      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00087-CV



                                Edwin Kiest Norton III, Appellant

                                                   v.

                                 Mary Michelle Cheney, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
    NO. D-1-FM-11-000777, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING



                             MEMORANDUM OPINION


                In 1990, Edwin Kiest Norton III and Mary Michelle Cheney got married. Years

before the marriage, Norton opened a restaurant with several friends that would eventually become

the County Line BBQ chain of restaurants. When the restaurant started becoming successful, Norton

and his associates incorporated their business under the name County Line Enterprises, Inc. When

creating County Line Enterprises and then in subsequent transactions, the founders established

various protections to ensure that the company remained a closely-held entity, including restrictions

on the transfer of stock and guarantees that the remaining founders would have the right to purchase

the stock belonging to another founder if that founder died.

                In 2011, Cheney filed for divorce. During the divorce proceedings, the parties disputed

whether stock that Norton acquired in County Line Enterprises after the death of two founders was

community or separate property. After a trial, the district court determined that the stocks transferred
were community property and awarded Cheney $1,573,422.00 for her share of the property. Prior

to the final divorce decree being entered, the parties discussed the possibility of having County Line

Enterprises satisfy the terms of the judgment.

               Ultimately, the parties agreed to let County Line Enterprises cover the amount of the

judgment. Specifically, the board of directors for County Line Enterprises passed a resolution agreeing

to pay “Cheney an initial payment in the amount of” $178,576.00 and to “execute a promissory note

in the principal amount of $1,444,846.00 payable to” Cheney. Moreover, the resolution stated that

making the payment and executing the note were “in the best interest” of County Line Enterprises

and that County Line Enterprises “derives a benefit” by making the payment and by “undertaking

the monetary obligation called for under the note.” Furthermore, the promissory note detailed that

County Line Enterprises agreed to pay $1,444,846.00 to Cheney in eight equal annual installments

of $180,606.00 plus interest at a rate of five percent.

               Subsequent to County Line Enterprises agreeing to cover the amount of the judgment

and executing a promissory note to that effect, the district court entered its final decree of divorce.

Among other things, the decree stated that Cheney was entitled to an award of money to “effectuate

a just and right division of property” and incorporated the financial terms agreed to by County Line

Enterprises in its resolution and in the promissory note.

               After the district court entered its final decree, Norton filed this appeal. In his brief,

Norton raises twenty-three issues challenging various determinations, findings, and conclusions

made by the district court, but the focus of those issues centers on the district court’s determination

that the stocks transferred to Norton were community property. In response, Cheney filed an appellee’s

brief supporting the district court’s decree and also filed a motion to dismiss the appeal arguing that

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Norton had waived his right to appeal and that any controversy was mooted by the execution of a

promissory note by County Line Enterprises to pay the judgment awarded to her.

               We will grant Cheney’s motion and dismiss this appeal.


                                           DISCUSSION


Motion to Dismiss

               In her motion, Cheney asserts that this appeal should be dismissed because County

Line Enterprises has voluntarily chosen to pay the amount of the judgment due by tendering one

payment and by executing a promissory note under which it promised to pay the remainder of the

judgment by making eight annual payments. Moreover, Cheney argues that because County Line

Enterprises’ agreement to pay was not conditioned on an appeal being filed and because Norton did

not clearly and timely express his desire to appeal, Norton cannot appeal the decree. In a related

argument, Cheney contends that any appellate relief requested by Norton would have no effect

on County Line Enterprises’ obligation to pay. For these reasons, Cheney contends that there is no

longer a live controversy between the parties and that the appeal is moot.

               “Usually, when a judgment debtor voluntarily satisfies the judgment, the case becomes

moot and the debtor waives any right to appeal.” Marshall v. Housing Auth., 198 S.W.3d 782, 787

(Tex. 2006). “The rule is intended to prevent a party who voluntarily satisfies a judgment from later

changing his or her mind and appealing.” Id. However, “payment of a judgment will not moot an

appeal from that judgment if the judgment debtor timely and clearly expresses an intent to exercise

the right of appeal and if appellate relief is not futile.” Id.; see Miga v. Jensen, 96 S.W.3d 207, 212



                                                  3
(Tex. 2002); see also Miga v. Jensen, 299 S.W.3d 98, 103 (Tex. 2009) (explaining that voluntary-

payment rule is not employed as much as it used to be because rule’s equitable policies have been

incorporated into statutory and other remedies). A case becomes moot if the controversy ceases to

exist or if the parties no longer have a legally cognizable interest in the case’s outcome. Allstate Ins.

Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005).1


        1
          The voluntary-payment rule applies in the absence of fraud, duress, or compulsion. Miga
v. Jensen, 299 S.W.3d 98, 103 (Tex. 2009); see Burns v. Seascape Owners Ass’n, No. 01-11-00752-
CV, 2012 Tex. App. LEXIS 7732, at *31 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012, no pet.)
(mem. op.) (explaining that payment made involuntarily under duress will not moot appeal); cf. Miga
v. Jensen, 214 S.W.3d 81, 91 (Tex. App.—Fort Worth 2006) (discussing how duress may be implied
when businesses pay judgments in order to avoid harsh statutory penalties or imposition of accruing
interest), aff’d, 299 S.W.3d 98. In a footnote in the introductory section of his response to the
motion to dismiss, Norton suggests that if the facts of this case “don’t present a case of economic
duress or necessity, then they are awfully close to doing so.” As support for this proposition, Norton
refers to an affidavit that he attached to his response to the motion to dismiss in which he asserted
that his annual income was insufficient to cover the terms of the judgment, that he could not sell his
shares in County Line Enterprises without taking a loss, and that having County Line Enterprises
execute a note provided a more satisfactory alternative.

        Other than this brief assertion, Norton does not further address the idea that the voluntary-
payment rule should not apply because he was under economic duress when the note was executed;
instead, the focus of his two responses to Cheney’s motion to dismiss is on his assertion that he
expressed his intention to appeal and that the appellate relief that he is seeking is not futile. In her
reply, Cheney refers to evidence from the record establishing the value of the company and of
Norton’s stock in the company and argues that Norton had sufficient assets to execute his own note
to pay the judgment if he wanted to.

        In any event, given the briefing on this issue as well as Norton’s concession that the
execution of the note provided at least partial relief from the economic strain stemming from the
judgment, we do not believe that the facts of this case present the type of situation in which duress
will prevent an appeal from being mooted by an agreement to pay the full value of the judgment.
This seems particularly true in this case where the agreement to pay was made by a third-party
corporation after the corporation’s members passed a resolution authorizing the execution of a
note to pay the judgment. Cf. Dallas Cnty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 881, 883
(Tex. 2005) (recognizing that certain financial consequences do not transform choice into coercion);
Miga v. Jensen, 96 S.W.3d 207, 211 (Tex. 2002) (noting how payment under economic duress will

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Intent to Appeal

               When challenging Cheney’s assertions, Norton contends that courts have determined

that the voluntary payment of a judgment mooted an appeal in order to prevent a party from

misleading his opponent into believing that the controversy was over by paying the amount owed

and then deciding to challenge his opponent’s right to recovery and to seek recovery of the money

paid. See Miga, 96 S.W.3d at 211; Brown v. Enterprise Recovery Sys., No. 02-11-00436-CV, 2013

Tex. App. LEXIS 10658, at *5-6 (Tex. App.—Fort Worth Aug. 22, 2013, pet. denied) (mem. op.).

Moreover, Norton insists that he always intended to appeal the district court’s decree if the court

determined that the shares of County Line Enterprises were community property, that he never

changed his mind regarding his intent, and that he never misled Cheney. As support for this assertion,

Norton refers to examples in the record where Cheney mentioned before or during the trial that either

side might be appealing certain determinations. In addition, Norton highlights that in a hearing

held after the trial, Cheney acknowledged that Norton might want to appeal the district court’s

characterization of the stocks and asked the district court to include appellate attorney’s fees in its

decree. Finally, Norton refers to an affidavit made by his attorney that was attached to his response

to Cheney’s motion to dismiss in which his attorney stated that the possibility of an appeal was

discussed by the parties and that he told Cheney’s attorney that he had advised Norton to appeal.

               However, none of the statements in the record or in the affidavit referred to by Norton

evidenced a clear intention by Norton that he planned to appeal the decree or that Cheney understood




not moot appeal but listing example of economic duress as payment made under “threat of statutory
penalties and accruing interest”).

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that Norton would be filing an appeal; on the contrary, all of the statements referenced Cheney’s

belief that it was possible that Norton might appeal. Moreover and perhaps more importantly, all

of those referenced statements were made before County Line Enterprises passed a resolution

agreeing to pay Cheney the amount of the judgment and before it executed a promissory note

obligating it to pay Cheney the full amount, and nothing in the record or in the affidavit prepared by

Norton’s attorney demonstrates that any expression regarding Norton’s intention to appeal was made

when the note was executed or during the hearing held one week before the note was executed in

which the parties agreed to allow County Line Enterprises to execute the note in order to satisfy the

judgment. See BMG Direct Mktg. v. Peake, 178 S.W.3d 763, 770 (Tex. 2005) (stating that payment

of judgment without expressed intent to appeal moots appeal but that payment with that type of

expression does not); see also Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd., 179 S.W.3d

589, 612 (Tex. App.—Austin 2005, pet. denied) (determining that party did not moot controversy

by voluntarily paying fine because party wrote cover letter accompanying payment expressing

its desire to appeal agency’s determination); cf. Brown, 2013 Tex. App. LEXIS 10658, at *4-6

(determining that payment did not moot appeal where appellant sent appellee letter communicating

his desire to appeal one week before appellee filed its notice of satisfaction of judgment).2


       2
           In a related set of arguments, Norton contends that the voluntary-payment rule is
inapplicable in this case because County Line Enterprises did not pay Cheney the full amount of the
judgment, because County Line Enterprises deposited the first payment under the note with the
district court, and because the execution of a promissory note should not be deemed the equivalent
of actual payment. Cf. Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. App.—Houston [1st Dist.] 2003,
pet. denied) (explaining that promissory note is “a contract evincing an obligation to pay money”).

        Although we have not been able to find a case with this specific fact pattern, we do note that
other cases have considered formal agreements to pay as sufficient to invoke the rule. See Smith v.

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               Regarding the hearing, Norton emphasized that having County Line Enterprises

execute the note would allow Cheney to obtain the “full enchilada” and would be more advantageous

to Cheney than having Norton execute the note himself. In addition, despite statements by the district

court questioning whether there might be an appeal, Norton never stated that he intended to appeal

the court’s decree or that execution of the note was contingent on allowing him to appeal the

judgment. Regarding the affidavit, Norton’s attorney mentioned discussions regarding the possibility

of an appeal and asserted that Cheney’s attorney repeatedly asked about the possibility of an appeal

by Norton, but he also specified that the conversation closest in proximity to when the note was

executed occurred two weeks beforehand. In addition, in the affidavit, Norton’s attorney did not assert

that he communicated that Norton intended to appeal the decree; instead, he averred that he simply

informed Cheney that he had advised Norton to appeal but that no “final word” had been given.

               Cheney’s attorney also submitted an affidavit in support of her motion to dismiss, and

in the affidavit, Cheney’s attorney did not dispute the timing and nature of the discussions referenced

by Norton’s attorney, agreed that he repeatedly asked Norton about his “intentions concerning this



Abbott, 311 S.W.3d 62, 78 (Tex. App.—Austin 2010, pet. denied) (considering agreement to
pay lump-sum payment as well as monthly payments); Pipes v. Pipes, No. 02-07-00346-CV, 2008
Tex. App. LEXIS 5058, at *4 (Tex. App.—Fort Worth July 3, 2008, no pet.) (mem. op.) (discussing
agreement to pay arrearages as well as to continue paying spousal maintenance). Moreover, this
Court has also determined that “an installment agreement with the Travis County Tax Office”
entered into after an appeal had been filed in which the taxpayer admitted liability for taxes and
agreed to pay fees and delinquent taxes “extinguished the case or controversy between the parties”
where there was no evidence that agreement was entered into under duress or under protest. See
Overdeer v. Travis Cnty., No. 03-05-00179-CV, 2005 Tex. App. LEXIS 8550, at *1, 4-5 (Tex.
App.—Austin Aug. 16, 2005, no pet.) (mem. op.). In light of this authority, we can see no reason
to conclude that the execution of an unconditional promissory note to pay a judgment should not be
considered a payment for the purposes of determining whether the controversy between the parties
has been mooted.

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appeal,” and affirmed that the conversations occurred at the latest one week before the parties agreed

to allow County Line Enterprises to execute the note and two weeks before the note was executed.

Cf. Beadles v. Lago Vista Prop. Owners Ass’n, No. 03-05-00194-CV, 2007 Tex. App. LEXIS 3861,

at *6-7 (Tex. App.—Austin May 18, 2007, no pet.) (mem. op.) (overruling motion to dismiss and

addressing merits of appeal where there was “a dispute in the affidavits” regarding whether attorney

informed opposing side of client’s desire to appeal when payment was made). However, Cheney’s

attorney clarified that he asked the questions because he was never given a direct answer and was

repeatedly told “that a decision had not been made” and “that there may be a difference of opinion

on the matter.” Similarly, Cheney’s attorney explained that although he “had several phone calls and

repeated email correspondence concerning the note,” Norton’s attorney never mentioned that Norton

was planning to appeal the judgment in any of the correspondence or phone calls.

                Perhaps more importantly, nothing in the resolution or the promissory note

conditioned in any manner County Line Enterprises’ obligation to pay. Cf. Miga, 96 S.W.3d at 211

(providing that best practice is to explicitly reserve right to appeal on record). Specific to the facts

in this case, neither document mentioned the possibility of an appeal or excused County Line

Enterprises from the obligation of paying in the event that Norton successfully appealed the district

court’s decree. Instead, those documents evidenced an unconditional obligation to pay Cheney the

full amount of the judgment. See Dalho Corp. v. Tribble & Stephens, 762 S.W.2d 733, 734 (Tex.

App.—San Antonio 1988, no writ) (dismissing appeal as moot when appellant delivered checks to

appellee and noting that checks had “no reservation or limitations noted thereon”); cf. Smith v.

Abbott, 311 S.W.3d 62, 78 (Tex. App.—Austin 2010, pet. denied) (concluding that claim regarding



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interest on child-support arrearages was moot where party agreed to repay amount owed through

lump-sum payment as well as monthly payments without reserving any right to dispute amount);

Pipes v. Pipes, No. 02-07-00346-CV, 2008 Tex. App. LEXIS 5058, at *4 (Tex. App.—Fort Worth

July 3, 2008, no pet.) (mem. op.) (determining that agreement entered into by both parties after

divorce decree was issued that obligated husband to pay arrearages for spousal maintenance and to

continue to pay spousal maintenance mooted husband’s appeal of trial court’s denial of his motion

to terminate spousal maintenance). In addition, County Line Enterprises agreed to undertake that

obligation before the district court issued its final decree of divorce, cf. Burns v. Seascape Owners

Ass’n, No. 01-11-00752-CV, 2012 Tex. App. LEXIS 7732, at *33 (Tex. App.—Houston [1st Dist.]

Aug. 30, 2012, no pet.) (mem. op.) (noting when deciding that appeal was moot that party paid

assessment before judgment was rendered), and nothing in the record or the affidavits reveals that

the note was executed for any purpose, save perhaps tax or business benefits for Norton, other than

to satisfy the judgment, cf. Beadles, 2007 Tex. App. LEXIS 3861, at *6-7 (overruling motion to

dismiss, in part, because affidavit by party opposing motion to dismiss stated that judgment was paid

for sole purpose of allowing him to clear title to property so that he could sell it).

                Other than the notice of appeal, the record in this case reveals that the first clear

expression of an intent to appeal the district court’s judgment by Norton occurred approximately

three weeks after the note was executed when he filed a motion to confirm supersedeas. In light of

the remainder of the record, particularly the unconditional note, as well as the contents of the two

affidavits, we do not believe that this statement suffices in the circumstances present here as a timely

and clear expression of the right to appeal sufficient to prevent the application of the voluntary-

payment rule.

                                                   9
Appellate Relief is Futile

               In addition to arguing that he had clearly articulated his intention to appeal the district

court’s divorce decree, Norton asserts that an appeal would not be futile. Specifically, he urges that

if he is successful on appeal, “as to either his characterization issue or his valuation issue, remand

will follow, and potential restitution will be available.” See Miga, 299 S.W.3d at 101 (explaining

that “[r]estitution after reversal has long been the rule in Texas”). Moreover, Norton urges that

“[r]eversal of the trial court’s erroneous characterization of the . . . shares will obviate the trial

court’s equalizing judgment, which in turn will obviate the . . . note payable to . . . Cheney. Thus,

. . . Norton submits, appellate relief is not futile.” Further, Norton contends that the terms of the

judgment specified that he was liable for the amount owed and that although County Line Enterprises

executed a note in favor of Cheney for the amount of the district court’s judgment, the note has not

been paid in full.

               However, the facts of this case undermine Norton’s assertion that restitution is

possible. As a preliminary matter, we note that the core issue on appeal concerns the characterization

of specific stocks as community property, which served as the basis for the monetary judgment

issued in favor of Cheney, and there is no allegation regarding prospective or similar relief that

might keep the controversy from being mooted by an agreement to pay the judgment. See Smith,

311 S.W.3d at 79 (explaining that party was not seeking any prospective relief that might keep

controversy from being mooted by agreement to pay). Moreover, unlike the cases relied on by Norton,

the promise to pay the judgment at issue and the first installment under the promissory note were

made by a third party rather than a party to the dispute. See Padgitt v. Young Cnty., 229 S.W. 459,



                                                  10
459 (Tex. 1921) (determining that appeal became moot when amount of judgment was paid by third

party and accepted by judgment creditor); cf. Employees Fin. Co. v. Lathram, 369 S.W.2d 927,

929-30 (Tex. 1963) (determining that appeal was moot when amount of judgment was paid by

nonappealing codefendant); Haas v. Corman, No. 05-01-00568-CV, 2002 Tex. App. LEXIS 2242,

at *1 (Tex. App.—Dallas Mar. 28, 2002, no pet.) (applying rationale from Lathram to conclude that

appeal was moot). Accordingly, even assuming that this Court disagreed with the district court’s

characterization of the property at issue, that determination would not seem to have any immediate

impact on the independent agreement between County Line Enterprises and Cheney and certainly

could not lead to any restitution award in favor of Norton because he has not paid any portion of the

judgment. See Crain v. Crain, No. B14-93-00113-CV, 1995 Tex. App. LEXIS 295, at *3-4 (Tex.

App.—Houston [14th Dist.] Feb. 16, 1995, no pet.) (noting that reversal and remand would provide

no basis for appellant to seek reimbursement from appellee and that “[i]f reversing has no effect on

the rights of the parties, the case is moot”).

                In addition, although Cheney has not yet been paid the full amount of the judgment,

the agreement by County Line Enterprises to pay the amount of the judgment has resolved the

controversy between Cheney and Norton, and it would seem that any future recourse for a default

in payments would be litigated under the terms of the unconditional note. Moreover, to the extent

that Norton suggests that Cheney might seek compensation from him if County Line Enterprises ever

defaults, we do not believe that this type of speculation demonstrates a live controversy between the

parties. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (explaining that “[i]f a controversy

ceases to exist—‘the issues presented are no longer “live” or the parties lack a legally cognizable



                                                 11
interest in the outcome’—the case becomes moot” (quoting Murphy v. Hunt, 455 U.S. 478, 481

(1982))); Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846-47 (Tex.

App.—Austin 2002, pet. denied) (stating that “[a] case becomes moot when: (1) it appears that one

seeks to obtain a judgment on some controversy, when in reality none exists; or (2) when one seeks

a judgment on some matter which, when rendered for any reason, cannot have any practical legal

effect on a then-existing controversy”); cf. Smith, 311 S.W.3d at 78-79 (explaining that assertion

that Attorney General’s Child Support Division might miscalculate future child-support arrearages

was too remote and speculative to give rise to justiciable claim and prevent claim regarding past

arrearages from being deemed moot). This seems particularly true here where the record demonstrates

that Norton is the majority owner of County Line Enterprises and seemingly approved the execution

of the note, in part, to avoid business or tax consequences to himself.

               In light of the preceding, we must conclude that any appellate relief requested by

Norton would not have any practical legal effect on an existing controversy between the parties

and would be futile. For all of the reasons previously given, we conclude that the execution of a

promissory note by County Line Enterprises in favor of Cheney to cover the amount owed to

Cheney under the district court’s divorce decree mooted the controversy between Cheney and Norton

regarding the characterization of stocks as community property.


                                         CONCLUSION

               Having determined that the appeal in this case has been mooted, we grant Cheney’s

motion to dismiss this appeal.




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                                          __________________________________________

                                          David Puryear, Justice

Before Justices Puryear, Pemberton, and Goodwin

Dismissed on Appellee’s Motion

Filed: August 14, 2015




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