IN RE Miguel Zaragoza FUENTES, Relator and In re Elsa Esther Carrillo Anchondo and Eagle Ridge Properties, L.L.C., Relators
NO. 01-16-00952-CV
Court of Appeals of Texas, Houston (1st Dist.).
Opinion Issued July 27, 2017
In any event, the record shows that the trial court held oral hearings on both the motion to vacate and motion for new trial. During the hearing on the motion to vacate, the court admitted evidence offered by Camil. During the subsequent hearing on the motion for new trial, the court also accepted Camil‘s offer of additional documents. Camil did not attempt to call any witnesses at either hearing.
But even if the trial court had failed to hold an evidentiary hearing, the record does not show that Camil was harmed by the alleged error.
We overrule Camil‘s second issue.
DENIAL OF REQUEST FOR DAMAGES
Brewer & Pritchard requests that we award it damages under
CONCLUSION
The trial court properly confirmed the arbitration award in favor of Brewer & Pritchard because Camil and Samir did not establish any statutory grounds for vacatur. Accordingly, we affirm the trial court‘s judgment.
Mary-Olga Lovett, Robert L. Galloway, GREENBERG TRAURIG, L.L.P., 1000 Louisiana, Suite 1700, Houston, Texas 77002, Jeanne Caldwell McDowell, Rebekah H. Birdwell, 803 Avondale, Houston, Texas 77006, for real party in interest.
Panel consists of Chief Justice Radack and Justices Higley and Bland.
OPINION
Jane Bland, Justice
In this original proceeding, the relators seek relief from the trial court‘s denial of their requests to enforce a supersedeas bond, which was filed to stay execution of a divorce decree while that decree is on appeal.1
The trial court‘s divorce decree between Miguel Fuentes and Evangelina Lopez Guzman Zaragoza awarded Evangelina three residential properties in El Paso, Texas, in addition to other property and money. Miguel and several third parties have appealed the decree, and their appeal is pending in our court. See Miguel Zaragoza Fuentes, et al. v. Evangelina Lopez Guzman Zaragoza, Case No. 01-16-00251-CV (Tex. App.—Houston [1st Dist.]). Miguel posted a bond to supersede the judgment. Before the divorce decree was final and before Miguel posted the bond, Evangelina filed a copy of the decree in the El Paso County real property records and took possession of the three properties awarded to her. Her possession of these properties became the source of the present ancillary dispute.
Miguel moved the trial court to enforce the supersedeas bond, claiming that Evangelina‘s continued possession of the properties violates the bond. When the trial court denied that relief, Miguel filed a motion seeking enforcement of the bond and a petition for a writ of mandamus with this court. Third party appellants Elsa Esther Carrillo Anchondo and her wholly owned company, Eagle Ridge Properties, LLC, filed similar requests for relief.
Miguel and the Carrillo relators request that this court enforce the supersedeas bond and order that Evangelina (1) withdraw her El Paso County filings and (2) surrender physical possession of the properties pending appeal. We deny the motions filed in the appeal as moot and consider the requests as petitions for writ of mandamus. We conditionally grant the petitions.
Background
Evangelina petitioned for divorce against Miguel in Harris County, Texas in May 2014. On December 21, 2015, the trial court signed its final decree of divorce.2
Ownership of the El Paso properties before the decree
Before the trial court signed the final decree, the Carrillo relators and other third parties petitioned to intervene in the case, claiming that Evangelina was improperly seeking to have property they owned considered as marital assets to distribute as marital property in the divorce. See Fuentes v. Zaragoza, 2017 WL 976079, at *1. In particular, they claimed that the El Paso properties are owned by Eagle Ridge, a company that, in turn, is owned solely by Carrillo, and not by Miguel. They assert that, before the divorce decree was signed, Eagle Ridge was the owner of record in the El Paso real property records and the properties were occupied by Carrillo and her family.
Transfer pursuant to the decree
After the trial court signed the decree, Evangelina filed it with the El Paso County clerk two days later, on December 23, 2015, claiming it as a muniment of title for the El Paso properties. Five days later, on December 28, 2015, Evangelina took physical possession of the properties from Carrillo. Evangelina did not obtain a writ of execution or a writ of forcible entry and detainer before seizing the properties.
Evangelina‘s actions were immediately challenged. On December 30, 2015, the Carrillo relators filed a pleading in the trial court seeking a temporary restraining order and a temporary injunction for wrongful execution. The Carrillo relators claimed that Evangelina had violated
The next day, the trial court issued a temporary restraining order, reciting that “execution has begun to occur within 30 days of the signing of the Final Judgment without application under
I thought I had made a finding or a statement on the record that whether you call it an execution or a [muniment] of title, I do not believe that was proper, but I do not believe sitting here in Harris County that I have any authority to order people in El Paso County to do anything....
The Carrillo relators did not appeal the trial court‘s interlocutory order. See
Meanwhile, the trial court set the supersedeas bond at $273.3 million, and Miguel appealed that order. Our court reversed the order and ordered that the bond be set at $25 million. See Fuentes v. Zaragoza, No. 01-16-00251-CV, 2016 WL 3023811, at *1 (Tex. App.—Houston [1st Dist.] May 26, 2016, order). Miguel posted a $25 million supersedeas bond with the Harris County District Clerk. A few months later, the Carrillo relators moved to nonsuit their claims in the El Paso District Court.
On October 14, 2016, the El Paso court issued an order dismissing the case, dissolving the receivership, and ordering the receiver to return the keys to the El Paso Properties to Evangelina. On the same day, the Carrillo relators filed a notice of lis pendens on the El Paso properties.
Course of proceedings
The Carrillo relators then moved in the trial court for a writ of supersedeas and accompanying orders that would suspend Evangelina‘s enforcement of the divorce decree while it was pending on appeal. The Carrillo relators alleged that Evangelina violated Rule 627 by filing the decree in the El Paso County real property records and taking possession of the property before the divorce decree became final. See
Miguel filed a similar motion in the trial court. In it, Miguel expressly disclaimed ownership of the El Paso properties but explained that he had filed his motion in case the Carrillo relators were found to lack standing to enforce the supersedeas bond themselves. Miguel‘s motion asked the trial court to enforce the supersedeas bond; issue a writ of supersedeas directing those executing on the judgment to halt their ongoing execution against the properties; order Evangelina to withdraw the “muniment of title” from the El Paso County‘s real property record; and order her to cease execution efforts as to the El Paso properties.
The trial court heard the motions and subsequently issued an order restraining Evangelina from selling the El Paso Properties “during the pendency of Intervenors’ appeal,” but it denied the motions in all other respects.
Discussion
Miguel and the Carrillo relators seek mandamus relief from the trial court‘s order denying their request for enforcement of the supersedeas bond.
I. Standard of review
To be entitled to mandamus relief, a relator must demonstrate that (1) the trial court clearly abused its discretion
II. Analysis
The petitions in these cases request similar relief arising from Miguel‘s posting of a supersedeas bond: that we direct the trial court to issue an order “suspending all of Ms. Zaragoza‘s enforcement efforts—including her muniment of title and ongoing possession of the El Paso Properties—and ... restor[ing] the properties to Eagle Ridge and Ms. Carrillo for the duration of the appeal.”3 Miguel further requests that we direct the trial court to “halt Evangelina‘s unlawful execution on the basis of her impermissibly-filed muniment of title to the El Paso properties.” Evangelina responds that (1) res judicata bars the relief sought in the petitions; and (2) Miguel‘s posting of a supersedeas bond has no effect on the El Paso properties because she had completed her execution on these properties before Miguel posted the bond.
We first address Evangelina‘s res judicata claim. Concluding that res judicata does not apply, we then turn to whether the subsequent posting of the supersedeas bond applies to suspend Evangelina‘s execution upon the properties that occurred before Miguel posted the bond.
A. Res judicata does not bar enforcement of the bond.
As an initial matter, Evangelina contends that res judicata bars Miguel and the Carrillo relators’ requests because they rest upon claims of wrongful execution that the trial court rejected when it denied the Carrillo relators’ request for a temporary injunction staying execution of the decree.
For res judicata to apply, there must be: (1) an earlier final judgment on the merits by a court of competent jurisdiction; (2) identity of the parties; and (3) a second action based on the same claims that were raised or could have been raised in the first action. See Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). This case lacks the first element. Specifically, the trial court did not address the merits of the Carrillo relators’ wrongful execution claims; rather, the court denied an interlocutory request for a temporary injunction because it believed it lacked jurisdiction to grant relief:
THE COURT: I thought I had made a finding or a statement on the record that whether you call it an execution or a muniment of title, I do not believe that was proper, but I do not believe sitting here in Harris County that I have any authority to order people in El Paso County to do anything....
Accordingly, res judicata does not bar the claims in these proceedings.
B. The supersedeas bond requires that possession and title remain as they were before the decree.
When Evangelina filed the decree in the El Paso real property records and took possession of the three disputed properties in December 2015, the divorce decree was not final and had not been superseded. Evangelina contends, however, that she “completed” execution on the properties before Miguel posted his supersedeas bond in June 2016, and thus Miguel‘s subsequent posting of the bond “ha[d] absolutely no effect on the El Paso properties....” Miguel and the Carrillo relators reply that Evangelina did not lawfully execute on the decree. They further reply that accepting Evangelina‘s contention that her execution was “completed” and unaffected by the posted bond would encourage judgment creditors to immediately execute on judgments that had not become final in a race to execute before the filing of a supersedeas bond.
Contrary to Evangelina‘s contention, she did not complete execution on the disputed properties. She never so much as obtained a writ of execution in connection with seizing possession of them. Rather, she filed the decree with the real property records before it became final and took possession of the properties without aid of a writ of execution. Because Evangelina did not complete a lawful execution on any of the three properties before the bond was posted, Evangelina‘s premise that the supersedeas bond does not affect her imposition of a muniment of title and possession of the properties lacks merit. Her continuing attempts to enforce the judgment became subject to Miguel‘s superseded bond. See Alpert v. Riley, 274 S.W.3d 277, 297-98 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (“[A supersedeas bond] preserves ‘the status quo of the matters in litigation as they existed before the issuance of the order or judgment from which an appeal is taken.‘“) (quoting In re Tarrant Cnty., 16 S.W.3d 914, 918 (Tex. App.—Fort Worth 2000, orig. proceeding)); In re City of Cresson, 245 S.W.3d 72, 74 (Tex. App.—Fort Worth 2008, orig. proceeding) (“Supersedeas preserves the status quo of the matters in litigation as they existed before the issuance of the order or judgment from which an appeal is taken.“).
We are unpersuaded by Evangelina‘s reliance on Texas Employers’ Insurance Association v. Engelke, 790 S.W.2d 93 (Tex. App.—Houston [1st Dist.] 1990, no writ). Engelke involved “fixed rights” established by a valid writ of execution issued by the trial court and executed upon by the sheriff before the bond was filed—two conditions not present in this case. See id. at 95. Contrary to Miguel and the Carrillo relators’ position in this case, the relator in Engelke “d[id] not challenge the validity of either the judgment execution or the levy thereunder.” Id. Evangelina attempted execution on the decree by filing it as a
Evangelina also contends that
The clerk or justice of the peace shall immediately issue a writ of supersedeas suspending all further proceedings under any execution previously issued when a supersedeas bond is afterward filed and approved within the time prescribed by law or these rules.
Evangelina‘s interpretation ignores
Effect of Supersedeas. Enforcement of a judgment must be suspended if the judgment is superseded. Enforcement begun before the judgment is superseded must cease when the judgment is superseded. If execution has been issued, the clerk will promptly issue a writ of supersedeas.
C. The bond requires removal of the muniment of title and return of possession.
Miguel and the Carrillo relators argue that the trial court erred in denying relief because the supersedeas bond requires Evangelina to remove the muniment of title and return possession of the El Paso properties to the Carrillo relators. Evangelina does not dispute that her claim to legal title to the El Paso properties stems solely from her filing of the decree as a muniment of title in the El Paso County real property records. Nor does she dispute that Eagle Ridge was the record owner of these properties before she filed the decree. Thus, the status quo before the trial court signed the decree was that Eagle Ridge owned and held possession of the properties. See City of Cresson, 245 S.W.3d at 74 (“For injunctive purposes, the [s]tatus quo is defined as ‘the last, actual, peaceable, noncontested status which preceded the pending controversy.‘“) (quoting Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 857 (Tex. App.—Fort Worth 2003, no pet.)). Because the posting of a supersedeas bond preserves the status quo prior to the judgment, posting of the bond requires removal of the muniment of title and return of possession of the El Paso Properties to the Carrillo relators. We therefore conditionally grant the petition compelling the trial court to require Evangelina to remove the decree as a muniment of title and return physical possession of the properties to the Carrillo relators. We leave undisturbed the trial court‘s other orders enjoining the sale or encumbrance of the properties pending appeal. See
Miguel and the Carrillo relators also request that we order the trial court to issue a writ of supersedeas. The applicable rules, however, mandate issuance of a writ of supersedeas when a writ of execution has issued. See
WRIT POWER. A judge of a district court may, either in term time or vacation, grant writs of mandamus, injunction, sequestration, attachment, garnishment, certiorari, and supersedeas and all other writs necessary to the enforcement of the court‘s jurisdiction.
Although the trial court has discretion in issuing a writ of supersedeas when a writ of execution has not issued, we need not determine whether refusing to issue the writ was an abuse of discretion in this case because we have conditionally granted relators’ request to compel orders requiring removal of the muniment of title and return of possession. Absent a failure to comply with these orders, enforcement of the supersedeas bond does not require compelling the additional issuance of a writ of supersedeas.
D. Adequate Remedy by Appeal
Finally, to be entitled to mandamus relief, relators must demonstrate that they lack an adequate remedy by appeal. The Carrillo relators satisfy this requirement because their underlying appeal cannot remedy being dispossessed of the El Paso properties during the appeal. Although Miguel disavows ownership of the El Paso properties, he also lacks an adequate remedy by appeal because his posted supersedeas bond stays enforcement of the decree and a violation of the stay cannot be remedied by appeal. See Isern v. Ninth Court of Appeals, 925 S.W.2d 604, 606 (Tex. 1996) (“The threat of execution on the judgment is a situation of manifest and urgent necessity which renders any remedy by appeal inadequate.“) (citing Walker, 827 S.W.2d 833, 810-43 (Tex. 1992)).
Conclusion
For the forgoing reasons, we conditionally grant the petitions for writ of mandamus and direct the trial court to issue orders compelling Evangelina to remove the decree from the El Paso real property records as a muniment of title and return possession of the El Paso properties to the Carrillo relators. We are confident that the trial court will promptly comply, and our writ will issue only if it does not.
Because we order the removal of the decree as a muniment of title and the return of possession of the properties, we deny the further request for orders requiring the trial court to issue a writ of supersedeas.