Dreyer v. Wislicenus

CATHERINE DREYER, Appellant v. CHRISTIE L. WISLICENUS, ADMINISTRATRIX OF THE ESTATE OFMARK D. WISLICENUS, AND ROGENNA G. HANSON, TRUSTEE OFTHE ROGENNA G. HANSON REVOCABLE LIVING TRUST, Appellees

No. 11-18-00234-CV

State of Texas in the Eleventh Court of Appeals

September 11, 2020

On Appeal from the 42nd District Court Coleman County, Texas

Trial Court Cause No. CV06634

MEMORANDUM OPINION

Appellant, Catherine Dreyer, appeals from a post-answer default judgment in which the trial court ordered that legal title to 59.80 acres in Coleman County (the Property) is vested in Appellee, Rogenna G. Hanson, Trustee of the Rogenna G. Hanson Revocable Living Trust (the Trust), and that every document executed by Hanson, either individually or as trustee of the Trust, in which she purported to transfer to Appellant or to Mark Dreyer any right, title, or interest in the Property or in any improvements located on the Property was rescinded, was of no force and effect, and was set aside. In three issues, Appellant asserts that the trial court erred when it rendered judgment because (1) a trespass to try title claim was the exclusive remedy of the Trust and of Appellee, Christie L. Wislicenus, Administratrix of the Estate of Mark D. Wislicenus (the Estate),¹ (2) Appellant did not receive prior notice of the trial setting, and (3) the Estate and the Trust presented no evidence to support their theories of recovery. We reverse the trial court's judgment to the extent that it declared that the 2011 handwritten gift document signed by Hanson was rescinded. We affirm the trial court's judgment in all other respects.

Background Facts

The Trust purchased the Property on December 16, 2010. A metes and bounds description of the Property was attached to the deed.

After Appellant married Hanson's son, Mark, in July 2011, Hanson prepared a handwritten, two-paragraph document pursuant to which the Trust purported to give Mark and Appellant approximately 1.5 acres of the Property on which a wood frame house and a garage were located. However, the "legal description" of the land in the handwritten gift document included only two boundary lines and was not a "complete description" of the land that Hanson intended to give to Mark and Appellant. Hanson "revoked" her signature on the handwritten gift document on June 25, 2012, because there was an "argument about exactly how much land they were going to get."

On April 23, 2012, Hanson, Mark, and Appellant signed a "Document of Promise" that Mark had prepared. The land subject to the Document of Promise wasa "59.7 acre parcel of land in Coleman County" located "south of CR 334 and west of CR 346" that was "now known as the Grace Ranch." In order to provide Mark and Appellant "the opportunity to purchase this property for $100,000.00, all cash," Hanson promised to "retain" this "parcel" for three years. If Mark and Appellant did not purchase the land by April 23, 2015, Hanson had the right to sell the land "with the exception of the house and 2.19 acres surrounding [the] house." The Document of Promise did not describe the boundaries of the 2.19 acres.

Appellant and Mark did not purchase the Property pursuant to the Document of Promise. Rather, on February 6, 2014, Hanson, Mark, and Appellant signed a "Purchase of Grace Ranch" that Mark had prepared. The parties agreed that the Purchase of Grace Ranch "supersede[d]" the Document of Promise or "any other previous agreements." The land that was the subject of the Purchase of Grace Ranch was "located south of CR 334 and west of CR 346" and was "now known as 'The Grace Ranch.'" The land was described as "59.80 acres of land in the Thomas Casey Survey #275, Abstract #126, Coleman County, Texas, more fully described on Exhibit 'A' attached hereto." There was no Exhibit A attached to the Purchase of Grace Ranch.

Pursuant to the Purchase of Grace Ranch, the Trust agreed to sell the Property to Mark and Appellant for $100,000. Mark and Appellant agreed to pay a $20,000 down payment and to make annual payments of $2,400, or a sum negotiated each year, until either "the loan" of $20,000 was "paid in full to Sandra E. Wislicenus or until the demise of Seller, Rogenna G. Hanson." At Hanson's death, the Property would be "[d]eeded in its entirety" to Mark and Appellant "as part of their inheritance from the Estate of Rogenna G. Hanson." The $20,000 loan that was referenced in the Purchase of Grace Ranch was a personal loan from Sandra to Hanson.

Although the Purchase of Grace Ranch provided for the payment of $40,000 of the purchase price through the repayment of Sandra's $20,000 loan to Hanson and the $20,000 down payment, it did not specify how or when the remaining $60,000 of the purchase price would be paid. Mark and Appellant made the $20,000 down payment and made payments of $2,400 in February 2015 and February 2016. In March 2017, Mark died.

The Estate filed this suit against Appellant and the Trust on March 6, 2018, "to determine the validity of the documents signed by Trustee, [Mark,] and [Appellant]" and the "equitable ownership, if any" that the Estate had in the Property. The Estate alleged that the handwritten gift document, the Document of Promise, and the Purchase of Grace Ranch "infer[red] the existence of an executory contract." The Estate alleged that the executory contract did not comply with Subchapter D of Chapter 5 of the Texas Property Code. The Estate also alleged that, in 2017, Mark and Catherine failed to make a required payment under the contract. The Estate requested that the trial court declare (1) who owned legal title to the Property, (2) whether there was a valid agreement for Mark to purchase the Property, (3) whether the Estate or Appellant had an equitable interest in the Property, and (4) whether Appellant had any homestead rights in the Property.

The Trust filed its original answer on March 29, 2018, and Appellant, appearing pro se, filed her original answer on April 2, 2018. Appellant listed her e-mail address on her answer. On April 3, 2018, the Estate's attorney, S. Clinton Nix, requested that the case be set for trial before the court "at least 45 days from this date." Nix sent a copy of the request to Appellant at the e-mail address listed on Appellant's answer. On April 3, 2018, Darla Quinney, the trial court administrator, prepared a letter to "All Parties" in which she advised that, at Nix's request, the case had been set for trial at 9:00 a.m. on May 29, 2018.

On May 21, 2018, the Trust filed a cross-action against Appellant. The Trust argued that Hanson's attempts to convey the Property were void and should be rescinded because (1) the Trust's assets had been commingled with Hanson's assets and liabilities, (2) Hanson had attempted to make a gift of assets that belonged to the Trust, and (3) Hanson signed the documents "in a manner that was outside the capacity or authority conferred by the Trust or by the laws of the State of Texas." The Trust also asserted that Appellant was in default under the Purchase of Grace Ranch and that the Trust had sent notice that it had terminated the executory contract. The Trust requested a declaration that "the instrument or instruments in question are invalid" and that the documents were "rescinded, in whole or in part, and removed from the title" to the Property.²

Appellant did not appear for trial on May 29, 2018. The trial court heard testimony from Hanson and Christie and reviewed the Trust's deed to the Property, the handwritten gift document, the Document of Promise, and the Purchase of Grace Ranch. The trial court orally ruled that the Trust was the legal owner of the Property and that the Estate had an "offset" of $24,800, plus any taxes that had been paid on the Property. The trial court instructed counsel to draft the judgment in terms of rescinding any and all contracts or gifts between the parties because the agreements were invalid or unenforceable "[f]or a number of reasons."

On June 12, 2018, the trial court signed a declaratory judgment in which it stated that it had considered both the Estate's request for declaratory relief and the Trust's cross-action. The trial court ordered (1) that legal title to the Property was vested in the Trust; (2) that each and every instrument executed by Hanson, whether individually or as trustee, in which she purported to transfer to Mark and/or toAppellant any right, title, or interest as to the Property or as to any improvements located on the Property was rescinded, was of no force and effect, and was set aside; and (3) that the Trust was required to pay the Estate $24,800 for the Estate's equitable claim to the Property.

Appellant retained counsel and filed a motion for new trial on June 15, 2018. Appellant asserted that her failure to appear at trial was the result of an accident or mistake, rather than due to an intentional act or to conscious indifference. Appellant specifically alleged that she "was not noticed of the trial date, time or location and was unaware that a hearing had been set in this matter."

At the hearing on the motion for new trial, Appellant admitted that she received by e-mail Nix's letter in which he requested a trial date and Quinney's letter in which she notified the parties that the case was set for trial on May 29, 2018. Appellant knew that the trial had been set but did not think that the trial date was "official until the Judge signed something and there was a certificate of service sent through the e-mail filing." Appellant admitted that she did not call Quinney or Nix to determine if the trial was set for May 29, 2018.

Appellant also admitted that she was in the courthouse early on the morning of May 29, 2018. Although Appellant believed that she left the courthouse before the trial was scheduled to start, Deputy Ryan Tucker testified that he saw Appellant in the courthouse at the time that the trial was taking place.

According to Appellant, the accident or mistake that caused her not to appear...