Roger Gerdes, Jr. and Carolyn Gerdes v. John Kennamer and Mora Kennamer ( 2004 )

  NUMBER 13-03-046-CV

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

ROGER GERDES, JR. AND

CAROLYN GERDES,                                                          Appellants,

v.

JOHN KENNAMER AND

MORA KENNAMER,                                                                    Appellees.

On appeal from the 23rd District Court of Matagorda County, Texas.

DISSENTING OPINION

Before Justices Hinojosa, Yañez, and Castillo

Dissenting Opinion by Justice Yañez

            Appellants, Roger Gerdes (“Gerdes”) and Carolyn Gerdes, appeal a January 8, 2003 turnover order, in which the trial court ordered Gerdes to: (1) execute and turn over documents which would purportedly effect the transfer of all of the stock of Immobilaria Don Rogelio de R.L. de C.V., a Mexican corporation; and (2) obtain the signature of his wife, Carolyn, on such documents. The turnover order is in satisfaction of a judgment in Kennamer’s favor in appellate cause number 13-02-657, styled Roger Gerdes, Jr. and Carolyn Gerdes v. John Kennamer and Mora Kennamer. Because I would reverse the judgment in cause number 13-02-657 for the reasons expressed in my dissenting opinion in that cause, I also dissent from the majority’s opinion in this cause, 13-03-046-CV, affirming the trial court’s turnover order.

Designation of Opinion

          Texas Rule of Appellate Procedure 47.4 provides as follows:

If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the court’s decision and the basic reasons for it. An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation. An opinion must be designated a memorandum opinion unless it does any of the following:

(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;

(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;

(c) criticizes existing law; or

(d) resolves an apparent conflict of authority.

Tex. R. App. P. 47.4.

          Justice Castillo has recommended that the majority opinion be designated a “memorandum opinion.” I disagree that the majority opinion should be designated a “memorandum opinion” because the issues in this case are not settled. See id. Further, as author of this dissenting opinion, I oppose the designation of the majority opinion as a “memorandum opinion.” See id. Accordingly, the majority opinion must be designated as an “opinion.” See id.   

                                                                                                                                                                                    LINDA REYNA YAÑEZ

                                                                           Justice

Dissenting opinion delivered and filed this the

6th day of December, 2004.