Amanda Broussard v. the Bank of New York ( 2014 )


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  • Opinion issued August 7, 2014
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-14-00214-CV
    ———————————
    AMANDA BROUSSARD, Appellant
    v.
    THE BANK OF NEW YORK, Appellee
    On Appeal from the County Court at Law No. 2
    Fort Bend County, Texas
    Trial Court Cause No. 13-CCV-050828
    MEMORANDUM OPINION
    Appellant, Amanda Broussard, attempts to appeal from a post-judgment
    enforcement docket entry finding that a prior agreed final judgment was assignable
    by the judgment creditor, The Bank of New York Mellon (“Mellon”), to a
    transferee, W. Kelly Vandever Revocable Trust (the “Trust”). Appellee, the Trust,
    has moved to dismiss the appeal for want of jurisdiction and for damages. After
    initially opposing the motion, the appellant on June 5, 2014 has moved to
    voluntarily dismiss her appeal. We grant the Trust’s motion to dismiss the appeal
    and deny its motion for damages.
    Mellon brought a forcible detainer action against the appellant in the trial
    court. On July 30, 2013, the trial court signed an agreed final judgment, finding
    that Mellon was entitled to judgment against appellant, and that it was intended to
    be a final and appealable judgment. Appellant did not timely file a notice of
    appeal regarding the July 30, 2013 final judgment. See TEX. R. APP. P. 26.1.
    On August 6, 2013, Mellon conveyed the property to the Trust by a
    special/limited warranty deed.     On November 25, 2013, the Trust requested
    issuance of a writ of possession, which the trial court clerk issued on November
    26, 2013. After the Trust, as Mellon’s transferee, sought to enforce the final
    judgment, appellant moved to vacate the Trust’s writ of possession. At the post-
    judgment enforcement hearing held on January 17, 2014, the trial court ruled on
    the record that the July 30, 2013 agreed final judgment was assignable to the Trust
    and ordered appellant to vacate her property by January 27, 2014. Although the
    trial judge stated that a “[s]upersedeas bond will be ordered in the amount of
    $10,980 to be posted within ten days from the date of the signing of this order,” the
    trial judge only signed a docket entry and did not later sign a separate written order
    2
    or judgment. On March 11, 2014, the appellant filed her notice of appeal from the
    January 17th docket entry.
    Generally, appellate courts only have jurisdiction over appeals from final
    judgments or from certain interlocutory and post-judgment enforcement orders for
    which appeal has been expressly authorized. See Ferguson v. Walker, No. 09-10-
    00174-CV, 
    2010 WL 285432
    , at *1 (Tex. App.—Beaumont July 22, 2010, pet.
    denied) (mem. op.) (citing, inter alia, Lehmann v. Har-Con Corp., 
    39 S.W.3d 191
    ,
    195 (Tex. 2001) and TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.012, 51.014
    (Vernon 2008 & Supp. 2009)). “A judgment is final for purposes of appeal ‘if and
    only if either it actually disposes of all claims and parties then before the court,
    regardless of its language, or it states with unmistakable clarity that it is a final
    judgment as to all claims and all parties.’” Jones v. Brelsford, 
    390 S.W.3d 486
    ,
    495 (Tex. App.—Houston [1st Dist.] 2012) (quoting 
    Lehmann, 39 S.W.3d at 192
    -
    93).
    Here, the trial court’s January 17, 2014 docket entry was not a judgment that
    contains finality language because it merely stated that the July 30, 2013 agreed
    final judgment was assignable to the Trust. The January 17th docket entry was
    made during a post-judgment enforcement hearing and is in the nature of a writ of
    execution, but “[n]either a writ of execution nor an order incident to a writ of
    execution is appealable.” Wolter v. Donaldson, 
    79 S.W.3d 160
    , 162 (Tex. App.—
    3
    Texarkana 2002, no pet.) (citing, inter alia, Schultz v. Fifth Judicial District Court
    of Appeals, 
    810 S.W.2d 738
    , 740 (Tex. 1991)). Furthermore, while “[w]e have
    jurisdiction to consider immediate appeals of interlocutory orders only if a statute
    explicitly confers appellate jurisdiction,” the January 17th docket entry was not an
    interlocutory order for which a statute has expressly authorized an appeal. 
    Jones, 390 S.W.3d at 495
    & n.6 (citing, inter alia, TEX. CIV. PRAC. & REM. CODE ANN.
    § 51.014(a)(1)-(11) (West Supp. 2012) (setting forth eleven types of appealable
    interlocutory orders)). Therefore, the trial court’s January 17th docket entry was
    neither a final judgment nor an appealable interlocutory order.
    Generally, a notice of appeal is due within thirty days after the judgment is
    signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is
    extended to 90 days after the date the judgment is signed if any party timely files a
    motion for new trial, a motion to modify the judgment, a motion to reinstate, or, if
    findings of fact and conclusions of law are required by the Rules of Civil
    Procedure or could properly be considered by the appellate court, a request for
    findings of fact and conclusions of law. See TEX. R. APP. P. 26.1(a).
    Here, the trial court signed the agreed final judgment on July 30, 2013,
    which was the only appealable judgment. Thus, appellant’s March 11, 2014 notice
    of appeal was untimely. See TEX. R. APP. P. 25.1(c), 26.1. Therefore, we grant the
    Trust’s motion to dismiss for want of jurisdiction.
    4
    The Trust has also moved to impose damages, arguing that appellant had
    filed a frivolous appeal and motion to stay enforcement of the trial court’s
    judgment because appellant filed her supersedeas bond and notice of appeal well
    after the expiration of her August 29, 2013 appellate deadline. Although we may
    award damages to a prevailing party for a “frivolous” appeal, we decline to
    conclude that appellant’s counsel’s mistaken interpretation of the trial judge’s
    statement at the end of the January 17, 2014 post-judgment enforcement hearing —
    that he would sign that order — makes this attempted appeal “frivolous” such that
    it warrants damages. See TEX. R. APP. P. 45; Mailhot v. Mailhot, 
    124 S.W.3d 775
    ,
    778 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Thus, we deny the Trust’s
    request for damages.
    Accordingly, we grant the Trust’s motion to dismiss the appeal for want of
    jurisdiction, deny the Trust’s motion for damages, and dismiss this appeal. See
    TEX. R. APP. P. 42.3(a). We dismiss all other pending motions as moot.
    PER CURIAM
    Panel consists of Chief Justice Radack and Justices Higley and Brown.
    5
    

Document Info

Docket Number: 01-14-00214-CV

Filed Date: 8/7/2014

Precedential Status: Precedential

Modified Date: 10/16/2015