Woodrow F. Lowery v. Francisco Calderoni ( 2000 )

NUMBER 13-99-224-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

WOODROW F. LOWERY, Appellant,

v.

FRANCISCO CALDERONI, Appellee.

____________________________________________________________________

On appeal from the County Court at Law No. 1 of Cameron County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

Appellant, Woodrow F. Lowery, appeals from an order of the County Court at Law No. 1 of Cameron County: (1) finding that appellant was the individual against whom a judgment was previously rendered in that court in favor of appellee, Francisco Calderoni, and (2) ordering appellant to comply with post-judgment discovery in that case. By four issues, appellant contends the trial court erred in rendering the order. We dismiss for want of jurisdiction.

A. Background

On March 20, 1994, Calderoni, the operator of a gasoline station, sued "William Lowery, d/b/a Southernstar Oil & Gas, Inc. n/k/a Lowery Petroleum, Inc.," alleging the defendant had overcharged him on a contract for the purchase of gasoline. On the date the case was set for hearing on Calderoni's motion for default judgment, appellant appeared and defended the case. The matter was tried to the court, and the evidence included: (1) a sales contract between Calderoni and Southernstar Oil & Gas signed by Woodrow F. Lowery as "W.F. Lowery," and (2) a recission contract signed by Woodrow Lowery as "W. F. Lowery" over the typed name, "William Lowery." The trial court found for Calderoni and on June 7, 1995, signed a judgment which states, in relevant part:

On the 8th day of November, 1994, came on to be heard the above-styled and numbered case, wherein FRANCISCO CALDERONI is the Plaintiff and WILLIAM LOWERY, d/b/a SOUTHERNSTAR OIL & GAS, INC., n/k/a LOWERY PETROLEUM, INC. (also known as "WOODY LOWERY"), is the Defendant. The Plaintiff appeared in person and by attorney of record and announced ready for trial, and the Defendant appeared in person and by attorney of record and announced ready for trial. No jury having been demanded, all matters of fact and items in controversy were submitted to the Court.

The Court, after considering the pleadings on file, the evidence presented and the argument of counsel, is of the opinion that the Plaintiff, FRANCISCO CALDERONI, is entitled to recover of and from the Defendant WILLIAM (WOODY) LOWERY, the total sum of FOUR THOUSAND SIX HUNDRED THIRTY-SEVEN AND 78/100ths ($4,637.78) DOLLARS, with interest payable at the rate of SIX (6%) PERCENT from February 16, 1994 until the date of judgment, and that the Defendant should take nothing by his counterclaim.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that FRANCISCO CALDERONI, the Plaintiff herein, shall have and recover from the Defendant herein, WILLIAM (WOODY) LOWERY, actual damages in the total sum of FOUR THOUSAND SIX HUNDRED THIRTY-SEVEN AND 78/100ths ($4,637.78) DOLLARS; noting that the sum of ONE THOUSAND SEVEN HUNDRED FIFTY AND NO/100ths ($1,750.00) DOLLARS had been previously paid into escrow. . . , pursuant to this Judgment and the underlying contract at issue, such funds should be paid to Plaintiff to partially satisfy this Judgment.

The judgment also awarded Calderoni attorney's fees in the amount of $2,000, and post-judgment interest of ten percent.

In order to facilitate enforcement of the judgment, Calderoni served appellant with a set of interrogatories on July 15, 1997, in the same suit in which the judgment was rendered. Appellant refused to fully answer the interrogatories on the ground that he was not the "William Lowery" against whom the judgment had been rendered. Calderoni then filed a "Motion to Establish Identity of Defendant and for Compliance with Post-Judgment Discovery." The trial court heard the motion on November 18, 1998. At the hearing, appellant testified that he is the "Woody Lowery" who appeared at the previous trial. However, he insisted that he appeared and defended the case only in his capacity as president of Lowery Petroleum. Appellant's name is not "William." Appellant is known as "Woody." William Lowery is appellant's elderly father, who never appeared at the trial, was never served with citation, never received any interrogatories, and was never president or the registered agent of Lowery Petroleum. Appellant testified that he signed the recission agreement as "W.F. Lowery" over the typed name "William Lowery," but claimed he did so when:

I didn't have any glasses with me. So I asked [my attorney] what it said, and we discussed it back and forth. Then he gave it to me and said, "Sign here." So I signed it. I didn't notice that this was the wrong name there.

On January 6, 1999, the trial court signed an order stating, in relevant part, as follows:

It is, therefore ORDERED, ADJUDGED and DECREED that the named judgment debtor, Defendant WILLIAM "WOODY" LOWERY is one and the same person as Woody Lowery, Woodrow Lowery, Woodrow F. Lowery and W.F. Lowery and whose home address is 2902 La Costa Ct., Harlingen, Texas 78550 and whose business address is 813 N. 77 Sunshine Strip, Harlingen, and whose Texas Driver's License number is 13065923.

The order further ordered appellant to answer Calderoni's interrogatories. This appeal ensued. By four issues, appellant claims the trial court erred in rendering the January 6, 1999 order, establishing that he is the judgment debtor in the underlying lawsuit. The record reflects that post-judgment discovery proceedings are ongoing.

B. Jurisdiction

Texas Rule of Civil Procedure 621a grants broad powers to the trial court to enforce post-judgment discovery proceedings:

At any time after rendition of judgment, and so long as said judgment has not been suspended by a supersedeas bond or by order of a proper court and has not become dormant as provided by Article 3773, V.A.T.S.,⁽¹⁾ the successful party may, for the purpose of obtaining information to aid in the enforcement of such judgment, initiate and maintain in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pre-trial matters. Also, at any time after rendition of judgment, either party may, for the purpose of obtaining information relevant to motions allowed by Texas Rules of Appellate Procedure 47 and 49⁽²⁾ initiate and maintain in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pre-trial matters. The rules governing and related to such pre-trial discovery proceedings shall apply in like manner to discovery proceedings after judgment. The rights herein granted to the parties shall inure to their successors or assignees, in whole or in part. Judicial supervision of such discovery proceedings shall be the same as that provided by law or these rules for pre-trial discovery and proceedings insofar as applicable.

Tex. R. Civ. P. 621a (emphasis added).

This Court has previously held that orders entered in post-judgment discovery proceedings pursuant to rule 621a are not final, appealable orders:

Arndt⁽³⁾ indicates generally the Supreme Court's acceptance [that] Rule 621a orders . . . are not final or appealable in themselves. We agree. . . . Were we to allow every post-judgment order concerning discovery under Rule 621a to be treated as a separate, final and appealable judgment of the trial court, we would open the door to numerous separate appeals of the type that are disallowed as interlocutory in terms of pre-trial discovery orders.

Collier Svcs. Corp. V. Salinas, 812 S.W.2d 372, 375 (Tex. App.--Corpus Christi 1991, orig. proceeding); see also Camp v. McDaniel, 59 F.3d 548, 555 (5th Cir. 1995) (a post-judgment order granting sanctions and ordering sale of property to satisfy judgment was final and appealable because it disposed of the only issue before the court: whether the judgment holder could levy on homestead property). Mandamus is the appropriate remedy for incorrect post-judgment discovery orders as well as for incorrect pre-trial discovery orders. See, e.g., Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990); General Motors Corp. v. Lawrence, 651 S.W.2d 732, 733 (Tex. 1983) (mandamus is appropriate remedy for incorrect discovery rulings). Cf. Gonzales v. Daniel, 854 S.W.2d 253, 255-56 (Tex. App.--Corpus Christi 1993, orig. proceeding) (mandamus is appropriate remedy for a motion to quash execution, which is not a final appealable order).

We conclude the order complained of is not a final appealable order because it does not dispose of the case before the trial court. The court rendered the order to facilitate the post-judgment discovery process. The order does not conclude the process, which from the record before us, appears to be ongoing. We hold this Court is without jurisdiction to consider a direct appeal from the trial court's interlocutory order of January 6, 1999.

This appeal is dismissed for want of jurisdiction.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

21st day of September, 2000.

1. Article 3773 of Vernon's Annotated Revised Civil Statutes of the State of Texas is now found in Tex. Civ. Prac. & Rem. Code Ann. § 34.001 (Vernon Supp. 2000).

2. Now found in Tex. R. App. P. 24.

3. Arndt v. Farris, 633 S.W.2d 497, 500 n. 5 (Tex. 1982).