David L. Montgomery v. Tom Pope and Pope Montgomery, Architects and Builders, L.L.C.

09-04-00158-CV | Tex. App. | Jun 17, 2004

In The

Court of Appeals

Ninth District of Texas at Beaumont


NO. 09-04-158 CV





BUILDERS, L.L.C., Appellees

On Appeal from the 359th District Court

Montgomery County, Texas

Trial Cause No. 02-07-04597-CV


This is an appeal from a judgment of contempt in a civil case. The appellees, Tom Pope and Pope Montgomery, Architects and Builders, L.L.C., obtained a judgment awarding them a combined sum in excess of $1,000,000 against David L. Montgomery. Montgomery apparently did not appeal that judgment. The appellees subsequently obtained a turnover order in which the trial court commanded Montgomery to turn over "All cash in the control or possession" of the appellant and his former spouse. Montgomery did not appeal that order either. On February 27, 2004, the trial court entered a judgment of contempt in which the court finds that Montgomery "should have in his possession" but failed to turn over the sum of $86,926.00. Montgomery contemporaneously filed with the Court of Appeals both an original proceeding in habeas corpus and this appeal.

The appellees, Tom Pope and Pope Montgomery, Architects and Builders, L.L.C., filed a motion to dismiss the appeal on the grounds that a contempt judgment is reviewable only on a collateral attack designed to obtain specific relief for which the judgment stands as a bar. See In re Long, 984 S.W.2d 623" date_filed="1999-01-07" court="Tex." case_name="In Re Long">984 S.W.2d 623, 625 (Tex. 1999). In his response, Montgomery argues that appellate review is his sole avenue through which to challenge the trial court's finding that he has in his possession the specific sum of $86,926.00. In an opinion issued today in the original proceeding, we hold that the "all cash" provision of the January 12, 2004, turnover order was not sufficiently specific to support contempt for failure to turn over the sum of $86,926.00. In re Montgomery, No. 09-04-137 CV (Tex. App.-Beaumont June 17, 2004, no pet. h.). Accordingly, the issue of whether the evidence supports the finding that Montgomery has that sum is moot. See Williams v. Lara, 52 S.W.3d 171" date_filed="2001-06-28" court="Tex." case_name="Williams v. Lara">52 S.W.3d 171, 184 (Tex.2001)(If a controversy ceases to exist, the issues presented are no longer "live," or the parties lack a legally cognizable interest in the outcome, the case becomes moot.). Obviously the underlying controversy between the parties has not been resolved, but the particular controversy for which Montgomery has pursued an appeal from an order generally subject only to collateral attack, however, is no longer in controversy because of our ruling in the habeas corpus proceeding.

Accordingly, the appellees' motion to dismiss the appeal is granted, and the appeal is dismissed.



Opinion Delivered June 17, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.