                                                                                            ACCEPTED
                                                                                        01-15-00760-CV
                                                                             FIRST COURT OF APPEALS
                                                                                     HOUSTON, TEXAS
                                                                                   11/5/2015 4:09:03 PM
                                                                                  CHRISTOPHER PRINE
                                                                                                 CLERK


                     No. 01-15-00760-CV
             ___________________________________________ FILED IN
                                                  1st COURT OF APPEALS
                              In The                  HOUSTON, TEXAS
                      COURT OF APPEALS            11/5/2015 4:09:03 PM
         FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
                                                  CHRISTOPHER A. PRINE
           ___________________________________________ Clerk

CAROLYN P. AUSTIN,
                                                                      Appellant,
                                      v.

COFACE SEGURO DE CREDITO MEXICO, S.A. DE C.V.,
as attorney by endorsement for Banco Monex, S.A.,
Institucion De Banco Multiple, and Monex Grupo Financiero,
                                                            Appellee.
      ________________________________________________________

     Appeal From the 270th Judicial District Court of Harris County, Texas
                      Trial Court Case No. 2014-45802
     ________________________________________________________

   EMERGENCY MOTION OF APPELLANT CAROLYN P. AUSTIN
 TO PROHIBIT SALE OF THE PROPERTY AT ISSUE IN THIS APPEAL
        SO AS TO PRESERVE THIS COURT’S JURISDICTION,
        WITH REQUEST FOR EXPEDITED CONSIDERATION
     ________________________________________________________

 John A. Koepke
 Texas State Bar No. 11653200
 Scott M. McElhaney
 Texas State Bar No. 00784555                   Jennifer A. Bryant
 JACKSON WALKER L.L.P.                          Texas State Bar No. 03276600
 2323 Ross Ave., Ste. 600                       JACKSON WALKER L.L.P.
 Dallas, TX 75201                               1401 McKinney St., Ste. 1900
 Telephone: (214) 953-6000                      Houston, Texas 77010
 Facsimile: (214) 953-5822                      Telephone: (713) 752-4200
 E-mail: smcelhaney@jw.com                      Facsimile: (713) 752-4221
 E-mail: jkoepke@jw.com                         E-mail: jbryant@jw.com

                ATTORNEYS FOR CAROLYN P. AUSTIN
                  IDENTITY OF PARTIES AND COUNSEL
      Pursuant to Texas Rule of Appellate Procedure 38, Appellant Carolyn P.

Austin provides the following list of all parties to the trial court’s judgment, and

the names and addresses of all trial and appellate counsel:

Plaintiff/Appellant:                             Counsel for Plaintiff/Appellant:

CAROLYN P. AUSTIN                                John A. Koepke
                                                 Scott M. McElhaney
                                                 Jackson Walker LLP
                                                 2323 Ross Ave., Ste. 600
                                                 Dallas, Texas 75201

                                                 Jennifer A. Bryant
                                                 Jackson Walker LLP
                                                 1401 McKinney St., Ste. 1900
                                                 Houston, Texas 77010

                                                 Scott R. Breitenwischer
                                                 Jordan F. Kaplan
                                                 Royston, Rayzor, Vickery &
                                                       Williams, LLP
                                                 1600 Smith St., Ste. 5000
                                                 Houston, TX 77002

Defendant/Appellee:                              Counsel for Defendant/Appellee:

COFACE SEGURO DE                                 David Lopez
CREDITO MEXICO, S.A. DE C.V.,                    Leslie Sara Hyman
as attorney by endorsement for                   Lance Hunter “Luke” Beshara
Banco Monex, S.A., Institucion                   Ryan C. Reed
De Banco Multiple, and Monex                     Pulman, Cappuccio, Pullen,
Grupo Financiero                                       Benson & Jones, LLP
                                                 2161 NW Military Hwy, Ste. 400
                                                 San Antonio, Texas 78213

                                                 (con’t)


                                        - ii -
          Peter M. Kelly
          Kelly Durham & Pittard, LLP
          1005 Heights Blvd.
          Houston, Texas 88008
          pkelly@texasappeals.com




- iii -
                                       TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ..........................................................................................iv
INDEX OF AUTHORITIES.....................................................................................vi

STATEMENT OF THE CASE ............................................................................... vii

STATEMENT OF JURISDICTION....................................................................... vii
APPELLATE RECORD FOR THE MOTION ...................................................... vii

INTRODUCTION AND SUMMARY ...................................................................... 1
STATEMENT OF FACTS ........................................................................................ 2

        A.      Austin’s Home Purchased From “Ojeda,” Coface’s Bexar
                County Judgment Against “Miranda,” and Coface’s Abstract of
                Judgment. .............................................................................................. 2

        B.      In 2014, Coface Obtains an Ex Parte Execution Order From a
                Bexar County District Court Regarding Austin’s Property, and
                Austin Files The Suit Underlying This Appeal in Harris
                County. .................................................................................................. 3

        C.      The Harris County District Court Enters an Order Allowing
                Austin to Suspend the Effect of the Declaratory Judgment Upon
                Posting a Bond....................................................................................... 5

        D.      In 2015, Coface Returns to Bexar County to Obtain a New
                Execution Order to Evade the Harris County Order Allowing
                Austin to Suspend The Effect of the Declaratory Judgment
                Pending Her Appeal. ............................................................................. 6

        E.      Coface Has Refused Austin’s Requests to Halt the Sale of Her
                Home During the Pendency of This Appeal, Even Though
                Coface is Secured in the Amount of the Rental Value of the
                House During an Appeal. ...................................................................... 6



                                                        - iv -
ARGUMENT ............................................................................................................. 8

         A.        This Court Has the Authority to Protect
                   Its Jurisdiction to Decide This Appeal. ................................................. 8

         B.        This Court Should Halt the Sale of Austin’s Property and
                   Prevent Coface From Further Attempting to Have the Property
                   Sold During Austin’s Appeal. ............................................................. 12

         C.        Temporarily Preventing the Sale of Austin’s Property Would
                   Not Harm Coface, Because Austin’s Bond Secures Coface
                   From Harm. ......................................................................................... 14

         D.        Response to Coface’s Anticipated Arguments.................................... 14

PRAYER .................................................................................................................. 17
CERTIFICATE OF CONFERENCE....................................................................... 19
CERTIFICATE OF SERVICE ................................................................................ 19

CERTIFICATE OF COMPLIANCE ....................................................................... 20




                                                          -v-
                                       INDEX OF AUTHORITIES
                                                                                                               Page(s)
CASES
Carpenter v. Hausman,
  601 S.W.2d 88 (Tex. Civ. App. –San Antonio 1980, no writ) ...............10, 12, 15

Dallas Morning News, Inc. v. Fifth Court of Appeals,
  842 S.W.2d 655 (Tex. 1992) ................................................................................ 9

Dawson v. First Nat’l Bank of Troup,
  417 S.W.2d 652 (Tex. Civ. App. – Tyler 1967, no writ) ...................9, 12, 14, 15

In re Jim Walter Homes, Inc.,
   207 S.W.3d 888 (Tex. App. – Houston [14th Dist.] 2006, no pet.) ................... 17

McIntire v. Sawicki,
  353 S.W.2d 952 (Tex. Civ. App. – Eastland 1962, writ ref’d n.r.e.) ................. 16

Nance v. Robertson,
  588 S.W.2d 802 (Tex. Civ. App. – Houston [14th Dist.] 1979,
  writ ref’d n.r.e.) ................................................................................................... 10

Pace v. McEwen,
  604 S.W.2d 231 (Tex. Civ. App. – San Antonio 1980, no writ) .................passim

Parsons v. Galveston Co. Employee’s Credit Union,
  576 S.W.2d 99 (Tex. Civ. App. – Houston [1st Dist.] 1978, no writ) ................. 9

Pendleton Green Associates v. Anchor Sav. Bank,
  520 S.W.2d 579 (Tex. Civ. App. – Corpus Christi 1975,
  orig. proceeding) .....................................................................................10, 12, 15
Riverdrive Mall, Inc. v. Larwin Mortg. Investors,
   515 S.W.2d 2 (Tex. Civ. App. – San Antonio 1974,
   writ ref’d n.r.e.) .................................................................................10, 12, 14, 15

STATUTES
Texas Government Code § 22.221(a) ..............................................................2, 8, 12



                                                         - vi -
                          STATEMENT OF THE CASE

      Nature of the Case: This case concerns whether an abstract of judgment that

Defendant-Appellee Coface Seguro de Credito Mexico, S.A. de C.V. (“Coface”)

filed with the Harris County Clerk created a judgment lien that attached to real

property that Plaintiff-Appellant Carolyn P. Austin (“Austin”) now owns.

      Trial Court: A Harris County District Court granted a motion for partial

summary judgment on Coface’s claim for a declaratory judgment and held (a) that

Coface’s abstract of judgment created a lien on what is now Austin’s property and

(b) that when Austin later purchased the property, she acquired it subject to

Coface’s judgment lien. (Motion R. Tab I). On August 21, 2015, the trial court

entered a Final Judgment making its declaration final. (Motion R. Tab J).

                       STATEMENT OF JURISDICTION
      On September 3, 2015, Austin timely filed a notice of appeal. (Motion R.

Tab K). This Court thus has jurisdiction over this appeal.

                 APPELLATE RECORD FOR THE MOTION
      Under Texas Rule of Appellate Procedure 10.2, Austin is filing along with

this Motion a separate record that attaches certified copies of pleadings and other

pertinent items, as well as affidavits for other facts, to serve as the record on this

Motion. The record for this Motion is cited as “Motion R. Tab __.”




                                        - vii -
                      INTRODUCTION AND SUMMARY

      The fundamental issue in this case is whether a home in Houston that Austin

now owns was subject to a judgment lien before Austin purchased the property—in

other words, whether a judgment lien was created when Coface filed an abstract of

judgment with the Harris County Clerk against its judgment debtor. The 270th

Judicial District Court of Harris County, Texas, Judge Brent Gamble presiding,

decided the issue and entered a declaratory judgment holding that Coface’s filing

of its abstract created a judgment lien on the home Austin later purchased. Because

that ruling conflicts with Texas law, Austin has perfected an appeal to this Court.

      However, as explained below, the procedural history of Coface’s assertions

that it has a judgment lien on Austin’s property is unusual and has led to the need

to seek emergency relief from this Court to preserve the Court’s jurisdiction.

      The Harris County judgment that is now on appeal before this Court is the

only ruling that has adjudicated Coface’s and Austin’s competing claims regarding

whether there is a valid judgment lien on Austin’s property. Nonetheless, Coface

has (a) obtained from the Bexar County District Clerk a writ of execution requiring

a constable’s sale of Austin’s home and (b) delivered that writ to a Harris County

constable, who has posted Austin’s home for sale on December 1, 2015.

      If the constable forcibly sells Austin’s home, the sale would destroy the

subject matter of this litigation—Austin’s ownership rights in her home. This


                                        -1-
Court has the authority under Texas Government Code § 22.221(a) to enter orders

to preserve its jurisdiction to decide this appeal. Appellate courts routinely use that

power to temporarily bar parties from forcing the sale of property that is the

subject of an appeal. Austin thus presents this Emergency Motion to ask this Court

to prohibit the forced sale of her home during the pendency of this appeal so as to

preserve the subject matter of the case and protect this Court’s jurisdiction to

decide this appeal. Additionally, given the pending constable sale date, Austin

requests that this Court grant immediate interim relief prohibiting the December

1, 2015 sale and otherwise give expedited consideration to this Motion.

                            STATEMENT OF FACTS

A.    Austin’s Home Purchased From “Ojeda,” Coface’s Bexar County
      Judgment Against “Miranda,” and Coface’s Abstract of Judgment.
      1.     In July of 2013, Austin purchased a house located at 3614 St. Tropez

Way in Houston, Harris County, Texas from—as the Warranty Deed recites and as

the seller’s name was indexed in the Harris County real property records—“Rafael

Ojeda.” See General Warranty Deed (Motion R. Tab A, p.1) (Austin’s Traditional

Motion for Summary Judgment, Ex. A); Harris County Real Property Records

Search for Ojeda (Motion R. Tab B, p.3) (Id., Ex. D).

      2.     Earlier, in April of 2013, Coface filed in a Bexar County District

Court a foreign judgment that it had obtained from a court in Mexico against

“Rafael Augusto Martin Ojeda Miranda.” On May 6, 2013, Coface prepared and

                                         -2-
filed with the Harris County Clerk an abstract of judgment with the last name of

the debtor listed as “Miranda.” See Abstract of Judgment (Motion R. Tab C, p.1)

(Coface’s Response to Plaintiff’s Traditional Motion for Summary Judgment,

Ex.2). The Harris County Clerk then indexed that abstract in its real property

records against the last name “Mirandas.” See Stanart Aff. ¶¶ 8-9 & Ex. B (Motion

R. Tab D, pp.3-4 & 8) (Coface’s Response to Plaintiff’s Traditional Motion for

Summary Judgment, Ex.3).

      3.    It turns out that “Ojeda” and “Miranda” are the same person. That fact

gives rise to the dispute between Coface and Austin. Coface claims its abstract

indexed against “Mirandas” created a judgement lien on the property “Ojeda” sold

to Austin, even though the abstract was not indexed in the Harris County real

property records against “Ojeda.” Austin disagrees.

B.    In 2014, Coface Obtains an Ex Parte Execution Order From a Bexar
      County District Court Regarding Austin’s Property, and Austin Files
      The Suit Underlying This Appeal in Harris County.
      4.    Coface learned that Austin had purchased the home at issue. Coface

sued Austin in another Bexar County district court, claiming that Austin acquired

the home through a fraudulent transfer. Coface deposed Austin in that suit (where

she was represented by counsel) on March 19, 2014. See Deposition of Carolyn

Austin (Motion R. Tab E). Coface then non-suited that case without seeking any

determination that Coface had a valid judgment lien on Austin’s home.


                                       -3-
      5.     Without giving Austin any notice whatsoever, Coface then filed a July

2014 ex parte motion with the judge in the Bexar County District Court case

associated with Coface’s registration of its foreign judgment against “Miranda.” In

that motion, Coface represented that it had a judgment lien on what was then

Austin’s property and sought an order for the issuance of a writ of execution for the

sale of what is still Austin’s home. See Motion for Order of Sale (Motion R. Tab

F, pp. 7-9). Although Austin did not have notice or an opportunity to be heard, a

Bexar County District judge granted Coface’s motion, see Order on Motion for

Order of Sale (Id. at pp. 46-47), and Coface obtained a writ of execution.

      6.     In August of 2014, Austin learned that Coface was attempting to have

her property sold due to the 2014 Bexar County execution order. She thus filed the

suit that underlies this appeal in Harris County, Texas. See Plaintiff’s Verified

Original Petition (Motion R. Tab G) (filed August 8, 2014).

      7.     Shortly after Austin filed this case, Judge Gamble, the judge of the

Harris County trial court, entered an order restraining Coface from having Austin’s

property sold during the case. See Coface’s Motion to Enter Final Judgment

(Motion R. Tab H, pp. 2-3) (noting same).

      8.     In the Harris County case, Coface filed a counterclaim for declaratory

relief, seeking a ruling that it has a valid judgment lien on what is now Austin’s

property. Judge Gamble ultimately agreed with Coface. Through a final


                                        -4-
Declaratory Judgment signed August 21, 2015, Judge Gamble awarded Coface

relief, declaring that (a) Coface’s abstract created a judgment lien on what is now

Austin’s property and (b) when Austin purchased the property, she acquired it

subject to that lien. See Order Granting Coface’s Motion for Partial Summary

Judgment (Motion R. Tab I); Final Judgment (Motion R. Tab J).

      9.    The Harris County District Court’s Declaratory Judgment is the only

adjudication that holds that Coface’s abstract indexed against “Mirandas” created a

lien on the property Austin acquired from “Ojeda.”

      10.   Austin timely filed a notice of appeal of the final Declaratory

Judgment and thus perfected her appeal. See Notice of Appeal (Motion R. Tab K).

C.    The Harris County District Court Enters an Order Allowing Austin to
      Suspend the Effect of the Declaratory Judgment Upon Posting a Bond.
      11.   On September 18, 2015, after a hearing on the matter, Judge Gamble

entered an order in the Harris County suit underlying this appeal providing that

Austin could suspend enforcement of the Declaratory Judgment by posting a bond

in the amount of $212,000.00—what Judge Gamble found to be the rental income

the property could produce during an appeal. See Order on Motion to Set Amount

of Security to Suspend Enforcement of Judgment (Motion R. Tab L).

      12.   On September 30, 2015, Austin filed with the Harris County District

Clerk a Corrected Supersedeas Bond, and the Clerk approved that bond. See

Corrected Supersedeas Bond (Motion R. Tab M). Through the Bond, Coface is

                                       -5-
entitled—if it prevails on appeal—to collect $212,000.00 for the value of the

property interest’s rent or revenue during the pendency of the appeal. Id.

D.    In 2015, Coface Returns to Bexar County to Obtain a New Execution
      Order to Evade the Harris County Order Allowing Austin to Suspend
      The Effect of the Declaratory Judgment Pending Her Appeal.
      13.    When Judge Gamble entered final judgment in the Harris County

case, he lifted (as he had to) the order he had entered prohibiting Coface from

causing a constable to sell Austin’s home during the pendency of the case in the

trial court. See Final Judgment (Motion R. Tab J, p.2).

      14.    Coface then returned to Bexar County and—using the same July 2014

ex parte order that it had obtained from a Bexar County district judge in the case

involving Coface’s registration of a foreign judgment against Miranda alone—

obtained a September 8, 2015 execution order from the Bexar County District

Clerk that again requires a constable’s sale of what is now Austin’s home. See

Request for Abstract of Judgment/Writ of Execution (Motion R. Tab N) &

Execution Order (Motion R. Tab O) (Coface’s Response to Plaintiff’s Motion to

Set Amount of Security, Ex. A).

E.    Coface Has Refused Austin’s Requests to Halt the Sale of Her Home
      During the Pendency of This Appeal, Even Though Coface is Secured in
      the Amount of the Rental Value of the House During an Appeal.
      15.    Although she has posted a bond promising to pay Coface $212,000.00

if Coface prevails on this appeal, Coface has not ceased its efforts to have a Harris



                                        -6-
County constable forcibly sell Austin’s home, and Austin has not been able to

suspend enforcement of the September 2015 Bexar County execution order.

      16.    Coface delivered the September 8, 2015 Bexar County execution

order to the Harris County Constable for Precinct 5. When Coface did so, it

included a copy of the Harris County Declaratory Judgment. See District Court

Affidavit of Carolyn P. Austin at ¶ 2 & Ex. 1, pp.45-49 (Motion R. Tab P, pp. 1 &

46-50). Coface initially had the constable set a forced sale of Austin’s home for

November 3, 2015. Id. at Ex. 1, p.1 (Motion R. Tab P, p.2).

      17.    Because the Bexar County execution order was trying to enforce a

judgment lien on Austin’s property (after all, Coface sent the Harris County

Declaratory Judgment to the constable), and because the only adjudication that said

Coface had such a lien was the Harris County Declaratory Judgment, which Austin

has appealed, Austin initially sought to obtain a writ of supersedeas from the

Harris County District Clerk to halt the forced sale of Austin’s home. After the

Harris County District Clerk approved Austin’s bond, one of the undersigned

counsel for Austin asked the Harris County District Clerk’s office to issue a writ of

supersedeas to halt the sale, but the clerk’s office refused to do so on the grounds

that the Harris County District Clerk had not issued the execution order.

      18.    Austin then asked the Bexar County District Clerk’s office for a writ

of supersedeas to halt the sale of her home. To do so, counsel for Austin presented


                                        -7-
to the Bexar County District Clerk’s office a copy of Judge Gamble’s order

allowing Austin to suspend the Declaratory Judgment during her appeal and a

separate original version of a Corrected Supersedeas Bond. See Order & Bond

(Motion R. Tab Q, at pp. 12-13 & 14-16) (Coface’s Response to Plaintiff’s

Emergency Motion in the Harris County, Exs. 2 & 3).

      19.   The Bexar County District Clerk initially issued a writ of supersedeas,

and a November sale did not occur. Id. at p.17 (Coface’s Response, Ex. 4). Coface

filed a motion to dissolve the writ of supersedeas in the Bexar County Coface v.

Miranda case, and a Bexar County trial court judge signed an order dissolving that

writ and awarded Coface attorney’s fees as well as expenses for re-posting

Austin’s home for a forced sale. Id. at pp. 25-27 (Coface’s Response, Ex. 8).

      20.   The Harris County Constable has now scheduled the forced sale of

Austin’s property for December 1, 2015. See Affidavit of Carolyn P. Austin at ¶ 2

& Ex. A, p.1 (Motion R. Tab F, pp. 1 & 4).

                                  ARGUMENT

A.    This Court Has the Authority to Protect
      Its Jurisdiction to Decide This Appeal.
      Texas Government Code § 22.221(a) states that “[e]ach court of appeals or a

justice of a court of appeals may issue a writ of mandamus and all other writs

necessary to enforce the jurisdiction of the court.” The Supreme Court has

explained that, under this statute, a “court of appeals may issue such a writ to


                                       -8-
prevent an appeal from becoming moot.” Dallas Morning News, Inc. v. Fifth Court

of Appeals, 842 S.W.2d 655, 658 (Tex. 1992). This Court has similarly held that it

may issue orders “to preserve the subject matter pending appeal and prevent the

case from becoming moot.” Parsons v. Galveston Co. Employee’s Credit Union,

576 S.W.2d 99, 99-100 (Tex. Civ. App. – Houston [1st Dist.] 1978, no writ).

      Courts of appeals routinely use this power to temporarily bar parties from

forcing the sale of property that is the subject of an appeal in order to preserve the

subject matter of the case and protect the court’s jurisdiction to decide the appeal.

      For example, appellate courts have protected their jurisdiction by prohibiting

trustees from using deeds of trust to foreclose on real property belonging to

individuals, where those individuals have sued the trustees to restrain them from

foreclosing and the individuals have appealed trial court orders refusing to grant a

temporary injunction to halt the sale. See Dawson v. First Nat’l Bank of Troup, 417

S.W.2d 652, 653 (Tex. Civ. App. – Tyler 1967, no writ). The Dawson court noted

that “[n]o principle is better settled than that a court will protect its jurisdiction by

preserving the subject matter of the litigation in order to make its decrees

effective.” Id. Explaining that allowing a sale would “destroy the subject matter of

the appeal, and thereby prevent the effective operation of any judgment this court

might render” favorable to the individual, the court held that it could prevent such

an ultimate judgment from being “a nullity” by prohibiting a forced sale. Id.


                                          -9-
      Other courts of appeals have entered similar orders. See, e.g., Riverdrive

Mall, Inc. v. Larwin Mortg. Investors, 515 S.W.2d 2, 4 (Tex. Civ. App. – San

Antonio 1974, writ ref’d n.r.e.) (where party perfected appeal of trial court order

denying application for a temporary injunction to enjoin opposing parties from

selling property under a deed of trust executed by the first party to secure a loan

from opposing parties, court of appeals prohibited the opposing parties from

causing a sale because “an appellate court will protect its jurisdiction by preserving

the subject matter of the litigation in order to make its decrees effective”);

Pendleton Green Associates v. Anchor Sav. Bank, 520 S.W.2d 579, 581-82 (Tex.

Civ. App. – Corpus Christi 1975, orig. proceeding) (same); Carpenter v. Hausman,

601 S.W.2d 88, 89 (Tex. Civ. App. – San Antonio 1980, no writ) (same).

      Likewise, another appellate court has barred a partnership from selling an

individual partner’s interest in the partnership under a security agreement because,

if the sale were completed, the individual partner’s appeal challenging the

partnership’s authority to sell would have been moot. Nance v. Robertson, 588

S.W.2d 802, 803 (Tex. Civ. App. – Houston [14th Dist.] 1979, writ ref’d n.r.e.).

      Here, Austin seeks to temporarily prevent Coface from executing on what is

now her property so as to allow this Court to decide her appeal. Whether a writ of

supersedeas was or was not separately obtainable is of no consequence. Texas

courts recognize that they have the power to prevent the sale of a person’s property


                                        - 10 -
separate and apart from proceedings to issue a writ of supersedeas. See Pace v.

McEwen, 604 S.W.2d 231, 232 (Tex. Civ. App. – San Antonio 1980, no writ). In

Pace, McEwan obtained a money judgment against Pace in 1977 in Bexar County.

A few years after that judgment became final, McEwan sought an order allowing

him to execute on property that Pace owned in Harris County. The Bexar County

court entered a judgment in 1980 stating that Pace’s property was subject to

execution and requiring that the Harris County Sheriff sell the property. When

Pace appealed the 1980 judgment, he asked the court of appeals to stop his

property from being sold during his appeal. Id. at 232. The court granted Pace’s

request so as to preserve the efficacy of the decision it would reach, and in doing

so, rejected McEwan’s argument that Pace was not entitled to halt the sale because

he had not superseded the 1977 judgment. The court explained that the availability

of supersedeas to a litigant was distinct from the court’s power to protect the

efficacy of the decision it would reach on the appeal of the 1980 judgment, and did

not limit its power to enter orders concerning the 1980 judgment. Id. at 233.

       This Court’s authority to grant Austin relief is thus clear. This Court has the

authority to halt the sale of what is now Austin’s home, and this Court’s authority

is independent of Austin’s ability or inability to obtain relief from another source.1


1
         Because Austin’s appeal is already pending, Austin has brought this Motion under Tex.
R. App. P. 10. If the Court considers the relief Austin seeks to be another species of request for
relief, such as an ancillary matter, Austin asks that the Court consider this Motion such a request.

                                              - 11 -
B.    This Court Should Halt the Sale of Austin’s Property and Prevent
      Coface From Further Attempting to Have the Property Sold During
      Austin’s Appeal.
      The only adjudication of Austin’s claim that Coface’s abstract of judgment

did not create a valid judgement lien on her property is Judge Gamble’s Harris

County Declaratory Judgment. This Court has jurisdiction over Austin’s appeal of

that judgment, as Austin timely filed a notice of appeal of that judgment and

perfected an appeal to this Court. See Notice of Appeal (Motion R. Tab K). Texas

Government Code § 22.221(a) thus gives this Court the power to prevent the sale

of Austin’s home so as to preserve the subject matter of this case and protect this

Court’s jurisdiction to decide this appeal.

      This Court should enter an order preventing the sale of Austin’s home. If the

pending December 1, 2015 forced sale of that property is not halted, and if Coface

is not restrained from further attempting to cause the sale of Austin’s property, the

subject matter of this appeal—Austin’s ownership rights in her home—would be

destroyed and this appeal would become moot. Other Texas appellate courts have

entered such orders in similar circumstances. See Dawson, 417 S.W.2d at 653;

Riverdrive Mall, Inc., 515 S.W.2d at 4; Pendleton Green Assoc., 520 S.W.2d at

581-82; Carpenter, 601 S.W.2d at 89. This Court should too. Indeed, this case is

analogous to Pace v. McEwen, in which another appellate court halted the sale of

an appellant’s property by the appellee where the issue was also whether the


                                        - 12 -
appellant’s property was subject to execution and the appellant could not supersede

the underlying money judgment. 604 S.W.2d at 232.2

       Temporarily preventing the sale of Austin’s home is also not unprecedented

in this very case. When this case was initially filed, the Harris County district court

enjoined Coface from proceeding with a July 2014 execution in order to prevent

Coface from interfering with the adjudication of Austin’s claim that Coface’s

abstract did not create a lien on her property. See Coface’s Motion to Enter Final

Judgment (Motion R. Tab H, pp. 2-3) (noting same). This Court should simply

reinstate that injunction for the duration of Austin’s appeal.

       Coface’s purpose in seeking to force a sale of Austin’s property appears to

be to obstruct Austin’s right to appeal the only adjudication of the parties’ dispute

as to whether a judgment lien exists on Austin’s home. Coface obtained the present

September 2015 execution from the Bexar County District Clerk in the Bexar

County Coface v. Miranda case even though such an execution does not enforce

the Bexar County judgment against Miranda, it enforces a judgment lien on

Austin’s property, which only the Harris County court has adjudicated.




2
       In Pace, the appellant who was appealing the 1980 judgment allowing execution was also
the judgment debtor in the underlying 1977 money judgment, but that person had not (and, given
the passage of time, could not) supersede the underlying 1997 judgment. Here, Austin was not
named as a party in the underlying Bexar County Coface v. Miranda suit under which Coface
obtained the present September 8, 2015 execution order. This distinction shows that relief from
this Court is even more appropriate, since Austin has been unable to obtain a writ of supersedeas.

                                             - 13 -
C.    Temporarily Preventing the Sale of Austin’s Property Would Not
      Harm Coface, Because Austin’s Bond Secures Coface From Harm.
      Entering an order temporarily preventing the sale of Austin’s home would

not harm Coface. In the underlying Harris Court case, Judge Gamble ordered that

Austin could suspend enforcement of the Declaratory Judgment by posting a bond

in the amount of $212,000.00—what Judge Gamble found to be the rental income

the property could produce during an appeal. See Order on Motion to Set Amount

of Security to Suspend Enforcement of Judgment (Motion R. Tab L). On

September 30, 2015, Austin filed, and the Harris County District Clerk approved,

such a bond. See Corrected Supersedeas Bond (Motion R. Tab M).

      Although some courts have held that no security is required when an

appellate court enters an order to protect its jurisdiction, see Dawson, 417 S.W.2d

at 654, other courts have held that they may require security for such an order, see

Riverdrive Mall, Inc., 515 S.W.2d at 4. Even if security is required, Austin has

already provided it. To be clear: Austin’s Harris County Corrected Supersedeas

Bond can be used as security for an order of this Court to suspend sale of Austin’s

home during appellate proceedings.

D.    Response to Coface’s Anticipated Arguments.
      Coface may contend that this Court should not prevent the forced sale of

Austin’s home. Based on prior arguments Coface has made, Austin can briefly

respond to certain arguments Coface may raise.


                                       - 14 -
      First, this Court should reject any argument that the Court should not halt

the force sale of Austin’s home because she does not have a probable right to relief

on the merits of her appeal.

      Initially, courts that have issued orders preventing the sale of property that is

the subject of an appeal have issued those orders without evaluating the appellant’s

chances of success on appeal. Dawson, 417 S.W.2d at 653; Riverdrive Mall, Inc.,

515 S.W.2d at 4; Pendleton Green Assoc., 520 S.W.2d at 581-82; Carpenter, 601

S.W.2d at 89. They do so because an appellate court enters an order preventing the

destruction of the subject matter of an appeal “only for [the] limited purpose [of

protecting its jurisdiction] and not for the purpose of protecting a litigant, [and an

appellate court’s] exercise of that power in no degree depends upon the rights of a

litigant or the remedies available to him.” Pace, 604 S.W.2d at 233.

      Moreover, even if a consideration of Austin’s chances of success on appeal

were relevant, Austin will likely prevail. The issue in this appeal is whether

Coface’s Harris County abstract of judgment that was indexed against “Mirandas”

created a judgement lien on the property that Austin purchased from “Ojeda”—as

the Warranty Deed recites and as the seller’s name was indexed in the Harris

County real property records. Although Judge Gamble disagreed, Texas courts

have repeatedly held that an abstract indexed in a county’s real property records

against one name does not create a judgment lien on property held (as indexed in


                                        - 15 -
those records) under a different name. See, e.g., McIntire v. Sawicki, 353 S.W.2d

952, 953 (Tex. Civ. App. – Eastland 1962, writ ref’d n.r.e.) (abstract of judgment

indexed against “Munger” did not create a lien on property held under the name

“Monger” even though Munger and Monger were the same person).

      Second, Coface may suggest that this Court should not protect its

jurisdiction on the grounds that Austin has unclean hands because counsel for

Austin requested and obtained a writ of supersedeas from the Bexar County

District Clerk which, Coface contends, should not have been issued, and which

caused a delay in the schedule of the forced sale of Austin’s home from November

to December of 2015. This Court should reject any such argument.

      While Austin would deny any suggestion that she has unclean hands, this

Court need not delve into such an issue. First, as noted above, appellate courts

enter orders to prevent the destruction of the subject matter of an appeal in order to

preserve their own jurisdiction to decide a case and “not for the purpose of

protecting a litigant.” Pace, 604 S.W.2d at 233. Because a court’s “exercise of that

power in no degree depends upon the rights of a litigant or the remedies available

to him,” id., an argument that Austin has unclean hands does not deprive this Court

of its power to protect its jurisdiction. Second, courts do not apply the equitable

doctrine of unclean hands when an alleged victim has “not been seriously harmed

and the wrong complained of can be corrected without applying the doctrine.” In


                                        - 16 -
re Jim Walter Homes, Inc., 207 S.W.3d 888, 899 (Tex. App. – Houston [14th Dist.]

2006, no pet.). While Coface may complain that Austin has unclean hands arising

from the fact that she obtained a writ of supersedeas from the Bexar County

District Clerk, a Bexar County district judge dissolved that writ and even awarded

Coface the attorney’s fees it incurred in pursuing the motion to dissolve and the

cost of reposting Austin’s home for a forced sale. (Motion R. Tab Q, pp. 25-27).

Coface cannot say that it has been seriously harmed.

                                     PRAYER
      For the reasons stated above, this Court should enter an order that:

       (a) enjoins any sale, pursuant to any Execution and Order of Sale entered in

Bexar County District Court Case No. 2013-CI-05581, of the property owned by

Carolyn P. Austin (“Austin”), described as follows:

      3614 St. Tropez Way, Houston, Harris County, Texas, more
      particularly described as Lot Twenty-Two (22), In Block One (1) of
      Royal Oaks Country Club, Section Eleven (11), a subdivision in
      Harris County, Texas according to the map or plat thereof recorded
      under Film Code No. 519188 of the Map Records of Harris County,
      Texas (the “Property”)

until the final conclusion of Austin’s appeal pending as No. 01-15-00760-CV in

this Court;

      (b) requires Coface, its agents, servants, employees, attorneys, and all those

acting in concert with them to take all steps necessary to cause the Harris County

Constable for Precinct 5 (or any other sheriff or constable) to cease and desist from

                                       - 17 -
taking any action to seize or sell the Property until the final conclusion of Austin’s

appeal pending as No. 01-15-00760-CV in this Court; and

      (c) prohibits Coface, its agents, servants, employees, attorneys, and all those

acting in concert with them from taking any further action to seek execution on the

Property until the final conclusion of Austin’s appeal pending as No. 01-15-00760-

CV in this Court.

                                       Respectfully submitted,


                                       __/s/ Scott M. McElhaney ______________
                                       John A. Koepke
                                       Texas State Bar No. 11653200
                                       Scott M. McElhaney
                                       Texas State Bar No. 00784555
                                       JACKSON WALKER L.L.P.
                                       2323 Ross Ave., Ste. 600
                                       Dallas, TX 75201
                                       Telephone: (214) 953-6000
                                       Facsimile: (214) 953-5822
                                       E-mail: smcelhaney@jw.com
                                       E-mail: jkoepke@jw.com

                                       Jennifer A. Bryant
                                       State Bar No. 03276600
                                       JACKSON WALKER L.L.P.
                                       1401 McKinney St., Ste. 1900
                                       Houston, Texas 77010
                                       Telephone: (713) 752-4200
                                       Facsimile: (713) 752-4221
                                       E-mail: jbryant@jw.com

                                       ATTORNEYS FOR APPELLANT
                                       CAROLYN P. AUSTIN


                                        - 18 -
                      CERTIFICATE OF CONFERENCE
      This is to certify that counsel for Austin and counsel for Coface have
conferred about the relief requested in this Motion, and that Coface is opposed.
This motion is thus presented to the Court for determination.


                                      __/s/ Scott M. McElhaney__________



                         CERTIFICATE OF SERVICE
       This is to certify that on this 5th day of November, 2015, a true and correct
copy of the foregoing was served on the following counsel of record for Appellee
via the method indicated:

Via Electronic Service and E-mail

David Lopez
Leslie Sara Hyman
Lance Hunter “Luke” Beshara
Ryan C. Reed
Pulman, Cappuccio, Pullen, Benson & Jones, LLP
2161 NW Military Hwy, Suite 400
San Antonio, Texas 78213
dlopez@pulmanlaw.com
lhyman@pulmanlaw.com
lbeshara@pulmanlaw.com
rreed@pulmanlaw.com

Peter M. Kelly
Kelly Durham & Pittard, LLP
1005 Heights Blvd.
Houston, Texas 88008
pkelly@texasappeals.com


                                      __/s/ Scott M. McElhaney ______________



                                       - 19 -
                      CERTIFICATE OF COMPLIANCE
       To the extent the Rule applies, this motion complies with the type-volume
limitation of Tex. R. App. P. 9.4(i) because, exclusive of the matters excepted from
the word count limitations of the Rule, this motion contains 4,481 words and is
prepared in Times New Roman 14 for the body text and Times New Roman 12 for
footnotes.


                                      _/s/ Scott M. McElhaney______________




14986993v.2




                                       - 20 -
