellers as Trustee under a warranty deed dated June 11, 1974. The deed, which was introduced into evidence at the trial, did not disclose the identity of the equitable title holders. The Assignment, which allegedly clouded Mr. Sellers' title, was introduced into evidence. It purports to have been executed by Saylor and Durka, and their respective capacities of President and Secretary of Vanguard. The Assignment (filed in the Deed Records of Cameron County on January 12, 1977) stated:

"WHEREAS, VANGUARD EQUITIES, INC., an Illinois Corporation, presently owns ONE HUNDRED PERCENT (100%) of all beneficial interests in and to that certain Trust Agreement evidenced by Letters dated August 30, 1974, and July 22, 1975, addressed to Stanley A. Durka, Attorney at Law . . .

NOW, THEREFORE, FOR VALUE RECEIVED, said VANGUARD EQUITIES, INC., an Illinois Corporation, pursuant to appropriate authority of and at the direction of said Corporation's Board of Directors, DOES HEREBY GRANT, SELL, CONVEY, ASSIGN, TRANSFER and DELIVER to TESTOR, INC., a Delaware Corporation, and its assigns, all of its rights in and to said Trust, including all powers of direction with respect thereto and the beneficial interests therein. . . ."

Shortly after the Assignment was recorded, Mr. Sellers filed this suit against Vanguard and Testor, alleging that such assignment was a forgery and as such was a cloud on his record title. Sellers prayed for the cancellation of the Assignment and for general relief. Testor filed an "Abstract of Title" in response to Sellers' demand under Rule 791, T.R.C.P. Prior to the time evidence was presented in the trial court, the trial judge granted a default judgment against Vanguard for its failure to answer or to appear. The trial judge denied Durka's oral request (made the day the trial commenced) to participate in the trial as an attorney on behalf of Vanguard. At trial, Durka participated as one of the attorneys for Testor, and as a witness.

According to Durka, Vanguard claimed an equitable interest in the property as a consequence of certain letter agreements between "The Sellers Group" (Sellers) and "The Durka Group" (Vanguard), which allegedly set forth some of the terms of a "joint venture" arrangement between the two groups. Sellers' position at trial was that the purported joint venture, if any had been contemplated, was never consumated, and that he (Sellers) held the property as Trustee for certain other beneficiaries, pursuant to the terms of another trust.

In support of the judgment cancelling the Assignment and quieting Sellers' title to the land in question, the trial judge filed the following relevant findings of fact:

"The document entitled 'Assignment of Trust,' dated August 24, 1975, . . . was not executed by the parties who are purported to have executed the same.

"That the document entitled 'Assignment of Trust,' described hereinabove, was the only document offered in evidence which purported to convey any title or interest, equitable or otherwise, in the subject property to Defendant Testor."

Before addressing the points of error which are before us on appeal, we shall first consider Sellers' cross-point, which complains that this Court has no jurisdiction to consider an appeal on behalf of Vanguard because Vanguard failed to timely perfect its appeal. We agree.

In this case, the trial court's judgment was entered on July 18, 1978. Thereafter, on July 28, 1978, a document entitled, "Motion for Correction of Judgment and in the Alternative Motion for New Trial," was filed on behalf of Testor. This motion was heard and overruled by the trial court by an order entered on September 1, 1978. The cash deposit in lieu of a bond was filed on October 2, 1978, on behalf of both Testor and Vanguard. The sole "Appellant's Brief" in this appeal was filed on behalf of both Testor and Vanguard.

Rule 356 of the Texas Rules of Civil Procedure requires that the bond for cost on appeal must be filed with the clerk of the trial court within thirty days after rendition of judgment or order overruling a motion for a new trial, or after a motion for a new trial is overruled by an operation of law. The requirement that the bond or deposit be filed within thirty days is mandatory and jurisdictional, Glidden Co. v. Aetna Casualty and Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956); Governing Board v. Pannill, 561 S.W.2d 517, 520 (Tex.Civ.App. Texarkana 1977, n. r. e.); Metal Enterprises, Inc. v. Don Love, Inc., 559 S.W.2d 90, 92 (Tex.Civ.App. Houston (1st Dist.) 1977, no writ); Roth v. Maryland American General Insurance Co., 454 S.W.2d 779 (Tex.Civ.App. San Antonio 1970, writ ref'd). Where there are several appellants, appellate jurisdiction is acquired only to those appellants who have timely filed an appeal bond, or who timely amend a defective bond. Woods Exploration and Producing Co. v. Arkla Equipment Co., 528 S.W.2d 568 (Tex.Sup.1975); Governing Board v. Pannill, 561 S.W.2d 517, 520 (Tex.Civ.App. Texarkana 1977, writ ref'd, n. r. e.); Elliott v. San Benito Bank & Trust Co., 137 S.W.2d 1070, 1071 (Tex.Civ.App. San Antonio 1940, no writ).

We conclude that the cash deposit, which was timely for Appellant Testor, was tardy as to Vanguard. Since Vanguard did not file a motion for a new trial (as did Testor), it was obligated to file a (cash) bond (or deposit in lieu thereof) within thirty days following the entry of the trial court's judgment on July 18, 1978. This was not done. Vanguard has not attempted to utilize any other method appropriate in situations where an appeal will not lie to question the validity and scope of the trial court's default judgment. See e.g., Anglo Mexicana de Seguros, S.A. v. Elizondo, 405 S.W.2d 722 (Tex.Civ.App. Corpus Christi 1966, n. r. e.). We, therefore, conclude that we do not have jurisdiction to consider an appeal on behalf of Vanguard. That portion of this appeal is dismissed.

Our major problem concerning Testor's appeal is the "shot-gun" method in which it has attempted to attack the trial court's judgment. This is well illustrated by its prayer in its brief in which at least twelve separate prayers requesting relief are set out, most of which were never at issue in the trial court. For illustration, the request include relief for: 1) a summary judgment against Harold Sellers; 2) Judgment on the Pleading in Court; 3) censor and other appropriate discipline of the plaintiff as a member of the bar, by reason of his misconduct demonstrated by this record; 4) for "remandment (sic) for either additional evidence on specific particular issues or for a new trial"; and so forth. Appellant also contends that "While the nature of Sellers' 'trust' is the principal issue in the case, the record also presents...

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