DWOJ: Bond disbursement order not appealable, court of appeals says in dismissing case

Houston Court of Appeals, in memo opinion by Chief Justice Adele Hedges, holds that it lacks jurisdiction over the attempted appeal because the order appealed from did not constitute a final and appealable order or judgment (and was not otherwise authorized by statute).

Lovall v. Yen No. 14-07-00770-CV (Tex.App.- Houston [14th Dist.] Feb. 12, 2008) (lease law, eviction, lease, unpaid rent, bond, supersedeas, registry of the court) (jurisdictional dismissal of appeal, interlocutory orders, finality, final and appealable order)

Opinion by Chief Justice Adele Hedges
Panel composition: Chief Justice Hedges, Justices John Anderson and William Boyce
Full case style: Lizzie Lovall v. Judy Yen
Appeal from County Civil Court at Law No 3 of Harris County
Trial court judge: Judge Hon. Lynn Bradshaw-Hull
Disposition: DWOJ = Dismissed for Want of Jurisdiction

M E M O R A N D U M O P I N I O N

This appeal involves a forcible entry and detainer suit, wherein appellant, Lizzie Lovall, appeals a judgment granted in favor of appellee, Judy Yen. We dismiss the appeal for lack of jurisdiction.

BACKGROUND

Appellee originally filed her lawsuit against appellant in a justice of the peace court to regain possession of residential property and to recover unpaid rents. The justice court granted judgment in favor of appellee. On August 15, 2001, appellant perfected her appeal to County Civil Court at Law Number 3 by paying a cash bond in the amount of $2,400.00 (the amount for which she was liable in unpaid rents).[1]

While appellant's appeal was pending before the county court, appellant filed an accelerated appeal with this court on an order by the county court requiring her to deposit $550.00 into the court registry. We dismissed the appeal for lack of jurisdiction and issued our mandate on April 2, 2002. See Lovall v. Yen, 14-01-01108-CV, 2002 WL 58925 (Tex. App.- Houston [14th Dist.] 2002, no pet.) (mem. op., not designated for publication). On November 21, 2001, the county court entered a final judgment in favor of appellee.[2] On December 5, 2001, appellant's husband filed for bankruptcy; the notice of bankruptcy was filed with the county court on December 6, 2001.[3]

Almost four years later, no further appeals had been taken and appellee set a motion for bond disbursement to retrieve the $2,400.00 cash bond. Notice was sent to appellant. On September 14, 2005, the county court signed an order directing the clerk's office to release the cash bond from the court registry to appellee.[4] Appellant now appeals the bond disbursement order. In three issues, appellant argues that (1) the trial court did not have jurisdiction to disburse the cash bond to appellee; (2) the trial court abused its discretion by granting relief not requested by appellee; and (3) the trial court erred in failing to produce findings of fact and conclusions of law.

JURISDICTION

The order involved in this appeal is not the judgment in the lawsuit, but a post judgment order designed to enforce the judgment. An appeal may be taken from a final judgment disposing of all legal issues between all parties or from an interlocutory order for which an appeal is authorized by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Appellant argues that the post judgment disbursement order in this case is a final and appealable judgment because it is tantamount to a turnover order. See Schultz v. The Fifth Judicial District Court of Appeal at Dallas, 810 S.W.2d 738 (Tex. 1991) (turnover orders are final and appealable orders), abrogated on other grounds by In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004). The bond disbursement order in this case, however, is not equivalent to a turnover order under section 31.002 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. ' 31.002 (Vernon Supp. 2006). Section 31.002, commonly known as the turnover statute, allows a court to order a judgment debtor to surrender or "turn over" her property for liquidation to satisfy a judgment rendered against her. See id.; see also Qualia v. Qualia, 37 S.W.3d 128, 129 (Tex. App.CSan Antonio 2001, no pet.) (reasoning that a turnover order is analogous to a mandatory injunction, requiring a factual showing of non-exempt property owned by the debtor and resolving the property rights as in a mandatory injunction). In this case, the county court did not order appellant to turn over non-exempt property for liquidation to satisfy the judgment against her. Nor did the order resolve the property rights between the parties. Instead, the bond disbursement order was directed to the clerk=s office to release a cash bond previously paid to the court=s registry by appellant. We hold that the 2005 bond disbursement order is not a section 31.002 turnover order.

Moreover, the bond disbursement order is not a final appealable order. A judgment is final for purposes of appeal when it determines the rights of all parties and disposes of all issues in a case, so that no future action by the court will be necessary to settle the entire controversy. State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995); see also Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985) (holding that a judgment settling all legal issues and rights between the parties is final and appealable, although further proceedings may be necessary in its execution).

Here, the November 2001 final judgment determined that appellee had the right to possession of the property and was entitled to $2,400.00 in unpaid rents. Thus, it is a final and appealable order.[5]

The bond disbursement order was merely a ministerial act incident to the final judgment, providing for disbursement of funds directed by the November 2001 judgment, akin to a writ of execution. See Wolter v. Donaldson, 79 S.W.3d 160, 162 (Tex. App.- Texarkana 2002, no pet.) (stating that post judgment order to release funds to prevailing party is in the nature of a writ of execution).

The usual writs and orders aiding execution to collect a final money judgment are not, in general, appealable orders. Id.; Qualia, 37 S.W.3d at 129. Neither a writ of execution nor an order incident to a writ of execution is appealable. Wolter, 79 S.W.3d at 162.

We hold that the December 2005 bond disbursement order is not final and appealable. See Myers v. Myers, 515 S.W.2d 334, 335 (Tex. App.- Houston [1st Dist.] 1974, writ dism'd) (stating that the court's order to pay the judgment out of funds deposited pursuant to a supersedeas bond was ancillary to the cause on the merits and therefore not a final judgment for purposes of appeal).

Having concluded the complained of order is not final and appealable, we dismiss the appeal for lack of jurisdiction.

/s/ Adele Hedges
Chief Justice

Judgment rendered and Memorandum Opinion filed February 12, 2008.
Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.
Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The cash bond was paid to the justice court and subsequently transferred to the county court on December 28, 2001.
[2] Though the county court's judgment is not apart of this record, the clerk's docket sheet reflects the November 21, 2001 judgment.
[3] Although appellant alleges that a bankruptcy proceeding was commenced over six years ago, she neither alleges, nor does the record reflect, that the 2001 bankruptcy proceeding in still ongoing, or would otherwise affect our jurisdiction in the instant appeal.
[4] Appellant produces no evidence that the 2001 bankruptcy proceeding was still pending at the time the court entered the September 2005 disbursement order.
[5] The record reflects that appellant did not further perfect her appeal on the November 21, 2001 judgment to our Court. Therefore, we have no jurisdiction to review an appeal of this judgment.