Opinion
No. 04-20-00214-CV
09-09-2020
John E. VOGT and Nelda L. Vogt, Appellants v. MARIN REAL ESTATE PARTNERS. L.P. ET AL, Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 06-150
Honorable Solomon Casseb, III, Judge Presiding
ORDER
Appellee Derra Edwards has filed a motion to dismiss this appeal for lack of jurisdiction. Appellants John E. Vogt and Nelda L. Vogt have filed an amended notice of appeal stating that they intend to appeal from the trial court's post-judgment "Order Granting Defendant's Motion for Release of Plaintiffs' Judgment Against Defendant Derra Edwards and Release, Cancellation, and Removal of the Lis Pendens on the Real Property and Improvements of Derra Edwards," which was signed by the trial court on March 11, 2020. Edwards argues that this March 11, 2020 order by the trial court is not a final judgment or an appealable interlocutory order.
After a jury trial, the final judgment in this case was signed on April 23, 2010. Edwards was one of several defendants subject to the final judgment. The final judgment ordered the defendants to remove all encroachments on the Vogts' twenty-foot easement and permanently enjoined the defendants "after the encroachments are removed . . . from building, constructing, or completing any structure on or making any alterations to the easement that is inconsistent with, interferes with, or obstructs the Vogts' full use and enjoyment of the easement and their right to ingress and egress." The final judgment further awarded the Vogts monetary damages, including attorney's fees. Finally, the final judgment ordered that the defendants take nothing on their counterclaims against the Vogts.
Nine years later, Edwards filed a motion requesting that the trial court release her from the final judgment, arguing that she had substantially complied with the judgment by removing all encroachments except for a conduit wire that posed no interference with the Vogts' use of the easement. The Vogts responded that the trial court could not release Edwards when she was not in compliance with the easement and that a survey showed she is encroaching on the easement. On March 11, 2020, the trial court granted Edwards's motion, finding that the damages awarded to the Vogts in the final judgment had been fully paid and that "all requirements under the mandatory injunction have been remedied by Plaintiff [sic] to the satisfaction of the Court." The trial court therefore ordered that the final judgment against Edwards was released and the lis pendens was "[r]eleased, [c]ancelled, and [r]emoved."
It appears this reference to "Plaintiff" is a typographical error.
In her motion to dismiss for lack of jurisdiction, Edwards argues that "[m]ost post-judgment orders made to carry into effect or enforce a judgment are not appealable because these orders are not themselves a final judgment or an order for which an appeal is statutorily authorized." Sunnyland Dev., Inc. v. Shawn Ibrahim, Inc., 597 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2020, no pet.). There is conflicting authority regarding whether post-judgment orders are appealable or whether challenges to the order should instead be brought through a mandamus proceeding. For example, the Fourteenth Court of Appeals has held that post-judgment orders made for the purpose of enforcing or carrying into effect a prior judgment are not subject to appeal because they are not final judgments. See Kelly v. Wiggins, 466 S.W.3d 324, 328 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Instead, the court stated that such challenges should be brought through a mandamus proceeding. Id. In contrast, the Dallas Court of Appeals has held that "[p]ost-judgment orders embodying awards to claimants or enforcing the court's judgment itself are appealable orders; they function like judgments." Cook v. Stallcup, 170 S.W.3d 916, 920 (Tex. App.—Dallas 2005, no pet.).
We note that in her motion to dismiss, Edwards claims that in a previous appeal involving the same parties, Appeal No. 04-15-00636-CV, this court "was clear that [a different post-judgment] order is not appealable." In fact, in Appeal No. 04-15-00636-CV, this court noted the contrary authority from the Fourteenth Court of Appeals and the Dallas Court of Appeals cited above and asked the parties to show cause why this court had jurisdiction over the appeal. This court never decided that issue, however, as the appellants filed a motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.1(a). See Vogt v. Marin Real Estate Partners, No. 04-15-00636-CV, 2016 WL 320345, at *1 (Tex. App.—San Antonio Jan. 27, 2016, no pet.). Thus, this court never made a determination regarding the jurisdictional issue.
As noted, the Fourteenth Court of Appeals has held it has no jurisdiction over an appeal from an order enforcing a judgment; however, it has held that it has jurisdiction "to hear an appeal of a trial court's ruling on a motion to modify or dissolve a permanent injunction based upon allegations of changed circumstances." Schuring v. Fosters Mill Vill. Cmty. Ass'n, 396 S.W.3d 73, 75-76 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); see also Rose v. Bonvino, No. 05-14-00702-CV, 2015 WL 4736837, at *2-3 (Tex. App.—Dallas Aug. 11, 2015, pet. denied) (reviewing on appeal the issue of whether the trial court modified its permanent injunction without a showing of changed circumstances). In reviewing the pleadings at issue in this appeal, it appears that in substance, Edwards was arguing to the trial court that the permanent injunction should be modified because of changed circumstances. This court would have jurisdiction over such an appeal. See Schuring, 396 S.W.3d at 75-76; Rose, 2015 WL 4736837, at *2-3.
It is unclear at this time whether this court has jurisdiction over this appeal or whether the challenge to the trial court's order should be brought in a mandamus proceeding. What is clear, however, is that the Vogts may challenge this order; the question is simply which procedural vehicle is proper. In CMH Homes v. Perez, 340 S.W.3d 444, 453 (Tex. 2011), the supreme court explained that "Texas policy as 'embodied in our appellate rules ... disfavors disposing of appeals based upon harmless procedural defects.'" Id. (quoting Higgins v. Randall Cnty. Sheriff's Office, 257 S.W.3d 684, 688 (Tex. 2008)). Thus, the supreme court explained that when there is a question of appellate jurisdiction, the appellant may request that the appeal also be treated as a petition for writ of mandamus. See id. at 453-54.
Therefore, we carry Edwards's motion to dismiss with the appeal.
/s/_________
Liza A. Rodriguez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 9th day of September, 2020.
/s/_________
MICHAEL A. CRUZ, Clerk of Court