                         In The
                   Court of Appeals
     Sixth Appellate District of Texas at Texarkana
             ______________________________

                   No. 06-11-00080-CV
             ______________________________


   RANCHO MI HACIENDA AND GILDA ARANA, Appellants

                               V.

LINDA MELTON BRYANT, FORMERLY LINDA OWENS, Appellee




        On Appeal from the 62nd Judicial District Court
                   Hopkins County, Texas
                  Trial Court No. CV39902




          Before Morriss, C.J., Carter and Moseley, JJ.
                  Opinion by Justice Moseley
                                                     OPINION

            This is an appeal of the entry of a judgment in a suit brought by Linda Melton Bryant

(formerly Linda Owens and to whom reference is made herein as Bryant) against Rancho Mi

Hacienda and Gilda Arana (to whom reference is made jointly herein as Rancho). The facts

giving rise to the litigation involve a called 126-acre tract of land in Hopkins County which would

have presumably once been the community property and estate of Bryant and her former husband,

Coy Lynn Owens.

             During Bryant’s marriage to Owens, Rancho attempted to purchase the property the

subject of the suit from Owens and Bryant. Although there was an April 14, 2008, letter from

Owens which Rancho maintained memorialized a verbal contract for deed of the realty, there was

nothing signed by Bryant. Apparently relying on its belief that it had an enforceable agreement,

Rancho moved its seventy-three Andalusian horses onto the property, paid Owens $25,000.00 and

gave Owens’ and Bryant’s daughter an Andalusian horse of her choosing, purchased a log cabin

either to be moved or actually moved onto the premises, and made improvements, including the

erection of panels to contain the horses and the provision of water and electric utilities to serve the

improvements. Rancho took possession of the property for its horse operation sometime in April

2008.1 During at least a portion of this time, Owens and Bryant were separated, due to Owens’

incarceration in federal prison. Rancho indicated that it had been led to believe the title to the

property was held by an entity known as L&L Investments for the benefit of Owens and Bryant.
1
    There is no mention of the doctrine of promissory estoppel.

                                                            2
       Despite Rancho’s belief regarding the status of the title, the realty had been conveyed by

deed dated November 8, 2007, and filed of record February 25, 2008, from Dale Long to Bryant

solely, there having been no mention in the deed of her then-husband, Owens.

       After Rancho gained possession of the property, Bryant filed suit for a divorce from Owens

and an agreed decree of divorce was entered June 12, 2008. In this decree of divorce, Bryant was

awarded the realty in question and Owens was divested of any title to it.

       Following closely on the heels of the entry of the decree of divorce, Rancho filed suit

against Owens, Bryant, and L&L Investments, alleging both contractual and tort claims. The

contract claim sought specific performance against all three defendants of an alleged oral

agreement to sell the subject real estate for a total of $225,000.00, plus an Andalusian horse to be

turned over to the daughter of Bryant and Owens, together with other minor consideration. Under

the terms of the agreement as alleged in the pleadings, Rancho was to pay $25,000.00 and the

horse as down payment, while the remaining $200,000.00 was to bear interest at the rate of four

percent per annum for a period of five years. Rancho was to pay interest only during the term of

the contract (the pleadings do not specify when these interest payments were to be paid), and the

remaining balance of the obligation was to be paid at the end of the five-year term. The tort claim

involved alleged real estate fraud in the representations that the defendants would (or could)

deliver merchantable title to the property and sought damages for the recovery of the monies paid,

the costs of moving the horses from California to Texas, the cost of the improvements made to the



                                                 3
property, veterinary bills for the horses, for the loss of five horses who died, and loss of earnings

for one year’s breeding season.

         After having obtained service of citation on the incarcerated Owens, but having received

no written answer from him, Rancho took a nonsuit against Bryant and L&L Investments and

proceeded to take a default judgment against Owens. This judgment (dated December 22, 2009)

awarded specific performance against Owens,2 together with actual damages, punitive damages,

attorney’s fees, pre- and post-judgment interest, costs, and post-judgment enforcement remedies.

         Rancho apparently remained in possession of the property and sought to levy execution on

the 126-acre tract to satisfy the judgment it had taken against Owens. Bryant obtained a judgment

in forcible detainer in justice court to eject Rancho from the property.3

         This case was filed by Bryant, who sought a declaratory judgment that the realty was

owned in fee simple solely by Bryant and that Rancho could not acquire an interest in the realty by

virtue of the judgment it took against Owens, and she interposes the homestead exemption from

forced sale. Bryant also mentions that she seeks recovery for slander of title, trespass to real

property, and trespass to try title. Rancho responded by alleging that the realty was community

property of Owens’ and Bryant’s marriage and that while Owens was married to Bryant, he

2
 Although it awarded specific performance, it did not describe the lands the subject of the contract or the terms of the
contract.
3
 These things are not mentioned in the pleadings except that Bryant indicates a constable had levied on the property
and was attempting to conduct a sale of Owens’ interest in the property. Further, Bryant’s attorney maintained to the
trial court that the hearing was intended as a de novo hearing of the appeal of that justice court case wherein, he
represented, Bryant had prevailed.

                                                           4
defrauded Rancho. Rancho maintains, therefore, that its interest in the community estate was

subject to recovery for tortious liability incurred during the marriage.

        After a bench trial, the court rendered judgment that Rancho could not levy on the real

estate to satisfy its judgment against Owens because Owens owned no interest in the property, also

ruling that the real estate was Bryant’s homestead and, thus, not subject to levy for execution.

The real estate is not described in the judgment.

        The court entered findings of fact stating that the property was at all relevant times

Bryant’s homestead and that she had never signed any contract or agreement for the sale of it.

The court also noted that Owens was incarcerated in a federal penitentiary and that because

Rancho nonsuited Bryant, she never had an opportunity to defend her interest in the underlying

suit.

        The court entered conclusions of law stating that Owens owns no interest in the real

property in question and that because the real property in question was at all relevant times

Bryant’s homestead, it was not subject to levy for execution.

        Rancho argues on appeal that it, as an unsecured judgment creditor, should be able to reach

(presumptively community) property awarded to Bryant in her divorce from Owens.               It is

worthwhile to note that as this suit came to completion, it became a suit to recover on a judgment,

and is not in reality a suit to determine ownership of the property involved.




                                                    5
       Clearly, Rancho is a judgment creditor of Owens. However, although it appears that the

cause of action Rancho held arose during the marriage of Owens and Bryant, it became the

judgment creditor of Owens only after Owens had been divested of his interest in the real estate in

the action for divorce.

       Although Rancho’s suit originally included Bryant as a defendant, it made the choice to not

pursue an action against Bryant and filed a nonsuit as it pertained to her, electing to pursue

judgment only against Owens, who was apparently perceived to be the low-hanging fruit.

Rancho now attempts to enforce a judgment in a lawsuit in which (by its nonsuit) it prevented

Bryant from participating, against property that was (by then) solely owned by Bryant.

       The trial court found that Owens had no interest in the property and that the property was

also the homestead of Bryant and as such was not subject to levy for execution.

       Rancho raises two primary issues in its appeal. First, it maintains that the trial court erred

in determining that Owens did not possess an interest in the realty and, accordingly, the property

was not subject to execution of Rancho’s judgment against him. Second, it takes the position that

the trial court’s determination that Bryant’s claim of homestead exempted the property from the

claims of Rancho, an unsecured creditor, was erroneous.

       A bullet-point recitation of the stipulated facts concerning the chronology of the cogent

events in this case follows:

      November 8, 2007 -- Deed from Dale Long to Bryant (then Linda M. Owens) solely,
      without mentioning Owens as a grantee


                                                 6
      June 12, 2008 -- Final Decree of Divorce awards community property interest of Owens in
      the property to wife, now Bryant
      August 11, 2008 -- Rancho files suit against Owens and Bryant
      October 19, 2009 -- Rancho takes interim default judgment against Owens
      December 22, 2009 -- Rancho nonsuits Bryant and takes a final judgment against Owens

       Rancho correctly points out that the property deeded to Bryant during her marriage to

Owens is presumptively community. TEX. FAM. CODE ANN. § 3.003(a) (West 2006); see also

Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975). Rancho’s contention that all

community property is subject to claims of tortious liability incurred by the community during

marriage is also accurate. TEX. FAM. CODE ANN. § 3.202 (West Supp. 2011). Where Rancho’s

reasoning is erroneous regards whether a judgment taken after dissolution of the community solely

against one former spouse is enforceable against property awarded to the other (nonjudgment)

former spouse.

       Rancho relies on a statement from Carlton v. Estate of Estes, 664 S.W.2d 322, 323 (Tex.

1983) (per curiam), which states that “a spouse’s interest in community property subject to joint

management, control, and disposition may be reached to satisfy the liabilities of the other spouse

without joinder of both spouses in the suit.” Rancho also relies on the holding of this Court in

Inwood Nat’l Bank of Dallas v. Hoppe, 596 S.W.2d 183, 185 (Tex. Civ. App.—Texarkana 1980,

writ ref’d n.r.e.), that the pendency of a divorce does not diminish or limit a creditor’s right to

proceed against either or both spouses for payment of community debts incurred prior to the

divorce decree. Extrapolating from those, Rancho maintains that all of the community property



                                                7
acquired during the marriage of Owens and Bryant is subject to the payment of the judgment taken

solely against Owens after the dissolution of the marriage.

       However, Rancho does not take into account the case that is more similar to the instant

situation, that being Stewart Title Co. v. Huddleston, 598 S.W.2d 321 (Tex. Civ.

App.––San Antonio), writ ref’d n.r.e., 608 S.W.2d 611 (Tex. 1980) (per curiam). In Stewart (as

here), suit was not brought by the creditor until dissolution of the marriage and (also as here), the

owner of the property was not a party to the suit at the time that judgment was entered.

       In Carlton, judgment had been taken against Estes during his marriage; the judgment made

no mention of Estes’ wife. The judgment creditor was seeking to satisfy its judgment in a probate

action upon once-community property after dissolution of the marriage due to Estes’ demise. The

ruling in Carlton was that “community property subject to joint management, control, and

disposition” of the parties was liable for the community debts. Carlton, 664 S.W.2d 322.

Because the Estes property was subject to the joint management, control, and disposition, which is

characteristic of community property at the time judgment was taken against Estes, the community

property was liable for the payment of community debt, despite the fact that Estes’ spouse was not

mentioned in the judgment. Here, because the divorce (by which the property in question was

awarded to Bryant) had been granted before judgment in Rancho’s suit against Owens was taken,

the community’s right to joint management and control of the assets mentioned in Carlton no

longer existed.



                                                 8
       In Inwood National Bank v. Hoppe, although Hoppe and her husband had divorced and he

had been ordered to pay the note, her former husband’s liability to Inwood was subsequently

discharged in bankruptcy. The suit, then, was instituted by Inwood against Hoppe, not against her

former husband. Because suit was brought against her, Hoppe had the ability to raise any

defenses she might have had against Inwood’s claims. Hoppe was determined to be liable on the

debt and the property awarded to her in the divorce was subject to the claims of creditors to satisfy

a judgment entered regarding that liability. The inclusion of Hoppe as a party in the suit on the

debt distinguishes Hoppe from the case now before us.

       The suit before us now is not a suit on the debt or one to determine whether Bryant is liable

on that debt. Rather, it is a suit brought by Bryant to determine whether the judgment taken solely

against Bryant’s former husband would subject Bryant’s property (formerly community property

of her marriage to Owens) to liability to pay the judgment taken against that former husband. It

does not.

       Having determined that the property awarded to Bryant in her divorce from Owens is not

liable to satisfy the post-divorce judgment taken solely against her former husband, this is

dispositive of the suit. Accordingly, we do not address the question of homestead. See TEX. R.

APP. P. 47.1.




                                                 9
      We affirm the judgment.



                                    Bailey C. Moseley
                                    Justice

Date Submitted:    March 9, 2012
Date Decided:      March 22, 2012




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