Dismissed and Memorandum Opinion filed February =
12,=20
2008.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-07-00770-CV
____________
LIZZIE=20
LOVALL, =
Appellant
V.
JUDY=20
YEN,=20
Appellee
On Appeal from the =
County Civil Court at Law No. 3
Harris County, =
Texas
Trial Court Cause =
No. 759371
M E=20
M O R A N D U M O P I N I O N
This appeal involves =
a forcible=20
entry and detainer suit, wherein appellant, Lizzie Lovall, appeals =
a=20
judgment granted in favor of appellee, Judy Yen. We dismiss =
the=20
appeal for lack of jurisdiction.
BACKGROUND
Appellee originally =
filed her=20
lawsuit against appellant in a justice of the peace court to =
regain=20
possession of residential property and to recover unpaid =
rents. The=20
justice court granted judgment in favor of appellee. On =
August 15,=20
2001, appellant perfected her appeal to County Civil Court at Law =
Number 3=20
by paying a cash bond in the amount of $2,400.00 (the amount for =
which she=20
was liable in unpaid rents). =20
While appellant=3Ds appeal was pending =
before the=20
county court, appellant filed an accelerated appeal with this =
court on an=20
order by the county court requiring her to deposit $550.00 into =
the court=20
registry. We dismissed the appeal for lack of jurisdiction =
and=20
issued our mandate on April 2, 2002. See Lovall v. =
Yen,=20
14-01-01108-CV, 2002 WL 58925 (Tex. App.CHouston [14th Dist.] =
2002, no=20
pet.) (mem. op., not designated for publication). On =
November 21,=20
2001, the county court entered a final judgment in favor of =
appellee. On=20
December 5, 2001, appellant=3Ds husband filed for =
bankruptcy;=20
the notice of bankruptcy was filed with the county court on =
December 6,=20
2001. =
Almost four years =
later, no=20
further appeals had been taken and appellee set a motion for bond=20
disbursement to retrieve the $2,400.00 cash bond. Notice was =
sent to=20
appellant. On September 14, 2005, the county court signed an =
order=20
directing the clerk=3Ds office to release =
the cash=20
bond from the court registry to appellee. =20
Appellant now appeals the bond disbursement order. In three =
issues,=20
appellant argues that (1) the trial court did not have =
jurisdiction to=20
disburse the cash bond to appellee; (2) the trial court abused its =
discretion by granting relief not requested by appellee; and (3) =
the trial=20
court erred in failing to produce findings of fact and conclusions =
of=20
law.
JURISDICTION
The order involved in =
this=20
appeal is not the judgment in the lawsuit, but a post judgment =
order=20
designed to enforce the judgment. An appeal may be taken =
from a=20
final judgment disposing of all legal issues between all parties =
or from=20
an interlocutory order for which an appeal is authorized by =
statute. =20
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. =
2001); Jack=20
B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). =
Appellant argues that the post judgment disbursement order =
in this=20
case is a final and appealable judgment because it is tantamount =
to a=20
turnover order. See Schultz v. The Fifth Judicial =
District Court=20
of Appeal at Dallas, 810 S.W.2d 738 (Tex. 1991) (turnover =
orders are=20
final and appealable orders), abrogated on other grounds by In =
re=20
Sheshtawy, 154 S.W.3d 114 (Tex. 2004). The bond =
disbursement=20
order in this case, however, is not equivalent to a turnover order =
under=20
section 31.002 of the Civil Practice and Remedies Code. =
See=20
Tex. Civ. Prac. & Rem. Code Ann. ' 31.002 (Vernon Supp. =
2006). Section 31.002, commonly known as the turnover =
statute,=20
allows a court to order a judgment debtor to surrender or =
Aturn over@ her property for =
liquidation=20
to satisfy a judgment rendered against her. See id.; =
see=20
also Qualia v. Qualia, 37 S.W.3d 128, 129 (Tex. =
App.CSan Antonio 2001, no =
pet.)=20
(reasoning that a turnover order is analogous to a mandatory =
injunction,=20
requiring a factual showing of non-exempt property owned by the =
debtor and=20
resolving the property rights as in a mandatory =
injunction). =20
In this case, the county court did not order appellant to turn =
over=20
non-exempt property for liquidation to satisfy the judgment =
against=20
her. Nor did the order resolve the property rights between =
the=20
parties. Instead, the bond disbursement order was directed =
to the=20
clerk=3Ds office to release a =
cash bond=20
previously paid to the court=3Ds registry by =
appellant. =20
We hold that the 2005 bond disbursement order is not a section =
31.002=20
turnover order.
Moreover, the bond =
disbursement=20
order is not a final appealable order. A judgment is final =
for=20
purposes of appeal when it determines the rights of all parties =
and=20
disposes of all issues in a case, so that no future action by the =
court=20
will be necessary to settle the entire controversy. State =
ex rel.=20
Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995); see also =
Hinde v.=20
Hinde, 701 S.W.2d 637, 639 (Tex. 1985) (holding that a =
judgment=20
settling all legal issues and rights between the parties is final =
and=20
appealable, although further proceedings may be necessary in its=20
execution). Here, the November 2001 final judgment =
determined that=20
appellee had the right to possession of the property and was =
entitled to=20
$2,400.00 in unpaid rents. Thus, it is a final and =
appealable=20
order. The=20
bond disbursement order was merely a ministerial act incident to =
the final=20
judgment, providing for disbursement of funds directed by the =
November=20
2001 judgment, akin to a writ of execution. See Wolter v. =
Donaldson, 79 S.W.3d 160, 162 (Tex. App.CTexarkana 2002, no =
pet.)=20
(stating that post judgment order to release funds to prevailing =
party is=20
in the nature of a writ of execution). The usual writs and =
orders=20
aiding execution to collect a final money judgment are not, in =
general,=20
appealable orders. Id.; Qualia, 37 S.W.3d at=20
129. Neither a writ of execution nor an order incident to a =
writ of=20
execution is appealable. Wolter, 79 S.W.3d at=20
162. We hold that the December 2005 bond disbursement order =
is not=20
final and appealable. See Myers v. Myers, 515 S.W.2d =
334, 335=20
(Tex. App.CHouston [1st Dist.] =
1974, writ=20
dism=3Dd) (stating that the=20
court=3Ds order to pay the =
judgment out=20
of funds deposited pursuant to a supersedeas bond was ancillary to =
the=20
cause on the merits and therefore not a final judgment for =
purposes of=20
appeal).
Having concluded the complained of order =
is not=20
final and appealable, we dismiss the appeal for lack of=20
jurisdiction.
/s/ =20
Adele Hedges
Chief Justice
Judgment rendered and =
Memorandum Opinion filed February 12, 2008.
Panel consists of =
Chief Justice=20
Hedges and Justices Anderson and Boyce.
Do Not=20
Publish C =
Tex. R. App. P.=20
47.2(b).
The cash bond was paid to the =
justice court=20
and subsequently transferred to the county court on December 28,=20
2001.
Though the county =
court=3Ds judgment is not apart of this record, =
the=20
clerk=3Ds docket sheet reflects the November 21, =
2001=20
judgment.
Although appellant alleges that a =
bankruptcy proceeding was commenced over six years ago, she =
neither=20
alleges, nor does the record reflect, that the 2001 bankruptcy =
proceeding=20
in still ongoing, or would otherwise affect our jurisdiction in =
the=20
instant appeal.
Appellant produces no evidence =
that the=20
2001 bankruptcy proceeding was still pending at the time the court =
entered=20
the September 2005 disbursement order.
The record reflects that =
appellant did not=20
further perfect her appeal on the November 21, 2001 judgment to =
our=20
Court. Therefore, we have no jurisdiction to review an =
appeal of=20
this =
judgment. |