in Re FE Express, LLC and Francisco Javier Bernal , 554 S.W.3d 27 ( 2016 )

Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-16-00723-CV
FE EXPRESS, LLC and Francisco Javier Bernal,
Appellants
v.
Maria Isabel Serna CONTRERAS, as next friend and guardian of Samara Isabella Morales
Serna and Samantha Isabel Morales Serna, minor children, and as Administrator of the Estate of
Samuel Morales Castillo, Deceased,
Appellees
&
No. 04-16-00738-CV
IN RE FE EXPRESS, LLC and Francisco Javier Bernal
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2014CVT001295 D3
Honorable Rebecca Ramirez Palomo, Judge Presiding
OPINION DISSENTING TO THE ORDER GRANTING APPELLANTS’ EMERGENCY
MOTION FOR STAY & DENYING APPELLEES’ MOTION FOR EVIDENTIARY HEARING
Dissenting Opinion by: Luz Elena D. Chapa, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: December 28, 2016
I respectfully dissent. Today’s order contravenes Texas Rule of Appellate Procedure 24
and interferes with the trial court’s plenary power over its turnover order. I would deny appellants’
Dissenting Opinion 04-16-00723-CV & 04-16-00738-CV
request for a permanent stay, 1 extend the temporary stay for a specific period of time to give
appellants an opportunity to supersede the judgment in the trial court under Rule 24, and amend
our temporary stay to clarify that it stays only the enforcement of the turnover order.
This consolidated appellate and original proceeding concerns a turnover order. 2 A turnover
order in the nature of an injunction is a final judgment that may be superseded. Burns v. Miller,
Hiersche, Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex. 1995) (per curiam); Schultz v.
Fifth Judicial Dist. Court of Appeals, 810 S.W.2d 738, 740-41 n.3 (Tex. 1991), abrogated in part
on other grounds by In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004) (orig. proceeding); Elaine A.
Carlson, Reshuffling the Deck: Enforcing and Superseding Civil Judgments on Appeal After House
Bill 4, 46 S. TEX. L. REV. 1035, 1062 (2005). To suspend enforcement of a such a judgment, an
appellant must either “supersede[] [the judgment] in accordance with Rule 24” or be “entitled to
supersede the judgment without security.” TEX. R. APP. P. 25.1(h).
Rule 24 permits a judgment debtor to supersede a judgment in the trial court by providing
security or filing a written agreement with the judgment creditor to suspend enforcement of the
judgment. R. 24.1. The purpose of providing security is “to adequately protect the judgment
creditor against any loss or damage occasioned by the appeal.” Whitmire v. Greenridge Place
Apts., 333 S.W.3d 255, 262 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d). We may “issue
any temporary orders necessary to preserve the parties’ rights,” but Rule 24 does not authorize us
to permanently stay enforcement of the trial court’s judgment in lieu of Rule 24’s express
procedure. See R. 24.4(c) (emphasis added). Thus, today’s order contravenes Rule 24 and provides
no protection to appellees for losses and damages occasioned by the appeal. See Whitmire, 333
1
Today’s order grants appellants’ request for a stay “pending this Court’s consideration of the merits of the turnover
order” and “effective until such time as their appeal of the Turnover Order is finally resolved.”
2
Although this consolidated proceeding also concerns orders appointing a receiver and master in chancery, appellants’
motion does not expressly request a stay of anything other than the turnover order or provide any arguments or
authorities regarding the appointment of a receiver and master in chancery.
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Dissenting Opinion 04-16-00723-CV & 04-16-00738-CV
S.W.3d at 262. I would have modified the temporary stay to include a date on which the stay would
be lifted, so as to protect appellants’ right to supersede the turnover order under Rule 24.
Because a turnover order in the nature of an injunction is a final judgment, it is also subject
to being modified pursuant to the trial court’s plenary power. See TEX. R. CIV. P. 329b; Bahar v.
Lyon Fin. Servs., Inc., 330 S.W.3d 379, 386 (Tex. App.—Austin 2010, pet. denied). Rule 329b
gives the trial court plenary power to modify its judgments as follows:
(c) In the event an original or amended motion for new trial or a motion to
modify, correct or reform a judgment is not determined by written order signed
within seventy-five days after the judgment was signed, it shall be considered
overruled by operation of law on expiration of that period.
(d) The trial court, regardless of whether an appeal has been perfected, has
plenary power to grant a new trial or to vacate, modify, correct, or reform the
judgment within thirty days after the judgment is signed.
(e) If a motion for new trial is timely filed by any party, the trial court, regardless
of whether an appeal has been perfected, has plenary power to grant a new trial or
to vacate, modify, correct, or reform the judgment until thirty days after all such
timely-filed motions are overruled, either by a written and signed order or by
operation of law, whichever occurs first.
TEX. R. CIV. P. 329b(c)-(e); Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982).
The trial court signed the turnover order on October 28, 2016. Appellees timely filed a
“motion for amended order granting post-judgment relief” in the trial court on November 22, 2016.
See id. R. 329b(d). According to the parties, the trial court has not heard or ruled on appellees’
motion because our stay is unclear as to whether the trial court may conduct proceedings or modify
the turnover order. Thus, the trial court currently has plenary power to grant a new trial or to vacate,
modify, correct, or reform the turnover order. See R. 329b(c)-(e); Arndt, 633 S.W.2d at 499; see
also Black v. Shor, 443 S.W.3d 170, 176 (Tex. App.—Corpus Christi 2013, no pet.) (holding
turnover orders are not interlocutory orders subject to TEX. R. APP. P. 29.5). I would clarify our
November 2, 2016 order stays only the enforcement of the turnover order and does not prohibit
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Dissenting Opinion 04-16-00723-CV & 04-16-00738-CV
the trial court from modifying the turnover order. This option is the most efficient alternative and
would conserve judicial resources by allowing the trial court to correct any problems with the
turnover order now, instead of months from now in the event of a reversal.
Luz Elena D. Chapa, Justice
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