Caprock Investment Corp. v. Montgomery First Corp. and Elton Montgomery--Appeal from 29th District Court of Palo Pinto County

Opinion filed November 17, 2005

In The

Eleventh Court of Appeals

__________

   No. 11-04-00291-CV

__________

   CAPROCK INVESTMENT CORP., Appellant

V.

MONTGOMERY FIRST CORP. AND ELTON MONTGOMERY, Appellees

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. 39,500

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

Montgomery First Corporation and Elton Montgomery (MFC and Montgomery) brought a suit to quiet title against Caprock Investment Corp. (Caprock). On December 29, 2003, the trial court entered final judgment against Caprock. In the judgment, the trial court awarded attorney=s fees to MFC and Montgomery in the amount of $28,500. Caprock appealed the judgment. While the appeal was pending, a writ of execution was issued directing any sheriff or constable to seize and sell Caprock=s non-exempt property in satisfaction of the judgment. The writ of execution was returned nulla bona.[1]

Caprock owns a promissory note in the principal amount of $180,000 and is attempting to enforce this note against MFC and Montgomery. To satisfy its judgment for attorney=s fees against Caprock, MFC and Montgomery filed a motion for turnover relief seeking to obtain the promissory note and all causes of action related to the note. On November 12, 2004, the trial court granted the motion and ordered the sheriff to take possession of the note. This appeal followed. We vacate the order of the trial court.

In Caprock Investment Corp. v. Montgomery First Corp. and Elton Montgomery, No. 11-04-00097-CV, issued the same day as this opinion, this court reversed the trial court=s judgment awarding attorney=s fees to MFC and Montgomery. Because MFC and Montgomery no longer have that judgment against Caprock, the turnover order of November 12, 2004, is vacated.[2]

JIM R. WRIGHT

CHIEF JUSTICE

November 17, 2005

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of: Wright, C.J., and

McCall, J., and McCloud, S.J.[3]

[1]The term nulla bona refers to a form of return by a sheriff or constable upon an execution when a judgment debtor has no seizable property within the jurisdiction.

[2]We note that the trial court did not have the benefit of our opinion in Cause No. 11-04-00097-CV when it issued its turnover order.

[3]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.