Ross MANDEL and Lea Mandel, Appellants v. LEWISVILLE INDEPENDENT SCHOOL DISTRICT; County of Denton, Texas; and City of Plano, Appellees. In re Ross Mandel and Lea Mandel, Relators.
Nos. 02-13-00171-CV, 02-13-00412-CV
Court of Appeals of Texas, Fort Worth.
Decided Oct. 2, 2014.
Rehearing Overruled Nov. 26, 2014.
445 S.W.3d 469
PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.
ANNE GARDNER, Justice.
I. Introduction
Appellee Lewisville Independent School District (Lewisville ISD) sued Appellants Ross Mandel and Lea Mandel and lienholder Koslow Technologies Corporation Charitable Remainder Trust (Koslow) to collect delinquent ad valorem taxes owed by the Mandels on their residence located at 6648 Castle Pines Drive, Plano, Texas. Appellees the City of Plano (the City) and the County of Denton, Texas, (the County) intervened to assert their claims for delinquent taxes owed to those taxing entities by the Mandels on their property. The trial court conducted a final hearing, at which the Mandels did not appear, and rendered a default judgment in favor of Lewisville ISD, the City, and the County against Ross Mandel and Lea Mandel and a judgment against Koslow in rem. The Denton County District Clerk issued an order of sale, the tax liens were foreclosed, and the property was sold at a sheriff s sale to Claussner Holdings, LLC (Claussner). The Mandels filed this restricted appeal complaining of the validity of the default judgment against them and the tax sale of their residence.
After submission of this appeal with oral argument, the trial court clerk issued a writ of possession, at Claussner s request, as provided by the default judgment. Even though the trial court clerk issued a writ of supersedeas to stay any execution of the writ of possession, Denton County Constable Ron Smith began executing the writ of possession. On the Mandels motion, we granted an emergency stay of execution of the writ of possession during its execution. Constable Smith nevertheless executed the writ of possession and evicted the Mandels from the property. The Mandels filed a petition for writ of mandamus asking this court to direct either Claussner or Constable Smith to return possession of the property to the Mandels or to direct the trial court to do the same. We consolidated the petition for writ of mandamus and the restricted appeal for decision because the petition for writ of mandamus is dependent upon our determination of the merits of the restricted appeal.
We affirm the trial court s judgment against the Mandels, lift our emergency stay, and dismiss the Mandel s petition for writ of mandamus as moot.
II. Chronology of Events
A. Events relevant to default judgment and sale
On July 29, 2011, Lewisville ISD filed its original petition against the Mandels and the lienholder, Koslow, for payment of delinquent 2010 property taxes on the Mandels home. Lea Mandel was served by personal service of process on August 5, 2011. Ross Mandel was served by personal service of process on August 16, 2011. The Mandels did not answer. Citation for service on Koslow by certified mail was returned unserved. While the case was pending, at some point in the following months, Koslow paid the delinquent 2010 taxes.
Lewisville ISD filed its first amended original petition on June 7, 2012, eliminating its cause of action for 2010 taxes and alleging that the Mandels were delinquent on their 2011 taxes. Lewisville ISD s certificate of service appended to its amended petition stated that it served the Mandels with a copy of the amended petition pursuant to
On November 15, 2012, the case was called to trial. The Mandels did not appear. Koslow appeared through its attorney. The trial court overruled Koslow s objections to the lack of personal service of the amended petition on the Mandels and to the lack of personal service on either the Mandels or Koslow by the intervenors. On the same date, the trial court signed a final default judgment against the Mandels and final judgment against Koslow in rem for the amounts owed to Lewisville ISD, the City, and the County for the delinquent 2011 taxes, including penalties and interest until paid. The judgment also ordered foreclosure of the tax liens on the property, issuance of an order of public sale of the property, payment to the taxing entities of the amounts owed from the proceeds, and issuance of a writ of possession to the purchaser of the property at the sale.
On November 16, 2012, the Denton County District Clerk mailed a notice of the judgment to each of the Mandels, as well as a billing statement for the court costs. On January 4, 2013, the Denton County District Clerk issued an order of sale for foreclosure of the tax liens and for court costs recovered in the default judgment. The Denton County Sheriff published notice of the sale and on March 13, 2013, mailed a copy of the notice to the Mandels. The property was sold at a sheriff s sale on the Denton County Courthouse steps to Claussner on April 2, 2013. The Mandels perfected this restricted appeal on May 14, 2013.
B. Events relevant to petition for writ of mandamus
On October 21, 2013, at Claussner s request, the trial court clerk issued a writ of possession as ordered by the judgment. The Mandels then filed a net worth affidavit, a cash deposit in lieu of supersedeas bond, and a motion to quash or vacate the writ of possession. On October 31, 2013, the trial court clerk issued a writ of supersedeas requiring the constable to desist from efforts to obtain possession of the property for Claussner. But on November 12, 2013, Constable Smith went to the Mandels residence to execute the writ of possession. The Mandels immediately filed an emergency motion to enforce the writ of supersedeas in the trial court, and Constable Smith agreed to leave the Mandels property without executing the writ of possession pending the hearing on the Mandels motion. During a telephonic hearing on November 12, 2013, the trial court informed the Mandels and Claussner that it would not consider the Mandels motion to enforce the writ of supersedeas or their motion to quash or vacate the writ of possession until November 15, 2013. At Claussner s urging, Constable Smith returned to the property the morning of November 13, 2013, proceeded to begin executing the writ of possession, removed the Mandels and their possessions from the property, and delivered the property to Claussner, refusing to recognize the writ of supersedeas. The Mandels immediately filed an emergency motion in this court to stay execution of the writ of possession. We granted the motion that same day—November 13, 2013—and stayed any execution of the writ of possession until further order of this court. On November 15, 2013, the trial court denied the Mandels motion to enforce the writ of supersedeas and their motion to quash or vacate the writ of possession.
The Mandels then filed a petition for writ of mandamus in this court to compel the trial court to vacate its order denying their motion to quash or vacate the writ of possession and its order denying their mo-
III. Standard of Review on Restricted Appeal
A restricted appeal is available for the limited purpose of providing a party who did not participate at trial with the opportunity to correct an erroneous judgment. In re E.K.N., 24 S.W.3d 586, 590 (Tex.App.-Fort Worth 2000, no pet.). To prevail in a restricted appeal, an appellant must show that (1) the notice of appeal was filed within six months of the date the complained-of judgment or order was signed; (2) the appellant was a party to the suit who did not participate in the hearing that resulted in the judgment or order; (3) the appellant did not timely file a post-judgment motion, request findings of fact and conclusions of law, or file a notice of appeal within the time permitted under
There is no presumption in favor of proper issuance, service, and return of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994). If the record fails to affirmatively show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, error is apparent on the face of the record, and attempted service of process is invalid and of no effect. Lytle v. Cunningham, 261 S.W.3d 837, 840 (Tex.App.-Dallas 2008, no pet.). When the attempted service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Id.
IV. Analysis
A. The return of citation personally served on Ross Mandel was in strict compliance with the applicable rules of civil procedure.
By their second issue, the Mandels contend that the citation by which Ross Mandel was served with Lewisville ISD s original petition is not in strict compliance with the applicable rules because the return does not state when citation was personally served on him.2 The Mandels do not dispute and the record affirmatively
A winding road through the rules of civil procedure leads us to those that govern suits for delinquent ad valorem taxes. We begin with
Where any defendant in a tax suit is a resident of the State of Texas ... the process shall conform substantially to the form hereinafter set out for personal service and shall contain the essential elements and be served and returned and otherwise regulated by the provisions of Rules 99 to 107, inclusive.
The version of
Ross Mandel s specific complaint is not that the return omits the date upon which he was served but that it omits the hour of service. The supreme court stated a century and a half ago in Clark v. Wilcox, when addressing a similar return and statutory language prior to adoption of the civil rules, that a return that stated the date and manner of service, signed by the serving officer, was a sufficient return of citation to comply with the previous statute then in effect, requiring that the return state fully the time and manner of service. 31 Tex. 322, 328-29 (1868). The supreme court was of the opinion that time did not mean senseless or unnecessary details of the acts of service and of the time when performed; such for example, as where the officer should note the hour of the day. Id. at 328. Rather, the interpretation of the statute articulated by the opinion in Clark was that [t]he manner is personal service, and the time [is] the day, month and year. Id. (emphasis added). Thus, the time requirement, according to the supreme court, was fully satisfied by stating the date on which the citation was executed. See id. at 328-29.
The ruling in Clark has remained undisturbed for a century and a half.4 The Mandels have provided us with no authority otherwise—that strict compliance with
The court s reasoning in Clark and the wording of
The Mandels urge that the supreme court s interpretation of
In any event,
B. Lewisville ISD was not required to serve its amended petition seeking delinquent ad valorem taxes for 2011 on the Mandels by citation.
The Mandels contend by their third issue that Lewisville ISD was required to serve them with a new citation when it filed its first amended original petition because the amended petition substituted a new cause of action for delinquent taxes for the year 2011. The Mandels argue that when an amended pleading asserts a new cause of action distinct from that alleged in the original pleading or seeks a more onerous judgment and the defendant has not made an appearance, entirely new service of process is essential to enable the plaintiff to proceed to judgment.
Citing cases holding in other contexts that each tax year constitutes a new cause of action, the Mandels contend that failure of Lewisville ISD to serve them by citation with a copy of the amended petition violated their due process rights under the Fourteenth Amendment to the United States Constitution and Article 1, Section 19 of the Texas constitution. However, the Mandels candidly concede that in In re E.A., the supreme court held that service under
The Mandels argue that the certificate of service appended to Lewisville ISD s amended pleading and signed by its counsel of record fails to establish strict compliance with the rules because, while the certificate would ordinarily raise a presumption of service, no such presumption applies in a restricted appeal. Lewisville ISD responds that the record affirmatively reflects that it properly served the Mandels as shown by the certificate of service certifying that copies of the amended petition were sent to all parties and/or their attorneys of record in this suit, pursuant to
The Mandels point to no affirmative evidence or showing on the face of the record that rebuts the prima facie evidence of service established by the certificate of service, such as an incorrect address or zip code or return of the certified mail as unclaimed. 11 And even if the Mandels had produced such evidence after judgment, the rule in Texas has long been that evidence not before the trial court
Ross Mandel steadfastly maintains that since no effective service of the original petition was ever made on him, service of the amended petition by certified mail pursuant to
C. Intervenors were not required to serve the Mandels with their petitions in intervention.
The property that is the subject of the suit filed by Lewisville ISD is also situated within the boundaries of two other taxing jurisdictions, the County and the City. In their fourth issue, the Mandels contend that those two taxing entities were required to and failed to have new citations served on the Mandels of their petitions in intervention. But the Mandels overlook
Any process authorized by this rule may issue jointly in behalf of all taxing units who are plaintiffs or intervenors in any tax suit. The statement of the nature of the suit ... shall state, in substance, that in such suit the plaintiff and all other taxing units who may set up their claims therein seek recovery of the delinquent ad valorem taxes due on said property .... Such citation shall also show the names of all taxing units which assess and collect taxes on said property not made parties to such suit....
After citation ... has been given on behalf of any plaintiff or intervenor taxing unit, the court shall have jurisdiction to hear and determine the tax claims of all taxing units who are parties plaintiff, intervenor or defendant at the time such process is issued and of all taxing units intervening after such process is issued ... without the necessity of further citation ... and any taxing unit having a tax claim against said property may ... set up and have determined its tax claim without the necessity of further citation or notice to any parties to such suit.
Under the express language of the rule, any taxing unit named in the citation, although not yet a party to the tax suit, may later join the suit without further service of process.
Plaintiff and all other taxing units who may set up their tax claims herein seek recovery of delinquent ad valorem taxes on the property hereinabove described, and in addition to the taxes, all interest, penalties, and costs allowed by law thereon up to and including the day of judgment herein, and the establishment and foreclosure of liens securing the payment of same, as provided by law. [Emphasis added.]
The citations further advised the Mandels:
All parties to this suit, including Plaintiff, Defendant(s) and Intervenors, shall take notice that claims not only for any taxes which were delinquent on said property at the time this suit was filed but all taxes becoming delinquent thereon at any time thereafter up to the day of judgment, including all interest, penalties, and costs allowed by law thereon, may upon request therefor, be recovered herein without further ci-
tation or notice to any parties herein, and all said parties shall take notice of and plead and answer to all claims and pleadings now on file and which may hereafter be filed in this cause by all other parties hereto, and by all of those taxing units above named, who may intervene herein and set up their respective tax claims against the property. [Emphasis added.]
Not only did the citations by which the Mandels were served contain the language required by
D. The Mandels have not shown denial of due process by failure to strictly comply with the rules governing service of process.
By their first issue, the Mandels contend that failure to strictly comply with the rules applicable to service of process violated their due process rights. We held above that there was no failure by Lewisville ISD to strictly comply with the rules of service when serving the original petition. As to service on the Mandels by the intervening taxing units, we have also held that
While there is some variation in wording, the procedure set forth in
The supreme court noted that section 4 of article 7345b required the citation to inform the recipient that he or she was required to take notice of all present and future pleadings on file that may be filed by any and all parties. Id. at 99, 133 S.W.2d at 120. The court further stated that just as in any ordinary suit where the respondent can be required to take notice of all subsequent pleadings, interventions, and cross-actions by the public generally, there was no reason for these types of suit to require any less of a defendant who has been served with citation. Id. at 101, 133 S.W.2d at 122. Finally, the court held that the notice required by the statute affords all defendants a fair opportunity to be heard and therefore it does not violate the due process clause of our Constitution. Id. at 101-02, 133 S.W.2d at 122.
Similar to the citation in Mexia, the citation in this case stated:
All parties to this suit, including Plaintiffs, Defendants and Intervenors, shall take notice [of] claims not only for any taxes which were delinquent on said property at the time this suit was filed but all taxes becoming delinquent thereon at any time thereafter up to the day of judgment ... and all said parties shall take notice of and plead and answer to all claims and pleadings now on file and which may hereafter be filed in this cause by all other parties .... [Emphasis added.]
Subsequent to the decision in Mexia, our sister court held in Conseco that current
The purpose of citation is to give the court jurisdiction over the parties and provide notice to the defendant that it has been sued by a particular party asserting a particular claim, so that due process will be served and the defendant will have an opportunity to appear and defend the action. Conseco Fin. Servicing, 78 S.W.3d at 675-76 (citing Sgitcovich v. Sgitcovich, 150 Tex. 398, 404, 241 S.W.2d 142, 146 (1951); Bozeman v. Arlington Heights Sanitarium, 134 S.W.2d 350, 351-52 (Tex. Civ. App.-Dallas 1939, writ ref d)). The requirement of due process is satisfied when the notice prescribed affords the party a fair opportunity to appear and defend its interests. Sgitcovich, 241 S.W.2d at 146.
Here, the citation gave the Mandels sufficient notice that they were being sued by Lewisville ISD for delinquent ad valorem taxes on real property located at a specific address. By naming both the City and the County, which later intervened, the citation served with Lewisville ISD s original petition gave the Mandels all the notice to which they were entitled and gave them the opportunity to appear and defend the suit. Nothing in the record before us intimates that they were misled or placed at a disadvantage by the citation and pleadings. Thus, we hold that the citation served on the Mandels fully conformed with the re-
E. The Mandels were not denied due process in connection with the notice and order of sale.
By their fifth issue, the Mandels complain of denial of due process with respect to the notice and order of sale, contending that there is no evidence apparent on the face of the record that they were ever served with either the notice or the order in a manner calculated to reach them. For that proposition, they rely on Jones v. Flowers, in which the United States Supreme Court held that [b]efore a State may take property and sell it for unpaid taxes, the Due Process Clause of the Fourteenth Amendment requires the government to provide the owner notice and opportunity for hearing appropriate to the nature of the case. 547 U.S. 220, 223 (2006) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). In Flowers, the Court set aside a private sale of Jones s property to satisfy a tax delinquency by the Arkansas Commissioner of State Lands after the Commissioner had attempted twice by certified mail to notify Jones of his tax delinquency and of his right to redeem the property but both certified letters had been returned unclaimed. Id. at 223-25. The Court held that to comport with due process, when the State was made aware that certified letters went unclaimed, it must have taken additional steps to attempt to notify a property owner before selling his property for delinquent taxes if it was practicable to do so. Id. at 225. Based on Flowers, the Mandels contend that Lewisville ISD and the other tax entities could not sell their home without any evidence in the record showing the manner of service of the notice and order of sale.
Flowers is distinguishable. First, the sale of Jones s home in the Flowers case was a private, non-judicial sale whereas the sale of the Mandels home in this case was by judicial foreclosure by public sale with the protections afforded by service of citation on the Mandels, providing notice and an opportunity to appear in court for a meaningful hearing before the final judgment ordering sale of their home for payment of the delinquent taxes. See id. at 224. Second, Flowers is distinguishable because the evidence in that case showed that the State was aware that the property owner had not received notice because its certified letters had been returned unclaimed. See id. at 227. Third, Flowers was not a restricted appeal under Texas law in which the error must appear on the face of the record. See id. at 224-25. Unlike the record in Flowers, there is no evidence on the face of the record that the Mandels did not receive service of process of the original petition, copies of the amended petition and interventions by certified mail, notice of the trial setting, copies of the judgment, or notice and the order of sale. The record affirmatively shows the contrary, that the Mandels were properly served with citation of the suit to foreclose and sell their property, which also put them on notice that the other taxing entities named could properly intervene without additional service, and that the sheriff s signed return of the notice and order of sale confirmed that he mailed copies of the notice of sale to the Mandels.
The United States Supreme Court in Flowers articulated concerns that simply are not present in this case. The foreclosure procedures followed by the taxing
In Flowers, the Commissioner sent two notifications to the property owner by certified mail as required by law advising that the taxes were delinquent and that the property was subject to foreclosure. Id. at 223-24. Both notices were returned unclaimed by the United States Postal Service. Id. at 223-24. After the two notices were returned by the post office, the Commissioner made no further attempts to notify the property owner of the impending tax foreclosure. Id. It was uncontroverted that the property owner in that case never received any notice that his property would be or was sold for taxes. See id. at 223-25.
The Supreme Court stressed that the notices provided to the property owner were defective because the Commissioner knew that the property owner never received the notices. See id. at 237. The Supreme Court deemed this uncontroverted failure to provide notice to be a violation of the property owner s due process rights. Id. at 239. The Court held that, under the circumstances, the State had a constitutional duty to take further steps to notify the property owner of the foreclosure sale. Id.
Moreover, silence as to whether notice of the order of sale was sent does not establish that it was not sent. See Alexander, 134 S.W.3d at 850. Nor does silence establish that notice of the order of sale was not received. See id. at 849-50. The absence of proof from the face of the record either way is just that—an absence of proof. Id. at 849. In a restricted appeal—where error must be apparent on the face of the record—silence as to whether notice was sent or received is insufficient to establish reversible error. See id. at 849-50.
As to notice of the order of sale,
(1) shall be returned to the district clerk as unexecuted if not executed before the 181 st day after the date the order is issued; and
(2) may be accompanied by a copy of the judgment and a bill of costs attached to the order and incorporate the terms of the judgment or bill of costs by reference.
We agree with Lewisville ISD s argument that the officer conducting the tax foreclosure sale discharged the statutory duties set forth in
If the Mandels contend the officer executing the notice and order of sale did not faithfully discharge the duties imposed by law with respect to the tax foreclosure sale, their alleged grievances regarding matters occurring after the default judgment was rendered must be directed toward other parties and presented in a different forum. See Ginn, 282 S.W.3d at 432 (holding that when a party claims in a restricted appeal that a required notice was not given or a required hearing was never held, the error must appear on the face of the record); Gen. Elec. Co., 811 S.W.2d at 944 (holding evidence not before the trial court prior to final judgment may not be considered in a restricted appeal proceeding). The record in this restricted appeal shows strict compliance with respect to the service of citation and notices required in a tax foreclosure sale, and the Mandels claim that the sale is defective has no support according to applicable law. Accordingly, we overrule the Mandels fifth issue.
V. Conclusion
Having overruled each of the Mandels five issues, we affirm the judgment of the trial court against the Mandels. We also vacate our order staying execution of the writ of possession and lift our stay. Consequently, we also dismiss the Mandels petition for writ of mandamus, seeking to have this court compel the trial court to
APPENDIX
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00171-CV
ROSS MANDEL AND LEA MANDEL APPELLANTS v. LEWISVILLE INDEPENDENT SCHOOL DISTRICT; COUNTY OF DENTON, TEXAS; AND CITY OF PLANO APPELLEES
FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2011-0490-431
AND
NO. 02-13-00412-CV
IN RE ROSS MANDEL AND LEA MANDEL RELATORS
ORIGINAL PROCEEDING
TRIAL COURT NO. 2011-0490-431
ORDER
On January 21, 2014, we abated this appeal and this mandamus action and ordered the trial court to conduct an evidentiary hearing to determine why Constable Ron Smith failed to comply with this court s November 13, 2013 order staying execution of the writ of possession issued by the trial court clerk on October 21, 2013, and to show cause why Constable Smith should not be held in contempt for failing to comply with this court s November 13 stay order.
After a hearing on February 5, 2014, the trial court sustained Constable Smith s objection to our January 21 order. We issued a subsequent order on February 28, 2014, once again directing the trial court to conduct a show-cause hearing to determine why Constable Smith should not be held in contempt of this court for failing to comply with our November 13 stay order. The February 28 order to show cause and notice to Constable Smith of that order were duly cited and served on Constable Smith and specifically enumerated the actions the trial court was permitted to take during the show-cause hearing. We reserved the power to make any necessary findings and conclusions after receiving the record of the hearing.
On April 21, 2014, the trial court conducted the show-cause hearing. The reporter s record of that hearing was filed in this court on May 21, 2014. Constable Smith appeared at the hearing, was represented by counsel, and was permitted to and did testify in defense of this court s charge alleging that he violated this court s November 13 stay order. Two of Constable Smith s deputies, Chief Deputy Constable Wayne Bengston and Deputy James Ferguson, and Kurt Claussner, the purchaser of the property in question in the above-styled and numbered causes, testified on behalf of Constable Smith. David Brusilow, an attorney and friend of the Mandels who showed an electronic copy of the stay order to Constable Smith, also testified. The trial court thereafter referred the matter to this court to make any necessary findings and conclusions and to determine whether Constable Smith was guilty of contempt.
The contempt alleged in this matter—violation of a court order outside the presence of the court—is constructive contempt. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995) (orig. proceeding). A finding of contempt for disobedience of a court order requires proof beyond a reasonable doubt of: (1) a reasonably specific order; (2) a violation of the order; and (3) the willful intent to violate the order. Id. However, the involuntary inability to comply with an order is a valid defense to criminal contempt, rebutting the willfulness element of contempt liability, for one s noncompliance cannot have been willful if the failure to comply was involuntary. Id. at 261; see also Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967) (orig. proceeding). The alleged contemnor bears the burden of proving his inability to comply. Ex parte Chambers, 898 S.W.2d at 261 (citing Ex parte Kollenborn, 154 Tex. 223, 226-27, 276 S.W.2d 251, 253-54 (1955) (orig. proceeding)). Additionally, a contemnor cannot be held in constructive contempt of court for actions taken prior to the time that the court s order is reduced to writing. Id.; see Ex parte Price, 741 S.W.2d 366, 368 (Tex.1987) (orig. proceeding).
Having considered the pleadings, motions, orders, and briefs of the parties on file in this court, the reporter s record of the testimony of Constable Smith and of those named above as witnesses, the exhibits from that hearing, the verified and certified evidence offered by Ross Mandel and Lea Mandel in support of their mandamus petition, and the evidence proffered at the February 5 hearing, we find that the evidence conclusively establishes that Constable Smith was involuntarily unable to comply with our stay order for the simple reason that he learned of it too late.
The evidence establishes that Constable Smith did not learn of the issuance of our stay order until he was shown an electronic copy of it that was emailed to Brusilow by Edward Dennis, the Mandels attorney of record, at 5:31 p.m. on November 13, 2013. The evidence further establishes that Constable Smith agreed, at Brusilow s request, to wait until Dennis arrived and that he did not receive or read the hard copy of the stay order until Dennis arrived at the house at approximately 6:30 p.m. But by 5:30 p.m., approximately ninety-eight percent of the Mandels household furnishings and personal property had been removed and trucks hired by the Mandels were carrying them away to storage; possession of the house, including the keys, had been turned over to Claussner at about 10:30 a.m. While there is no indication in our records as to precisely when the stay order was reduced to writing, the date and time stamp of this court s clerk s office shows that the motion for emergency relief was not filed in this court until 12:40 p.m. on November 13, and the order was not faxed to the Mandels attorney and the other parties in interest until approximately 5:15 p.m. that day. Based on this evidence, we find that Constable Smith did not have willful intent to disobey our stay order, and we decline to hold Constable Smith in contempt.
Accordingly, it is ORDERED that the appeal and original proceeding are reinstated on this court s docket. The clerk of this court is directed to transmit a copy of this order to the trial court judge, the trial court clerk, the attorney of record for each of the parties to the appeal and the mandamus action, the attorney who filed an amicus brief in the appeal, and the attorney of record for Constable Smith.
DATED: July 1, 2014.
PER CURIAM
PANEL: GARDNER, J.; LIVINGSTON, C.J.; and GABRIEL, J.