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Sims v. Thomas

Court of Appeals of Texas, Fifth District, Dallas

August 20, 2019

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

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III

          OPINION

          BILL WHITEHILL JUSTICE

         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 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 ...


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