Opinion
No. 07-08-0065-CV
June 17, 2008.
Appealed from the 69th District Court of Hartley County; No. 4300H; Honorable Ronald E. Enns, Judge.
ORDER
When the trial court denied Elizabeth Brent supersedeas relief from a judgment in her case against Martha Field, Brent sought our review according to appellate rule 24. See Tex. R. App. P. 24.4. Finding subsequent post-trial events have rendered moot the requested review of the trial court's denial, we dismiss Brent's motion.
The underlying suit originally was brought by Brent against Field, J J Cattle Family Limited Partnership, Thomas Watson Trucking, Inc. and American Express Travel Related Services Company, Inc. After a four-day bench trial, the trial court signed a judgment inter alia ordering that Brent recover from Field and J J $55,634.88 plus pre-judgment interest of $4,240.55, and that Thomas Watson recover $7,127.46 from Field and J J, and a like amount from Brent. The judgment further made reference to an escrow agreement to which Field, J J, Brent and Amarillo National Bank were parties, and ordered the bank to disburse the funds in escrow in the following manner: $59,875.43 to Brent, $7,127.46 to Thomas Watson and the balance to Field. The escrowed funds totaled something over $800,000.
After the judgment was signed on January 25, 2008, Brent filed a request for findings of fact and conclusions of law, a motion for new trial and a motion in the trial court to order supersedeas of the judgment through alternate security. See Tex. R. App. P. 24.1(a)(4). Brent filed a timely notice of appeal.
In her motion to suspend enforcement of the judgment, Brent argued the judgment was not a money judgment but one adjudicating the parties' interests in a res, the escrowed funds, and could be suspended by a deposit sufficient to cover appellate costs and any interest differential during the pendency of her appeal. Tex. R. App. P. 24.2(a)(2). In this way, Brent calculated the amount of her distribution under the judgment was monetarily sufficient to protect Field from risk during appeal. Brent proposed, therefore, leaving in escrow her share of the funds under the judgment "as her bond."
Field countered that Brent was not positioned to supersede the judgment. Specifically, she argued, Brent sued Field, Field lost and was adjudged liable to Brent for $59,875.43; thus, Brent was not Field's judgment debtor.
After an evidentiary hearing, the trial court denied Brent's request by order signed March 20, 2008, without specifying a basis. Brent moved this court to review the trial court's order according to rule 24.4. Tex. R. App. P. 24.4(a). We temporarily stayed enforcement of the judgment pending further order.
Meanwhile, the bank filed an interpleader in the trial court and deposited the proceeds of the escrow account into that court's registry. We held oral argument on Brent's motion to review on May 27. Since that date, a supplemental clerk's record has been filed. It contains an agreed order signed by the trial court on April 10, directing its clerk to retain the interpled funds pending its further order.
By a later supplement to the record, Brent has made us aware of a further order in the case, signed by the trial court on June 9. That June 9 order does not address disposition of the interpled funds as among Brent, Field and J J.
By agreement expressed through the order, Brent, Field and J J have effected a material change in the proceeding initiated by Brent under rule 24. The gravamen of Brent's requested supersedeas relief was forestalling Field's effort to withdraw funds from the escrow account during appeal. But the agreed order places the now-interpled funds beyond the unilateral reach of Fields, J J and Brent, where they lie subject to further order of the trial court.
In her motion to review, Brent suggested, as an alternative, that the escrowed funds be placed in the registry of the court. Brent effectively has received that relief by the trial court's agreed order.
It "is axiomatic that appellate courts do not decide cases in which no controversy exists between the parties. Generally, a case is determined to be moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988) (citations and internal quotation marks omitted); Young v. Young, 168 S.W.3d 276, 287 (Tex.App.-Dallas 2005, no pet.) (issue is moot when its judicial determination cannot have a practical legal effect on a then existing controversy). Any opinion issued on a moot issue is no more than an advisory opinion. Valley Baptist Med. Ctr. v. Gonzales, 33 S.W.3d 821, 822 (Tex. 2000). And the judiciary lacks jurisdiction to issue advisory opinions. See Tex. Const. art. II, § 1.
We find that the filing of the interpleader and deposit of the escrowed funds into the registry of the court by agreed order have rendered moot Brent's request that we review, under rule 24.4, the trial court's March 20 order. Without reaching its merits, we dismiss Brent's motion and vacate the temporary stay of enforcement.
We express no opinion on the effect, if any, of the April 10 order on the finality of the January 25 judgment.