D. R. Beeler and Beverly Ann Beeler v. William Cruse Fuqua--Appeal from 88th District Court of Hardin County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-07-358 CV
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D.R. BEELER AND BEVERLY ANN BEELER, Appellants
V.
WILLIAM CRUSE FUQUA, Appellee
On Appeal from the 88th District Court
Hardin County, Texas
Trial Cause No. 41569
MEMORANDUM OPINION
Appellants D. R. Beeler and Beverly Ann Beeler filed a motion for extension of time to file notice of appeal. We questioned our jurisdiction. The Beelers filed an amended motion. Because the signing of the June 6, 2007, order is not an appealable event, we deny the motion for extension of time to file notice of appeal. The appellee requests that we award attorney's fees to him because the Beelers filed a frivolous appeal, and that this Court "fine the appellee [Beelers] $10,000 for a frivolous appeal for vexatious purposes." See Tex. R. App. P. 45. We deny that request and dismiss the appeal.

The trial court signed its judgment in this case on June 11, 2003. Among other things, that judgment quieted title in William Cruse Fuqua, enjoined the Beelers from going onto the land in controversy, and ordered the release of certain funds on deposit in the court's registry to Fuqua. (1) The Beelers appealed, and this Court affirmed the trial court's judgment. See Beeler v. Fuqua, No. 09-03-334 CV, 2004 WL 1902535 (Tex. App.--Beaumont August 26, 2004, pet. denied) (mem. op.). Our mandate of affirmance issued June 8, 2005. Because we affirmed the trial court's final judgment, the trial court had the power to enforce the judgment after our mandate issued. See Tex. R. App. P. 51.1(b)(1). The trial court ordered the district clerk to release the funds to Fuqua's heir, Betsy Hanchey. The trial court released the funds in its registry to Hanchey on July 18, 2005.

On September 20, 2004, Fuqua's executor and heir petitioned to hold the Beelers in contempt for violating the injunctive portion of the judgment. On May 3, 2005, Fuqua filed a motion that sought $2,473.00 in attorney's fees and expenses based upon the violation of the injunction. On May 25, 2005, the Beelers filed a "Motion for Rehearing" of the trial court's order to release the funds to Hanchey. In the motion, the Beelers argued that they "claim ownership" of the 5/6 undivided interest that was not adjudicated in the trial court's original judgment, and that Fuqua's estate should receive only 1/6 of the money deposited with the trial court. Fuqua filed a response that included a request for assessment of $2,240.00 in attorney's fees as sanctions for pursuing a frivolous motion for rehearing. The Beelers' attorney missed a hearing and filed a "Motion for a New Hearing." On May 21, 2007, the trial court conducted a hearing. In an order signed June 6, 2007, the trial court denied the Beelers' motion for rehearing, granted Fuqua's motion for attorney's fees, and ordered the Beelers to pay $7,500.00 in attorney's fees "only if the Beelers appeal this ruling and the appeal is lost." The trial court found that the Beelers have no claim on the funds deposited in the court's registry, and that all of the funds were ordered to be distributed to Fuqua.

When an appellate court affirms a trial court's judgment, the trial court has no jurisdiction to review or interpret the appellate court's judgment, but must observe and carry out the mandate. Denton County v. Tarrant County, 139 S.W.3d 22, 23 (Tex. App.--Fort Worth 2004, pet. denied). The trial court's order to pay the funds in the court's registry is nothing more than the satisfaction of the trial court's ministerial duty to give effect to the mandate. See id. at 24. Its order is not reviewable in a new appeal. See id. The trial court does not have the authority to make a new order that is inconsistent with the original judgment, materially changes a substantial adjudicated portion of the judgment, or exceeds the trial court's inherent authority to enforce the judgment. In re Tarrant County, No. 2-05-274 CV, 2005 WL 3436582, at*2-*3 (Tex. App.--Fort Worth Dec. 12, 2005, orig. proceeding [mand. denied]) (mem. op.). If the trial court exceeds the mandate, the order is void and relief may be obtained through an original proceeding in the appellate court. Id. at *3-*4; see also Custom Corporates, Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 839 (Tex. App.--Houston [14th Dist.] 2006, no pet.). In cases in which a party appeals from the entry of a void order, the appellate court vacates the void order and dismisses the appeal. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); Custom Corporates, Inc., 207 S.W.3d at 837; Comm'n for Lawyer Discipline v. DeNisco, 132 S.W.3d 211, 212-13 (Tex. App.--Houston [14th Dist.] 2004, no pet.). No appeal lies from a post-judgment order that is within the trial court's enforcement powers, not inconsistent with the original judgment, and does not materially change the substantive portions of the judgment. See Pope v. Gaffney, No. 04-05-413 CV, 2006 WL 1684661, at *2 (Tex. App.--San Antonio Jun. 21, 2006, pet. denied) (mem. op.).

In this case, the trial court ordered funds on deposit in the registry of the court to be disbursed to the party awarded those funds in the judgment. That order, issued in 2005, was not inconsistent with the judgment. In 2007, the trial court denied the motion for rehearing and also conditionally ordered the Beelers to pay $7,500.00 in attorney's fees as a sanction for pursuing a frivolous claim. That order related to enforcement of the judgment and did not materially change the substantive provisions of the judgment. The trial court's order of June 6, 2007, was not an appealable order.

The Beelers did not file a notice of appeal within fifteen days of the signing of an appealable order. We deny the motion for extension of time to file notice of appeal. We dismiss the appeal for lack of jurisdiction. We deny the appellee's motion for damages.

APPEAL DISMISSED.

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DAVID GAULTNEY

Justice

 

Opinion Delivered October 11, 2007

 

Before Gaultney, Kreger, and Horton, JJ.

1. William Cruse Fuqua died during the course of this litigation. Because Fuqua died while the case was ongoing, formal substitution was not required. See Tex. R. App. P. 7.1(a)(1). In this opinion, we refer to Fuqua regardless of whether the active party at the time was William Cruse Fuqua, the representative of the estate, or the beneficiary of the estate.