Parks v. Huffington

BERT H. TUNKS, Retired Chief Justice,

by designation, dissenting.

I respectfully dissent from that holding of the majority of the panel which is to the effect that the order of the trial court here involved is interlocutory and, therefore not appealable. An interlocutory order is one made as ancillary to a pending case and which does not dispose of all of the issues of that case. When such an order is rendered, the case in aid of which it was made remains pending. The order is not separately appealable. Review of the order by appeal can be had only when the pending case becomes final and is appealed. The court’s order can then be made the subject of a point of error in that appeal. Dallas Joint Stock Land Bank of Dallas v. State, 135 Tex. 25, 137 S.W.2d 993 (1940).

In this instance there was no pending case in the district court ancillary to which the court’s order was made. The only issues pending before the court with reference to these parties and their controversy were those raised by the appellants’ notice of depositions, appellees’ motion to quash these depositions so noticed and by appellants’ so called “Motion to Enforce Judgment”. All of those issues were disposed of by the trial court’s order here appealed.

Tex.R.Civ.P. 621a provides that a party to a judgment may, “for the purpose of obtaining information in aid of enforcing such judgment initiate and maintain any discovery proceeding authorized by these rules for pretrial matters, and the rules governing and related to pretrial discovery proceedings shall apply in like manner to dis-coverv proceedings after judgment.” The majority apparently would construe the underlined portion of the quoted language from Rule 621a as meaning that trial court orders as to discovery proceedings under that Rule are interlocutory and not separately appealable since pretrial discovery orders are non-appealable. I do not agree. It was the intention of the Supreme Court in using that language to make those post-judgment discovery orders enforceable as are pretrial discovery orders and to make them subject to protective orders such as provided by Rule 186b. If the underlined language means what the majority contends, it would make the court’s order forever non-reviewable by appeal in this case, and in most other post-judgment discovery cases. That is true because in this case, as would be true in most post-judgment discovery proceedings, there is no pending case which may later become appealable so as to allow appellate review of the order in question. Such construction by the majority violates the principles of Rules construction as set forth in Tex.R.Civ.P. 1.

As I would hold the trial court’s order here involved final and appealable, I would likewise affirm the trial court.

The trial court properly overruled the appellants’ motion called by them “Motion to Enforce Judgment”. That motion was not a motion to enforce the judgment, at all. There were only two decretal orders in the judgment one adjudicating to Upchurch ownership of an equitable interest in the benefits of the Indonesian oil concession, and one ordering an accounting. The first of these orders was self executing. The second one has been complied with. There is no order in the judgment which is yet to be enforced. The order here in question is therefore final and appealable. Unnamed Members of the Class v. McMahon, 582 S.W.2d 600 (Tex.Civ.App.—Houston [1st Dist.] 1979, no writ).

In fact, the appellants’ motion did not seek orders relevant to the enforcement of the judgment. They were orders that would amend and add to the judgment. Such orders may not be had on a post-judgment motion made and presented long after the judgment had become final and non-appealable by the lapse of time. Burrage v. Hunt Petroleum, 114 S.W.2d 1228 (Tex.Civ.App.—Dallas 1938, error dism’d); see Butler v. Stonewall Bank, 569 S.W.2d 542 (Tex.Civ.App.—Corpus Christi 1978, no writ). The orders which appellants sought by their motion can be had, if at all, only by bill of review. Tex.R.Civ.P. 329b(5).

The trial court also acted well within its discretion in sustaining the appellees’ motion to quash the depositions noticed by appellants. The appellants recited that the depositions were noticed pursuant to Rule 621a. The notices asked for the production by appellees of fifty-five different categories of records many of which related to activities of the partnership long after the date of the judgment sought to be enforced. They also gave notice that appellants intended to interrogate the witnesses as to activities of the venture at times subsequent to the judgment. Many of items of which production were requested obviously had no relevance to the enforcement of the judgment.

It is true that one of the complaints of appellants was that the accounting ordered and made in 1974 was not complete and accurate. Insofar as the documents requested and the lines of interrogations proposed were relevant to the question of whether the 1974 accounting was accurate and complete, they might be considered as relevant to the enforcement of that part of the judgment which ordered the accounting. The trial court recognized this and carefully worded his order so as not to suggest that he had prejudged against the appellants’ right to procure such relevant discovery by further notices of proper depositions. His language, that the order quashing the depositions was “without prejudice” to the right of appellants to notice other proper and relevant depositions, did not prevent his order from being a final and appealable one. See Hearon, et al., Appellate Procedure in Texas, Chapter Three, § 3.4(3) (2d ed. 1979).