Frank Keathley, Individually and Dba Top Shelf Antiques v. J.J. Investment Company, L.T.D. ( 2015 )

ACCEPTED
06-14-00036-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/15/2015 11:03:08 AM
DEBBIE AUTREY
CLERK
Case No. 06-14-00036-CV
FILED IN
6th COURT OF APPEALS
In the Court of Appeals TEXARKANA, TEXAS
4/15/2015 11:03:08 AM
6th Judicial District DEBBIE AUTREY
Clerk
Texarkana, Texas
Frank Keathley, Appellant
v.
J.J. Investment Company, L.T.D., et al., Appellees
APPELLEE'S BRIEF
TRAVIS P. CLARDY
State Bar No. 04268020
JERRY W. BAKER
State Bar No. 24026776
CLARDY LAW OFFICES
209 E. Main Street
Nacogdoches, Texas 75961
Ph: 936-564-2500
Fax: 936-564-2507
ATTORNEYS FOR APPELLEE,
CORBITT BAKER
TABLE OF CONTENTS
Table of Contents 11
Index of Authorities iv
Statement of Facts 1
Summary of Argument 7
Argument 9
A. Reply to Appellant's Point of Error No. One, which argues
that the trial court erred in ordering the Clerk to disburse
$30,000 from registry funds to Travis Clardy based on the
writ of execution levied under Corbitt Baker's judgment
against Frank Keathley because a writ of execution is not
a proper legal remedy for enforcement of a judgment against
a judgment debtor's funds in the possession of a third party
and because the funds were in legal custody of the Court 10
B. Reply to Appellant's Point of Error No. Two, which argues
that the trial court erred in ordering the Clerk to disburse
$30,000 from registry funds to Travis Clardy based on the
writ of execution levied under Corbitt Baker's judgment
against Frank Keathley because the levy on the Clerk's
funds failed to comply with the requirements of Rule 637
of Tex. R. Civ. P. and Tex. Prop. Code Sec. 42.003 18
C. Reply to Appellant's Point of Error No. Three, which argues
that the trial court erred in ordering the Clerk to disburse
$30,000 from registry funds to Travis Clardy based on
Corbitt Baker's instruction to the Constable to levy the
writ of execution against all of the $41,763.50 because Frank
Keathley did not own all of the funds and the levy was
wrongful as to the other parties who did not own an interest
in the funds 22
D. Reply to Appellant's Point of Error No. Four, which argues
that the trial court erred in ordering the Clerk to disburse
$30,000 from registry funds to Travis Clardy based on
levy of the writ of execution issued under the Corbitt Baker
judgment against Frank Keathley because the judgment
debtor's ownership interest in the registry funds was exempt
from execution under Property Code Sec. 42.001 and Sec.
42.002 24
E. Reply to Appellant's Point of Error No. Four, which argues
that the trial court erred in ordering the Clerk to disburse
$30,000 from registry funds to Travis Clardy based on levy
of the writ of execution issued under the Corbitt Baker
judgment against Frank Keathley as entered March 8, 2011,
because the judgment was not a final judgment as required
by Rule 622, Tex. R. Civ. P. and because the writ was voided
when the judgment was revoked by the judgment entered
April 12, 2011, reinstated by the Order entered April 18,
2011, appealed and reformed and affirmed by the Twelfth
Court of Appeals Opinion delivered April 2, 2013 and
Judgment dated April 24, 2011 27
F. Reply to additional issues raised in Appellant's Prayer 31
Prayer 33
Certificate of Compliance 34
Certificate of Service 34
Appendix 36
in
INDEX OF AUTHORITIES
Cases:
Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex. 1966) 32
Amstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Tex. 1996) 11
Brasher v. Carnation Co., 92 S.W.2d 573, 575 (Tex. Civ.
App.—Austin 1936, writ dism'd) 26
Burns v. Bishop, 48 S.W.3d 459 (Tex. App.—Houston
[14th Dist.] 2001, no pet.) 18
Campbell v. Stucki, 220 S.W.3d 562 (Tex. App.—Tyler 2007, no pet.) 26, 27
Challenge Co. v. Sartin, 260 S.W.313 (Tex. Civ. App. Dallas 1924, no writ).... 17
Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987) 32
Collum v. DeLoughter, 535 S.W.2d 390 (Tex. App.—Texarkana
1976, writ r e f d n.r.e.) 21, 22
Davis v. Huey, 571 S.W.2d 859 (Tex. 1978) 9, 10
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) 9, 10
Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615 (Tex. 2007) 29
Gonzales v. Daniel, 854 S.W.2d 253 (Tex. App.—Corpus Christi
1993, orig. proceeding) 15, 16, 17
Hardy v. Construction Systems, Inc., 556 S.W.2d 843 (Tex. Civ.
App.—Houston [14th Dist] 1977, writ r e f d n.r.e.) 17, 18
Ingersoll—Rand Co. v. Valero Energy Corp., 997 S.W.2d 203
(Tex. 1999) 11, 20, 25
Monroe v. Grider, 884 S.W.2d 811 (Tex. App.—Dallas 1994, writ denied) 9
iv
Murphy v. McDaniel, 20 S.W.3d 873 (Tex. App.—Dallas 2000, no pet.) 9
Reeder v. Intercontinental Plastics Mfg. Co., 581 S.W.2d 497
(Tex. Civ. App—Dallas 1979, no writ) 13
Ross v. 3D Tower, Ltd., 824 S.W.2d 270 (Tex. App.—Houston
[14th Dist.] 1992, writ denied) 26
Schlager v. Clements, 939 S.W.2d 183 (Tex. App.—Houston
[14th Dist.] 1996, writ denied) 10
Texas State Optical v. Wiggins, 882 S.W.2d 8 (Tex. App.—Houston
[1st Dist.] 1994, no writ) 9
Tober v. Turner of Tex., Inc., 668 S.W.2d 831 (Tex. App.—Austin
1984, no writ) 9, 14
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) 11, 13, 19
U.S. v. Powell, 639 F.2d 224 (5th Cir. 1981) 17
Vaughn v. Drennon, 324 S.W.3d 560 (Tex. 2010) 29
Statutes:
Tex. Civ. Prac. & Rem. Code §34.004 16
Tex. Civ. Prac. & Rem. Code §34.005 16
Tex. Prop. Code §42.001 25, 27
Tex. Prop. Code §42.002 25
Tex. Prop. Code § 42.003 19, 20, 21
Rules:
Tex. R. App. P. 24.1 13
Tex. R. App. P. 43.2 24, 27, 33
Tex. R. Civ. P. 296 31
Tex. R. Civ. P. 320 32
Tex. R. Civ. P. 321 32
Tex. R. Civ. P. 322 32
Tex. R. Civ. P. 329b 32
Tex. R. Civ. P. 621 10
Tex. R. Civ. P. 628 21, 30
Tex. R. Civ. P. 637 19, 20
vi
STATEMENT OF FACTS
Pursuant to Tex. R. App. P. 38.2(a)(B), Appellee would correct and
supplement the Statement of Facts set forth in the Appellant's Brief with the
following:
On March 8, 2011, the County Court at Law, No. 3 of Smith County, Texas
signed a final judgment in favor of the Appellee Corbitt Baker ("Baker") against
the Appellant Frank Keathley ("Keathley") and his wife. (Appendix 1). The
judgment awarded Baker his attorney's fees in the amount of $70,000, post-
judgment interest and court costs. (Appendix 1). The judgment also provided a
contingent award of additional attorney's fees should the case be appealed.
(Appendix 1).
On March 30, 2011, Baker sought and obtained a writ of execution pursuant
to Tex. R. Civ. P. 628 based on the March 8th judgment. (CR 37). The writ was
issued for the collection of "the goods and chattels, lands and tenements of the said
Frank Keathley and Melissa Keathley.. .the said sum of Attorney's Fees in the
amount of $70,000.00 for services rendered through the trial of this c a s e . " (CR
37). On March 30, 2011, Constable Randle Green of Franklin County, Texas
levied the writ of execution upon "monies in Registry of Court." (CR 39).
On or about April 8, 2011, Keathley sought and obtained a Temporary
Restraining Order from the 62nd Judicial District Court of Franklin County, Texas.
1
(CR 42-66). In the Order Granting the Temporary Restraining Order, the district
court found that "Constable Green, respondent, intends to levy against $40,000
held in the Registry of the Clerk of this Court that has been ordered by this Court
to be paid to Frank Keathley under Order for Distribution of Funds.. .and that
District Clerk Ellen Jaggers, respondent intends to make a distribution of the
$40,000 in funds held in her Registry to Corbitt Baker under levy of the Writ of
Execution." (CR 64).
On April 12, 2011, the County Court at Law, No. 3 of Smith County, Texas,
mistakenly signed a "final judgment", which was submitted by the Keathleys, and
which reversed the jury findings and awarded damages to Plaintiffs. (CR 58). As
soon as the Smith County court was made aware of this error, the trial judge signed
the Order Vacating Final Judgment Erroneously Entered April 12, 2011.
(Appendix 2). The validity of the March 8, 2011 final judgment, the April 12, 2011
"Final Judgment", and the April 18, 2011 Order Vacating Final Judgment
Erroneously Entered April 12, 2011 was the subject of an appeal by the Keathleys
to the 12th Court of Appeals. (CR 64).
On May 12, 2011, Keathley filed notice with the trial court of his
supersedeas bond and the writ of supersedeas issued by the Smith County Clerk.
(CR 76). Following a hearing on Keathley's request for issuance of a temporary
injunction, the trial court entered an Order Granting Temporary Injunction. (CR
2
91). The trial court ordered that the temporary restraining order be extended as a
temporary injunction based on the fact that it was "presented with notice of
issuance of a writ of supersedeas and posting of supersedeas bond in the
underlying lawsuit from which the writ of execution involved in this case was
issued." (CR 91). Pursuant to the Order Granting Temporary Injunction, Constable
Green was commanded to desist and refrain from execution of the writ and the
District Clerk Ellen Jaggers was commanded to desist and refrain from distributing
the funds held in the registry of the court. (CR 92).
On or about August 1, 2011, Keathley filed a Motion to Quash Writ of
Execution in the County Court at Law No. 3 of Smith County, Texas. (CR 176). In
his Motion to Quash, Keathley cited several bases, including:
• "Levy of the Writ on the District Clerk of Franklin County, Texas
without first levying the Writ on Plaintiffs as judgment debtors, was
illegal, as a matter of law because it deprived the judgment debtors of
their right to declare their exempt property and to designate any property
that they recognized as subject to execution as required by the rules for
execution under Rule 629, TRCP and as provided by Article 16, Section
49, Tex. Const. and Section 42.001 and Section 42.002, Tex Prop. Code.
The levy made under the Writ was done without any notice to the
judgment debtors and in violation of the procedures required by Section
42.003 Tex. Prop. Code." (CR 178).
• "Upon entry of the Final Judgment dated April 12, 2011 in favor of
Plaintiffs and against Defendant, the Writ was void, as a matter of law
since the March 8, 2011 judgment under which it was issued was vacated.
Under Rule 622, TRCP (Execution), issuance of a writ of execution
requires a final judgment. Since the judgment under which the Writ was
issued was vacated, the Writ was not supported by a judgment and was
void, as a matter of law." (CR 178-79)
3
• "The Court's April 18, 2011 entry of the Order Vacating the April 12, 2011
Final Judgment and reinstating the Final Judgment signed March 8, 2011,
did not reinstate the Writ of Execution issued March 30, 2011 under the
March 8, 2011judgment because Rule 622 TRCP requires a writ of
execution to be issued under a final judgment. In this case, the final
judgment could only have been the one signed April 18, 2011." (CR 179)
• "Levy of the Writ on Ellen Jaggers, District Clerk of Franklin County,
Texas for funds held in the Clerk's registry was not a levy of a writ of
execution but was an attempted garnishment of funds of a judgment debtor
in the possession of a third party. The Writ used by Defendant to reach
funds in the hands of the District Clerk failed to comply with the
requirements for a writ of garnishment stated under Section 63.001 to
63.008, Tex. Civ. Prac. & Rem. Code and is void as a matter of law." (CR
179-80)
Following a hearing on the Motion to Quash the Writ of Execution, the Smith
County court issued an order denying same. (CR 195). Further, the trial court
found that "the one and only final judgment in this matter is the Final Judgment
dated March 8, 2011," and the writ of execution "was in accordance with Rules
627 and 628 of the Texas Rules of Civil Procedure." (CR 195). The court ordered
that "the Final Judgment dated March 8, 2011, is the one true judgment of this
Court and the Writ of Execution issued upon said Final Judgment was valid and
proper." (CR 195). Keathely failed to seek review of this order. (CR 168-69).
Following the appeal of the judgment issued by the County Court at Law,
No. 3 of Smith County, Texas, the 12th Court of Appeals issued a mandate
affirming the trial court's judgment and award of $70,000.00 in attorney's fees to
Baker. (CR 110). Included in the mandate was a suggestion of remittitur that the
4
appellate attorney's fees awarded to Baker be reduced from $25,000.00 to
$8,000.00. (CR 110). The Court pointed out that the "Order Vacating Final
Judgment Erroneously Entered April 12, 2011" states that the March 8th judgment
"correctly reflects the judgment of this court." (CR 116). The Court stated, "[w]e
conclude that the language used in the April 18 order, together with the court's act
of physically attaching the March 8 judgment to the order and referencing the
attachment, has the same effect as use of the word 'reinstate' in the new order.
(CR 116).
On October 21, 2013, Baker filed a Motion to Dissolve Temporary
Injunction. (CR 102). Keathley subsequently filed a Motion to Modify Injunction
and Release Funds and a Motion for Summary Judgment on Levy of Writ of
Execution. (CR 154, 205). At a hearing on December 19, 2013, the trial court
deferred ruling on the various motions and requested additional briefing on the
issue of whether garnishment or execution is the "correct vehicle" to obtain funds
from the registry of the court. (RR 2:24, lines 14-21). At the subsequent hearing on
February 28, 2014, the trial court found that the writ of execution was the "correct
vehicle." (RR 3:4, lines 18-23). On March 25, 2014, the court signed the Order on
Corbitt Baker's Motion to Dissolve Temporary Injunction, Frank Keathley's
Motion to Modify Injunction and Release Funds and Frank Keathley's Motion for
Summary Judgment on Levy of Writ of Execution. (CR 305). In the order, the trial
5
court granted Baker's Motion to Dissolve Temporary Injunction, and ordered the
distribution of the registry funds following thirty days from the date of the order.
(CR 305-06). The court also denied Keathley's Motion to Modify Injunction and
Release Funds and a Motion for Summary Judgment on Levy of Writ of
Execution. (CR 306).
On April 25, 2014, Keathley filed his Request for Findings of Fact and
Conclusions of Law, Motion for Reconsideration and/or Motion for New Trial and
Notice of Appeal. (CR 308). Keathley then filed a voluntary petition for
bankruptcy in the U.S. Bankruptcy Court for the Eastern District of Texas and a
Notice of Bankruptcy with the trial court. (CR 314). On September 16, 2014, the
U.S. Bankruptcy Court for the Eastern District of Texas issued an order granting
Baker's Motion for Relief from Automatic Stay with respect to the monies held in
the registry of the 62nd Judicial District Court of Franklin County, Texas. (CR 319-
20). On November 3, 2014, the trial court denied Keathley's Request for Findings
of Fact and Conclusions of Law, Motion for Reconsideration and/or Motion for
New Trial and Notice of Appeal. (CR 351). The court found that the Request for
Findings of Fact and Conclusions of Law were not filed timely. (RR 4:9, lines 1-
23).
6
SUMMARY OF THE ARGUMENT
Appellant has sought a review of the trial court's Order on Corbitt Baker's
Motion to Dissolve Temporary Injunction, Frank Keathley's Motion to Modify
Injunction and Release Funds and Frank Keathley's Motion for Summary
Judgment on Levy of Writ of Execution issued on March 25, 2014. The standard of
review of a trial court's order dissolving or modifying a temporary injunction is
abuse of discretion. However, none of the arguments or evidence raised in
Appellant's Brief demonstrates that the trial court acted arbitrarily and
unreasonably or misapplied the law to the facts of the case.
With the exception of the third point of error raised by Appellant, all of
Appellant's arguments have previously been adjudicated and any attempted
relitigation of these claims is precluded as a matter of law under the doctrine of res
judicata. For this reason, the trial court correctly refused to entertain such
arguments. In the alternative, the evidence and authority cited to and relied on by
the trial court in its determination of the Appellee's Motion to Dissolve Temporary
Injunction and Appellant's Motion to Modify Injunction and Release Funds and
Motion for Summary Judgment on Levy of Writ of Execution supports the court's
findings. As to the third point of error, Appellant fails to cite evidence to support
his assertion concerning any attempt to levy against property that was not the
judgment debtor's. Rather, the record clearly shows that levy of the writ of
7
execution was made solely against the Appellant's property held in the registry of
the court.
Taking all evidence and drawing all inferences in favor of the trial court's
ruling, it is clear that there was no abuse of discretion by the trial court. The Order
on Corbitt Baker's Motion to Dissolve Temporary Injunction, Frank Keathley's
Motion to Modify Injunction and Release Funds and Frank Keathley's Motion for
Summary Judgment on Levy of Writ of Execution must therefore be affirmed.
8
ARGUMENT
Appellant's Brief fails to address the applicable standard of review for
purposes of this appeal. As indicated, this appeal is from the trial court's Order on
Corbitt Baker's Motion to Dissolve Temporary Injunction, Frank Keathley's
Motion to Modify Injunction and Release Funds and Frank Keathley's Motion for
Summary Judgment on Levy of Writ of Execution. An order granting or denying a
temporary injunction is reviewed under an abuse of discretion standard. Davis v.
Huey, 571 S.W.2d 859, 861-62 (Tex. 1978). Likewise, courts apply the same
standard of review when reviewing orders on motions to dissolve or modify a
temporary injunction. Murphy v. McDaniel, 20 S.W.3d 873, 877 (Tex. App.
Dallas 2000, no pet.); Texas State Optical v. Wiggins, 882 S.W.2d 8, 12 (Tex.
App.—Houston [1st Dist.] 1994, no writ); Tober v. Turner of Tex., Inc., 668
S.W.2d 831, 834 (Tex. App.—Austin 1984, no writ).
Under an abuse of discretion standard of review, the appellate court must
uphold the trial court's judgment unless it determines that the trial court acted
arbitrarily and unreasonably or without reference to guiding rules or principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985);
Monroe v. Grider, 884 S.W.2d 811, 816 (Tex. App. Dallas 1994, writ denied).
The appellate court is precluded from substituting its own judgment for that of the
trial court, but must review any conflicting evidence in the light most favorable to
9
the trial court's ruling and draw all reasonable inferences in favor of the trial
court's judgment. Schlager v. Clements, 939 S.W.2d 183, 191 (Tex. App.
Houston [14th Dist.] 1996, writ denied). The fact that the appellate judge may
decide an issue differently than the trial judge does not demonstrate an abuse of
discretion. Downer, 701 S.W.2d at 242. Further, it has been specifically held that
"an abuse of discretion does not exist where the trial court bases its decision on
conflicting evidence." Davis, 571 S.W.2d at 862.
A. Reply to Appellant's Point of Error No. One, which argues that the
trial court erred in ordering the Clerk to disburse $30,000 from
registry funds to Travis Clardy based on the writ of execution levied
under Corbitt Baker's judgment against Frank Keathley because a
writ of execution is not a proper legal remedy for enforcement of a
judgment against a judgment debtor's funds in the possession of a
third party and because the funds were in legal custody of the Court
The first point of error raised in the Appellant's Brief concerns the ability of
a judgment creditor to employ a writ of execution in order to enforce a judgment
against property in the possession of a third party, which in this instance involved
funds which had previously been deposited in the registry of the court. Tex. R. Civ.
P. 621 states that "[t]he judgments of the district, county, and justice courts shall be
enforced by execution or other appropriate process." Despite the arguments raised
by Appellant, Keathley cites no authority to support the assertion he is attempting
to raise. Rather, as Rule 621 clearly states, a writ of execution, such as the one
employed by Baker, is one means by which a judgment creditor may enforce his
10
judgment. As such, the trial court did not abuse its discretion in permitting such
enforcement in this instance.
In each of the motions, responses and briefs filed before the trial court,
Keathley raised several arguments challenging the effectiveness of the writ of
execution and the manner in which it was levied. Baker argued that each of these
arguments was barred under the doctrine of res judicata. Res judicata prevents
parties from relitigating claims or defenses that are finally adjudicated and even
ones that could have been litigated in an earlier suit but were not. Ingersoll—Rand
Co. v. Valero Energy Corp., 997 S.W.2d 203, 206-07 (Tex. 1999). "The doctrine is
intended to prevent causes of action from being split, thus curbing vexatious
litigation and promoting judicial economy." Id. at 207. Under this doctrine, a party
is precluded from litigating a claim in a pending action if: (1) in a previous action,
a court of competent jurisdiction rendered a final determination on the merits of a
claim; (2) the parties that litigated the prior claim are identical to or in privity with
the parties litigating the pending claim; and (3) the pending claim (a) is identical to
the prior claim or (b) arises out of the same subject matter as the prior claim and
could have been litigated in the previous action. Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652
(Tex. 1996).
In his Motion to Quash Writ of Execution filed in the County Court at Law
11
No. 3 of Smith County, Texas, Keathley raised several arguments, including the
following:
"Levy of the Writ on Ellen Jaggers, District Clerk of Franklin County, Texas
for funds held in the Clerk's registry was not a levy of a writ of execution but
was an attempted garnishment of funds of a judgment debtor in the possession
of a third party. The Writ used by Defendant to reach funds in the hands of the
District Clerk failed to comply with the requirements for a writ of garnishment
stated under Section 63.001 to 63.008, Tex. Civ. Prac. & Rem. Code and is
void as a matter of law." (CR 179-80).
Following a hearing on same, the Smith County court denied Keathley's Motion to
Quash. The court held that "the one and only final judgment in this matter is that
Final Judgment dated March 8, 2011," and the writ of execution "was in
accordance with Rules 627 and 628 of the Texas Rules of Civil Procedure." (CR
195). The order stated further that "the Final Judgment dated March 8, 2011, is the
one true judgment of this Court and the Writ of Execution issued upon said Final
Judgment was valid and proper." (CR 195). Keathley made no attempt to appeal
the findings of the Smith County court.
Appellee thus contends that the argument raised in Keathley's first point of
error is barred under the doctrine of res judicata. Clearly one of the bases relied on
in Keathley's Motion to Quash Writ of Execution related to whether or not the
execution was an improper attempt at garnishment of the funds in the registry of
the court. The parties to that proceeding are identical to or in privity with the
parties before the trial court. Further, these same claims or defenses are identical
12
to those identified above, or arise from the same subject matter and could have
been raised therein. See Travelers, 315 S.W.3d at 862.
Even if it is determined that this claim is not barred as a matter of law, the
arguments raised regarding this point of error must still be rejected. Appellee
would remind the Court that in the Order Granting Temporary Injunction, the trial
court ordered that Keathley's TRO should be extended stating that it was
"presented with notice of issuance of a writ of supersedeas and posting of
supersedeas bond in the underlying lawsuit from which the writ of execution
involved in this case was issued." (CR 91). As Keathley had filed his writ of
supersedeas and posted a supersedeas bond, enforcement of the Smith County final
judgment was suspended. See Tex. R. App. P. 24.1. The only legitimate purpose of
a temporary injunction is to preserve the status quo pending trial. Reeder v.
Intercontinental Plastics Mfg. Co., 581 S.W.2d 497, 499 (Tex. Civ. App—Dallas
1979, no writ). The trial court's Order Granting Temporary Injunction preserved
the status quo by suspending the levy and distribution of the subject funds pending
the outcome of the appeal of the Smith County judgment.
On August 2, 2013, the 12th Court of Appeals issued a mandate on the
appeal raised by Frank Keathley and Melissa Keathley affirming the award of
attorney's fees to Baker which formed the basis of the writ of execution. (CR 110).
Following the issuance of the mandate, Baker filed his Motion to Dissolve
13
Temporary Injunction citing the mandate and the fact that Keathley's ability to
appeal said judgment had been exhausted. (CR 102-25). The purpose of a motion
to dissolve a temporary injunction is to provide a means a party may show that
circumstances have changed which compel the dissolution of the injunction. Tober,
668 S.W.2d at 836. In such motion, the moving party is required to show that
circumstances have changed since the issuance of the temporary injunction such
that the order should now be dissolved. Id. Upon a showing of "changed
circumstances" by the movant, the trial court is authorized to dissolve the
temporary injunction. Id.
As the basis cited for extending the temporary restraining order into a
temporary injunction was the filing of the writ of supersedeas and the posting of a
supersedeas bond, and because the appeal of said judgment was now final, Baker
argued "changed circumstances." (CR 102-25). He therefore sought dissolution of
the temporary injunction so that the levy of the writ of execution on the funds held
in the registry of the court might proceed. (CR 102-25).
At the hearing on Baker's Motion to Dissolve Temporary Injunction, the
question of "changed circumstances" was not addressed. Rather, the trial court
focused the hearing on the question of whether a writ of execution was the proper
vehicle by which the funds held in the court's registry might be reached by a
judgment creditor. (RR 2:11, lines 10-12). Keathley argued that only a writ of
14
garnishment may be employed by a judgment creditor in order to obtain property
in the possession of a third party. Originally, it appears that the trial court agreed
with the Appellant's arguments when he likened it to "a bank holding funds." (RR
2:11, lines 10-12). However, rather than ruling on the issue at this hearing, the trial
court asked the parties to brief this issue and reset the hearing for a later date. (RR
2:24, lines 14-21). Following receipt of such briefing, the trial court stated at the
subsequent hearing: "I previously said on the record I had some concern whether
or not writ of execution was the right way to get to these funds, but I'm satisfied
that this is the correct vehicle to get here." (RR 3:4, lines 19-24).
Appellant's Brief fails to demonstrate that the trial court abused its
discretion in its findings on the effectiveness of the writ of execution. As indicated
in the record, the trial court was ultimately convinced that a writ of execution was
the "correct vehicle" after its review of the parties' briefing. (RR 3:4, lines 19-24).
In his brief to the trial court, Appellee cited Gonzales v. Daniel, 854 S.W.2d 253
(Tex. App.—Corpus Christi 1993, orig. proceeding) to support the argument. In
Gonzales, the funds subject to enforcement were placed in the registry of the court
from a garnishment judgment obtained against the debtor's bank account. Id. at
254. However, in seeking to collect the funds from the registry of the court, the
judgment creditor employed a writ of execution rather than another writ of
garnishment. Id. The Corpus Christi court held that "Gonzales was entitled to the
15
issuance of a writ of execution against this property and the distribution of the
funds to him after his garnished judgment became final under the provisions of
Rule 627, and that the trial court abused its discretion by entering an order voiding
the distribution." Id. at 257. Thus, the Gonzales opinion clearly holds that a writ of
execution can be used to collect funds held in the registry of the court. Moreover,
the clear implication of both Tex. Civ. Prac. & Rem. Code §34.004 and §34.005 is
that execution is a valid means by which a judgment creditor can secure property
of the debtor that is in the possession of a third party. See Tex. Civ. Prac. & Rem.
Code §34.004 and §34.005.
One concern in Gonzales, which Appellant has also raised, was whether
property held in custodia legis can be subject to any enforcement proceedings.
Gonzales, 854 S.W.2d at 256-57. Ordinarily, such enforcement is precluded in
order to preserve the jurisdiction of the court and avoid conflicts ofjurisdiction
between courts. Id. However, the Gonzales court cites an exception "when the
court enters a decree of distribution, or where nothing more remains for the
custodian to do but make delivery of the property or payment of the money..." Id.
at 257. Prior to the levy of the writ of execution, the trial court had already
executed an Agreed Order to Distribute Funds. (CR 36). As such, these funds were
already "subject to levy under Texas law" when the writ was levied by Constable
Green. See Id.
16
In U.S. v. Powell, 639 F.2d 224 (5th Cir. 1981), the Fifth Circuit cited Texas
case law for the same proposition: "When the court enters a decree of distribution,
or where nothing more remains for the custodian to do but make delivery of the
property or payment of the money, the reason for the doctrine of in custodia legis
is satisfied, and the property becomes subject to levy under Texas law.. .It appears,
therefore, that there must be a writ of execution. Powell, 639 F.2d at 226 (citing
Hardy v. Construction Systems, Inc., 556 S.W.2d 843 (Tex. Civ. App.—Houston
[14th Dist] 1977, writ r e f d n.r.e.); Challenge Co. v. Sartin, 260 S.W.313 (Tex. Civ.
App.—Dallas 1924, no writ) (Emphasis added).
Appellant cites Hardy for the suggestion that an order of distribution only
becomes final for purposes of enforcement ofjudgments when the court loses
subject matter jurisdiction. However, this is a misreading of Houston court's
holding. Both Gonzales and Powell (which cites Hardy) specify that this exception
applies when either "the court enters a decree of distribution" OR "where nothing
more remains for the custodian to do but make delivery of the property or payment
of the money." Gonzales, 854 S.W.2d at 257; Powell, 639 F.2d at 226. In this case,
the trial court entered an Agreed Order to Distribute Funds on March 25, 2011.
(CR 36). This alone was sufficient to permit the judgment creditor to proceed with
the execution of these registry funds once the injunction was dissolved.
17
Case law is clear that funds deposited in the registry of the court are always
subject to the control and order of the trial court, and the court enjoys "great
latitude in dealing with them." Burns v. Bishop, 48 S.W.3d 459, 467 (Tex. App.—
Houston [14th Dist.] 2001, no pet.). In Hardy, the Houston Court clarified that the
purpose of in cutodia legis "is not to protect the party entitled to the property, but
to preserve the jurisdiction of the court administering the property and prevent
conflicts ofjurisdiction with other court." Hardy, 556 S.W.2d at 844. Therefore,
Keathley's reliance on the doctrine of in custodia legis is misplaced. In fact, the
Appellant's counsel himself represented at the hearing that the trial court possesses
"exclusive jurisdiction over control of the funds in your court," and the court
heartily agreed. (RR 3:13, lines 19-23). After review of the motions and briefs of
the parties, as well as the arguments raised in both hearings, the trial court
exercised such "latitude" in granting Baker's Motion to Dissolve Temporary
Injunction and ordering the funds to be distributed as set forth therein. (CR 305-
06). Therefore, even if the arguments raised in Keathley's first point of error are
not barred under the doctrine of res judicata, it is clear that the trial court's order
was not arbitrary or given without reference to guiding rules or principles.
B. Reply to Appellant's Point of Error No. Two, which argues that the
trial court erred in ordering the Clerk to disburse $30,000 from
registry funds to Travis Clardy based on the writ of execution levied
under Corbitt Baker's judgment against Frank Keathley because the
levy on the Clerk's funds failed to comply with the requirements of
Rule 637 of Tex. R. Civ. P. and Tex. Prop. Code Sec. 42.003
18
In his next point of error, Keathley raises another claim that was previously
adjudicated by the Smith County court. Keathley argues that Baker made no
attempt to contact Keathley so that he might "declare his exempt property and
designate nonexempt property against which Baker's judgment could be enforced.
However, in the Motion to Quash Writ of Execution, Keathley listed the following
as a basis to quash:
"Levy of the Writ on the District Clerk of Franklin County, Texas without
first levying the Writ on Plaintiffs as judgment debtors, was illegal, as a
matter of law because it deprived the judgment debtors of their right to
declare their exempt property and to designate any property that they
recognized as subject to execution as required by the rules for execution
under Rule 629, TRCP and as provided by Article 16, Section 49, Tex.
Const. and Section 42.001 and Section 42.002, Tex Prop. Code. The levy
made under the Writ was done without any notice to the judgment debtors
and in violation of the procedures required by Section 42.003 Tex. Prop.
Code." (CR 178) (Emphasis added).
As with the argument regarding garnishment, Appellant's argument that Appellee
failed to comply with Tex. R. Civ. P. 637 and Tex. Prop. Code §42.003 is also
barred under the doctrine of res judicata. See Travelers, 315 S.W.3d at 862.
In his brief, Keathley attempts to preempt this defense by asserting that the
order on the Motion to Quash Writ of Execution has "no bearing" on this issue.
According to Keathley, the "manner in which the writ was levied or enforced was
within the exclusive jurisdiction of the trial court." However, there is no doubt that
Appellant raised his claims concerning an "illegal" levy to the Smith County court.
19
Despite his present assertions, it is clear that at the time he filed his Motion to Quash,
Keathley believed that the Smith County court possessed the necessary jurisdiction to
hear such claims. However, he failed to appeal this order and now he is incapable of
relitigating same. See Ingersoll—Rand, 997 S.W.2d at 206-07. The trial court
agreed and refused to entertain Keathley's arguments since the Smith County court
had previously ruled. (RR 2:12, lines 1-5).
Even if this argument is not barred as a collateral attack on the Smith County
court's order, the Appellant's second point of error should still be denied. Keathley's
point of error ignores the exceptions to such requirement for notice as provided
under these same rules. Tex. R. Civ. P. 637 states:
"When an execution is delivered to an officer he shall proceed without delay
to levy the same upon the property of the defendant found within his county
not exempt from execution, unless otherwise directed by the plaintiff, his
agent or attorney. The officer shall first call upon the defendant, if he can be
found, or, if absent, upon his agent within the county, if known, to point
out property to be levied upon, and the levy shall first be made upon the
property designated by the defendant, or his agent. If in the opinion of the
officer the property so designated will not sell for enough to satisfy the
execution and costs of sale, he shall require an additional designation by the
defendant. If no property be thus designated by the defendant, the officer
shall levy the execution upon any property of the defendant subject to
execution." (Emphasis added).
Further, Tex. Prop. Code § 42.003 states:
"If the number or amount of a type of personal property owned by a debtor
exceeds the exemption allowed by Section 42.002 and the debtor can be
found in the county where the property is located, the officer making a levy
on the property shall ask the debtor to designate the personal property to be
levied on. If the debtor cannot be found in the county or the debtor fails to
20
make a designation within a reasonable time after the officer's request, the
officer shall make the designation." Tex. Prop. Code § 42.003(a) (Emphasis
added).
As such, if the judgment debtor "cannot be found" in the county in which the
execution is levied, it is the officer who makes the designation rather than the
judgment debtor. By his own admission, it was clear that Keathley was not a
resident of Franklin County. (CR 164). As such, the fact that Constable Green did
not contact him prior to levying the writ was not wrongful, but rather a specific
exception to any notice requirement. As Appellant could "not be found" in the
county prior to the execution, the officer properly levied the writ of execution on the
only property of the judgment debtor located in Franklin County.
Further, the Court will recall that the writ of execution in this instance was
issued under Tex. R. Civ. P. 628. In accordance with this Rule, Appellee filed an
affidavit for immediate issuance of a writ of execution. Considering the concern for
the property being removed from Franklin County, as evidenced by the Rule 628
affidavit, the request that Constable Green not contact the Appellant was a matter of
prudence. The fact that Keathley was not a resident of Franklin County exacerbated
the concern that these funds would be removed from the county before a levy could
occur.
Appellant cites Collum v. DeLoughter, 535 S.W.2d 390 (Tex. App.
Texarkana 1976, writ r e f d n.r.e.), to argue that where the judgment debtor was not
21
provided an opportunity to designate property that this was sufficient to set aside a
sale under execution. However, this argument misstates the holding in Collum. In
fact, this Court noted that there were several "irregularities," only one of which
was the failure to provide an opportunity to designate property. Id. at 393. This
Court held that "[s]tanding alone, none of these irregularities would be sufficient to
justify setting aside the sale, but together with an inadequate price paid for the
property, and the trial court's presumed finding that these irregularities were
calculated to and did contribute to such inadequacy of price, they are sufficient to
avoid the sale." Id. Thus, even if a failure to permit a debtor the opportunity to
designate exempt property was an "irregularity," this by itself is not sufficient to
set aside the execution. For these reasons, the Court should disregard Appellant's
second point of error and affirm the order of the trial court.
C. Reply to Appellant's Point of Error No. Three, which argues that the
trial court erred in ordering the Clerk to disburse $30,000 from
registry funds to Travis Clardy based on Corbitt Baker's instruction
to the Constable to levy the writ of execution against all of the
$41,763.50 because Frank Keathley did not own all of the funds and
the levy was wrongful as to the other parties who did not own an
interest in the funds
In his third point of error, the Appellant argues that the trial court erred in
failing to consider the alleged instruction to Constable Green to levy the entire
amount held in the registry of the court. However, Appellant's assertion lacks any
basis and completely misstates the record. Appellee would remind the Court that
22
he was not a party to the underlying lawsuit. In the letter to Constable Green,
Appellee's attorney states that "[o]ur investigation indicates Frank Keathley has on
deposit in the registry of the 8th Judicial District Court in Franklin County
approximately $41,763.50 associated with Cause No. 10,072 (a matter styled J.J.
Investment Company, LTD v. Frank Keathley) which amount may be released in
the near future." (CR 40). As should be apparent, this was not an instruction to the
constable to levy against a certain amount, but only an attempt to inform him of the
information Appellee had obtained concerning the only known asset in the county.
(CR 40).
As the record demonstrates, the writ of execution was issued for the
collection of "the goods and chattels, lands and tenements of the said Frank
Keathley and Melissa Keathley.. .the said sum of Attorney's Fees in the amount of
$70,000.00 for services rendered through the trial of this c a s e . " (CR 37).
Constable Green levied this writ of execution upon "monies in Registry of Court'
as specified in his return. (CR 39). Clearly then, the levy was made solely against
Keathley's property being held in the registry of the court.
There is simply no evidence presented by Appellant that Constable Green
sought to levy any property other than Keathley's $40,000, or that the district clerk
was placed "in a position of peril" concerning ownership of these funds. To the
contrary, the record demonstrates otherwise. In the Order Granting the Temporary
23
Restraining Order, the trial court found that "Constable Green, respondent, intends
to levy against $40,000 held in the Registry of the Clerk of this Court that has been
ordered by this Court to be paid to Frank Keathley under Order for Distribution of
Funds.. .and that District Clerk Ellen Jaggers, respondent intends to make a
distribution of the $40,000 in funds held in her Registry to Corbitt Baker under
levy of the Writ of Execution." (CR 64). Thus, when the trial court entered the
temporary restraining order there was no doubt that the only property subject to
levy and distribution was the $40,000 that was previously agreed to be distributed
to Keathley.
In the closing paragraph of this portion of the brief, Appellant requests that
this Court "grant summary judgment in favor of Keathley on this issue, declare the
attempted levy invalid, direct the District Clerk to release funds to Keathley as
originally ordered and enjoin Baker and Constable Green as requested."1 Appellee
would object to such relief as it exceeds the authority of this Court as set forth in
Tex. R. App. P. 43.2.
D. Reply to Appellant's Point of Error No. Four, which argues that the
trial court erred in ordering the Clerk to disburse $30,000 from
registry funds to Travis Clardy based on levy of the writ of execution
issued under the Corbitt Baker judgment against Frank Keathley
T h i s a r g u m e n t w a s specifically raised in A p p e l l a n t ' s M o t i o n f o r S u m m a r y J u d g m e n t on L e v y
of W r i t of E x e c u t i o n . ( C R 154). A s an o r d e r d e n y i n g a m o t i o n f o r s u m m a r y j u d g m e n t is n o t
a p p e a l a b l e , A p p e l l e e h a s n o t r e s p o n d e d t o t h e i s s u e s raised therein, d e s p i t e A p p e l l a n t ' s c l a i m s
f o r relief, e x c e p t t o the e x t e n t that s u c h a r g u m e n t s w e r e also raised in r e s p o n s e to the m o t i o n t o
d i s s o l v e the t e m p o r a r y i n j u n c t i o n .
24
because the judgment debtor's ownership interest in the registry funds
was exempt from execution under Property Code Sec. 42.001 and Sec.
42.002
As with the first and second points of error, the claims raised in Appellant's fourth
point of error are barred under the doctrine of res judicata. In his Motion to Quash
Writ of Execution filed before the County Court at Law No. 3 of Smith County,
Texas, Keathley cited the following as a basis for quashing the writ:
"Levy of the Writ on the District Clerk of Franklin County, Texas without
first levying the Writ on Plaintiffs as judgment debtors, was illegal, as a
matter of law because it deprived the judgment debtors of their right to
declare their exempt property and to designate any property that they
recognized as subject to execution as required by the rules for execution
under Rule 629, TRCP and as provided by Article 16, Section 49, Tex.
Const. and Section 42.001 and Section 42.002, Tex Prop. Code. The levy
made under the Writ was done without any notice to the judgment debtors
and in violation of the procedures required by Section 42.003 Tex. Prop.
Code." (CR 178) (Emphasis added).
Appellee contends that this point of error is merely another attempt by the Appellant
to relitigate the issue of whether these funds are exempt. See Ingersoll—Rand, 997
S.W.2d at 206-07.
In the alternative, Baker would argue that these funds were not exempt under
Tex. Prop. Code §42.001 or §42.002. As the record reflects, the subject funds were
deposited in the court's registry and subsequently ordered to be distributed pursuant
to a mediated settlement agreement as specified in the Agreed Order to Distribute
Funds. (CR 36). Appellee would point out that nothing in Chapter 42 of the Texas
25
Property Code provides any exemption from execution for monies paid as a
settlement in litigation.
Keathley has made the argument that these funds are precluded from
execution because they constitute unpaid commissions. In Campbell v. Stucki, 220
S.W.3d 562, 566-567, (Tex. App.—Tyler 2007, no pet.), the Tyler Court
specifically addressed the issue. The court reasoned that "wages for personal
service. implies a relationship of master and servant, or employer and employee,
and excludes compensation due to an independent contractor as such." Id. at 566-
567; (citing Brasher v. Carnation Co., 92 S.W.2d 573, 575 (Tex. Civ. App.
Austin 1936, writ dism'd)). Since it was established that the debtor was an
independent contractor rather than an employee, the court held that "his
commissions are not 'wages for personal service' and are not exempt from
garnishment." Id. at 567. In Ross v. 3D Tower, Ltd., 824 S.W.2d 270, 273 (Tex.
App.—Houston [14th Dist.] 1992, writ denied), the 14th Court of Appeals reached
a similar conclusion holding that an attorney is an independent contractor and any
fees owed for legal services which had been performed were not exempt under the
Texas Turnover Statute. Keathley has presented no evidence to demonstrate that he
was an employee rather than an independent contractor in the underlying dispute.
In fact, in the Appellant's brief he represents the underlying lawsuit as a "contract
dispute." Thus, even if Keathley correctly characterizes these funds as unpaid
26
commissions, rather than settlement proceeds, his argument that these payments
are exempt fails under the clear holding of Campbell.
Even assuming, arguendo, that Keathley is correct regarding the application
of this exemption, he has mischaracterized the amount that would be exempt under
Tex. Prop. Code §42.001(a), (d). Pursuant to the language of §42.001(d), the
exemption for unpaid commission is limited to 25% of the aggregate amount of
$60,000; i.e. $15,000. Tex. Prop. Code §42.001(a), (d). Even if Keathley could
establish that these funds were somehow distinguishable from those in Campbell,
the remaining $25,000 would still be subject to the levy. However, Appellant cites
no authority or basis for such a distinction. Further, Keathley presents no authority
to support his assertion that an additional $15,000 of these "unpaid commissions
are precluded under the "family exemption," or that the $10,000 in attorney's fees,
purportedly assigned to his attorney, are also exempt under this section of the
Property Code. For each of these reasons, this point of error must be denied.2
E. Reply to Appellant's Point of Error No. Four, which argues that the
trial court erred in ordering the Clerk to disburse $30,000 from
registry funds to Travis Clardy based on levy of the writ of execution
issued under the Corbitt Baker judgment against Frank Keathley as
entered March 8, 2011, because the judgment was not a final judgment
as required by Rule 622, Tex. R. Civ. P. and because the writ was
voided when the judgment was revoked by the judgment entered April
2
O n c e again t h e A p p e l l a n t states that h e is entitled t o " s u m m a r y j u d g m e n t t h a t all h i s interest in
t h e registry f u n d s w a s a n d are e x e m p t u n d e r t h e P r o p e r t y C o d e . " A p p e l l e e w o u l d again o b j e c t t o
such relief as it e x c e e d s t h e authority of this C o u r t as set f o r t h in Tex. R. A p p . P. 43.2.
27
12, 2011, reinstated by the Order entered April 18, 2011, appealed and
reformed and affirmed by the Twelfth Court of Appeals Opinion
delivered April 2, 2013 and Judgment dated April 24, 2011
Keathley's final point of error concerns the validity of the writ of execution
due to the events which followed the issuance of the March 8, 2011 final judgment.
Yet again, Keathley raised an argument that was previously raised and adjudicated.
In the Motion to Quash Writ of Execution, Appellant cited the following as
additional bases to quash the writ:
"Upon entry of the Final Judgment dated April 12, 2011 in favor of Plaintiffs
ans against Defendant, the Writ was void, as a matter of law since the March
8, 2011 judgment under which it was issued was vacated. Under Rule 622,
TRCP (Execution), issuance of a writ of execution requires a final judgment.
Since the judgment under which the Writ was issued was vacated, the Writ
was not supported by a judgment and was void, as a matter of law." (CR 178-
79)
"The Court's April 18, 2011 entry of the Order Vacating the April 12, 2011
Final Judgment and reinstating the Final Judgment signed March 8, 2011, did
not reinstate the Writ of Execution issued March 30, 2011 under the March 8,
2011 judgment because Rule 622 TRCP requires a writ of execution to be
issued under a final judgment. In this case, the final judgment could only have
been the one signed April 18, 2011." (CR 179)
As set forth above, the order on the Motion to Quash specifically addressed these
arguments. The Smith County court held that "the one and only final judgment in
this matter is the Final Judgment dated March 8, 2011" and "the Final Judgment
dated March 8, 2011, is the one true judgment of this Court and the Writ of
Execution issued upon said Final Judgment was valid and proper." (CR 195). Such
claims are therefore barred as a matter of law under the doctrine of res judicata.
28
Even ignoring the fact that these claims were previously adjudicated, the
assertions raised in this point of error lack any merit. Appellant first argues that the
March 8th judgment was as an interlocutory judgment rather than a final judgment.
Case law is clear that a judgment is final if it disposes of all parties and claims in
the lawsuit. Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 617 (Tex. 2007).
Further, there is a presumption that a judgment following a trial on the merits
disposes of all parties and claims and is final. Vaughn v. Drennon, 324 S.W.3d
560, 562-63 (Tex. 2010). It is presumed then that the March 8th judgment was
final. Further, it is clearly stated in the body of the judgment that it "finally
disposes of all parties and claims." (Appendix 1).
Appellant further argues that the writ was voided when the Smith County
court mistakenly signed a second "final judgment" on April 12, 2011. (CR 58).
This "judgment" was submitted by the Keathleys after the March 8th judgment had
been entered. As the Court will note, it completely reversed the findings of the jury
and awarded damages to the Keathleys contrary to the jury's findings. (CR 58).
However, as soon as the Smith County court was made aware of this error, the
judge signed the Order Vacating Final Judgment Erroneously Entered April 12,
2011. (Appendix 2).
In its opinion following the Keathleys' appeal of the judgment, the Tyler
Court pointed out that the "Order Vacating Final Judgment Erroneously Entered
29
April 12, 2011" states that the March 8th judgment "correctly reflects the judgment
of this court." (CR 116). The Court overruled Keathley's issues on appeal and held
that the "April 18 order reinstated the March 8 judgment." (CR 116). As the March
8th final judgment was not voided but rather reinstated, the writ of execution based
on said judgment is not void.
Finally, Keathley asserts that the judgment was modified by the remittitur. In
its Mandate, the 12th Court of Appeals affirmed the trial court's judgment and
award of $70,000.00 in attorney's fees to Baker. (CR 110). However, the Tyler
Court also included a suggestion of remittitur solely with respect to the appellate
attorney's fees. (CR 110) The Court will recall that the March 8th judgment also
awarded appellate attorney's fees to Baker contingent on the Keathley's
unsuccessful appeal of the judgment. (Appendix 1). The mandate issued by the 12th
Court of Appeals ordered a remittitur reducing the amount awarded for these
appellate attorney's fees from $25,000.00 to $8,000.00. (CR 110). As was pointed
out at the hearing on the Motion to Dissolve Temporary Injunction, the remittitur
affected no part of the final judgment upon which the writ of execution was based.
(RR 3:17, lines 15-21).
As previously indicated, the writ of execution was issued under Tex. R. Civ.
P. 628 and prior to any appeal of the Smith County judgment. In fact, the writ clearly
indicates that it was issued for the collection of "the goods and chattels, lands and
30
tenements of the said Frank Keathley and Melissa Keathley.. .the said sum of
Attorney's Fees in the amount of $70,000.00for services rendered through the
trial of this case.. " (CR 37) (Emphasis added). There was nothing in the writ of
execution which even addressed the contingent appellate attorney's fees made the
basis of the remittitur. Therefore, the trial court correctly rejected such arguments
and nothing raised in Appellant's final point of error demonstrates that the court
acted arbitrarily, unreasonably or without reference to guiding rules or principles in
so doing. For these reasons, the trial court's Order on Corbitt Baker's Motion to
Dissolve Temporary Injunction, Frank Keathley's Motion to Modify Injunction
and Release Funds and Frank Keathley's Motion for Summary Judgment on Levy
of Writ of Execution must in all things be upheld.
F. Reply to additional issues raised in Appellant's Prayer
In his Prayer, Keathley seeks the reversal of not only the orders respecting
the temporary injunction, but also the orders denying his Motion for Summary
Judgment on Levy of Writ of Execution dated March 25, 2011 and his Request for
Findings of Fact and Conclusions of Law, Motion for Reconsideration and/or
Motion for New Trial and Notice of Appeal dated November 3, 2014.
Appellee would point out that Keathley's Request for Findings of Fact and
Conclusions of Law was filed untimely. Tex. R. Civ. P. 296 states that such request
"be filed within twenty days after judgment is s i g n e d . " The Order on Corbitt
31
Baker's Motion to Dissolve Temporary Injunction, Frank Keathley's Motion to
Modify Injunction and Release Funds and Frank Keathley's Motion for Summary
Judgment on Levy of Writ of Execution was signed on March 25, 2014. (CR 305).
However, the Request for Findings of Fact and Conclusions of Law was not filed
until April 25, 2014. (CR 308). As such, there is no basis for reversing the trial
court's order.
While the Motions for Reconsideration and for New Trial were timely filed
under Tex. R. Civ. P. 329b, in neither motion did Keathley cite any basis for the
trial court to reconsider its order or to grant a new trial. The motion fails to
establish "good cause" and fails to set forth his objections so they "can be clearly
identified and understood by the court." Tex. R. Civ. P. 320, 321. Further, Tex. R.
Civ. P. 322 specifically prohibits general objections such as Keathley employs, and
mandates that same "shall not be considered by the court." Even so, the standard of
review of a ruling on such motion is again abuse of discretion. Cliff v. Huggins,
724 S.W.2d 778, 778-79 (Tex. 1987). The Appellant's Brief makes no attempt to
demonstrate that the trial court acted arbitrarily or without reference to guiding
rules or principles in denying both motions.
Appellant also argues for relief from this Court from the trial court's denial
of his Motion for Summary Judgment. However, the law is clear that, with few
exceptions, an order denying summary judgment is not appealable. See Ackermann
32
v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966). Appellant's Brief fails to make
any showing that summary judgment being sought fell under one of these
exceptions, and therefore such relief must also be denied.
Finally, Appellant asks that this Court enter a permanent injunction against
the Appellees to preclude enforcement of Baker's judgment against him. However,
such relief is not within the jurisdiction of the Court and exceeds the authority
specified in Tex. R. App. P. 43.2. For such reason, any such relief must also be
denied.
PRAYER
Appellee Corbitt Baker respectfully prays that this Honorable Court would
overrule each of the Appellant's points of error, deny the relief requested in his brief,
affirm the trial court's Order on Corbitt Baker's Motion to Dissolve Temporary
Injunction, Frank Keathley's Motion to Modify Injunction and Release Funds and
Frank Keathley's Motion for Summary Judgment on Levy of Writ of Execution
executed on March 25, 2014, and award Appellee such other and further relief to
which he may be justly entitled to receive.
Respectfully submitted,
CLARDY LAW OFFICES
209 E. Main Street
Nacogdoches, Texas 75961
Ph: 936-564-2500
Fax: 936-564-2507
33
By: /s/ Jerry W. Baker
TRAVIS P. CLARDY
State Bar No. 04268020
JERRY W. BAKER
State Bar No. 24026776
ATTORNEYS FOR APPELLEE,
CORBITT BAKER
CERTIFICATE OF COMPLIANCE
I hereby certify that this document was produced on a computer and contains
8,675 words, as determined by the computer software's word-count function,
excluding the sections of the document listed in Tex. R. App. P. 9.4(i)(1).
/s/ Jerry W. Baker
JERRY W. BAKER
CERTIFICATE OF SERVICE
I hereby certify that on April 15, 2015, a true and correct copy of the
foregoing document has been served by certified mail, return receipt requested, in
accordance with the Texas Rules of Appellate Procedure, on the following:
a. Mr. Larry R. Wright, P.O. Box 144, Winnsboro, Texas 75494; Attorney
for Appellant.
b. Mr. Larry Blount, Powers & Blount, L.L.P., P.O. Box 877, Sulphur
Springs, Texas 75483; Attorney for Appellee J.J. Investments, Ltd.
34
c. Mr. Gene Stump, P.O. Box 606, Mount Vernon, Texas 75457; Attorney
for Appellees Ellen Jagger, District Clerk, and Constable Ronald Green.
/s/ Jerry W. Baker
JERRY W. BAKER
35
Case No. 06-14-00036-CV
In the Court of Appeals
6th Judicial District
Texarkana, Texas
Frank Keathley, Appellant
v.
J.J. Investment Company, L.T.D., et al., Appellees
APPENDIX
Final Judgment Cause No. 51,959-B, Frank Keathley and Melissa
Keathley v. Corbitt Baker, et al., in the County Court at Law, No. 3 of
Smith County, Texas_dated March 8, 2011.
2. Order Vacating Final Judgment Erroneously Entered April 12, 2011 -
Cause No. 51,959-B, Frank Keathley and Melissa Keathley v. Corbitt
Baker, et al., in the County Court at Law, No. 3 of Smith County,
Texas_dated April 18, 2011.
Tex. R. App. P. 24
4 Tex. R. App. P. 43
Tex. R. Civ. P. 296
6. Tex. R. Civ. P. 320
Tex. R. Civ. P. 321
36
Tex. R. Civ. P. 322
9 Tex. R. Civ. P. 621
10. Tex. Civ. Prac. & Rem. Code §34.004
11. Tex. Civ. Prac. & Rem. Code §34.005
37
Appendix 1
CAUSE NO. 51,959-8
mimfi-s /urn:?,
FRANK KEATHLEV and § C O V N T y ^ ^ A T l l f
MELISSA KEATHLEY, § BY.
Plaintiffs § MPi/rr
§
VS. § NO. 3
§
CORBlTr BAKER, CARROLL BOBO §
d/b/a UNITED COUNTRY BOBO §
REALTY, and MOLLIE BOBO tMVa §
UNITED COUNTRY BOBO REALTY, §
Defendants § SMITH COUNTY, TEXAS
FINAL J U D G M E N T
On February 16,2011, this cause came on to b e heard and Frank Keathley and Melissa
Keathley, Plaintiffs, appeared in person and by attorney o f record and announced ready f o r trial
and Corijiti Baker, Carrol) Bobo d/b/a United Country Bobo Realty and Mollie Bobo d/b/a
United Countiy Bobo Realty, Defendants, appeared in person and by attorney o f record and
announced ready for trial, and a jury having been previously demanded, a j u r y consisting o f six
qualified jurors was duly impaneled and the case proceeded to trial.
At the conclusion of the evidence, the court entered a directed verdict on behalf of
Defendants Corbitt Baker, Carroll Bobo d/b/a United Country Bobo Realty and Mollie Bobo
d/b/a United Country Bobo Realty and against Plaintiffs Frank Keathley and Melissa Keathley
for Plaintiffs' claims of common law fraud and statutory fraud. The court then submitted the
remaining questions of fact to the jury. T h e charge of the court and t h e verdict o f the jury are
incorporated for all purposes by reference.
Following the jury's deliberation, a verdict of the jury was rendered on behalf o f
Defendant Corbitt Baker and against Plaintiffs Frank Keathley and Melissa Keathley. T h e j u r y
found that the contract had terminated and thai Plaintiffs were not entitled to any damages or
attorneys' fees. Further, the jury verdict awarded Defendant Corbitt Baker attorneys' fees for
services rendered through trial in the amount of $70,000.00. In the event of an appeal to the court
of appeals, the jury awarded Defendant Corbitt Baker attorneys' fees of $10,000.00 and, in the
event of an appeal to the Supreme Court of Texas, die jury awarded Defendant Corbitt Baker
attorneys' fees of $ 15,000.00.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED by the court that
Plaintiffs, Frank Keathley and Melissa Keathley, take nothing in their suit against Defendants,
Corbitt Baker, Carroll Bobo d/b/a United Country Bobo Realty and Mollie Bobo d/b/a United
Country Bobo Realty.
IT IS FURTHER ORDERED, ADJUDGED, A N D DECREED by the court that
Defendant Corbitt Baker shall recover from Plaintiffs Frank Keathley and Melissa Keathley
attorneys' fees in die amount of $70,000.00 for services rendered through the trial o f this case. In
the event of an appeal by Plaintiffs Frank Keathley and Melissa Keathley to the court o f appeals,
if the appeal is unsuccessful. Defendant Corbitt Baker will be further entitled to a n amount of
$ 10,000.00 as a reasonable attorneys' fee. In the event of an appeal by Plaintiffs Frank Keathley
and Melissa Keathley to the Supreme Court of Texas, if the appeal is unsuccessful, Defendant
Corbitt Baker will be entitled to an additional amount of $15,000,00 as a reasonable attorneys'
fee.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the total amount of
the judgment here rendered will bear interest at the rate of 5% percent from the date of judgment,
until paid.
All costs of court spent or incurred by Defendants in this cause are adjudged against
Plaintiffs Frank Keathley and Melissa Keathley in the amount of $371.64.
All -writs and processes for the enforcement and collection of this judgment or the costs
of court may issue as necessary.
All relief requested in this case and not expressly granted is denied. This judgment finally
disposes of all parties and claims and is appealable.
SIGNED on this day of MAR - ft 2 Q f f l l 1 •
DGBTRESIDING
Final J u d g m e n t - P a g e 2
Appendix 2
From:9035901696 Paaeil'S
AR?-18-2011 11:41
Ki^EWP/iLLiPS
c o u ? m Of
CAUSE NO. 51,959-B
M i l APR 18 m 10 3 1
FRANK KEATHLEY and )( IN THE COUNTY 1 WAS
MKLISSA KEATHLEY, Plaintifts X BY
X C——-—DEPUT?
VS. )( AT LAW #3 IN AND FOR
)(
C0RB1TT BAKER, CARROLL BOBO )(
STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION
TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS
Rule 24 Suspension of Enforcement of Judgment Pending Appeal in Civil Cases.
24.1 Suspension of Enforcement.
(a) Methods. —Unless the law o r these rules p r o v i d e otherwise, a j u d g m e n t d e b t o r m a y s u p e r s e d e t h e j u d g m e n l
by:
(1) filing with t h e trial court clerk a written a g r e e m e n t with the j u d g m e n l creditor f o r s u s p e n d i n g
e n f o r c e m e n t of the j u d g m e n t ;
(2) filing with the trial court clerk a good and s u f f i c i e n t b o n d ;
(3) m a k i n g a deposit with t h e (rial court clerk in lieu of a bond; o r
(4) p r o v i d i n g alternate security ordered by the court.
(b) Bonds.
(1) A bond must be:
(A) in the a m o u n t required by 24,2;
(B) p a y a b l e lo the j u d g m e n t creditor;
( C ) signed by the j u d g m e n l d e b t o r or the d e b t o r ' s agent;
(D) signed by a s u f f i c i e n t surety o r sureties as obligors; and
(E) conditioned as required by (d).
(2) To b e e f f e c t i v e a bond m u s t b e a p p r o v e d by the (rial court clerk. On m o t i o n of a n y party, the trial court
will review (he bond.
(c) Deposit in Lieu of Bond.
(1) Types of Deposits. - I n s t e a d of filing a surety bond, a party m a y d e p o s i t with t h e trial court clerk:
(A) c a s h ;
(B) a c a s h i e r ' s c h e c k p a y a b l e to the clerk, d r a w n on a n y federally insured and federally or
slate-chartered bank o r savings-and-loan association; or
(C) with leave of court, a n e g o t i a b l e obligation of the federal g o v e r n m e n t or of a n y federally insured and
federally or state-chartered bank or s a v i n g s - a n d - l o a n association.
(2) Amount of Deposit. —The deposit must be in the a m o u n t required by 24.2.
(3) Clerk's Duties. —The clerk must p r o m p t l y deposit a n y c a s h o r a c a s h i e r ' s c h e c k in a c c o r d a n c e with law.
T h e clerk must hold t h e deposit until the c o n d i t i o n s of liability in (d) are e x t i n g u i s h e d . T h e clerk m u s t
then release any remaining f u n d s in the deposit lo the j u d g m e n l debtor.
(d) Conditions of l.iahilily. —The surety o r sureties on a bond, a n y deposit in lieu of a bond, o r an)' alternate
security ordered by the court is s u b j e c t to liability f o r all d a m a g e s and costs thai m a y be a w a r d e d against ihc
debtor - up lo ihe a m o u n t of t h e bond, depo.sii. or sccuriiy - if:
(Ij Ihc dcblor does not perfeel an appeal or Ihc d e b l o r ' s appeal is dismissed, and Ihe d e b t o r d o c s noi p e r f o r m
the trial c o m I ' s j u d g m e n l ;
Page 2 of 4
Tex. R. A p p . R Rule 2 4
(2) t h e debtor d o c s not p c r l b r n i an a d v e r s e j m i g r n c m final on appeal: or
(3) llio judgment is for llic r c c o v c r y of ;in inlerest in real or personal properly, and Ihe debtor d o c s nol pay
the creditor the value of the properly i n l e r e s t ' s renl or r e v e n u e during the p e n d e n c y of the ;ippeaL
(e) Orders of Trial Court. --The trial court m a y m a k e any order neces.sruy lo a d e q u a t e l y protect Ihe j u d g m e n t
creditor against loss or d a m a g e that the appeal might causc.
(f) Kffi'ct of Supersedeas. — l i n f o r c c m e n t of a j u d g m e n t m u s t be suspetided if t h e j u d g m e n t is superseded.
H n f o r c c m e n l begun before t h e j u d g n i e m is superseded must cease when the j u d g m e i i ! is s u p e r s e d e d . If
execution has been issued, the clerk will p r o m p t l y issue a writ of s u p e r s e d e a s .
24.2 Amoinil of Bond, Deposit or Security.
(it) Type of Judgment.
(1) For Rccovcry of Money. - - W h e n the j u d g m e n t is for money, the a m o u n t of the bond, deposit, or security
must equal the sum of c o m p e n s a t o r y d a m a g e s awarded in the j u d g m e n t , interest for Ihe estimated
duration of the appeal, and costs a w a r d e d in the j u d g m e n t . But Ihe a m o u n t must not exceed Ihe lesser of:
(A) 5 0 percent of the j u d g m e n t d e b t o r ' s c u n e n t net worth: or
(B) 2 5 million ilollv>rs.
(2) For Recovery of Property. —When the j u d g m e n t is for the r e c o v e r y of an interest in real or personal
property, the trial court will d e t e r m i n e the type of security that the j u d g m e n t debtor m u s t post. The
a m o u n t of that security must be at least:
(A) the value of the property interest's renl o r r e v e n u e , if Ihe properly interest is real: or
(B) ihe value of the properly inlerest on the dale when ihe court r e n d e r e d j u d g m e n l . if (he property
interesl is personal.
( 3 ) Other —When t h e jvulgroent is f o r s o m e t h i n g other t h a n m o n e y or an interest in propeity, the
trial court must set the a m o u n t and type of security that the j u d g m e n t d e b t o r m u s t post. T h e security mu STATE RULES > TEXAS RULES OF APPELLATE PROCEDURE > SECTION
TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS
Rule 43 Judgment of the Court of Appeals
43.1 Time. —The court of a p p e a l s should r e n d e r its j u d g m e n t p r o m p t l y a f t e r s u b m i s s i o n of a case.
4 3 . 2 Types of Judgment. —The court of a p p e a l s m a y :
(a) a f f i r m the trial c o u r t ' s j u d g m e n t in w h o l e o r in part;
(b) m o d i f y t h e trial c o u r t ' s j u d g m e n t and a f f i r m it a s m o d i f i e d ;
(c) reverse t h e trial c o u r t ' s j u d g m e n t in w h o l e o r in part and render the j u d g m e n t that t h e trial court should have
rendered;
(d) reverse the trial c o u r t ' s j u d g m e n t and r e m a n d t h e c a s e f o r f u r t h e r p r o c e e d i n g s ;
(e) vacate the trial c o u r t ' s j u d g m e n t and d i s m i s s t h e case; or
(f) dismiss the appeal.
43.3 Rendition Appropriate Unless Remand Necessary. - W h e n r e v e r s i n g a trial c o u r t ' s j u d g m e n t , t h e court must
render t h e j u d g m e n t that the trial court should have r e n d e r e d , except w h e n :
(a) a r e m a n d is necessary f o r f u r t h e r p r o c e e d i n g s ; o r
(b) the interests of j u s t i c e require a r e m a n d f o r a n o t h e r trial.
43.4 Judgment for Costs in Civil Cases. —In a civil c a s e , the court of a p p e a l s ' j u d g m e n t should a w a r d to t h e
prevailing party the appellate costs - including preparation c o s t s for t h e c l e r k ' s record and the r e p o r t e r ' s record -
that w e r e incurred by that parly. But t h e court of a p p e a l s m a y tax costs o t h e r w i s e as r e q u i r e d by law o r f o r good
cause.
43.5 Judgment Against Sureties in Civil Cases. W h e n a court of a p p e a l s a f f i r m s the trial court j u d g m e n t , o r
m o d i f i e s that j u d g m e n t a n d r e n d e r s j u d g m e n t against t h e appellant, t h e court of a p p e a l s m u s t r e n d e r j u d g m e n t
against t h e sureties on t h e a p p e l l a n t ' s s u p e r s e d e a s b o n d , if any, for the p e r f o r m a n c e of t h e j u d g m e n t and f o r any
costs taxed against the appellant.
4 3 . 6 Other Orders. - T h e court of a p p e a l s m a y m a k e any o t h e r appropriate o r d e r that t h e l a w and t h e nature of the
c a s e require.
Texas Rules
Copyright © 2015 by Mauhew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.
Appendix 5
Tex. R. Civ. P. 296
T h i s d o c u m e n t is c u r r e n t t h r o u g h F e b r u a r y 4. 2 0 1 5
Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PARTII. RULES
OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 11. Trial of Causes > a
FINDINGS BY COURT
Rule 296 Requests for Findings of Fact and Conclusions of Law
In any c a s e t r i e d in t h e district or c o u n t y c o u r t w i t h o u t a j u r y , a n y p a r t y m a y request t h e c o u r t t o s t a t e in w r i t i n g its f i n d i n g s
of fact and c o n c l u s i o n s of law. S u c h request shall h e e n t i t l e d " R e q u e s t f o r F i n d i n g s o f Fact a n d C o n c l u s i o n s of L a w " and
shall be filed w i t h i n t w e n t y d a y s a f t e r j u d g m e n t is s i g n e d w i t h t h e clerk of the c o u r t , w h o shall i m m e d i a t e l y call s u c h
request to the attention o f the j u d g e w h o tried the case. T h e party m a k i n g the request shall s e r v e it o n all o t h e r parties in
a c c o r d a n c e w i t h Rule 2 1 a .
Texas Rules
Copyright © 2015 by Matthew Bender & Company. Inc. a member of the LexisNexis Group. All rights reserved.
Appendix 6
Tex. R. Civ. /'. MO
T h i s d o c u n i c n l is c u r r e n l througli F e b r u a r y 4, 2 0 1 5
Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES
OF PRyiCTICE IN DISTRICT AND COUNTY COURTS > SECTION II. Trial of Causes > J. NEW
TRIALS
Rule 320 Motion and Action of Court Thereon
N e w trials m a y be g r a n t e d and j u d g m e n t set a s i d e for g o o d c a u s e , o n m o t i o n or on the c o u r t ' s o w n m o t i o n on s u c h t e r m s
as the c o u r t shall direct. N e w trials m a y b e g r a n t e d w h e n the d a m a g e s are m a n i f e s t l y too s m a l l or t o o large. W h e n it a p p e a r s
to the c o u r t that a n e w trial s h o u l d be g r a n t e d on a point or p o i n t s that a f f e c t o n l y a p a r t of the m a t t e r s in c o n t r o v e r s y a n d
that s u c h p a r t is c l e a r l y s e p a r a b l e w i t h o u t u n f a i r n e s s to the parties, the c o u r t m a y g r a n t a n e w trial as t o that part only,
provided thai a s e p a r a t e trial on u n l i q u i d a t e d d a m a g e s a l o n e shall n o t be o r d e r e d if liability i s s u e s are c o n t e s t e d . Each
m o t i o n for n e w trial shall be in w r i t i n g and signed by the p a r t y o r his attorney.
Texas Rules
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.
Appendix 7
Tex. R. Civ. P. 321
T h i s d o c u m e n t is c u r r c n l t h r o u g h F c b m a r y 4, 2 0 1 5
Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES
OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 11. Trial of Causes > 1. NEW
TRIALS
Rule 321 Form
Each point r e l i e d upon in a m o t i o n for n e w trial or in arrest o f j u d g m e n t shall b r i e f l y r e f e r to that part of the ruling of the
court, c h a r g e g i v e n to the jury, o r c h a r g e r e f u s e d , a d m i s s i o n or r e j e c t i o n o f e v i d e n c e , or o t h e r p r o c e e d i n g s w h i c h arc
d e s i g n a t e d to b e c o m p l a i n e d of. in s u c h a w a y that the o b j e c t i o n can b e clearly identified a n d u n d e r s t o o d b y the court.
Texas Rules
Copyright © 2015 by Matthew Bender & Company. Inc. a member of the LexisKexis Group. All rights reserved.
Appendix 8
Tex. R. Civ. P. 322
T h i s d o c u m e n l is c u r r e n t t h r o u g h F e b r u a r y 4 . 2 0 1 5
Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PARTU. RULES
OF PIIACTICE IN DISTRICT AND COUNTY COURTS > SECTION II. Trial of Causes > .1. NEW
TRIALS
Rule 322 Generality to Be Avoided
G r o u n d s of o b j e c t i o n s c o u c h e d in g e n e r a l t e r m s - a s that the c o u r t e r r e d in its c h a r g e , in s u s t a i n i n g or o v e r r u l i n g e x c e p t i o n s
In the p l e a d i n g s , a n d in e x c l u d i n g or a d m i t t i n g e v i d e n c e , the v e r d i c t of the j u r y is c o n t r a r y to law. a n d the like - shall nol
be c o n s i d e r e d b y the court.
Texas Rules
Copyrighl © 2015 by Mallhcw Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.
Appendix 9
Tex. R. Civ. P. 621
T h i s d o c u m e n l is c u r r c n i t h r o u g h F e b r u a r y 4 . 2 0 1 5
Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART VI.
RULES RELATING TO ANCILLARY PROCEEDINGS > SECTION 3. Executions
Rule 621 Enforcement of Judgment
T h e j u d g m e n t s of the district, c o u n t y , a n d j u s t i c e c o u r t s shall b e e n f o r c e d by e x e c u t i o n or o t h e r a p p r o p r i a t e p r o c e s s . S u c h
e x e c u t i o n or o t h e r p r o c e s s shall be r e t u r n a b l e in thirty, sixty, o r n i n e t y d a y s as r e q u e s t e d by the plaintiff, his agent o r
attorney.
Texas Rules
Copyright © 2015 by Matthew Bender & Company. Inc. a member of the LexisNcxis Group. All rights reserved.
Appendix 10
Tex. Civ. Prac. & Rem. Code § 34.004
T h i s d o c u m c n i is currenl through llic 2013 3ici Culled Session
Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL.
JUDGMENT. AND APPEAL > SUBTITLE C. JUDGMENTS > CHAPTER 34. EXECUTION ON
JUDGMENTS > SUBCHAPTER A. ISSUANCE AND LEVY OF WRIT
§ 34.004. Levy on Property Conveyed to Third Party
Property that the j u d g m e n t d e b t o r has sold, m o r t g a g e d , or c o n v e y e d in trust may not be seized in execution if t h e purchaser,
mortgagee, o r trustee points out other property of the d e b t o r in t h e county that is .sufficient to satisfy t h e e x e c u t i o n .
History
Enacted by A c t s 1985. 69lh Leg,, ch, 9 5 9 (S,B. 7 9 7 ) , § 1. e f f e c t i v e S e p t e m b e r 1. 1985,
LexisNexis @ Texas Annotated .Statutes
Copyright © 2015 by Matthew Bender & Company. Int. a member of the LexisNexis Group All rights reserved.
Appendix 11
Tex. Civ. Prac. & Rem. Code $ 34.005
T h i s d o c u m e n t is c u r r e n t t h r o u g h the 2 0 1 3 3rd C a l l e d S e s s i o n
Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES CODE > TITLE 2. TRIAL.
JUDGMENT. AND APPEAL > SUBTITLE C. JUDGMENTS > CHAPTER 34. EXECUTION ON
JUDGMENTS > SUBCHAPTER A. ISSUANCE AND LEVY OF WRIT
§ 34.005. Levy on Property of Surety
(a) 11" the f a c e of a writ of e x e c u t i o n or the e n d o r s e m e n t of the clerk s h o w s that o n e of t h e p e r s o n s a g a i n s t w h o m it
is issued is s u r e t y for another, the o f f i c e r m u s t first levy on the p r i n c i p a l ' s p r o p e r t y that is s u b j e c t t o e x e c u t i o n and
is locatcd in the c o u n t y in w h i c h the j u d g m e n t is r e n d e r e d .
(b) If p r o p e r t y o f the principal c a n n o t be f o u n d that, in the o p i n i o n of the officer, is s u f f i c i e n t to s a t i s f y the e x e c u t i o n ,
the o f f i c e r shall levy first on the p r i n c i p a l ' s p r o p e r t y that can be f o u n d and then o n as m u c h o f the p r o p e r t y of the
surety as is n e c e s s a r y to s a t i s f y the e x e c u t i o n .
History
Enacted b y Acts 1985. 69th I x g . . ch. 9 5 9 ( S . B . 7 9 7 ) . S I. e f f e c t i v e S e p t e m b e r I. 1985.
I.cxisNcxis ® Texas Annotated Stalutcs
Copyright © 2015 by Matthew Bender & Company. Inc. a member of the I.exisNexis Group All rights reserved.