                                            OPINION
                                        No. 04-11-00119-CV

                  Peter E. PRATT, Jr., Court appointed receiver and special master
                        on behalf of the receivership estate of Curtis Muecke,
                                               Appellant

                                                 v.

                            AMREX, INC. d/b/a Falco Pest Mangement,
                                          Appellee

                     From the 38th Judicial District Court, Uvalde County, Texas
                                Trial Court No. 2010-08-27,697-CV
                         Honorable Mickey R. Pennington, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 24, 2011

REVERSED AND RENDERED

           Appellant, court-appointed receiver and special master on behalf of the receivership

estate of Curtis Muecke, Peter E. Pratt, Jr. (“the Receiver”), appeals from the trial court’s order

rendering summary judgment in favor of appellee, Amrex, Inc. d/b/a Falco Pest Management

(“Amrex”). We reverse and render judgment in favor of the Receiver.
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                                        BACKGROUND

       In 2001, Curtis and Nancy Muecke borrowed $80,000 from Security State Bank and

Trust of Fredericksburg, Texas (“Security State Bank”), using real property in Uvalde County

(“the Uvalde property”) as security. The Mueckes executed a deed of trust encumbering the

Uvalde property for the benefit of Security State Bank.

       In early 2003, Marlin Leasing Corporation filed a collection suit against Curtis in the

Superior Court of New Jersey. Shortly thereafter, on July 14, 2003, Curtis and Nancy executed a

document purporting to convey to Nancy all of Curtis’s community property that he then owned

and might later acquire, which would include Curtis’s community property interest in the Uvalde

property. Curtis and Nancy recorded the document, which they titled the “Partition Agreement,”

in the county of their residence—Gillespie County—but not in the real property records of

Uvalde County.

       Two years later, on June 30, 2005, the New Jersey court entered a default judgment

against Curtis for $38,069.29 plus $315.00 in costs with three percent annual interest. The

default judgment was domesticated in Harris County, Texas on November 11, 2005. On March

14, 2006, a Harris County court appointed a receiver for Curtis’s estate.

       On May 16, 2006, the Receiver executed a special warranty deed conveying the Uvalde

property from Curtis to the receivership estate, and on May 18, 2006, the Receiver recorded the

deed in Uvalde County. On November 14, 2006, the Harris County court entered an order

authorizing the Receiver to sell the Uvalde property. At present, the Receiver has not yet sold

the Uvalde property.

       On March 6, 2007, without the Receiver’s knowledge and without approval from the

Harris County court, Security State Bank foreclosed its deed of trust lien against the Uvalde



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property and issued a substitute trustee’s deed to the buyer at the foreclosure sale, Amrex, for

$68,930. Amrex promptly recorded the substitute trustee’s deed in Uvalde County. On May 26,

2010, the Receiver sent a letter to Amrex, advising it that its title to the Uvalde property is void

because Security State Bank failed to obtain approval for the foreclosure from the Harris County

court in which the receivership is pending.

          On August 2, 2010, the Receiver filed suit against Amrex in Uvalde County, seeking

declaratory judgment that Amrex’s substitute trustee’s deed is a void instrument and is cancelled

and stricken from the real property records of Uvalde County. Amrex responded with a general

denial.

          On October 25, 2010, the Receiver moved for traditional summary judgment, again

requesting a declaratory judgment that Amrex’s substitute trustee’s deed is void as a matter of

law. On November 10, 2010, Amrex filed its response to the Receiver’s motion for summary

judgment and its own traditional motion for summary judgment, requesting a declaratory

judgment that the Receiver’s special warranty deed is void as a matter of law and Amrex’s

substitute trustee’s deed is valid as a matter of law. On December 22, 2010, the trial court

denied the Receiver’s motion and granted Amrex’s motion. The trial court’s order declared the

Receiver’s special warranty deed void as a matter of law and Amrex’s substitute trustee’s deed

valid as a matter of law. The Receiver appeals.

                             SUBJECT MATTER JURISDICTION

          As a preliminary matter, Amrex notes in its brief that the Uvalde County trial court may

have lacked subject matter jurisdiction over the underlying lawsuit and that jurisdiction instead

belonged to the Harris County court. If so, Amrex asserts this court would have jurisdiction only

to set aside the trial court’s judgment for lack of jurisdiction and dismiss this appeal. Amrex



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directs us to this court’s opinion in Chimp Haven, Inc. v. Primarily Primates, Inc., 281 S.W.3d

629 (Tex. App.—San Antonio 2009, no pet.).

       Generally, the court appointing a receiver has exclusive jurisdiction over property subject

to the receivership. Id. at 633 (citing Neel v. Fuller, 557 S.W.2d 73, 76 (Tex. 1977); Lauraine v.

Ashe, 191 S.W. 563, 565 (Tex. 1917)). The court retains power over the receivership property

until it either relinquishes its jurisdiction over the suit or discharges the receiver and restores the

receivership property to its rightful owners. Id. (citing Tex. & Pac. Ry. Co. v. Johnson, 13 S.W.

463, 466 (Tex. 1890); Lauraine, 191 S.W. at 565). In Chimp Haven, this court held the Bexar

County district court did not have subject matter jurisdiction over personal property subject to a

receivership because the Travis County probate court, as the court appointing the receiver, had

exclusive jurisdiction over the receivership property until it was restored to its rightful owners.

Id.

       However, when real property is at issue, “suits by a receiver against strangers to the

receivership . . . are governed by the venue law of this state, without regard to the fact that one of

the parties is a duly qualified and acting receiver.” Nelson v. Thompson, 64 S.W.2d 373, 375

(Tex. Civ. App.—Dallas 1933, writ dism’d); accord TEX. CIV. PRAC. & REM. CODE ANN.

§ 64.052 (West 2008). Here, Amrex interprets Chimp Haven as standing for the proposition that

the only court with subject matter jurisdiction over the Uvalde property is the court that

appointed the Receiver—the Harris County court. But because this case involves suit by the

Receiver against a stranger to the receivership (Amrex), the court in which venue is proper (the

Uvalde County district court) also has subject matter jurisdiction over the real property subject to

the receivership. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.011 (West 2002) (“Actions . . . to

quiet title to real property shall be brought in the county in which all or a part of the property is



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located.”). Therefore, the Uvalde County district court had subject matter jurisdiction over the

Receiver’s suit, despite the receivership, and this court has jurisdiction to review this appeal on

the merits.

                                   SUMMARY JUDGMENT

       When both parties file motions for summary judgment, each party must carry its burden

and neither party may prevail because the other failed to discharge its own burden. Villarreal v.

Laredo Nat’l Bank, 677 S.W.2d 600, 605 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.).

When one of the competing motions for summary judgment is granted and the other is denied,

we will determine all questions presented to the trial court. Jones v. Strauss, 745 S.W.2d 898,

900 (Tex. 1988). The trial court should consider all evidence accompanying both motions when

deciding whether to grant either motion. Villarreal, 677 S.W.2d at 605. We will affirm or

reverse the judgment and render the judgment the trial court should have rendered, including

judgment for the movant who lost below. Jones, 745 S.W.2d at 900.

       The Receiver argues the trial court erred in declaring the Receiver’s special warranty

deed void because (1) the Partition Agreement did not divest Curtis of his community property

interest in the Uvalde property because it was not recorded in Uvalde County and, therefore, was

ineffective against the Receiver; (2) the Receiver’s special warranty deed properly placed the

Uvalde property in custodia legis; (3) Security State Bank had no authority to foreclose its lien

against the Uvalde property because the property was in custodia legis; and (4) because Security

State Bank improperly foreclosed, it had no title to convey to Amrex, thereby making Amrex’s

substitute trustee’s deed void as a matter of law.

       We first determine whether the Partition Agreement was effective against the Receiver.

Texas Family Code section 4.106 provides:



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       A partition or exchange agreement made under this subchapter may be recorded
       in the deed records of the county in which a party resides and in the county in
       which the real property affected is located. An agreement made under this
       subchapter is constructive notice to a good faith purchaser for value or a creditor
       without actual notice only if the instrument is acknowledged and recorded in the
       county in which the real property is located.

TEX. FAM. CODE ANN. § 4.106(b) (West 2006) (emphasis added). There is no dispute that the

Partition Agreement was not recorded in Uvalde County, where the real property is located.

Accordingly, we agree with the Receiver that there was no constructive notice to him of the

Partition Agreement, and any agreement conveying Curtis’s interest to Nancy was ineffective

against the Receiver. Therefore, the Receiver was authorized to convey the Uvalde property to

the receivership estate by special warranty deed, and that conveyance is not void.

       Next, we must determine whether Security State Bank had authority to foreclose on the

Uvalde property without the Harris County court’s permission and, if not, whether the substitute

trustee’s deed to Amrex is void as a matter of law.

       When the Receiver deeded the Uvalde property to the receivership estate, the property

was placed in custodia legis. Property held in custodia legis is “in the custody of the law.”

BLACK’S LAW DICTIONARY 783 (8th ed. 2004). No one, even a lienholder under a prior deed of

trust, has authority to sell property held in custodia legis by a court-appointed receiver, unless

the court in which the receivership is pending authorizes the sale. First S. Props., Inc. v.

Vallone, 533 S.W.2d 339, 341 (Tex. 1976). Any sale or transfer of property in violation of this

rule is void as a matter of law. Id. at 342.

       Here, the Receiver’s deed was recorded in Uvalde County prior to the foreclosure, and

Amrex concedes in its motion for summary judgment that the Harris County court did not give

Security State Bank permission to foreclose on the Uvalde property. However, Amrex argues its

substitute trustee’s deed is nonetheless valid because (1) Amrex was a bona fide purchaser

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without notice, and (2) the Receiver’s special warranty deed is void as a matter of law because

Curtis had no equity in the Uvalde property when it was deeded to the receivership estate.

       As to Amrex’s first argument, not even a bona fide purchaser without notice of the

pendency of the receivership estate can obtain title to property held in custodia legis. Id. The

“apparent harshness” of this rule is “tempered somewhat by the fact that a purchaser without

actual notice under an execution or deed of trust sale is entitled to recover his money” from the

seller. Id. at 343. Thus, even assuming Amrex was a bona fide purchaser, it could not acquire

title to the Uvalde property while the property was in custodia legis.

       Next, Amrex argues the Receiver’s special warranty deed is void as a matter of law

because Curtis had no equity in the Uvalde property at the time it was deeded to the receivership

estate. According to Amrex, at the time the Receiver took custody, the property was appraised at

$101,843 and was encumbered by two prior liens: Security State Bank’s lien for $80,000 and a

federal tax lien for $45,372.96. Relying on the Waco Court of Appeals decision in Chase

Manhattan Bank v. Bowles, 52 S.W.3d 871 (Tex. App.—Waco 2001, no pet.), Amrex contends

the Receiver’s special warranty deed was void because Curtis had no equity interest in the

Uvalde property to convey to the receivership estate.

       In Bowles, the Waco court held prior lienholders’ claims to property subject to a

receivership take priority over the receiver’s claims for costs, expenses, and attorney’s fees. Id.

at 880. In that case, when the receiver was unable to sell the property subject to the receivership,

the prior lienholders moved, over the receiver’s objection, to release the property from the

receivership estate so that they could pursue foreclosure. Id. at 875. The receiver argued the

trial court should enjoin release of the property from the receivership estate in order to protect his

interest in recouping his own costs, expenses, and fees. Id. The appeals court held that because



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there would be no equity in the property after payment of the prior liens (and, therefore, the

receiver’s expenses would not be paid from the sale anyway), there was no reason for the trial

court to enjoin release of the property from the receivership estate. Id. at 880–81.

       Bowles is distinguishable from the case at issue here: in Bowles, lienholders sought the

trial court’s permission to release property from the receivership estate so that they could

foreclose; here, the lienholder—Security State Bank—did not obtain the trial court’s permission

to release the Uvalde property from the receivership and foreclosed while the property was still

in custodia legis. Amrex, thus, cites no authority to support its contention that Curtis’s purported

lack of equity in the Uvalde property allowed Security State Bank to foreclose without the Harris

County court’s permission.

                                         CONCLUSION

       Because Security State Bank was without authority to foreclose on the Uvalde property

without the Harris County court’s permission, it had no title to convey to Amrex. Therefore, the

substitute trustee’s deed from Security State Bank to Amrex was void as a matter of law, and the

trial court erred in concluding the Receiver’s special warranty deed was void. We reverse the

trial court’s judgment granting Amrex’s traditional motion for summary judgment and render

judgment that Amrex’s substitute trustee’s deed is void as a matter of law.



                                                  Sandee Bryan Marion, Justice




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