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.

2015

Check Treatment

TRANSCONTINENTAL REALTY INVESTORS, INC., Appellant v. ORIX CAPITAL MARKETS LLC and Wells Fargo Bank Minnesota, N.A. as Trustee for the Mortgage Pass-Through Certificates Series 99-CI, Appellees

No. 05-15-00435-CV

Court of Appeals of Texas, Dallas.

July 30, 2015

468 S.W.3d 844

provision nonetheless establishes that attorney‘s fees awarded under the TCPA are not “a form of ancillary relief,” but are awarded “as compensatory damages for the injury that the judicial system immediately caused to the defendant because the system was abused by the plaintiffs.” They do not point to specific language in section 27.009 to support their interpretation, relying instead on the general purposes of the TCPA.

The supreme court has explained that the TCPA “endorses a summary process” to accomplish its purpose “to identify and summarily dispose of lawsuits designed only to chill First Amendment rights.” In re Lipsky, 460 S.W.3d 579, 589 (Tex.2015). We have recently noted that “[t]he stated purpose of the [TCPA] is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841, 844 (Tex.App.-Dallas 2015, no pet. h.).

There is nothing in the language of section 27.009 to indicate that the attorney‘s fees provided constitute “compensation owed for an underlying harm” in accordance with the purpose of the TCPA rather than “fees that may be awarded for counsel‘s services” in defending a claim. See Nalle Plastics, 406 S.W.3d at 173-74. As we concluded in Lopez, even attorney‘s fees incurred in defending a bad faith and groundless suit are not “compensatory damages.” See Lopez, 396 S.W.3d at 657. Without statutory language to support a departure from the analysis of Nalle Plastics and Corral-Lerma, we deny appellees’ motion to increase the amount to supersede the trial court‘s judgment to include attorney‘s fees.

We affirm the trial court‘s order.

Image in original document— divider

Dismissed and Opinion Filed July 30, 2015

C. Gregory Shamoun, Jonathan J. Cunningham, Dallas, TX, for appellants

Elisabeth A. Wilson, Talmage Boston, Nicola Hobeiche, Dallas, TX, for appellees.

Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart

OPINION

Opinion by Chief Justice Wright

Transcontinental Realty Investors, Inc. attempts to appeal the trial court‘s order denying Transcontinental‘s “Motion Pursuant to Section 52.0011 of the Texas Property Code.” By letter dated May 15, 2015, the Court advised the parties that it questioned its jurisdiction over this appeal and requested jurisdictional briefing. Having reviewed the briefs filed by both parties, we conclude we lack jurisdiction and dismiss the appeal.

Following a bench trial, the trial court signed a final judgment awarding ORIX Capital Markets damages in the amount of $408,765.98, attorney‘s fees, and expenses in its suit on a guaranty agreement. The trial court also ruled that Transcontinental take nothing on its claims against ORIX and Wells Fargo Bank, N.A. a/k/a Wells Fargo Bank Minnesota, N.A. as trustee for the Mortgage Pass-Through Certificates, Series 99CI. Two days later, ORIX filed an abstract of judgment in the real property records of Dallas County, Texas. Transcontinental perfected a timely appeal from the trial court‘s final judgment and concurrently filed a supersedeas bond to suspend enforcement of the judgment. TEX.R.APP. P. 24.1, 24.2.

Nine months later, Transcontinental sought an order of the trial court declaring that the abstract of judgment filed in the real property records of Dallas County, Texas, did not constitute a lien on its real property, arguing that section 51.0011 of the Texas Property Code invalidated any lien created by the filing of the abstract of judgment once Transcontinental posted security pending appeal. The trial court denied the motion. Transcontinental attempted to perfect this appeal challenging that order. We subsequently rendered our judgment in the original appeal, affirming the trial court‘s final judgment with modifications. Transcon. Realty Inv‘rs, Inc. v. Orix Capital Mkts. LLC, No. 05-14-00588-CV, 2015 WL 3751392 (Tex.App.-Dallas June 16, 2015, no pet. h.). We now determine whether this Court has jurisdiction over Transcontinental‘s second appeal, which challenges only the trial court‘s order refusing relief under section 51.0011 of the Texas Property Code.

Ordinarily, and with certain exceptions not at issue in this case, we may entertain appeals only from final judgments or interlocutory orders whose appeal is authorized by statute. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Transcontinental characterizes the trial court‘s order denying relief under section 51.0011 of the property code as an appealable, final post-judgment order. Citing Burns v. Hayward, 909 S.W.2d 505, 506 (Tex.1995) (per curiam), Transcontinental maintains that the trial court‘s order is subject to appeal independent of the underlying judgment because it disposes of the main controverted issue concerning which the proceeding was brought. We disagree.

Post-judgment orders are appealable only if the appeal is statutorily authorized or if the trial court‘s order operates as a mandatory injunction resolving property rights and imposing obligations on the judgment debtor or third party to transfer property to the judgment creditor. Jack M. Sanders Family Ltd. P‘ship v. Roger T. Fridholm Revocable, Living Trust, 434 S.W.3d 236, 242 (Tex.App.-Houston [1st Dist.] 2014, no pet.) For that reason, Texas courts have concluded that turnover orders—the type of order at issue in Burns—are final, appealable orders because they are analogous to mandatory injunctions requiring a judgment debtor to turn over property. Schultz v. Fifth Judicial Dist. Court of Appeals at Dallas, 810 S.W.2d 738, 740 (Tex.1991) (orig.proceeding) (“The turnover order at issue in this case resolved the property rights issues and acted as a mandatory injunction as to the judgment debtor Schultz and the receiver. We therefore hold that the turnover order was in the nature of a mandatory injunction and was appealable.“), abrogated on other grounds by In re Sheshtawy, 154 S.W.3d 114 (Tex.2004) (orig.proceeding). An order under section 52.0011 of the property code, whether granted or denied, does not have similar effect.

Under Texas law, an abstract of judgment, “when it is recorded and indexed ... constitutes a lien on and attaches to any real property of the defendant, other than real property exempt from seizure or forced sale ... that is located in the county in which the abstract is recorded and indexed.” TEX. PROP.CODE ANN. § 52.001 (West 2014). Section 52.0011 creates an exception to this rule providing that an abstract of judgment does not constitute a lien on real property if the defendant has posted security as provided by law or is excused from posting security and the court that renders judgment determines “creation of the lien would not substantially increase the degree to which a judgment creditor‘s recovery under the judgment would be secured when balanced against the costs to the defendant after the exhaustion of all appellate remedies.” Id. at § 52.0011(a) (West 2014); see EEOC v. Serv. Temps, Inc., 782 F.Supp.2d 288, 290 (N.D.Tex.2011). Thus, an order under section 52.0011, whether it grants or denies the relief sought, is simply ancillary to the filing of an abstract of the trial court‘s judgment.

“[A]n order made for the purpose of carrying into effect an already-entered judgment is not a final judgment or decree and cannot be appealed as such.” Kennedy v. Hudnall, 249 S.W.3d 520, 523 (Tex.App.—Texarkana 2008, no pet.) (citing Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (1956)). For that reason, the “usual writs and orders to aid in execution to collect a final money judgment are not, in general, appealable orders.” Schultz, 810 S.W.2d at 740. Based on this exclusion of “usual writs and orders to aid in execution” from the catalog of appealable orders, we have determined, for instance, that a trial court‘s ruling regarding the suspension of a writ of execution may not form the basis for an appeal. Lynd v. Conesco Fin. Servicing Corp., No. 05-02-01594-CV, 2002 WL 31647401, at *1 (Tex.App.—Dallas Nov. 25, 2002, no pet.) (per curiam) (not designated for publication) (dismissing attempted appeal under rule 42.3(a)); see also Gonzales v. Daniel, 854 S.W.2d 253, 255 (Tex.App.—Corpus Christi 1993, no writ) (concluding order sustaining motion to quash writ of execution not appealable); Dawson v. Dawson, 140 S.W. 513, 513-14 (Tex.Civ.App.—El Paso 1911, no writ) (finding order refusing to quash writ of execution not appealable). An order under section 52.0011 also falls into this category and is not a final, appealable post-judgment order.

Transcontinental also argues that the power conferred on appellate courts by section 52.006 of the Texas Civil Practice and Remedies Code and rule 24.4 of the Texas Rules of Appellate Procedure to review the amount and type of security required to suspend enforcement of judgment provides an independent basis for appellate jurisdiction over this case.¹ We reject this argument.

Section 52.006 of the Texas Civil Practice and Remedies Code provides for appellate review of the amount of security required to suspend execution of a money judgment. TEX. CIV. PRAC. & REM.CODE ANN. § 52.006(d) (West 2015). Specifically, appellate courts may review the amount of security “as allowed under Rule 24, Texas Rules of Appellate Procedure....” Id. Rule 24.4, in turn, permits a party to seek appellate review of a trial court‘s order setting the amount and type of security and sufficiency of sureties “by motion filed in the court of appeals with jurisdiction or potential jurisdiction over the appeal.” TEX.R.APP. P. 24.4(a). Transcontinental did not initiate its attempt to obtain review of the trial court‘s ruling on the section 52.0011 order by filing a motion in its appeal of the related final judgment of the trial court. Instead, Transcontinental filed a separate appeal.

“The rules provide for review of the trial court‘s ruling on the bond as part of the appeal from the final judgment in the case.” Gailey v. Gutierrez, No. 01-12-00491-CV, 2013 WL 127557, at *1 (Tex.App.—Houston [1st Dist.] Jan. 10, 2013, no pet.) (mem.op.) (per curiam). Neither section 52.006 nor rule 24.4 provides an independent basis for appellate jurisdiction.

Because we have no basis for asserting jurisdiction to review the trial court‘s order in an appeal separate from the appeal of the final judgment, we dismiss this appeal for lack of jurisdiction.

Notes

Transcontinental maintains that section 52.0011 of the property code is a complementary statutory provision to chapter 52 of the Texas Civil Practice and Remedies Code. It contends that because consideration of the issues raised by section 52.0011 of the property code directly relates to the amount of security posted “as required by law,” section 52.006 of the civil practice and remedies code and rule 24.4 of the Texas Rules of Appellate Procedure provide the jurisdictional predicate for this appeal. We need not determine whether a ruling on a motion under section 52.0011 of the property code is reviewable pursuant to the procedures established by section 52.006 of the civil practice and remedies code and rule 24.4 because we do not agree that these provisions amount to an independent grant of appellate jurisdiction.

Read the detailed case summary