                                                                                          ACCEPTED
                                                                                      01-14-00350-CV
                                                                           FIRST COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                 8/11/2015 5:41:52 PM
                                                                                CHRISTOPHER PRINE
                                                                                               CLERK

                        No. 01-14-00350-CV

                    IN THE COURT OF APEALS
                                                               FILED IN
                                                        1st COURT OF APPEALS
          FOR THE FIRST DISTRICT OF TEXAS AT       HOUSTONHOUSTON, TEXAS
                                                        8/11/2015 5:41:52 PM
                       THURMAN H. WEST.                 CHRISTOPHER A. PRINE
                                                                Clerk
                             Appellant,

                                 v.

                 GWENDOLYN MESHALLE WEST

                              Appellee

ON APPEAL FROM THE 300TH DISTRICT COURT BRAZORIA COUNTY, TEXAS

                  TRIAL COURT CAUSE NO. 55385

             APPELLEE’S MOTION FOR REHEARING

                    ANDERSON & SMITH, P.C.
                          Wendle Van Smith
                           S.B.N. 18701400
                       ONE ARENA PLACE
                 7322 Southeast Freeway, Suite 2010
                       Houston, Texas 77074
                     Telephone: (713) 621-5522
                     Telecopier: (713) 995-1499
                 Counsel for Gwendolyn Meshalle West

                                      Respectfully submitted,

                                      /s/ Wendle Van Smith_____________
                                      Wendle Van Smith
                                      SBN: 18701400
                                      Anderson & Smith, P.C.
                                      7322 Southeast Freeway, Suite 2010
                                      Houston, TX 77074
                                      Tel: 713 621-5522
                                      Fax: 713 995-1499
                                      Attorney for Appellee
                                             TABLE OF CONTENTS



TABLE OF CONTENTS ……………………………………………………………………… 2

INDEX OF AUTHORITIES …................................................................................................... 3

    I.        The ground on which the court decided the case has been waived ………………... 4

    II.       A rehearing must be granted to correct erroneous faulty reasoning or analysis …... 5

    III.      The Court of Appeals opinion conflicts with Texas Supreme Court precedent and the
              Texas Constitution ………………………………………………………………… 9

PRAYER ……………………………………………………………………………………... 10

CERTIFICATE OF SERVICE ……………………………………………………………….. 11




                                                       Page 2 of 11
                                         TABLE OF AUTHORITIES

Cases

Brooks v. Mass Mktg.,
       No. 03-07-00658-CV, 2010 Tex. App. LEXIS 2529 (Tex. App.–Austin Apr. 6, 2010, no
       pet. h.) (mem. op. on reh’g) …………………………………………………………… 4

Cont’l Cas. Co. v. Huizar,
       740 S.W.2d 429, 430 (Tex. 1987) …………………………………………...……….... 4

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
       852 S.W.2d 440, 446 (Tex. 1993) ……………………………………..………………. 4

Nootsie, Ltd. v. Williamson County Appraisal Dist.,
       925 S.W.2d 659, 661 (Tex. 1996) ……........................................................................... 4

Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd.,
      249 S.W.3d 380, 387 (Tex. 2008) ……………………………………………………... 5

Villarreal v. Laredo National Bank,
        677 S.W.2d 600, 609 (Tex. App.–San Antonio 1984, writ ref’d n.r.e.) ...……….. 6-8, 10

Hous. First Am. Sav. v. Musick,
       650 S.W.2d 764, 770 (Tex. 1983) …………….…………………………………… 6, 8-9

Higgins v. Bankers’ Mortg. Co.,
       13 S.W.2d 683, 684 (Tex. Comm’n App. 1929, no writ) …………………………... 9-10

Grisson v. Anderson,
       79 S.W.2d 619, 621 (Tex. 1935) ………………………………………........................ 10

Zable v. Henry, Day v. Edmonds,
       No. 11-04-00135-CV, 2005 WL 2090685, at *3 (Tex. App.–Eastland Aug. 31, 2005, no
       pet.) ………………………………………….………………………………………… 10
Cummings v. Gillespie,
       No. 12-01-0046-CV, 2002 WL 452285, at *2 (Tex. App.–Tyler Mar. 20, 2002, pet.
       denied) ………………………………………………………………………………… 10

Geldard v. Watson,
      214 S.W.3d 202, 208 (Tex. App.–Texarkana 2007, no pet.) …………………...…….. 10

Other Authority

TEX. R. APP. P. 33.1(a) ……………………………………………………………………….. 5

TEX. CONST. Art. XVI, § 50(b) ………………………………………………………………. 9

                                                     Page 3 of 11
TO THE HONORABLE FIRST DISTRICT OF TEXAS AT HOUSTON,


   Appellee, Gwendolyn Meshalle West, submits this rehearing in response to the opinion

issued by the Court on July 14, 2015, and requests that the Court consider the following issues:


   Issue 1: The ground on which the court decided the case has been waived.


   Issue 2: A rehearing must be granted to correct erroneous faulty reasoning or analysis.


   Issue 3: The Court of Appeals opinion conflicts with Texas Supreme Court precedent and the

            Texas Constitution.


   I.      The Ground on which the Court decided the Case has been Waived


        The Court should not address issues that have been waived, and whenever it becomes

apparent that the Court has done so, it will change course. Brooks v. Mass Mktg., No. 03-07-

00658-CV, 2010 Tex. App. LEXIS 2529 (Tex. App.–Austin Apr. 6, 2010, no pet. h.) (mem. op.

on reh’g). Generally, only parties of record have standing to appeal. See Cont’l Cas. Co. v.

Huizar, 740 S.W.2d 429, 430 (Tex. 1987). Standing requires that the parties have a real

controversy which can actually be determined by the relief sought. Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In other words, a person has standing to appeal

when he is personally aggrieved by the alleged wrong. Nootsie, Ltd. v. Williamson County

Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996).


        Thurman claims no interest in the house. Rather, he asserts that the deed was transferred

out of the community estate to Southeast Community Church (“Southeast”) by general warranty




                                           Page 4 of 11
deed.1 However, Southeast was an original party to the suit, and did not object to the court’s

characterization of the property at trial. Southeast also did not appeal the trial court’s decision.

To preserve a complaint for appellate review, the record must show that the complaint was made

to the trial court by a timely objection that stated the grounds for the ruling sought with sufficient

specificity unless those grounds are apparent, and that the trial court ruled or refused to rule on

the objection. TEX. R. APP. P. 33.1(a). An objection must be clear enough to give the trial

court an opportunity to correct the asserted error. Arkoma Basin Exploration Co. v. FMF Assocs.

1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008).


          At issue is who owns the house. This is a question that must be addressed before the

division of property. Prior the division of property, Southeast was the only party to be personally

aggrieved by a mischaracterization of the property as community property, rather than property

outside of the estate. Therefore, Southeast, as an original party to the suit, is the only party with

standing to raise this issue on appeal. Thurman, who owned an equal interest with Gwendolyn

prior to the division, is only incidentally aggrieved by the alleged mischaracterization. As such,

he does not have standing to raise this issue on appeal. The issue had been waived at trial by

Southeast.


    II.      A rehearing must be Granted to Correct Erroneous Faulty Reasoning or Analysis


          The Court of Appeals reasoned “it has been recognized that ‘Texas courts have adhered

strictly to the principle that one-spouse homestead transactions are not void, but merely

inoperative while the property remains the non-signing spouse’s homestead…’ And where, as

here, a grantor conveys, by way of warranty deed, a greater estate or interest than he or she has,

1
 The facts show that Southeast Community church paid the down payment on the mortgage as income to
Thurman during the marriage.

                                               Page 5 of 11
such warranty deed operates, by way of estoppel, to pass to the grantee any title or interest

thereafter acquired by the grantor.” The court cites both Villarreal v. Laredo National Bank, 677

S.W.2d 600, 609 (Tex. App.–San Antonio 1984, writ ref’d n.r.e.) and Hous. First Am. Sav. v.

Musick, 650 S.W.2d 764, 770 (Tex. 1983). Based on this reasoning, the Court of Appeals

concluded that “the house was not part of the community estate subject to division.” The court’s

conclusion is incongruent with the law and equity.


       Essentially, the Court of Appeals opined that because the Trial Court awarded the

property to Thurman as part of a just and right division of community property, the general

warranty deed either became operative at the time of the transaction, which would be a

misinterpretation of Musick, or the transaction became operative after the divorce decree

pursuant to the court’s order to hand the house over to Thurman, and the law retroactively

excludes the property from the community estate altogether for purposes of the division of

community property upon divorce. This conclusion is both nonsensical and unfounded on any

notion of what is just and right. By the Appellate Court’s logic, had the trial court,

hypothetically, awarded the house to Gwendolyn as her share of a just and right split rather than

Thurman, the property would remain a part of the community estate, and there would be no issue

on appeal. At the very least, one question that must be addressed is whether, in making this

decision to remand, the trial court would be given authority to award the property to the

Appellee, Gwendolyn?


       It is undisputed that Thurman conveyed the property to Southeast without getting

Gwendolyn’s authorization or permission. Gwendolyn testified at trial that she never intended to

deed the house back to Southeast. The trial court took these facts under consideration in its

decision to award the house to Thurman. The trial court, intending to protect the apparent

                                             Page 6 of 11
bystanders of the transaction, Gwendolyn and Southeast, awarded the house to Thurman as his

share of the community property with the intention of forcing Thurman to account for the

consequences for his duplicitous actions. Thurman should not be rewarded for unilaterally

transferring assets to Southeast, an entity of which he is president, agent, and controlling owner,

in a plainly calculated attempt to divest his wife of her community share. Allowing a spouse to

omit community property in such a manner would encourage the commission of fraud upon the

spouse, and would work an injustice upon the court and the law.


       Furthermore, the Court of Appeals misinterpreted the law in Villarreal. In Villareal,

Roger, the ex-husband of the appellant unilaterally took out a loan from the Appellee-creditor,

secured by a lien against the property that was granted to him in the divorce decree, but subject

to homestead exemption in favor of the Appellant. The court held that the Appellant’s homestead

interest was not subject to forced sale by the Appellee-creditor. Within its opinion, the court

noted that “Texas courts have adhered strictly to the principle that one-spouse homestead

transactions are not void, but merely inoperative while the property remains the non-signing

spouse’s homestead.” 677 S.W.2d 600, 609 (Tex. App.–San Antonio 1984, writ ref’d n.r.e.). This

passage was cited by the Court of Appeals in its decision to remand. However, in making this

statement, the Villarreal court’s goal was to ensure the innocent creditor would be adequately

protected, not to retroactively alter divorce decree so as to remove the homestead from the

community estate, as was the Court of Appeal’s interpretation, and result in the instant case.


       Rather, the Villareal court specifically held contrary to such an interpretation. In

Villareal, the marriage decree granted the property to Roger, the ex-husband as part of a just and

right division of community property. Even after the determination that the one-spouse

homestead transaction was not void, but merely inoperative, the court did not retroactively alter

                                            Page 7 of 11
the character of the homestead property for purposes of the division of community estate upon

divorce. The court merely ensures that the creditor’s rights are protected. Clearly, the Villareal

court’s decision had nothing to do with the characterization of the property and does not even

pertain to the rights between the husband and wife. Rather the court only addressed issues

affecting the relationship between the creditor and the Appellant-spouse. The creditor in

Villarreal is analogous to Southeast, the warrantee in this divorce suit. Southeast does not assert

any rights on Appeal, and waived its rights to the property at trial.


       In addition, in Villareal, the loan upon which the ex-husband unilaterally entered into

was undertaken after the divorce decree and after the court already divested the wife-Appellant

of all her interest in the property outside of her right to homestead. However, with the case at

hand, Thurman unilaterally executed the warranty deed to Southeast during the marriage, before

Gwendolyn had been divested of all her rights in the property. In other words, the Appellant

homestead occupant in Villareal had no rights to the property at the time of the transaction, while

Gwendolyn, the Appellee homestead occupant in this case, still had rights to the property at the

time of the transaction in this case, and throughout the trial up to the time this case is considered.

As such, Villareal is distinguished from this case. The Appellee cannot be divested of her rights

to the property against Thurman simply because of Thurman’s unilateral decision o transfer

property for the purposes of hiding his assets from the community estate.


       The Court of Appeals also misinterprets the court in Musick. The Court of Appeals cited

Musick, stating that “title subsequently acquired to land by warrantor or seller passess ‘eo

instante’ to the warrantee or buyer.” This conclusion is derived from a passage in Musick, with

regards to the Doctrine of After-acquired Title, where the court explains “[t]he rule is that ‘when

one conveys land by warranty of title, or in such a manner as to be estopped to dispute the title of

                                             Page 8 of 11
his grantee, a title subsequently acquired to that land will pass eo instante to his warrantee,

binding both the warrantor and his heirs and subsequent purchasers from either.’” 650 S.W.2d

764, 770 (Tex. 1983). In other words, the rule states that title passes to the warrantee subsequent

to the warrantor acquiring the title, eo instante, at the moment of acquisition, not at the moment

of transaction. In this case, the title did not pass solely to the warrantor, Thurman, until after the

divorce decree, where the court ordered that Gwendolyn be divested of her interest in her house

as part of a just and right division of property. Because clear title was acquired after the divorce,

the passing of title to Southeast has no bearing on the characterization of the property, and

should not affect the just and right division of the community estate pursuant to divorce.


          Furthermore, the court in Musick can be distinguished from the case at hand in that the

Musick case did not involve homestead property. In Texas, the law grants extensive protections

to spouses with regards to a homestead. Specifically, any deed is invalid without the signature of

both spouses. Where the warranty deed is invalid, there is no warrantor or warrantee. As such,

the Doctrine of After-acquired property, which specifically applies to warrantors and warrantees,

is inapplicable where a homestead is involved.


   III.      The Court of Appeals opinion conflicts with Texas Supreme Court Precedent and the

             Texas Constitution


          Lastly, the Court of Appeals opinion is invalid with regards to the Texas Constitution,

and the Texas Supreme Court decision in Higgins, which has yet to be overturned. Texas

legislature states “[a]n owner or claimant of the property claimed as homestead may not sell or

abandon the homestead without the consent of each owner and the spouse of each owner, given

in such manner as may be prescribed by law.” TEX. CONST. Art. XVI, § 50(b). In Higgins, the


                                             Page 9 of 11
Supreme Court of Texas held that one-spouse homestead transactions are invalid to pass title.

Higgins v. Bankers’ Mortg. Co., 13 S.W.2d 683, 684 (Tex. Comm’n App. 1929, no writ). The

Court of Appeals argued that this holding has since been contradicted by Villarreal, Grisson v.

Anderson, 79 S.W.2d 619, 621 (Tex. 1935), Zable v. Henry, Day v. Edmonds, No. 11-04-00135-

CV, 2005 WL 2090685, at *3 (Tex. App.–Eastland Aug. 31, 2005, no pet.), Cummings v.

Gillespie, No. 12-01-0046-CV, 2002 WL 452285, at *2 (Tex. App.–Tyler Mar. 20, 2002, pet.

denied), and Geldard v. Watson, 214 S.W.3d 202, 208 (Tex. App.–Texarkana 2007, no pet.).

However, other than Grisson, none of those cases were rulings handed down by the Texas

Supreme Court, and Grisson is not directly contradicting or on-point. As such, Higgins is still

valid precedent, until overturned by the Texas Supreme Court. Therefore, the trial court did not

abuse discretion in merely following valid law. Until Higgins or Section 50(b) is overturned, the

court must affirm the trial court and hold in favor of the Appellee.


                                             PRAYER


       For the reasons stated in this motion, Appellee asks the Court to grant this motion for

rehearing, withdraw its opinion, sustain the trial court’s judgment, and render judgment for

Appellee.


                                                      Respectfully submitted,

                                                      /s/ Wendle Van Smith_____________
                                                      Wendle Van Smith
                                                      SBN: 18701400
                                                      Anderson & Smith, P.C.
                                                      7322 Southeast Freeway, Suite 2010
                                                      Houston, TX 77074
                                                      Tel: 713 621-5522
                                                      Fax: 713 995-1499
                                                      Attorney for Appellee

                                           Page 10 of 11
                                 CERTIFICATE OF SERVICE

       Pursuant to Tex. R. App. P. 9.5, I certify that on Tuesday, August 11, 2015, a copy of this
motion was mailed via first class U.S. mail, postage prepaid, to the following:

cc:
       Aaron B. Pickelner
       CORDELL & CORDELL, P.C.
       State Bar No. 24013329
       1300 Post Oak Blvd., Suite 1800
       Houston, Texas 77056
       apickelner@cordelllaw.com
       Office: 832 730-2965
       Via Facsimile: 832-730-2966
       Via Certified Mail RRR: 7013 0600 0001 7362 4284

       JOHN L. GREEN
       State Bar No. 00784165
       4888 Loop Center Drive, Suite 445
       Houston, TX 77081
       Jlgreen488@aol.com
       Office: 713-660-7400
       Via Facsimile: 713-660-9921
       Via Certified Mail RRR: 7013 0600 0001 7362 4291

                                                      _____/s/ Wendle Van Smith ________
                                                      WENDLE VAN SMITH




                                            Page 11 of 11
