Transcontinental Realty Investors, Inc. v. Orix Capital Markets LLC and Wells Fargo Bank Minnesota, N.A. as Trustee for the Mortgage Pass-Through Certificates Series 99-CI
470 S.W.3d 844
Tex. App.2015Background
- Transcontinental Realty Investors, Inc. appeals a trial court order denying relief under Texas Property Code section 52.0011 after final judgment in a guaranty suit against ORIX Capital Markets LLC and Wells Fargo Bank Minnesota, N.A. as trustee.
- The underlying final judgment awarded ORIX damages, attorney’s fees, and expenses; Transcontinental took nothing on its claims against ORIX and Wells Fargo.
- An abstract of judgment was filed in Dallas County real property records, allegedly creating a lien on Transcontinental’s property.
- Transcontinental sought to challenge whether section 52.0011 would prevent the lien’s effect, arguing the lien should be invalidated as against security posted pending appeal.
- The court in this appeal, the second in the case, questioned its jurisdiction and ultimately dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction over an appeal of a section 52.0011 order | Transcontinental | ORIX/Wells Fargo | No jurisdiction; appeal dismissed |
| Whether section 52.006 and Rule 24.4 provide independent jurisdiction for reviewing a 52.0011 order | Transcontinental | ORIX/Wells Fargo | No independent jurisdiction; review not allowed separate from final judgment appeal |
Key Cases Cited
- Burns v. Hayward, 909 S.W.2d 505 (Tex. 1995) (per curiam; turnover order not appealable)
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (final judgments or statutorily authorized interlocutory appeals required)
- Schultz v. Fifth Judicial Dist. Court of Appeals at Dallas, 810 S.W.2d 738 (Tex. 1991) (turnover-like orders are final and appealable; evidence of mandatory injunction)
- Kennedy v. Hudnall, 249 S.W.3d 520 (Tex. App.—Texarkana 2008) (orders aiding execution are not final judgments)
- Wagner v. Warnasch, 295 S.W.2d 890 (Tex. 1956) (writs and orders to aid execution generally not appealable)
- Jack M. Sanders Family Ltd. P’ship v. Roger T. Fridholm Revocable, Living Trust, 434 S.W.3d 236 (Tex. App.—Houston [1st Dist.] 2014) (turnover-type analysis; turnover orders tied to property rights)