Opinion
No. 05-17-00633-CV
06-06-2018
DEBORAH UGWA AND GODSWILL N. UGWA, JR., Appellants v. GODSWILL UGWA, Appellee
On Appeal from the 255th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-10-04258
MEMORANDUM OPINION
Before Justices Lang-Miers, Fillmore, and Stoddart
Opinion by Justice Stoddart
This is an interlocutory appeal from an order denying Deborah Ugwa's motion to remove a receiver appointed ancillary to post-judgment proceedings in a family law case. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(2) (person may appeal interlocutory order that "overrules a motion to vacate an order that appoints a receiver or trustee"). Because no evidence was presented at the hearing on the motion, we conclude the trial court did not abuse its discretion by denying the motion. We affirm.
Although her motion is titled a "motion to remove" the receiver for alleged post-appointment misconduct, appellant also requested termination of the receivership because the receiver was allegedly a person interested in the proceeding and disqualified to serve. See TEX. CIV. PRAC. & REM. CODE ANN. § 64.021(a)(2). She makes the same argument on appeal.
As a preliminary matter, we address appellee's challenge to the standing of Godswill N. Ugwa, Jr. to appeal the order.
Ugwa Jr. is listed as an appellant in the notice of interlocutory appeal. However, the record does not show that Ugwa Jr. was a party to the proceedings below. He did not file any pleading seeking to enforce the divorce decree or to remove the receiver. He did not appear at the hearing on the motion to remove the receiver and is not named in the order denying that motion.
We conclude the record does not establish Ugwa Jr.'s standing. Appellate standing is typically afforded "only to parties of record." State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015). Deborah asserts in her reply brief that Ugwa Jr. is a shareholder of the home health care business affected by the receivership and has standing as a person bound by or affected by the order. However, there is nothing in the record showing this fact or that Ugwa Jr. has any interest in this matter or the order on appeal. While a non-party may file an appeal under the doctrine of virtual representation, to benefit from that doctrine, the non-party must establish (1) he is bound by the judgment, (2) his privity of estate, title, or interest appears from the record, and (3) there is an identity of interest between the non-party and a party to the judgment. Id. (emphasis added). Because his interest is not shown in the record, Ugwa Jr. cannot benefit from this doctrine.
"[A]n appeal filed by an improper party must be dismissed." Naylor, 466 S.W.3d at 787; see also Gunn v. Cavanaugh, 391 S.W.2d 723, 725 (Tex. 1965) (concluding court of appeals properly dismissed appeal because appellant "was neither a named party, a party by virtual representation nor a party by other device or theory known to the law"). Accordingly, we dismiss the appeal by Godswill N. Ugwa, Jr. for want of jurisdiction.
BACKGROUND
Deborah and Godswill Ugwa divorced in 2012. The divorce decree divided their home health care business sixty percent to Deborah and forty percent to Godswill. The decree also provided that Deborah could buy Godswill's share of the business for a set price within a limited time. Otherwise, the decree specified that the business would be sold and the proceeds divided between the parties in the same proportions.
This matter arises out of Deborah's motion to enforce the divorce decree and Godswill's counterclaims in that enforcement proceeding. The trial court's order is the subject of a separate appeal by Deborah under cause number 05-16-01116-CV. After a hearing on Deborah's motion for reconsideration and Godswill's motion to strike Deborah's supersedeas bond, the trial court signed an order dated October 20, 2016 appointing a receiver to manage and preserve the business during Deborah's appeal of the enforcement order.
Seven months later, on May 22, 2017, Deborah filed a motion to remove the receiver for alleged mismanagement of the business. She asserted in the motion that the receiver was a person interested in the proceeding at the time of his appointment and thereby disqualified under section 64.021(a). See TEX. CIV. PRAC. & REM. CODE ANN. § 64.021(a) (requiring person appointed as receiver not be a party, attorney, or other person interested in the action for appointment of receiver). Attached to the motion was Deborah's declaration and several exhibits, including e-mails between the receiver and Deborah's attorney. Deborah claimed that the receiver was a close friend of Godswill, apparently based on the receiver's familiar reference to Godswill as "Nd" in one of the e-mails.
Deborah's motion to remove was heard on June 1, 2017. At the beginning of the hearing, her counsel described the background of the proceedings, then referred to comments made by the receiver at a meeting shortly after his appointment. Godswill objected that counsel was testifying to hearsay matters. The trial court sustained the objection and instructed counsel not to testify. Deborah's counsel began detailing the matters described in Deborah's declaration and the documents attached to the motion. Godswill again objected that counsel was testifying. The trial court sustained the objection. Deborah's counsel continued, stating the receiver was an interested party as shown by her motion. Godswill objected that counsel "is testifying and purporting to say what is in the evidence, although there's been no evidence admitted yet." The trial court sustained the objection. Next, Deborah's counsel argued no evidence of the need for a receiver was presented at the time he was appointed. The trial court sustained Godswill's objection to matters about the original appointment of the receiver because Deborah's motion was based on alleged misconduct of the receiver after appointment. The receiver responded: "To the extent there had been any evidence presented so far to this Court in terms of reasons to remove me, I'd be prepared to respond to that. But as we sit here right now, there is no evidence before this Court of any misconduct on my part, only argument." The trial court denied the motion to remove the receiver.
STANDARD OF REVIEW
We review the trial court's decision on whether to terminate or vacate a receivership under an abuse of discretion standard. See CitiMortgage, Inc. v. Hubener, 345 S.W.3d 193, 195-96 (Tex. App.—Dallas 2011, no pet.).
ANALYSIS
On appeal, Deborah contends the trial court failed to ensure the receiver was not an interested person at the time of his appointment, that he was a close personal friend of Godswill, and the alleged acts of misconduct show his interest and that he was not qualified to serve. Godswill and the receiver argue there is no evidence to support these allegations because Deborah failed to offer any evidence to support them at the hearing. We agree.
In support of her appeal, Deborah relies on her declaration and the documents attached thereto, and her attorney's statements at the hearing. However, Deborah never offered her declaration or the attached documents in evidence at the hearing. Nor did she testify at the hearing. Documents attached to pleadings are not evidence unless they are offered and admitted as evidence by the trial court. See Nelson v. Neal, 787 S.W.2d 343, 346 (Tex. 1990) ("Exhibits tendered but not admitted into evidence are not part of the record and cannot be considered on appeal."); Guerinot v. Wetherell, No. 01-12-00194-CV, 2013 WL 2456741, at *5 (Tex. App.—Houston [1st Dist.] June 6, 2013, no pet.) (mem. op.) ("Simply attaching a document to a pleading neither makes the document admissible as evidence nor dispenses with proper foundational evidentiary requirements."); Noble Exploration, Inc. v. Nixon Drilling, Co., 794 S.W.2d 589, 592 (Tex. App.—Austin 1990, no writ) (holding that documents not introduced into evidence at trial may not be considered on appeal). Because she never offered them in evidence, Deborah cannot rely on the declaration and attached documents as evidence supporting her allegations.
Nor may Deborah rely on her attorney's statements as evidence. While the requirement may be waived, "an attorney's statements must be made under oath to be considered evidence." Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam). Here, Godswill objected to the attorney "testifying" and did not waive the requirement of an oath. Id.; Casino Magic Corp. v. King, 43 S.W.3d 14, 20 (Tex. App.—Dallas 2001, pet. denied) (attorney's unsworn statement in garnishment action was not evidence).
Deborah argues on appeal that the trial court prevented her from offering evidence. But the record does not support that contention. The trial court properly sustained objections to her counsel testifying and never interfered with any attempt by Deborah to present evidence supporting her motion. Deborah never called a witness or offered anything in evidence. Accordingly, there is no evidence to support Deborah's assertion that the receiver was a close personal friend of Godswill and disqualified to serve. The trial court correctly denied the motion to remove the receiver.
CONCLUSION
We conclude the trial court did not abuse its discretion by denying the motion to remove the receiver. We overrule Deborah's issues and affirm the trial court's order.
/Craig Stoddart/
CRAIG STODDART
JUSTICE 170633F.P05
JUDGMENT
On Appeal from the 255th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-10-04258.
Opinion delivered by Justice Stoddart. Justices Lang-Miers and Fillmore participating.
In accordance with this Court's opinion of this date, the appeal by GODSWILL N. UGWA, JR. is DISMISSED and the trial court's June 1, 2017 Order On Petitioner's Motion To Remove Receiver For Issuance Of Bad Check And Mismanagement Of Business Account is AFFIRMED.
It is ORDERED that appellee GODSWILL UGWA recover his costs of this appeal from appellant DEBORAH UGWA. Judgment entered this 6th day of June, 2018.