                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00095-CV

MARY BLANCHE BOEGNER, AS EXECUTRIX
OF THE ESTATE OF ALLAN PATRICK
(A.P.) BOEGNER AND AS TRUSTEE
OF THE BETTY BLANCHE BOEGNER
REVOCABLE TRUST,
                                                           Appellants
v.

CHRISTOPHER C. KIRK, SHERIFF BRAZOS
COUNTY, TEXAS AND REVERE FINANCIAL
CORPORATION,
                                                           Appellees



                       From the County Court at Law No. 2
                              Brazos County, Texas
                       Trial Court No. 10-002037-CV-CCL2


                           MEMORANDUM OPINION


     By two issues, appellant, Mary Blanche Boegner, as executrix of the estate of Allan

Patrick (“A.P.”) Boegner and as trustee of the Betty Blanche Boegner revocable trust,

challenges the trial court’s February 24, 2011 final judgment in favor of appellees,
Christopher C. Kirk, Sheriff Brazos County, Texas, and Revere Financial Corporation

(“Revere”). We reverse and remand.

                                          I.      BACKGROUND

        Mary a/k/a Betty Blanche Boegner was married to A.P. until his death in 1994.

On April 21, 1994, the County Court at Law No. 2 of Brazos County entered an “Order

Admitting Will to Probate and Authorizing Letters Testamentary” for A.P.’s estate.

Mary was appointed as the Independent Executrix of A.P.’s estate.

        In 1995, Revere sued A.P.’s estate, among others, in Monroe County, New York,

for default on a note and to foreclose on collateral associated with the note. Mary made

an appearance and was represented by counsel in the New York lawsuit.1 After a

foreclosure sale of the underlying property in the New York lawsuit and a motion filed

by Mary to dismiss Revere’s motion for a deficiency judgment, the New York Court, on

March 24, 2000, entered a deficiency judgment against Mary, as executrix of A.P.’s

estate, for $15,657.07 plus interest from the date of the foreclosure sale.2

        In August 2002, Revere filed a petition in the County Court at Law No. 2 of

Brazos County, seeking to domesticate the New York judgment in the State of Texas.

Mary made an appearance in her capacity as executrix of A.P.’s estate and was

represented by counsel.


        1 Referring to Defendant’s Exhibit 3, Revere alleges that Mary appeared in the New York lawsuit
as the executrix of A.P.’s estate. However, it is unclear from Defendant’s Exhibit 3 as to the capacity in
which Mary made her appearance or the capacity in which she was sued.

        2 In its deficiency judgment, the New York Court stated that Mary appeared in both her
individual capacity and her capacity as executrix of A.P.’s estate. Nevertheless, the deficiency judgment
was assessed against Mary in her capacity as executrix of A.P.’s estate.


Boegner v. Kirk                                                                                    Page 2
       On May 5, 2006, the county court granted summary judgment in favor of Revere

and ordered Mary, as executrix of A.P.’s estate, to pay $15,657.07 plus interest as

provided in the New York judgment, $2,500 in reasonable attorney’s fees, costs of court,

and pre and post-judgment interest to Revere. On May 16, 2006, Revere’s judgment

was abstracted and recorded in Brazos County.

       Revere located two parcels of land located in Brazos County, which, according to

the property records of Brazos County, were owned by A.P. and/or Mary, as executrix

of A.P.’s estate.3 Revere sought a writ of execution to allow the sheriff to sell the located

properties to satisfy the abstracted judgment. The writ of execution was issued on

October 29, 2009.

       Thereafter, a “Notice of Sheriff’s Sale” was issued by Kirk. The notice of sale

provided that the Brazos County Sheriff’s Office will “sell for cash to the highest bidder,

all of the right, title and interest of the Defendant [Mary, as executrix of A.P.’s estate] in

and to” three parcels of land on August 3, 2010.

       Days before the Sheriff’s Sale, Mary filed an original petition and motions for a

temporary restraining order and temporary and permanent injunction to stop the

sheriff’s sale of the properties. In this filing, Mary indicated that she was filing suit in

both her capacity as executrix of A.P.’s estate and as trustee of the Betty Blanche

Boegner Revocable Trust. The county court granted Mary a temporary restraining




       3  At the trial on this matter, Mary asserted that she owned the properties in her individual
capacity under A.P.’s will. A.P.’s will was not included in the record.

Boegner v. Kirk                                                                              Page 3
order and set the matter for a hearing.               In accordance with the provisions of the

temporary restraining order, Mary posted a $10,000 bond in the county court’s registry.4

        On November 19, 2010, the county court held a bench trial in this matter.5 In a

letter ruling dated January 14, 2011, the county court stated that Mary “does not have

standing to enjoin Revere.” The county court subsequently entered a final judgment,

which ordered that Mary “take nothing by way of her claims for affirmative relief, if

any, against Revere.” The judgment further stated that Mary “is not entitled to any

injunctive relief against Revere . . . and was not entitled to any injunctive relief at the

time the Temporary Restraining Order was issued . . . ” and that “Revere is allowed all

writs and processes necessary to collect this judgment.” This appeal followed.

                                             II.     STANDING

        In her first issue, Mary contends that the trial court erred in concluding that she

lacked standing to seek injunctive relief against Revere in order to clear title to the

properties involved in this matter. With regard to both her capacities as executrix and

as trustee, Mary asserts that she has a justiciable interest in this matter because her

contractual obligations require her to bring suit to defend and warrant title to the

properties. Revere responds that Mary, as executrix of A.P.’s estate, had no ownership

interest in the properties. Revere also argues that Mary, as trustee of the Betty Blanche




       4 The trial court’s judgment specifically noted that it “does not resolve any claims, if any, to the

Attorney Bond posted by Boegner and her attorney in this case.”

        5At trial, the parties focused almost exclusively on whether Boegner retained an interest in the
properties in question.

Boegner v. Kirk                                                                                     Page 4
Boegner Revocable Trust, lacked standing because the properties were allegedly sold

and the deeds were not recorded.

A.     Applicable Law

       Standing "focuses on whether a party has a sufficient relationship with the

lawsuit so as to have a 'justiciable interest' in its outcome." Austin Nursing Ctr., Inc. v.

Lovato, 171 S.W.3d 845, 848 (Tex. 2005). Essentially, a plaintiff has standing when she is

personally aggrieved, regardless of whether she is acting with legal authority. See

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

(holding that the standing doctrine requires that there be (1) "a real controversy

between the parties," that (2) "will be actually determined by the judicial declaration

sought"). The complained-of injury "must be concrete and particularized, actual or

imminent, not hypothetical." DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304-05

(Tex. 2008) (footnotes omitted); see Tex. Lottery Comm'n v. Scientific Games Int'l, Inc., 99

S.W.3d 376, 380 (Tex. App.—Austin 2003, pet. denied) (holding that "[t]o establish

standing, one must show a justiciable interest by alleging an actual or imminent threat

of injury peculiar to one's circumstances and not suffered by the public generally"); see

also Elizondo v. Tex. Natural Res. Conservation Comm'n, 974 S.W.2d 928, 932 (Tex. App.—

Austin 1998, no pet.) (citing Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 2204-05,

45 L. Ed. 2d 343 (1975) (noting that the general standard for determining whether a

plaintiff has standing is whether she has such a personal stake in the outcome of the

controversy as to warrant invocation of the court's jurisdiction and to justify exercise of

the court's remedial powers on her behalf)).

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        Standing is implicit in subject-matter jurisdiction and cannot be waived. See

Lovato, 171 S.W.3d at 849; see also Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 443 (Tex. 1993).        As such, challenges to standing can be raised at any time,

including for the first time on appeal. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849,

850 (Tex. 2000).

B.      Discussion

        The record indicates that Mary entered into a contract to sell the first property—a

tract of land located at 207 Trant in Bryan, Texas—to Mario and Sandra Gonzales on

September 14, 1994, several months before Revere filed suit in New York.6                            The

purchase price was $38,500, with Mary providing seller financing. The Gonzaleses were

required to pay Mary monthly installments of $342.60 for twenty years or until the

balance of the note was paid in full.             Attached to the contract was the following

addendum, which was signed by both parties: “The conveyance of this property shall

be AS IS, WHERE IS, and Agents, Brokers and Seller [Mary] hereby expressly disclaim

and negate: (a) Any implied or express warranty of merchantability, (b) Any implied or

express warranty of fitness for a particular purpose, and (c) Any implied or express

warranty whatsoever[.]”

        The second property—identified as a 3.86-acre tract in Block 21 of the A.P.

Boegner subdivision—was conveyed pursuant to a warranty deed with vendor’s lien on

November 11, 1997, to Ole and Linda Sanchez. And the record does not contain any


        6The September 14, 1994 contract is unclear as to Mary’s capacity at the time of the contract. She
signed the contract as “Mary E. Boegner” without any designation as Executrix of A.P.’s estate or as
Trustee of the Betty Blanche Boegner Revocable Trust.

Boegner v. Kirk                                                                                    Page 6
evidence regarding the alleged third property. None of the contracts or deeds have

been recorded in the property records.

       Mary’s appellate complaints center on the first parcel of land. Mary argues that

the contract for deed required her to “bring suit to defend and warrant title to the

property,” which, ostensibly, conferred standing on her in this matter. We note that

Mary’s contention is undermined by one of the addenda attached to the September 14,

1994 contract, in which Mary specifically disclaimed and negated “[a]ny implied or

express warranty whatsoever.” The language contained in this addendum suggests

that Mary did not intend to warrant title to the Gonzaleses.

       Nevertheless, we find that Mary retains an interest in the property by nature of

the contract. As was the case in Texas American Bank/Levelland v. Resendez, the grantor—

Mary, here—entered into a contract for sale with the grantees—the Gonzaleses—who

agreed to pay for the property by monthly installments of $342.60. See generally 706

S.W.2d 343 (Tex. App.—Amarillo 1986, no writ).          The contract provided that the

Gonzaleses had twenty years from the date of the contract—September 14, 1994—to pay

for the property, and Mary testified that the Gonzaleses had not yet paid in full.

       Similarly, in Resendez, a third party—Loveta Alford—sold the surface rights of a

piece of property to the grantees—the Resendezes—for $4,000, of which $500 was paid

at the time of execution of the instrument and the remainder was paid in monthly

installments. Id. at 344. This transaction was not immediately recorded, though it was

eventually done. Id. at 344-45. However, prior to recording the transaction, appellant

obtained a judgment of $1,860.61 against Alford. Id. at 345. Appellant then tried to

Boegner v. Kirk                                                                      Page 7
assert a lien against Alford’s property. Id. at 344-45. After reviewing cross motions for

summary judgment, the trial court granted summary judgment in favor of the

Resendezes and vested title to the property in the Resendezes free and clear of any lien

in favor of appellant. Id. at 344.

       In affirming the trial court’s judgment, the Amarillo Court of Appeals explained:

       A contract of sale, such as the one here in question, is not effective as a
       conveyance, but is an executory contract for the sale of land. Federal Life
       Ins. Co. v. Martin, 157 S.W.2d 149, 152 (Tex. Civ. App.—Texarkana 1941,
       writ ref’d). Thus, the contract was not such an instrument that passed an
       interest in the realty. Similar to the contract in Jensen v. Bryson, 614 S.W.2d
       at 933, it merely specified the conditions for the future passing of the
       seller’s interest to appellees. Until appellees had performed their
       covenant by the payment of the purchase price, they possessed but an
       equitable right. Johnson v. Wood, 138 Tex. 106, 157 S.W.2d 146, 148 (1941);
       Guzman v. Acuna, 653 S.W.2d 315, 319 (Tex. App.—San Antonio 1983, writ
       dism’d).

Id. at 345. Implicit in the Resendez court’s conclusion is that Alford retained an interest

in the property because the contract was executory in nature.           See id.   And until

appellees performed their covenant by payment of the purchase price, Alford retained

an interest in the property. See id.

       In the present case, Boegner testified that the Gonzaleses were still making

installment payments pursuant to the executory contract, and the contract itself states

that such payments would be made for twenty years from September 14, 1994 or until

the note is paid off. Based on these facts, we conclude that Boegner retained an interest

in the first property at the time of trial, and as such, we hold that she has a justiciable

interest in this matter. See Lovato, 171 S.W.3d at 848; Nootsie, Ltd., 925 S.W.2d at 661.



Boegner v. Kirk                                                                          Page 8
Accordingly, we sustain Boegner’s first issue. Furthermore, we do not reach the second

issue.

                                   III.     CONCLUSION

         Because we have sustained Boegner’s issue as to standing, we reverse the

judgment of the trial court and remand for proceedings consistent with this opinion.




                                          AL SCOGGINS
                                          Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed June 27, 2012
[CV06]




Boegner v. Kirk                                                                   Page 9
