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holding that because daughter nonsuited her claims to her father's real property, she was not a party when trial court entered final divorce decree and lacked standing to appeal from final divorce decree
Summary of this case from Logsdon v. LogsdonOpinion
No. 05-08-00177-CV
Opinion Filed August 5, 2009.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-54597-03.
Before Justices WRIGHT, RICHTER, and FILLMORE.
MEMORANDUM OPINION
Before us is appellee Carolyn Jean Massoud's motion to dismiss for lack of jurisdiction. Because the facts of the case are well-known to the parties, we only briefly recite the background here. Tex. R. App. P. 47.1; Denson v. Dallas County Credit Union, 262 S.W.3d 846, 848 (Tex.App.-Dallas 2008, no pet.).
Carolyn filed for divorce from John Donald Massoud, appellant's father. Carolyn filed a motion for partial summary judgment against John asserting the marital residence was her separate property. In his response to the motion for partial summary judgment, John admitted he "put the property" in Carolyn's name because he believed he was going to die and Carolyn promised to take care of John's disabled daughter, Madeline Michele Massoud. John also claimed he purchased the house with his money and "Michelle's [sic] money out of the Massoud Family Trust, where she's a beneficiary." John contended there were fact issues regarding whether the house was a gift to Carolyn and regarding whose money was used to purchase the home. John also filed a motion for partial summary judgment asserting Carolyn should be judically estopped from claiming the property as her separate property.
In the trial court, Ms. Massoud's name was spelled "Madalyn Michelle Massoud." In this opinion, we will use the spelling utilized by the parties on appeal.
Appellant, Donna K. Bean, as Madeline's guardian (Madeline), intervened in the divorce action asserting she had a "financial interest in the real property" and seeking attorney's fees. Neither Madeline nor Carolyn filed a motion for summary judgment on Madeline's claims. Approximately six weeks after Madeline intervened, the trial court granted Carolyn's motion for partial summary judgment, denied John's motion for partial summary judgment, and awarded the property as Carolyn's separate property. Two weeks later, Madeline nonsuited her claims.
Neither Carolyn nor John appealed the final divorce decree entered by the trial court. Madeline, however, sought to appeal the trial court's ruling on Carolyn's motion for partial summary judgment. Carolyn filed a motion to dismiss arguing this Court does not have jurisdiction over the appeal. We agree and dismiss this appeal for lack of jurisdiction.
Carolyn moved for summary judgment against John on the issue of whether the house was community property or her separate property. The characterization of the property hinged on whether John made a gift to Carolyn of his community share of the property by agreeing the property would be deeded solely to Carolyn as her separate property. John attempted to raise an issue of fact on the characterization issue by claiming funds from a trust account established for Madeline were used to pay a portion of the purchase price. However, a trial court could properly conclude the source of the funding to purchase the property did not affect the characterization issue. See Wilkerson v. Wilkerson, 992 S.W.2d 719, 722-23 (Tex.App.-Austin 1999, no pet.) ("Once the character of the property is fixed, the use of funds of another estate to complete the purchase does not alter the character of the property, although the other estate may be entitled to reimbursement for the funds contributed."). Any equitable claim by Madeline to the property would exist regardless of the characterization of the property as between Carolyn and John.
Carolyn did not seek summary judgment against Madeline as to any equitable claim Madeline may have to the property. Further, Madeline did not seek summary judgment against Carolyn and John seeking to establish Madeline's claim as a matter of law. Madeline did not participate in the summary judgment proceedings between Carolyn and John. The trial court's order granting Carolyn's motion for partial summary judgment does not refer to or rule on any claim brought by Madeline. Accordingly, the trial court's grant of Carolyn's motion for partial summary judgment established only the character of the property as between Carolyn and John and did not address any claim Madeline had to the property.
Madeline nonsuited the intervention without obtaining a ruling from the trial court on any claim she may have had to the property. A nonsuit is effective when it is filed and "extinguishes a case or controversy from `the moment the motion is filed.'" Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam). A subsequent order granting the nonsuit is a ministerial act. Id. at 100. After the nonsuit, Madeline was no longer a party to the litigation. Preston v. Am. Eagle Ins. Co., 948 S.W.2d 18, 21 (Tex.App.-Dallas 1997, no writ). "Generally, appeal is available only to parties of record." Motor Vehicle Board of the Tex. Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n, Inc., 1 S.W.3d 108, 110 (Tex. 1999) (per curiam). Because Madeline was not a party when the trial court entered the final divorce decree, she does not have standing to appeal the trial court's judgment. Preston, 924 S.W.2d at 21 (citing Cont'l Cas. Co. v. Huizar, 740 S.W.2d 429, 430 (Tex. 1987)).
We grant Carolyn Jean Massoud's motion and dismiss this appeal for lack of jurisdiction.