                                                                           ACCEPTED
                                                                      06-14-00036-CV
                                                            SIXTH COURT OF APPEALS
                                                                 TEXARKANA, TEXAS
                                                                4/15/2015 11:03:08 AM
                                                                      DEBBIE AUTREY
                                                                               CLERK

            Case No. 06-14-00036-CV

                                                     FILED IN
                                              6th COURT OF APPEALS
             In the Court of Appeals            TEXARKANA, TEXAS
                                              4/15/2015 11:03:08 AM
               6th Judicial District               DEBBIE AUTREY
                                                       Clerk

                Texarkana, Texas


           Frank Keathley, Appellant

                        v.

J.J. Investment Company, L.T.D., et al., Appellees


              APPELLEE'S BRIEF


                      TRAVIS P. CLARDY
                      State Bar No. 04268020
                      JERRY W. BAKER
                      State Bar No. 24026776
                      CLARDY LAW OFFICES
                      209 E. Main Street
                      Nacogdoches, Texas 75961
                      Ph: 936-564-2500
                      Fax: 936-564-2507

                      ATTORNEYS FOR APPELLEE,
                      CORBITT BAKER
                           TABLE OF CONTENTS

Table of Contents                                                           11

Index of Authorities                                                        iv

Statement of Facts                                                          1

Summary of Argument                                                         7

Argument                                                                     9

      A.    Reply to Appellant's Point of Error No. One, which argues
            that the trial court erred in ordering the Clerk to disburse
            $30,000 from registry funds to Travis Clardy based on the
            writ of execution levied under Corbitt Baker's judgment
            against Frank Keathley because a writ of execution is not
            a proper legal remedy for enforcement of a judgment against
            a judgment debtor's funds in the possession of a third party
            and because the funds were in legal custody of the Court        10

      B.    Reply to Appellant's Point of Error No. Two, which argues
            that the trial court erred in ordering the Clerk to disburse
            $30,000 from registry funds to Travis Clardy based on the
            writ of execution levied under Corbitt Baker's judgment
            against Frank Keathley because the levy on the Clerk's
            funds failed to comply with the requirements of Rule 637
            of Tex. R. Civ. P. and Tex. Prop. Code Sec. 42.003              18

      C.    Reply to Appellant's Point of Error No. Three, which argues
            that the trial court erred in ordering the Clerk to disburse
            $30,000 from registry funds to Travis Clardy based on
            Corbitt Baker's instruction to the Constable to levy the
            writ of execution against all of the $41,763.50 because Frank
            Keathley did not own all of the funds and the levy was
            wrongful as to the other parties who did not own an interest
            in the funds                                                    22

      D.    Reply to Appellant's Point of Error No. Four, which argues
            that the trial court erred in ordering the Clerk to disburse
             $30,000 from registry funds to Travis Clardy based on
             levy of the writ of execution issued under the Corbitt Baker
             judgment against Frank Keathley because the judgment
             debtor's ownership interest in the registry funds was exempt
             from execution under Property Code Sec. 42.001 and Sec.
             42.002                                                         24

      E.     Reply to Appellant's Point of Error No. Four, which argues
             that the trial court erred in ordering the Clerk to disburse
             $30,000 from registry funds to Travis Clardy based on levy
             of the writ of execution issued under the Corbitt Baker
             judgment against Frank Keathley as entered March 8, 2011,
             because the judgment was not a final judgment as required
             by Rule 622, Tex. R. Civ. P. and because the writ was voided
             when the judgment was revoked by the judgment entered
             April 12, 2011, reinstated by the Order entered April 18,
             2011, appealed and reformed and affirmed by the Twelfth
             Court of Appeals Opinion delivered April 2, 2013 and
             Judgment dated April 24, 2011                                  27

      F.     Reply to additional issues raised in Appellant's Prayer        31

Prayer                                                                      33

Certificate of Compliance                                                   34

Certificate of Service                                                      34

Appendix                                                                    36




                                       in
                         INDEX OF AUTHORITIES

Cases:


Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex. 1966)                             32

Amstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Tex. 1996)                         11

Brasher v. Carnation Co., 92 S.W.2d 573, 575 (Tex. Civ.
App.—Austin 1936, writ dism'd)                                                  26

Burns v. Bishop, 48 S.W.3d 459 (Tex. App.—Houston
[14th Dist.] 2001, no pet.)                                                     18

Campbell v. Stucki, 220 S.W.3d 562 (Tex. App.—Tyler 2007, no pet.)          26, 27

Challenge Co. v. Sartin, 260 S.W.313 (Tex. Civ. App.   Dallas 1924, no writ).... 17

Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987)                                    32

Collum v. DeLoughter, 535 S.W.2d 390 (Tex. App.—Texarkana
1976, writ r e f d n.r.e.)                                                  21, 22

Davis v. Huey, 571 S.W.2d 859 (Tex. 1978)                                    9, 10

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)             9, 10

Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615 (Tex. 2007)                       29

Gonzales v. Daniel, 854 S.W.2d 253 (Tex. App.—Corpus Christi
1993, orig. proceeding)                                                 15, 16, 17

Hardy v. Construction Systems, Inc., 556 S.W.2d 843 (Tex. Civ.
App.—Houston [14th Dist] 1977, writ r e f d n.r.e.)                         17, 18

Ingersoll—Rand Co. v. Valero Energy Corp., 997 S.W.2d 203
(Tex. 1999)                                                             11, 20, 25

Monroe v. Grider, 884 S.W.2d 811 (Tex. App.—Dallas 1994, writ denied)            9


                                       iv
Murphy v. McDaniel, 20 S.W.3d 873 (Tex. App.—Dallas 2000, no pet.)           9

Reeder v. Intercontinental Plastics Mfg. Co., 581 S.W.2d 497
(Tex. Civ. App—Dallas 1979, no writ)                                        13

Ross v. 3D Tower, Ltd., 824 S.W.2d 270 (Tex. App.—Houston
[14th Dist.] 1992, writ denied)                                             26

Schlager v. Clements, 939 S.W.2d 183 (Tex. App.—Houston
[14th Dist.] 1996, writ denied)                                             10

Texas State Optical v. Wiggins, 882 S.W.2d 8 (Tex. App.—Houston
[1st Dist.] 1994, no writ)                                                   9

Tober v. Turner of Tex., Inc., 668 S.W.2d 831 (Tex. App.—Austin
1984, no writ)                                                           9, 14

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010)            11, 13, 19

U.S. v. Powell, 639 F.2d 224 (5th Cir. 1981)                                17

Vaughn v. Drennon, 324 S.W.3d 560 (Tex. 2010)                               29


Statutes:


Tex. Civ. Prac. & Rem. Code §34.004                                         16

Tex. Civ. Prac. & Rem. Code §34.005                                         16

Tex. Prop. Code §42.001                                                 25, 27

Tex. Prop. Code §42.002                                                     25

Tex. Prop. Code § 42.003                                             19, 20, 21
Rules:


Tex. R. App. P. 24.1               13

Tex. R. App. P. 43.2        24, 27, 33

Tex. R. Civ. P. 296                31

Tex. R. Civ. P. 320                32

Tex. R. Civ. P. 321                32

Tex. R. Civ. P. 322                32

Tex. R. Civ. P. 329b               32

Tex. R. Civ. P. 621                10

Tex. R. Civ. P. 628            21, 30

Tex. R. Civ. P. 637            19, 20




                       vi
                            STATEMENT OF FACTS

      Pursuant to Tex. R. App. P. 38.2(a)(B), Appellee would correct and

supplement the Statement of Facts set forth in the Appellant's Brief with the

following:

      On March 8, 2011, the County Court at Law, No. 3 of Smith County, Texas

signed a final judgment in favor of the Appellee Corbitt Baker ("Baker") against

the Appellant Frank Keathley ("Keathley") and his wife. (Appendix 1). The

judgment awarded Baker his attorney's fees in the amount of $70,000, post-

judgment interest and court costs. (Appendix 1). The judgment also provided a

contingent award of additional attorney's fees should the case be appealed.

(Appendix 1).

      On March 30, 2011, Baker sought and obtained a writ of execution pursuant

to Tex. R. Civ. P. 628 based on the March 8th judgment. (CR 37). The writ was

issued for the collection of "the goods and chattels, lands and tenements of the said

Frank Keathley and Melissa Keathley.. .the said sum of Attorney's Fees in the

amount of $70,000.00 for services rendered through the trial of this c a s e . " (CR

37). On March 30, 2011, Constable Randle Green of Franklin County, Texas

levied the writ of execution upon "monies in Registry of Court." (CR 39).

      On or about April 8, 2011, Keathley sought and obtained a Temporary

Restraining Order from the 62nd Judicial District Court of Franklin County, Texas.



                                           1
(CR 42-66). In the Order Granting the Temporary Restraining Order, the district

court found that "Constable Green, respondent, intends to levy against $40,000

held in the Registry of the Clerk of this Court that has been ordered by this Court

to be paid to Frank Keathley under Order for Distribution of Funds.. .and that

District Clerk Ellen Jaggers, respondent intends to make a distribution of the

$40,000 in funds held in her Registry to Corbitt Baker under levy of the Writ of

Execution." (CR 64).

      On April 12, 2011, the County Court at Law, No. 3 of Smith County, Texas,

mistakenly signed a "final judgment", which was submitted by the Keathleys, and

which reversed the jury findings and awarded damages to Plaintiffs. (CR 58). As

soon as the Smith County court was made aware of this error, the trial judge signed

the Order Vacating Final Judgment Erroneously Entered April 12, 2011.

(Appendix 2). The validity of the March 8, 2011 final judgment, the April 12, 2011

"Final Judgment", and the April 18, 2011 Order Vacating Final Judgment

Erroneously Entered April 12, 2011 was the subject of an appeal by the Keathleys

to the 12th Court of Appeals. (CR 64).

      On May 12, 2011, Keathley filed notice with the trial court of his

supersedeas bond and the writ of supersedeas issued by the Smith County Clerk.

(CR 76). Following a hearing on Keathley's request for issuance of a temporary

injunction, the trial court entered an Order Granting Temporary Injunction. (CR



                                          2
91). The trial court ordered that the temporary restraining order be extended as a

temporary injunction based on the fact that it was "presented with notice of

issuance of a writ of supersedeas and posting of supersedeas bond in the

underlying lawsuit from which the writ of execution involved in this case was

issued." (CR 91). Pursuant to the Order Granting Temporary Injunction, Constable

Green was commanded to desist and refrain from execution of the writ and the

District Clerk Ellen Jaggers was commanded to desist and refrain from distributing

the funds held in the registry of the court. (CR 92).

      On or about August 1, 2011, Keathley filed a Motion to Quash Writ of

Execution in the County Court at Law No. 3 of Smith County, Texas. (CR 176). In

his Motion to Quash, Keathley cited several bases, including:

       •    "Levy of the Writ on the District Clerk of Franklin County, Texas
           without first levying the Writ on Plaintiffs as judgment debtors, was
           illegal, as a matter of law because it deprived the judgment debtors of
           their right to declare their exempt property and to designate any property
           that they recognized as subject to execution as required by the rules for
           execution under Rule 629, TRCP and as provided by Article 16, Section
           49, Tex. Const. and Section 42.001 and Section 42.002, Tex Prop. Code.
           The levy made under the Writ was done without any notice to the
           judgment debtors and in violation of the procedures required by Section
           42.003 Tex. Prop. Code." (CR 178).

       •   "Upon entry of the Final Judgment dated April 12, 2011 in favor of
           Plaintiffs and against Defendant, the Writ was void, as a matter of law
           since the March 8, 2011 judgment under which it was issued was vacated.
           Under Rule 622, TRCP (Execution), issuance of a writ of execution
           requires a final judgment. Since the judgment under which the Writ was
           issued was vacated, the Writ was not supported by a judgment and was
           void, as a matter of law." (CR 178-79)

                                            3
      •    "The Court's April 18, 2011 entry of the Order Vacating the April 12, 2011
          Final Judgment and reinstating the Final Judgment signed March 8, 2011,
          did not reinstate the Writ of Execution issued March 30, 2011 under the
          March 8, 2011judgment because Rule 622 TRCP requires a writ of
          execution to be issued under a final judgment. In this case, the final
          judgment could only have been the one signed April 18, 2011." (CR 179)

      •   "Levy of the Writ on Ellen Jaggers, District Clerk of Franklin County,
          Texas for funds held in the Clerk's registry was not a levy of a writ of
          execution but was an attempted garnishment of funds of a judgment debtor
          in the possession of a third party. The Writ used by Defendant to reach
          funds in the hands of the District Clerk failed to comply with the
          requirements for a writ of garnishment stated under Section 63.001 to
          63.008, Tex. Civ. Prac. & Rem. Code and is void as a matter of law." (CR
          179-80)

Following a hearing on the Motion to Quash the Writ of Execution, the Smith

County court issued an order denying same. (CR 195). Further, the trial court

found that "the one and only final judgment in this matter is the Final Judgment

dated March 8, 2011," and the writ of execution "was in accordance with Rules

627 and 628 of the Texas Rules of Civil Procedure." (CR 195). The court ordered

that "the Final Judgment dated March 8, 2011, is the one true judgment of this

Court and the Writ of Execution issued upon said Final Judgment was valid and

proper." (CR 195). Keathely failed to seek review of this order. (CR 168-69).

      Following the appeal of the judgment issued by the County Court at Law,

No. 3 of Smith County, Texas, the 12th Court of Appeals issued a mandate

affirming the trial court's judgment and award of $70,000.00 in attorney's fees to

Baker. (CR 110). Included in the mandate was a suggestion of remittitur that the

                                          4
appellate attorney's fees awarded to Baker be reduced from $25,000.00 to

$8,000.00. (CR 110). The Court pointed out that the "Order Vacating Final

Judgment Erroneously Entered April 12, 2011" states that the March 8th judgment

"correctly reflects the judgment of this court." (CR 116). The Court stated, "[w]e

conclude that the language used in the April 18 order, together with the court's act

of physically attaching the March 8 judgment to the order and referencing the

attachment, has the same effect as use of the word 'reinstate' in the new order.

(CR 116).

      On October 21, 2013, Baker filed a Motion to Dissolve Temporary

Injunction. (CR 102). Keathley subsequently filed a Motion to Modify Injunction

and Release Funds and a Motion for Summary Judgment on Levy of Writ of

Execution. (CR 154, 205). At a hearing on December 19, 2013, the trial court

deferred ruling on the various motions and requested additional briefing on the

issue of whether garnishment or execution is the "correct vehicle" to obtain funds

from the registry of the court. (RR 2:24, lines 14-21). At the subsequent hearing on

February 28, 2014, the trial court found that the writ of execution was the "correct

vehicle." (RR 3:4, lines 18-23). On March 25, 2014, the court signed the Order on

Corbitt Baker's Motion to Dissolve Temporary Injunction, Frank Keathley's

Motion to Modify Injunction and Release Funds and Frank Keathley's Motion for

Summary Judgment on Levy of Writ of Execution. (CR 305). In the order, the trial



                                          5
court granted Baker's Motion to Dissolve Temporary Injunction, and ordered the

distribution of the registry funds following thirty days from the date of the order.

(CR 305-06). The court also denied Keathley's Motion to Modify Injunction and

Release Funds and a Motion for Summary Judgment on Levy of Writ of

Execution. (CR 306).

       On April 25, 2014, Keathley filed his Request for Findings of Fact and

Conclusions of Law, Motion for Reconsideration and/or Motion for New Trial and

Notice of Appeal. (CR 308). Keathley then filed a voluntary petition for

bankruptcy in the U.S. Bankruptcy Court for the Eastern District of Texas and a

Notice of Bankruptcy with the trial court. (CR 314). On September 16, 2014, the

U.S. Bankruptcy Court for the Eastern District of Texas issued an order granting

Baker's Motion for Relief from Automatic Stay with respect to the monies held in

the registry of the 62nd Judicial District Court of Franklin County, Texas. (CR 319-

20). On November 3, 2014, the trial court denied Keathley's Request for Findings

of Fact and Conclusions of Law, Motion for Reconsideration and/or Motion for

New Trial and Notice of Appeal. (CR 351). The court found that the Request for

Findings of Fact and Conclusions of Law were not filed timely. (RR 4:9, lines 1-

23).




                                          6
                        SUMMARY OF THE ARGUMENT

       Appellant has sought a review of the trial court's Order on Corbitt Baker's

Motion to Dissolve Temporary Injunction, Frank Keathley's Motion to Modify

Injunction and Release Funds and Frank Keathley's Motion for Summary

Judgment on Levy of Writ of Execution issued on March 25, 2014. The standard of

review of a trial court's order dissolving or modifying a temporary injunction is

abuse of discretion. However, none of the arguments or evidence raised in

Appellant's Brief demonstrates that the trial court acted arbitrarily and

unreasonably or misapplied the law to the facts of the case.

       With the exception of the third point of error raised by Appellant, all of

Appellant's arguments have previously been adjudicated and any attempted

relitigation of these claims is precluded as a matter of law under the doctrine of res

judicata. For this reason, the trial court correctly refused to entertain such

arguments. In the alternative, the evidence and authority cited to and relied on by

the trial court in its determination of the Appellee's Motion to Dissolve Temporary

Injunction and Appellant's Motion to Modify Injunction and Release Funds and

Motion for Summary Judgment on Levy of Writ of Execution supports the court's

findings. As to the third point of error, Appellant fails to cite evidence to support

his assertion concerning any attempt to levy against property that was not the

judgment debtor's. Rather, the record clearly shows that levy of the writ of



                                            7
execution was made solely against the Appellant's property held in the registry of

the court.

      Taking all evidence and drawing all inferences in favor of the trial court's

ruling, it is clear that there was no abuse of discretion by the trial court. The Order

on Corbitt Baker's Motion to Dissolve Temporary Injunction, Frank Keathley's

Motion to Modify Injunction and Release Funds and Frank Keathley's Motion for

Summary Judgment on Levy of Writ of Execution must therefore be affirmed.




                                           8
                                   ARGUMENT

      Appellant's Brief fails to address the applicable standard of review for

purposes of this appeal. As indicated, this appeal is from the trial court's Order on

Corbitt Baker's Motion to Dissolve Temporary Injunction, Frank Keathley's

Motion to Modify Injunction and Release Funds and Frank Keathley's Motion for

Summary Judgment on Levy of Writ of Execution. An order granting or denying a

temporary injunction is reviewed under an abuse of discretion standard. Davis v.

Huey, 571 S.W.2d 859, 861-62 (Tex. 1978). Likewise, courts apply the same

standard of review when reviewing orders on motions to dissolve or modify a

temporary injunction. Murphy v. McDaniel, 20 S.W.3d 873, 877 (Tex. App.

Dallas 2000, no pet.); Texas State Optical v. Wiggins, 882 S.W.2d 8, 12 (Tex.

App.—Houston [1st Dist.] 1994, no writ); Tober v. Turner of Tex., Inc., 668

S.W.2d 831, 834 (Tex. App.—Austin 1984, no writ).

      Under an abuse of discretion standard of review, the appellate court must

uphold the trial court's judgment unless it determines that the trial court acted

arbitrarily and unreasonably or without reference to guiding rules or principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985);

Monroe v. Grider, 884 S.W.2d 811, 816 (Tex. App.        Dallas 1994, writ denied).

The appellate court is precluded from substituting its own judgment for that of the

trial court, but must review any conflicting evidence in the light most favorable to



                                           9
the trial court's ruling and draw all reasonable inferences in favor of the trial

court's judgment. Schlager v. Clements, 939 S.W.2d 183, 191 (Tex. App.

Houston [14th Dist.] 1996, writ denied). The fact that the appellate judge may

decide an issue differently than the trial judge does not demonstrate an abuse of

discretion. Downer, 701 S.W.2d at 242. Further, it has been specifically held that

"an abuse of discretion does not exist where the trial court bases its decision on

conflicting evidence." Davis, 571 S.W.2d at 862.

      A. Reply to Appellant's Point of Error No. One, which argues that the
         trial court erred in ordering the Clerk to disburse $30,000 from
         registry funds to Travis Clardy based on the writ of execution levied
         under Corbitt Baker's judgment against Frank Keathley because a
         writ of execution is not a proper legal remedy for enforcement of a
         judgment against a judgment debtor's funds in the possession of a
         third party and because the funds were in legal custody of the Court

      The first point of error raised in the Appellant's Brief concerns the ability of

a judgment creditor to employ a writ of execution in order to enforce a judgment

against property in the possession of a third party, which in this instance involved

funds which had previously been deposited in the registry of the court. Tex. R. Civ.

P. 621 states that "[t]he judgments of the district, county, and justice courts shall be

enforced by execution or other appropriate process." Despite the arguments raised

by Appellant, Keathley cites no authority to support the assertion he is attempting

to raise. Rather, as Rule 621 clearly states, a writ of execution, such as the one

employed by Baker, is one means by which a judgment creditor may enforce his



                                           10
judgment. As such, the trial court did not abuse its discretion in permitting such

enforcement in this instance.

      In each of the motions, responses and briefs filed before the trial court,

Keathley raised several arguments challenging the effectiveness of the writ of

execution and the manner in which it was levied. Baker argued that each of these

arguments was barred under the doctrine of res judicata. Res judicata prevents

parties from relitigating claims or defenses that are finally adjudicated and even

ones that could have been litigated in an earlier suit but were not. Ingersoll—Rand

Co. v. Valero Energy Corp., 997 S.W.2d 203, 206-07 (Tex. 1999). "The doctrine is

intended to prevent causes of action from being split, thus curbing vexatious

litigation and promoting judicial economy." Id. at 207. Under this doctrine, a party

is precluded from litigating a claim in a pending action if: (1) in a previous action,

a court of competent jurisdiction rendered a final determination on the merits of a

claim; (2) the parties that litigated the prior claim are identical to or in privity with

the parties litigating the pending claim; and (3) the pending claim (a) is identical to

the prior claim or (b) arises out of the same subject matter as the prior claim and

could have been litigated in the previous action. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652

(Tex. 1996).

      In his Motion to Quash Writ of Execution filed in the County Court at Law



                                            11
No. 3 of Smith County, Texas, Keathley raised several arguments, including the

following:

      "Levy of the Writ on Ellen Jaggers, District Clerk of Franklin County, Texas
      for funds held in the Clerk's registry was not a levy of a writ of execution but
      was an attempted garnishment of funds of a judgment debtor in the possession
      of a third party. The Writ used by Defendant to reach funds in the hands of the
      District Clerk failed to comply with the requirements for a writ of garnishment
      stated under Section 63.001 to 63.008, Tex. Civ. Prac. & Rem. Code and is
      void as a matter of law." (CR 179-80).

Following a hearing on same, the Smith County court denied Keathley's Motion to

Quash. The court held that "the one and only final judgment in this matter is that

Final Judgment dated March 8, 2011," and the writ of execution "was in

accordance with Rules 627 and 628 of the Texas Rules of Civil Procedure." (CR

195). The order stated further that "the Final Judgment dated March 8, 2011, is the

one true judgment of this Court and the Writ of Execution issued upon said Final

Judgment was valid and proper." (CR 195). Keathley made no attempt to appeal

the findings of the Smith County court.

      Appellee thus contends that the argument raised in Keathley's first point of

error is barred under the doctrine of res judicata. Clearly one of the bases relied on

in Keathley's Motion to Quash Writ of Execution related to whether or not the

execution was an improper attempt at garnishment of the funds in the registry of

the court. The parties to that proceeding are identical to or in privity with the

parties before the trial court. Further, these same claims or defenses are identical



                                           12
to those identified above, or arise from the same subject matter and could have

been raised therein. See Travelers, 315 S.W.3d at 862.

      Even if it is determined that this claim is not barred as a matter of law, the

arguments raised regarding this point of error must still be rejected. Appellee

would remind the Court that in the Order Granting Temporary Injunction, the trial

court ordered that Keathley's TRO should be extended stating that it was

"presented with notice of issuance of a writ of supersedeas and posting of

supersedeas bond in the underlying lawsuit from which the writ of execution

involved in this case was issued." (CR 91). As Keathley had filed his writ of

supersedeas and posted a supersedeas bond, enforcement of the Smith County final

judgment was suspended. See Tex. R. App. P. 24.1. The only legitimate purpose of

a temporary injunction is to preserve the status quo pending trial. Reeder v.

Intercontinental Plastics Mfg. Co., 581 S.W.2d 497, 499 (Tex. Civ. App—Dallas

1979, no writ). The trial court's Order Granting Temporary Injunction preserved

the status quo by suspending the levy and distribution of the subject funds pending

the outcome of the appeal of the Smith County judgment.

      On August 2, 2013, the 12th Court of Appeals issued a mandate on the

appeal raised by Frank Keathley and Melissa Keathley affirming the award of

attorney's fees to Baker which formed the basis of the writ of execution. (CR 110).

Following the issuance of the mandate, Baker filed his Motion to Dissolve



                                          13
Temporary Injunction citing the mandate and the fact that Keathley's ability to

appeal said judgment had been exhausted. (CR 102-25). The purpose of a motion

to dissolve a temporary injunction is to provide a means a party may show that

circumstances have changed which compel the dissolution of the injunction. Tober,

668 S.W.2d at 836. In such motion, the moving party is required to show that

circumstances have changed since the issuance of the temporary injunction such

that the order should now be dissolved. Id. Upon a showing of "changed

circumstances" by the movant, the trial court is authorized to dissolve the

temporary injunction. Id.

      As the basis cited for extending the temporary restraining order into a

temporary injunction was the filing of the writ of supersedeas and the posting of a

supersedeas bond, and because the appeal of said judgment was now final, Baker

argued "changed circumstances." (CR 102-25). He therefore sought dissolution of

the temporary injunction so that the levy of the writ of execution on the funds held

in the registry of the court might proceed. (CR 102-25).

      At the hearing on Baker's Motion to Dissolve Temporary Injunction, the

question of "changed circumstances" was not addressed. Rather, the trial court

focused the hearing on the question of whether a writ of execution was the proper

vehicle by which the funds held in the court's registry might be reached by a

judgment creditor. (RR 2:11, lines 10-12). Keathley argued that only a writ of



                                          14
garnishment may be employed by a judgment creditor in order to obtain property

in the possession of a third party. Originally, it appears that the trial court agreed

with the Appellant's arguments when he likened it to "a bank holding funds." (RR

2:11, lines 10-12). However, rather than ruling on the issue at this hearing, the trial

court asked the parties to brief this issue and reset the hearing for a later date. (RR

2:24, lines 14-21). Following receipt of such briefing, the trial court stated at the

subsequent hearing: "I previously said on the record I had some concern whether

or not writ of execution was the right way to get to these funds, but I'm satisfied

that this is the correct vehicle to get here." (RR 3:4, lines 19-24).

      Appellant's Brief fails to demonstrate that the trial court abused its

discretion in its findings on the effectiveness of the writ of execution. As indicated

in the record, the trial court was ultimately convinced that a writ of execution was

the "correct vehicle" after its review of the parties' briefing. (RR 3:4, lines 19-24).

In his brief to the trial court, Appellee cited Gonzales v. Daniel, 854 S.W.2d 253

(Tex. App.—Corpus Christi 1993, orig. proceeding) to support the argument. In

Gonzales, the funds subject to enforcement were placed in the registry of the court

from a garnishment judgment obtained against the debtor's bank account. Id. at

254. However, in seeking to collect the funds from the registry of the court, the

judgment creditor employed a writ of execution rather than another writ of

garnishment. Id. The Corpus Christi court held that "Gonzales was entitled to the



                                           15
issuance of a writ of execution against this property and the distribution of the

funds to him after his garnished judgment became final under the provisions of

Rule 627, and that the trial court abused its discretion by entering an order voiding

the distribution." Id. at 257. Thus, the Gonzales opinion clearly holds that a writ of

execution can be used to collect funds held in the registry of the court. Moreover,

the clear implication of both Tex. Civ. Prac. & Rem. Code §34.004 and §34.005 is

that execution is a valid means by which a judgment creditor can secure property

of the debtor that is in the possession of a third party. See Tex. Civ. Prac. & Rem.

Code §34.004 and §34.005.

      One concern in Gonzales, which Appellant has also raised, was whether

property held in custodia legis can be subject to any enforcement proceedings.

Gonzales, 854 S.W.2d at 256-57. Ordinarily, such enforcement is precluded in

order to preserve the jurisdiction of the court and avoid conflicts ofjurisdiction

between courts. Id. However, the Gonzales court cites an exception "when the

court enters a decree of distribution, or where nothing more remains for the

custodian to do but make delivery of the property or payment of the money..." Id.

at 257. Prior to the levy of the writ of execution, the trial court had already

executed an Agreed Order to Distribute Funds. (CR 36). As such, these funds were

already "subject to levy under Texas law" when the writ was levied by Constable

Green. See Id.



                                           16
      In U.S. v. Powell, 639 F.2d 224 (5th Cir. 1981), the Fifth Circuit cited Texas

case law for the same proposition: "When the court enters a decree of distribution,

or where nothing more remains for the custodian to do but make delivery of the

property or payment of the money, the reason for the doctrine of in custodia legis

is satisfied, and the property becomes subject to levy under Texas law.. .It appears,

therefore, that there must be a writ of execution. Powell, 639 F.2d at 226 (citing

Hardy v. Construction Systems, Inc., 556 S.W.2d 843 (Tex. Civ. App.—Houston

[14th Dist] 1977, writ r e f d n.r.e.); Challenge Co. v. Sartin, 260 S.W.313 (Tex. Civ.

App.—Dallas 1924, no writ) (Emphasis added).

      Appellant cites Hardy for the suggestion that an order of distribution only

becomes final for purposes of enforcement ofjudgments when the court loses

subject matter jurisdiction. However, this is a misreading of Houston court's

holding. Both Gonzales and Powell (which cites Hardy) specify that this exception

applies when either "the court enters a decree of distribution" OR "where nothing

more remains for the custodian to do but make delivery of the property or payment

of the money." Gonzales, 854 S.W.2d at 257; Powell, 639 F.2d at 226. In this case,

the trial court entered an Agreed Order to Distribute Funds on March 25, 2011.

(CR 36). This alone was sufficient to permit the judgment creditor to proceed with

the execution of these registry funds once the injunction was dissolved.




                                          17
       Case law is clear that funds deposited in the registry of the court are always

subject to the control and order of the trial court, and the court enjoys "great

latitude in dealing with them." Burns v. Bishop, 48 S.W.3d 459, 467 (Tex. App.—

Houston [14th Dist.] 2001, no pet.). In Hardy, the Houston Court clarified that the

purpose of in cutodia legis "is not to protect the party entitled to the property, but

to preserve the jurisdiction of the court administering the property and prevent

conflicts ofjurisdiction with other court." Hardy, 556 S.W.2d at 844. Therefore,

Keathley's reliance on the doctrine of in custodia legis is misplaced. In fact, the

Appellant's counsel himself represented at the hearing that the trial court possesses

"exclusive jurisdiction over control of the funds in your court," and the court

heartily agreed. (RR 3:13, lines 19-23). After review of the motions and briefs of

the parties, as well as the arguments raised in both hearings, the trial court

exercised such "latitude" in granting Baker's Motion to Dissolve Temporary

Injunction and ordering the funds to be distributed as set forth therein. (CR 305-

06). Therefore, even if the arguments raised in Keathley's first point of error are

not barred under the doctrine of res judicata, it is clear that the trial court's order

was not arbitrary or given without reference to guiding rules or principles.

      B. Reply to Appellant's Point of Error No. Two, which argues that the
         trial court erred in ordering the Clerk to disburse $30,000 from
         registry funds to Travis Clardy based on the writ of execution levied
         under Corbitt Baker's judgment against Frank Keathley because the
         levy on the Clerk's funds failed to comply with the requirements of
         Rule 637 of Tex. R. Civ. P. and Tex. Prop. Code Sec. 42.003

                                            18
      In his next point of error, Keathley raises another claim that was previously

adjudicated by the Smith County court. Keathley argues that Baker made no

attempt to contact Keathley so that he might "declare his exempt property and

designate nonexempt property against which Baker's judgment could be enforced.

However, in the Motion to Quash Writ of Execution, Keathley listed the following

as a basis to quash:

      "Levy of the Writ on the District Clerk of Franklin County, Texas without
      first levying the Writ on Plaintiffs as judgment debtors, was illegal, as a
      matter of law because it deprived the judgment debtors of their right to
      declare their exempt property and to designate any property that they
      recognized as subject to execution as required by the rules for execution
      under Rule 629, TRCP and as provided by Article 16, Section 49, Tex.
      Const. and Section 42.001 and Section 42.002, Tex Prop. Code. The levy
      made under the Writ was done without any notice to the judgment debtors
      and in violation of the procedures required by Section 42.003 Tex. Prop.
      Code." (CR 178) (Emphasis added).

As with the argument regarding garnishment, Appellant's argument that Appellee

failed to comply with Tex. R. Civ. P. 637 and Tex. Prop. Code §42.003 is also

barred under the doctrine of res judicata. See Travelers, 315 S.W.3d at 862.

      In his brief, Keathley attempts to preempt this defense by asserting that the

order on the Motion to Quash Writ of Execution has "no bearing" on this issue.

According to Keathley, the "manner in which the writ was levied or enforced was

within the exclusive jurisdiction of the trial court." However, there is no doubt that

Appellant raised his claims concerning an "illegal" levy to the Smith County court.



                                           19
Despite his present assertions, it is clear that at the time he filed his Motion to Quash,

Keathley believed that the Smith County court possessed the necessary jurisdiction to

hear such claims. However, he failed to appeal this order and now he is incapable of

relitigating same. See Ingersoll—Rand, 997 S.W.2d at 206-07. The trial court

agreed and refused to entertain Keathley's arguments since the Smith County court

had previously ruled. (RR 2:12, lines 1-5).

      Even if this argument is not barred as a collateral attack on the Smith County

court's order, the Appellant's second point of error should still be denied. Keathley's

point of error ignores the exceptions to such requirement for notice as provided

under these same rules. Tex. R. Civ. P. 637 states:

       "When an execution is delivered to an officer he shall proceed without delay
       to levy the same upon the property of the defendant found within his county
       not exempt from execution, unless otherwise directed by the plaintiff, his
       agent or attorney. The officer shall first call upon the defendant, if he can be
      found, or, if absent, upon his agent within the county, if known, to point
       out property to be levied upon, and the levy shall first be made upon the
       property designated by the defendant, or his agent. If in the opinion of the
       officer the property so designated will not sell for enough to satisfy the
       execution and costs of sale, he shall require an additional designation by the
       defendant. If no property be thus designated by the defendant, the officer
       shall levy the execution upon any property of the defendant subject to
       execution." (Emphasis added).

Further, Tex. Prop. Code § 42.003 states:

       "If the number or amount of a type of personal property owned by a debtor
       exceeds the exemption allowed by Section 42.002 and the debtor can be
      found in the county where the property is located, the officer making a levy
       on the property shall ask the debtor to designate the personal property to be
       levied on. If the debtor cannot be found in the county or the debtor fails to

                                            20
         make a designation within a reasonable time after the officer's request, the
         officer shall make the designation." Tex. Prop. Code § 42.003(a) (Emphasis
         added).

As such, if the judgment debtor "cannot be found" in the county in which the

execution is levied, it is the officer who makes the designation rather than the

judgment debtor. By his own admission, it was clear that Keathley was not a

resident of Franklin County. (CR 164). As such, the fact that Constable Green did

not contact him prior to levying the writ was not wrongful, but rather a specific

exception to any notice requirement. As Appellant could "not be found" in the

county prior to the execution, the officer properly levied the writ of execution on the

only property of the judgment debtor located in Franklin County.

         Further, the Court will recall that the writ of execution in this instance was

issued under Tex. R. Civ. P. 628. In accordance with this Rule, Appellee filed an

affidavit for immediate issuance of a writ of execution. Considering the concern for

the property being removed from Franklin County, as evidenced by the Rule 628

affidavit, the request that Constable Green not contact the Appellant was a matter of

prudence. The fact that Keathley was not a resident of Franklin County exacerbated

the concern that these funds would be removed from the county before a levy could

occur.

         Appellant cites Collum v. DeLoughter, 535 S.W.2d 390 (Tex. App.

Texarkana 1976, writ r e f d n.r.e.), to argue that where the judgment debtor was not



                                            21
provided an opportunity to designate property that this was sufficient to set aside a

sale under execution. However, this argument misstates the holding in Collum. In

fact, this Court noted that there were several "irregularities," only one of which

was the failure to provide an opportunity to designate property. Id. at 393. This

Court held that "[s]tanding alone, none of these irregularities would be sufficient to

justify setting aside the sale, but together with an inadequate price paid for the

property, and the trial court's presumed finding that these irregularities were

calculated to and did contribute to such inadequacy of price, they are sufficient to

avoid the sale." Id. Thus, even if a failure to permit a debtor the opportunity to

designate exempt property was an "irregularity," this by itself is not sufficient to

set aside the execution. For these reasons, the Court should disregard Appellant's

second point of error and affirm the order of the trial court.

       C. Reply to Appellant's Point of Error No. Three, which argues that the
          trial court erred in ordering the Clerk to disburse $30,000 from
          registry funds to Travis Clardy based on Corbitt Baker's instruction
          to the Constable to levy the writ of execution against all of the
          $41,763.50 because Frank Keathley did not own all of the funds and
          the levy was wrongful as to the other parties who did not own an
          interest in the funds

      In his third point of error, the Appellant argues that the trial court erred in

failing to consider the alleged instruction to Constable Green to levy the entire

amount held in the registry of the court. However, Appellant's assertion lacks any

basis and completely misstates the record. Appellee would remind the Court that



                                          22
he was not a party to the underlying lawsuit. In the letter to Constable Green,

Appellee's attorney states that "[o]ur investigation indicates Frank Keathley has on

deposit in the registry of the 8th Judicial District Court in Franklin County

approximately $41,763.50 associated with Cause No. 10,072 (a matter styled J.J.

Investment Company, LTD v. Frank Keathley) which amount may be released in

the near future." (CR 40). As should be apparent, this was not an instruction to the

constable to levy against a certain amount, but only an attempt to inform him of the

information Appellee had obtained concerning the only known asset in the county.

(CR 40).

      As the record demonstrates, the writ of execution was issued for the

collection of "the goods and chattels, lands and tenements of the said Frank

Keathley and Melissa Keathley.. .the said sum of Attorney's Fees in the amount of

$70,000.00 for services rendered through the trial of this c a s e . " (CR 37).

Constable Green levied this writ of execution upon "monies in Registry of Court'

as specified in his return. (CR 39). Clearly then, the levy was made solely against

Keathley's property being held in the registry of the court.

      There is simply no evidence presented by Appellant that Constable Green

sought to levy any property other than Keathley's $40,000, or that the district clerk

was placed "in a position of peril" concerning ownership of these funds. To the

contrary, the record demonstrates otherwise. In the Order Granting the Temporary



                                           23
Restraining Order, the trial court found that "Constable Green, respondent, intends

to levy against $40,000 held in the Registry of the Clerk of this Court that has been

ordered by this Court to be paid to Frank Keathley under Order for Distribution of

Funds.. .and that District Clerk Ellen Jaggers, respondent intends to make a

distribution of the $40,000 in funds held in her Registry to Corbitt Baker under

levy of the Writ of Execution." (CR 64). Thus, when the trial court entered the

temporary restraining order there was no doubt that the only property subject to

levy and distribution was the $40,000 that was previously agreed to be distributed

to Keathley.

            In the closing paragraph of this portion of the brief, Appellant requests that

this Court "grant summary judgment in favor of Keathley on this issue, declare the

attempted levy invalid, direct the District Clerk to release funds to Keathley as

originally ordered and enjoin Baker and Constable Green as requested."1 Appellee

would object to such relief as it exceeds the authority of this Court as set forth in

Tex. R. App. P. 43.2.

            D. Reply to Appellant's Point of Error No. Four, which argues that the
               trial court erred in ordering the Clerk to disburse $30,000 from
               registry funds to Travis Clardy based on levy of the writ of execution
               issued under the Corbitt Baker judgment against Frank Keathley

   T h i s a r g u m e n t w a s specifically raised in A p p e l l a n t ' s M o t i o n f o r S u m m a r y J u d g m e n t on L e v y
of W r i t of E x e c u t i o n . ( C R 154). A s an o r d e r d e n y i n g a m o t i o n f o r s u m m a r y j u d g m e n t is n o t
a p p e a l a b l e , A p p e l l e e h a s n o t r e s p o n d e d t o t h e i s s u e s raised therein, d e s p i t e A p p e l l a n t ' s c l a i m s
f o r relief, e x c e p t t o the e x t e n t that s u c h a r g u m e n t s w e r e also raised in r e s p o n s e to the m o t i o n t o
d i s s o l v e the t e m p o r a r y i n j u n c t i o n .




                                                                            24
         because the judgment debtor's ownership interest in the registry funds
         was exempt from execution under Property Code Sec. 42.001 and Sec.
         42.002

As with the first and second points of error, the claims raised in Appellant's fourth

point of error are barred under the doctrine of res judicata. In his Motion to Quash

Writ of Execution filed before the County Court at Law No. 3 of Smith County,

Texas, Keathley cited the following as a basis for quashing the writ:

      "Levy of the Writ on the District Clerk of Franklin County, Texas without
      first levying the Writ on Plaintiffs as judgment debtors, was illegal, as a
      matter of law because it deprived the judgment debtors of their right to
      declare their exempt property and to designate any property that they
      recognized as subject to execution as required by the rules for execution
      under Rule 629, TRCP and as provided by Article 16, Section 49, Tex.
      Const. and Section 42.001 and Section 42.002, Tex Prop. Code. The levy
      made under the Writ was done without any notice to the judgment debtors
      and in violation of the procedures required by Section 42.003 Tex. Prop.
      Code." (CR 178) (Emphasis added).

Appellee contends that this point of error is merely another attempt by the Appellant

to relitigate the issue of whether these funds are exempt. See Ingersoll—Rand, 997

S.W.2d at 206-07.

      In the alternative, Baker would argue that these funds were not exempt under

Tex. Prop. Code §42.001 or §42.002. As the record reflects, the subject funds were

deposited in the court's registry and subsequently ordered to be distributed pursuant

to a mediated settlement agreement as specified in the Agreed Order to Distribute

Funds. (CR 36). Appellee would point out that nothing in Chapter 42 of the Texas




                                          25
Property Code provides any exemption from execution for monies paid as a

settlement in litigation.

      Keathley has made the argument that these funds are precluded from

execution because they constitute unpaid commissions. In Campbell v. Stucki, 220

S.W.3d 562, 566-567, (Tex. App.—Tyler 2007, no pet.), the Tyler Court

specifically addressed the issue. The court reasoned that "wages for personal

service. implies a relationship of master and servant, or employer and employee,

and excludes compensation due to an independent contractor as such." Id. at 566-

567; (citing Brasher v. Carnation Co., 92 S.W.2d 573, 575 (Tex. Civ. App.

Austin 1936, writ dism'd)). Since it was established that the debtor was an

independent contractor rather than an employee, the court held that "his

commissions are not 'wages for personal service' and are not exempt from

garnishment." Id. at 567. In Ross v. 3D Tower, Ltd., 824 S.W.2d 270, 273 (Tex.

App.—Houston [14th Dist.] 1992, writ denied), the 14th Court of Appeals reached

a similar conclusion holding that an attorney is an independent contractor and any

fees owed for legal services which had been performed were not exempt under the

Texas Turnover Statute. Keathley has presented no evidence to demonstrate that he

was an employee rather than an independent contractor in the underlying dispute.

In fact, in the Appellant's brief he represents the underlying lawsuit as a "contract

dispute." Thus, even if Keathley correctly characterizes these funds as unpaid



                                          26
commissions, rather than settlement proceeds, his argument that these payments

are exempt fails under the clear holding of Campbell.

           Even assuming, arguendo, that Keathley is correct regarding the application

of this exemption, he has mischaracterized the amount that would be exempt under

Tex. Prop. Code §42.001(a), (d). Pursuant to the language of §42.001(d), the

exemption for unpaid commission is limited to 25% of the aggregate amount of

$60,000; i.e. $15,000. Tex. Prop. Code §42.001(a), (d). Even if Keathley could

establish that these funds were somehow distinguishable from those in Campbell,

the remaining $25,000 would still be subject to the levy. However, Appellant cites

no authority or basis for such a distinction. Further, Keathley presents no authority

to support his assertion that an additional $15,000 of these "unpaid commissions

are precluded under the "family exemption," or that the $10,000 in attorney's fees,

purportedly assigned to his attorney, are also exempt under this section of the

Property Code. For each of these reasons, this point of error must be denied.2

           E. Reply to Appellant's Point of Error No. Four, which argues that the
              trial court erred in ordering the Clerk to disburse $30,000 from
              registry funds to Travis Clardy based on levy of the writ of execution
              issued under the Corbitt Baker judgment against Frank Keathley as
              entered March 8, 2011, because the judgment was not a final judgment
              as required by Rule 622, Tex. R. Civ. P. and because the writ was
              voided when the judgment was revoked by the judgment entered April

2
   O n c e again t h e A p p e l l a n t states that h e is entitled t o " s u m m a r y j u d g m e n t t h a t all h i s interest in
t h e registry f u n d s w a s a n d are e x e m p t u n d e r t h e P r o p e r t y C o d e . " A p p e l l e e w o u l d again o b j e c t t o
such relief as it e x c e e d s t h e authority of this C o u r t as set f o r t h in Tex. R. A p p . P. 43.2.



                                                                       27
         12, 2011, reinstated by the Order entered April 18, 2011, appealed and
         reformed and affirmed by the Twelfth Court of Appeals Opinion
         delivered April 2, 2013 and Judgment dated April 24, 2011

      Keathley's final point of error concerns the validity of the writ of execution

due to the events which followed the issuance of the March 8, 2011 final judgment.

Yet again, Keathley raised an argument that was previously raised and adjudicated.

In the Motion to Quash Writ of Execution, Appellant cited the following as

additional bases to quash the writ:

      "Upon entry of the Final Judgment dated April 12, 2011 in favor of Plaintiffs
      ans against Defendant, the Writ was void, as a matter of law since the March
      8, 2011 judgment under which it was issued was vacated. Under Rule 622,
      TRCP (Execution), issuance of a writ of execution requires a final judgment.
      Since the judgment under which the Writ was issued was vacated, the Writ
      was not supported by a judgment and was void, as a matter of law." (CR 178-
      79)

      "The Court's April 18, 2011 entry of the Order Vacating the April 12, 2011
      Final Judgment and reinstating the Final Judgment signed March 8, 2011, did
      not reinstate the Writ of Execution issued March 30, 2011 under the March 8,
      2011 judgment because Rule 622 TRCP requires a writ of execution to be
      issued under a final judgment. In this case, the final judgment could only have
      been the one signed April 18, 2011." (CR 179)

As set forth above, the order on the Motion to Quash specifically addressed these

arguments. The Smith County court held that "the one and only final judgment in

this matter is the Final Judgment dated March 8, 2011" and "the Final Judgment

dated March 8, 2011, is the one true judgment of this Court and the Writ of

Execution issued upon said Final Judgment was valid and proper." (CR 195). Such

claims are therefore barred as a matter of law under the doctrine of res judicata.

                                          28
      Even ignoring the fact that these claims were previously adjudicated, the

assertions raised in this point of error lack any merit. Appellant first argues that the

March 8th judgment was as an interlocutory judgment rather than a final judgment.

Case law is clear that a judgment is final if it disposes of all parties and claims in

the lawsuit. Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 617 (Tex. 2007).

Further, there is a presumption that a judgment following a trial on the merits

disposes of all parties and claims and is final. Vaughn v. Drennon, 324 S.W.3d

560, 562-63 (Tex. 2010). It is presumed then that the March 8th judgment was

final. Further, it is clearly stated in the body of the judgment that it "finally

disposes of all parties and claims." (Appendix 1).

      Appellant further argues that the writ was voided when the Smith County

court mistakenly signed a second "final judgment" on April 12, 2011. (CR 58).

This "judgment" was submitted by the Keathleys after the March 8th judgment had

been entered. As the Court will note, it completely reversed the findings of the jury

and awarded damages to the Keathleys contrary to the jury's findings. (CR 58).

However, as soon as the Smith County court was made aware of this error, the

judge signed the Order Vacating Final Judgment Erroneously Entered April 12,

2011. (Appendix 2).

      In its opinion following the Keathleys' appeal of the judgment, the Tyler

Court pointed out that the "Order Vacating Final Judgment Erroneously Entered



                                           29
April 12, 2011" states that the March 8th judgment "correctly reflects the judgment

of this court." (CR 116). The Court overruled Keathley's issues on appeal and held

that the "April 18 order reinstated the March 8 judgment." (CR 116). As the March

8th final judgment was not voided but rather reinstated, the writ of execution based

on said judgment is not void.

      Finally, Keathley asserts that the judgment was modified by the remittitur. In

its Mandate, the 12th Court of Appeals affirmed the trial court's judgment and

award of $70,000.00 in attorney's fees to Baker. (CR 110). However, the Tyler

Court also included a suggestion of remittitur solely with respect to the appellate

attorney's fees. (CR 110) The Court will recall that the March 8th judgment also

awarded appellate attorney's fees to Baker contingent on the Keathley's

unsuccessful appeal of the judgment. (Appendix 1). The mandate issued by the 12th

Court of Appeals ordered a remittitur reducing the amount awarded for these

appellate attorney's fees from $25,000.00 to $8,000.00. (CR 110). As was pointed

out at the hearing on the Motion to Dissolve Temporary Injunction, the remittitur

affected no part of the final judgment upon which the writ of execution was based.

(RR 3:17, lines 15-21).

      As previously indicated, the writ of execution was issued under Tex. R. Civ.

P. 628 and prior to any appeal of the Smith County judgment. In fact, the writ clearly

indicates that it was issued for the collection of "the goods and chattels, lands and



                                          30
tenements of the said Frank Keathley and Melissa Keathley.. .the said sum of

Attorney's Fees in the amount of $70,000.00for services rendered through the

trial of this case.. " (CR 37) (Emphasis added). There was nothing in the writ of

execution which even addressed the contingent appellate attorney's fees made the

basis of the remittitur. Therefore, the trial court correctly rejected such arguments

and nothing raised in Appellant's final point of error demonstrates that the court

acted arbitrarily, unreasonably or without reference to guiding rules or principles in

so doing. For these reasons, the trial court's Order on Corbitt Baker's Motion to

Dissolve Temporary Injunction, Frank Keathley's Motion to Modify Injunction

and Release Funds and Frank Keathley's Motion for Summary Judgment on Levy

of Writ of Execution must in all things be upheld.

      F. Reply to additional issues raised in Appellant's Prayer

      In his Prayer, Keathley seeks the reversal of not only the orders respecting

the temporary injunction, but also the orders denying his Motion for Summary

Judgment on Levy of Writ of Execution dated March 25, 2011 and his Request for

Findings of Fact and Conclusions of Law, Motion for Reconsideration and/or

Motion for New Trial and Notice of Appeal dated November 3, 2014.

      Appellee would point out that Keathley's Request for Findings of Fact and

Conclusions of Law was filed untimely. Tex. R. Civ. P. 296 states that such request

"be filed within twenty days after judgment is s i g n e d . " The Order on Corbitt



                                          31
Baker's Motion to Dissolve Temporary Injunction, Frank Keathley's Motion to

Modify Injunction and Release Funds and Frank Keathley's Motion for Summary

Judgment on Levy of Writ of Execution was signed on March 25, 2014. (CR 305).

However, the Request for Findings of Fact and Conclusions of Law was not filed

until April 25, 2014. (CR 308). As such, there is no basis for reversing the trial

court's order.

      While the Motions for Reconsideration and for New Trial were timely filed

under Tex. R. Civ. P. 329b, in neither motion did Keathley cite any basis for the

trial court to reconsider its order or to grant a new trial. The motion fails to

establish "good cause" and fails to set forth his objections so they "can be clearly

identified and understood by the court." Tex. R. Civ. P. 320, 321. Further, Tex. R.

Civ. P. 322 specifically prohibits general objections such as Keathley employs, and

mandates that same "shall not be considered by the court." Even so, the standard of

review of a ruling on such motion is again abuse of discretion. Cliff v. Huggins,

724 S.W.2d 778, 778-79 (Tex. 1987). The Appellant's Brief makes no attempt to

demonstrate that the trial court acted arbitrarily or without reference to guiding

rules or principles in denying both motions.

      Appellant also argues for relief from this Court from the trial court's denial

of his Motion for Summary Judgment. However, the law is clear that, with few

exceptions, an order denying summary judgment is not appealable. See Ackermann



                                           32
v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966). Appellant's Brief fails to make

any showing that summary judgment being sought fell under one of these

exceptions, and therefore such relief must also be denied.

      Finally, Appellant asks that this Court enter a permanent injunction against

the Appellees to preclude enforcement of Baker's judgment against him. However,

such relief is not within the jurisdiction of the Court and exceeds the authority

specified in Tex. R. App. P. 43.2. For such reason, any such relief must also be

denied.

                                       PRAYER

      Appellee Corbitt Baker respectfully prays that this Honorable Court would

overrule each of the Appellant's points of error, deny the relief requested in his brief,

affirm the trial court's Order on Corbitt Baker's Motion to Dissolve Temporary

Injunction, Frank Keathley's Motion to Modify Injunction and Release Funds and

Frank Keathley's Motion for Summary Judgment on Levy of Writ of Execution

executed on March 25, 2014, and award Appellee such other and further relief to

which he may be justly entitled to receive.

                                         Respectfully submitted,

                                         CLARDY LAW OFFICES
                                         209 E. Main Street
                                         Nacogdoches, Texas 75961
                                         Ph: 936-564-2500
                                         Fax: 936-564-2507



                                           33
                                By:    /s/ Jerry W. Baker
                                       TRAVIS P. CLARDY
                                       State Bar No. 04268020
                                       JERRY W. BAKER
                                       State Bar No. 24026776

                                       ATTORNEYS FOR APPELLEE,
                                       CORBITT BAKER


                      CERTIFICATE OF COMPLIANCE

      I hereby certify that this document was produced on a computer and contains

8,675 words, as determined by the computer software's word-count function,

excluding the sections of the document listed in Tex. R. App. P. 9.4(i)(1).

                                       /s/ Jerry W. Baker
                                       JERRY W. BAKER


                          CERTIFICATE OF SERVICE

      I hereby certify that on April 15, 2015, a true and correct copy of the

foregoing document has been served by certified mail, return receipt requested, in

accordance with the Texas Rules of Appellate Procedure, on the following:

      a. Mr. Larry R. Wright, P.O. Box 144, Winnsboro, Texas 75494; Attorney

         for Appellant.

      b. Mr. Larry Blount, Powers & Blount, L.L.P., P.O. Box 877, Sulphur

         Springs, Texas 75483; Attorney for Appellee J.J. Investments, Ltd.




                                         34
c. Mr. Gene Stump, P.O. Box 606, Mount Vernon, Texas 75457; Attorney

  for Appellees Ellen Jagger, District Clerk, and Constable Ronald Green.

                              /s/ Jerry W. Baker
                              JERRY W. BAKER




                                35
                    Case No. 06-14-00036-CV


                     In the Court of Appeals

                       6th Judicial District

                           Texarkana, Texas


                    Frank Keathley, Appellant

                                  v.

       J.J. Investment Company, L.T.D., et al., Appellees


                             APPENDIX



     Final Judgment Cause No. 51,959-B, Frank Keathley and Melissa
     Keathley v. Corbitt Baker, et al., in the County Court at Law, No. 3 of
     Smith County, Texas_dated March 8, 2011.

2.   Order Vacating Final Judgment Erroneously Entered April 12, 2011 -
     Cause No. 51,959-B, Frank Keathley and Melissa Keathley v. Corbitt
     Baker, et al., in the County Court at Law, No. 3 of Smith County,
     Texas_dated April 18, 2011.

     Tex. R. App. P. 24

4    Tex. R. App. P. 43

     Tex. R. Civ. P. 296

6.   Tex. R. Civ. P. 320

     Tex. R. Civ. P. 321


                                  36
      Tex. R. Civ. P. 322

9     Tex. R. Civ. P. 621

10.   Tex. Civ. Prac. & Rem. Code §34.004

11.   Tex. Civ. Prac. & Rem. Code §34.005




                               37
Appendix 1
                                         CAUSE NO. 51,959-8
                                                                                mimfi-s         /urn:?,
    FRANK KEATHLEV and                              §                  C O V N T y ^ ^ A T l l f
    MELISSA KEATHLEY,                               §                           BY.
    Plaintiffs                                      §                                          MPi/rr
                                                    §
    VS.                                             §                                             NO. 3
                                                    §
   CORBlTr BAKER, CARROLL BOBO                      §
   d/b/a UNITED COUNTRY BOBO                        §
   REALTY, and MOLLIE BOBO tMVa                     §
   UNITED COUNTRY BOBO REALTY,                      §
   Defendants                                       §                   SMITH COUNTY, TEXAS

                                        FINAL J U D G M E N T

         On February 16,2011, this cause came on to b e heard and Frank Keathley and Melissa
 Keathley, Plaintiffs, appeared in person and by attorney o f record and announced ready f o r trial
 and Corijiti Baker, Carrol) Bobo d/b/a United Country Bobo Realty and Mollie Bobo d/b/a
 United Countiy Bobo Realty, Defendants, appeared in person and by attorney o f record and
 announced ready for trial, and a jury having been previously demanded, a j u r y consisting o f six
 qualified jurors was duly impaneled and the case proceeded to trial.

        At the conclusion of the evidence, the court entered a directed verdict on behalf of
Defendants Corbitt Baker, Carroll Bobo d/b/a United Country Bobo Realty and Mollie Bobo
d/b/a United Country Bobo Realty and against Plaintiffs Frank Keathley and Melissa Keathley
for Plaintiffs' claims of common law fraud and statutory fraud. The court then submitted the
remaining questions of fact to the jury. T h e charge of the court and t h e verdict o f the jury are
incorporated for all purposes by reference.

        Following the jury's deliberation, a verdict of the jury was rendered on behalf o f
Defendant Corbitt Baker and against Plaintiffs Frank Keathley and Melissa Keathley. T h e j u r y
found that the contract had terminated and thai Plaintiffs were not entitled to any damages or
attorneys' fees. Further, the jury verdict awarded Defendant Corbitt Baker attorneys' fees for
services rendered through trial in the amount of $70,000.00. In the event of an appeal to the court
of appeals, the jury awarded Defendant Corbitt Baker attorneys' fees of $10,000.00 and, in the
event of an appeal to the Supreme Court of Texas, die jury awarded Defendant Corbitt Baker
attorneys' fees of $ 15,000.00.

        IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED by the court that
Plaintiffs, Frank Keathley and Melissa Keathley, take nothing in their suit against Defendants,
Corbitt Baker, Carroll Bobo d/b/a United Country Bobo Realty and Mollie Bobo d/b/a United
Country Bobo Realty.

         IT IS FURTHER ORDERED, ADJUDGED, A N D DECREED by the court that
Defendant Corbitt Baker shall recover from Plaintiffs Frank Keathley and Melissa Keathley
attorneys' fees in die amount of $70,000.00 for services rendered through the trial o f this case. In
the event of an appeal by Plaintiffs Frank Keathley and Melissa Keathley to the court o f appeals,
if the appeal is unsuccessful. Defendant Corbitt Baker will be further entitled to a n amount of
$ 10,000.00 as a reasonable attorneys' fee. In the event of an appeal by Plaintiffs Frank Keathley
and Melissa Keathley to the Supreme Court of Texas, if the appeal is unsuccessful, Defendant
Corbitt Baker will be entitled to an additional amount of $15,000,00 as a reasonable attorneys'
fee.

        IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the total amount of
the judgment here rendered will bear interest at the rate of 5% percent from the date of judgment,
until paid.

        All costs of court spent or incurred by Defendants in this cause are adjudged against
Plaintiffs Frank Keathley and Melissa Keathley in the amount of $371.64.

        All -writs and processes for the enforcement and collection of this judgment or the costs
of court may issue as necessary.

       All relief requested in this case and not expressly granted is denied. This judgment finally
disposes of all parties and claims and is appealable.

       SIGNED on this         day of        MAR - ft 2 Q f f l l 1 •



                                                      DGBTRESIDING




                                       Final J u d g m e n t - P a g e 2
Appendix 2
                       From:9035901696                                                            Paaeil'S
AR?-18-2011 11:41




                                                                                              Ki^EWP/iLLiPS
                                                                                               c o u ? m Of
                                               CAUSE NO. 51,959-B
                                                                                             M i l APR 18    m 10 3 1
         FRANK KEATHLEY and                               )(          IN THE COUNTY                           1 WAS
         MKLISSA KEATHLEY, Plaintifts                     X                                  BY
                                                          X                               C——-—DEPUT?
         VS.                                              )(          AT LAW #3 IN AND FOR
                                            )(
         C0RB1TT BAKER, CARROLL BOBO        )(
         <f/b/a UNITED COUNTRY BOBO REALTY, )(
         and M0LL1E BOBO d/b/a UNITED       X
         COUNTRY BOBO REALTY, Dcfcndaots    )(                        SMITH COUNTY, TEXAS

         ORDER VACATING FINAL lUDGMFNT F.RRONKOIISLY ENTERED APRIL 12.2011

                On this        .day oX   V'/J             2011 came to be considered b y Ihe Court eke

         mistaken signing iind entry nf a sccond "Final Judgment" in this case on or about April 12, 2011.

         The Court had pxeviously entered a Final Judgment in (his ease on March 8,2011.

                On the 12rli day of April, 2011, the Courl erroneously entered n second "Final Judgment"

         that substantially differed from the one entered on March 8,2011.,

                The Court finds that U is in ihe inlercst of justice that the Final Judgment entered April

         12,2011 be and is hereby VACATED it) its entirety.

                The Final Judgment entered by this Court on March 8,2011 (attached hereto as Exhibit

         "A") coneetly reflects the judgment of this Court based upon the verdict of the jury received and

         acccpted by the Court at the conclusion of the trial.

                SIGNED this the          day of                   . 2011.




                                                                                ING
APR-18-2011 1 1 : 4 2     From: 9 0 3 5 9 0 1 5 %                                                    PasesS'S




                                                                                                KAV?   I— % :
                                                                                                          if i - ' . ' - i , ' ! i p s
                                                                                                t O ' i - JTY C!. r ."": •
                                                           CAUSE NO. 51,9S9-B
                                                                                              Kill          -a        /Jijft ?n
                                                                                                                              1
                FRANK KEATHLEY ana                                               COUNTY COURT AT LAW
                MELISSA KEATHLEY,
                Plain tiffs                                                                   i'V
                                                                      §
                                                                                                                      fjLi'UJY
                                                                      §
                VS.                                                   §                                           NO. 3
                                                                      §
                CORBITT BAKER, CARROLL BOBO                           §
                <Vb/a UNITED COUNTRY BOBO                             §
                REALTY, and MOLLIE BOBO d^j/a                         §
                UNITED COUNTRY BOBO REALTY,                           §
                Defendants                                            §             SMITH CODNTY, TEXAS

                                                           FINAL JUDGMENT

                       On February 16,2011, this cause camc on to be heard and Frank Kcathley and Melissa
               Keathley, Plaintiffs, appeared in person and by attorney of record and announced ready lor {rial
               and Corbitt Baker, Carroll Bobo d/b/a United Country Bobo Realty and Moltic Bobo d/b/a
               United Country Bobo Realty, Defendanh;, appeared in person and by attorney of record and
               announced ready for trial, and a jury having been previously demanded, a jury consisting of six
               qualified jurors was duly impaneled and the ease proceeded to trial.

                       Al the conclusion of the evidence, the court entered a directed verdict on behalf of
               Defendants Corbitt Baker, Carroll Bobo d/b/a United Country Bobo Realty and Mollic Bobo
               d/b/a United Country Bobo Realty and against Plaintiffs Frank Keathley and Melissa KcaiWey
               for Plaintiffs' claims of common law fraud and statutory fraud. The court then submitted the
               remaining questions of fact to the jury. The charge of the court and the verdict of the jury are
               incorporated for all purposes by reference.

                       Following the jury's deliberation, a verdict of the jury was rendered on behalf of
               Defendant Corbitt Baker and against Plaintiffs Frank Keathley and Melissa Keathley. The jury
               found thai the contract had terminated and that Plaintiffs were not entitled to any damages or
               attorneys* fees. Further, the jury verdict awarded Defendant Corbitt Boker attorneys' fees for
               services rendered through trial in the amount of $70,000.00. In the event of an appeal to the court
               of appeals, the jury awarded Defendant Corbiti Baker attorneys' fees of $10,000,00 and, in the
               event of an appeal to the Supreme Court of Texas, the jury awarded Defendant Corbitt Baker
               attorneys' fees of $15,000.00.

                       IT IS THEREFORE ORDERF.D, ADJUDGED, AND DECREED by the court that
               Plaintiffs, Frank Keathley and Melissa Keathley, take nothing in their suit against Defendants,
               Corbitt. Baker, Carroll Bobo d/b/a United Country Bobo Realty andMoIHe Bobo d/b/a United
               Country Bobo Realty.

                       l i IS FURTHER ORDERED, ADJUDGED, AND DECREED by the court that
               Defendant Corbitt Baker shall recover from Plaintiffs Frank Keathley and Melissa Keathley
               attorneys' fees in the amount of $70,000.00 for services rendered through the trial of this case. In
               the event of an appeal by Plaintiffs Frank Kcathley and Melissa Keathley to the court of appeals,
               if the appeal is unsuccessful, Defendant Corbitt Baker will be further entitled to an amount of

                                                    £   y K i b i + - ft
RPR-16-2011 11:42      From:9035901696                                                           Pase:3'3




            $10,000.00 as a reasonable attorneys' fee. in the event of an appeal by Plaintiffs Fr mk Keathlcy
            and Melissa Keathley to the Supreme Court of Texas, if the appeal is unsuccessful, Defendant
            Corbitt Baker will be entitled to an additional amount of $15,000.00 as Q reasonabl s attorneys'
            fee.

                    IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the tota amount of
            the judgment here rendered will bear interest at the rate of 5% percent from the dat: of judgment,
            until paid.

                    Ail costs of court spent or incurred by Defendants in this cause are adjudge 1 against
            Plaintiffs Frank Keathley and Melissa Keathley in the amount of $371.64.

                    All writs and processes for the enforcement and collection of this judgment or the costs
            of courl may issue as necessary.

                   All relief requested in this cose and not expressly granted is denied. This judgment finally
            disposes of all parties and claims and is appealable.

                    SIGNED on this J j ^ d a y of    V^Vfriv . 20


                                                              DG&pifcsiDING




                                                    Fiuitf Judgment - Page 2
Appendix 3
                                                          Tex. R. Apj). P. Rule 24
                                            This d o c u m c n l is currenl (hrough February 4, 2 0 1 5


Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE                                                          PROCEDURE                > SECTION
TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS


Rule 24 Suspension of Enforcement of Judgment Pending Appeal in Civil Cases.
 24.1 Suspension       of Enforcement.

      (a) Methods.          —Unless the law o r these rules p r o v i d e otherwise, a j u d g m e n t d e b t o r m a y s u p e r s e d e t h e j u d g m e n l
            by:

            (1)   filing with t h e trial court clerk a written a g r e e m e n t with the j u d g m e n l creditor f o r s u s p e n d i n g
                  e n f o r c e m e n t of the j u d g m e n t ;

            (2)   filing    with the trial court clerk a good and s u f f i c i e n t b o n d ;

            (3)    m a k i n g a deposit with t h e (rial court clerk in lieu of a bond; o r

            (4)    p r o v i d i n g alternate security ordered by the court.

      (b)   Bonds.

            (1)    A bond must be:

                   (A) in the a m o u n t required by 24,2;

                   (B) p a y a b l e lo the j u d g m e n t creditor;

                   ( C ) signed by the j u d g m e n l d e b t o r or the d e b t o r ' s agent;

                   (D) signed by a s u f f i c i e n t surety o r sureties as obligors; and

                   (E) conditioned as required by (d).

            (2)    To b e e f f e c t i v e a bond m u s t b e a p p r o v e d by the (rial court clerk. On m o t i o n of a n y party, the trial court
                   will review (he bond.

      (c) Deposit      in Lieu of Bond.

            (1)   Types of Deposits.              - I n s t e a d of filing a surety bond, a party m a y d e p o s i t with t h e trial court clerk:

                   (A) c a s h ;

                   (B) a c a s h i e r ' s c h e c k p a y a b l e to the clerk, d r a w n on a n y             federally insured and             federally or
                           slate-chartered bank o r savings-and-loan association; or

                   (C) with leave of court, a n e g o t i a b l e obligation of the federal g o v e r n m e n t or of a n y federally insured and
                           federally or state-chartered bank or s a v i n g s - a n d - l o a n association.

            (2) Amount         of Deposit.          —The deposit must be in the a m o u n t required by 24.2.

            (3) Clerk's      Duties.       —The clerk must p r o m p t l y deposit a n y c a s h o r a c a s h i e r ' s c h e c k in a c c o r d a n c e with law.
                   T h e clerk must hold t h e deposit until the c o n d i t i o n s of liability in (d) are e x t i n g u i s h e d . T h e clerk m u s t
                   then release any remaining f u n d s in the deposit lo the j u d g m e n l debtor.

      (d)   Conditions       of l.iahilily.       —The surety o r sureties on a bond, a n y deposit in lieu of a bond, o r an)' alternate
            security ordered by the court is s u b j e c t to liability f o r all d a m a g e s and costs thai m a y be a w a r d e d against ihc
            debtor - up lo ihe a m o u n t of t h e bond, depo.sii. or sccuriiy - if:

            (Ij    Ihc dcblor does not perfeel an appeal or Ihc d e b l o r ' s appeal is dismissed, and Ihe d e b t o r d o c s noi p e r f o r m
                   the trial c o m I ' s j u d g m e n l ;
                                                                                                                                                          Page 2 of 4
                                                                Tex. R. A p p . R Rule 2 4


            (2)       t h e debtor d o c s not p c r l b r n i an a d v e r s e j m i g r n c m final on appeal: or

            (3)       llio judgment is for llic r c c o v c r y of ;in inlerest in real or personal properly, and Ihe debtor d o c s nol pay
                      the creditor the value of the properly i n l e r e s t ' s renl or r e v e n u e during the p e n d e n c y of the ;ippeaL

    (e) Orders           of Trial Court.         --The trial court m a y m a k e any order neces.sruy lo a d e q u a t e l y protect Ihe j u d g m e n t
            creditor against loss or d a m a g e that the appeal might causc.

    (f)     Kffi'ct     of Supersedeas.           — l i n f o r c c m e n t of a j u d g m e n t m u s t be suspetided if t h e j u d g m e n t is superseded.
            H n f o r c c m e n l begun before t h e j u d g n i e m is superseded must cease when the j u d g m e i i ! is s u p e r s e d e d . If
            execution has been issued, the clerk will p r o m p t l y issue a writ of s u p e r s e d e a s .

24.2 Amoinil          of Bond,     Deposit     or Security.

     (it)   Type of Judgment.

            (1) For Rccovcry            of Money.        - - W h e n the j u d g m e n t is for money, the a m o u n t of the bond, deposit, or security
                      must equal the sum of c o m p e n s a t o r y d a m a g e s awarded in the j u d g m e n t , interest for Ihe estimated
                      duration of the appeal, and costs a w a r d e d in the j u d g m e n t . But Ihe a m o u n t must not exceed Ihe lesser of:

                      (A) 5 0 percent of the j u d g m e n t d e b t o r ' s c u n e n t net worth: or

                      (B) 2 5 million ilollv>rs.

            (2)       For Recovery       of Property.         —When the j u d g m e n t is for the r e c o v e r y of an interest in real or personal
                      property, the trial court will d e t e r m i n e the type of security that the j u d g m e n t debtor m u s t post. The
                      a m o u n t of that security must be at least:

                      (A) the value of the property interest's renl o r r e v e n u e , if Ihe properly interest is real: or

                      (B)   ihe value of the properly inlerest on the dale when ihe court r e n d e r e d j u d g m e n l . if (he property
                            interesl is personal.

            ( 3 ) Other                        —When t h e jvulgroent is f o r s o m e t h i n g other t h a n m o n e y or an interest in propeity, the
                      trial court must set the a m o u n t and type of security that the j u d g m e n t d e b t o r m u s t post. T h e security mu<t
                      adequately prolecl the j u d g m e n l creditor against loss or d a m a g e that the appeal m i g h t cause. But the (rial
                      court m a y decline lo permit Ihe j u d g m e n t to b e superseded if the j u d g m e n t c r e d i t o r posts security ordered
                      by the trial court in an a m o u n l and type that will s e c u r e the j u d g m e n l d e b t o r againsl any loss or d a m a g e
                      caused by the relief g r a n l e d the j u d g m e n t credilor if an appellate court d e t e r m i n e s , on final disposilion.
                      Ihat Ihat relief was improper.

            (4) Conservatorship              or Custody.        —When the j u d g m e n l involves the c o n s e r v a t o r s h i p or c u s t o d y of a minor
                      or olhcr person u n d e r legal disability. cnl'orccmeiH of Ihe j u d g m e n t will nol be s u s p e n d e d , wilh or without
                      securily. unless ordered by (he trial court. But upon a proper s h o w i n g . Ihe appellale court m a y suspend
                      e n f o r c e m e n t of Ihe j u d g m e n t with or wilhoul security.

            (5) For a (rovemmenUd                  Entity.     - - W h e n a j u d g m e n t in f a v o r of a g o v e r n m e n l a l entily in its g o v e r n m e n t a l
                      capacity is one in which the entity h a s no pecuniary interesl. Ihe trial court must d e t e r m i n e w h e t h e r lo
                      s u s p e n d e n f o r c e m e n t , with or without security, taking into account the h a r m ihat is likely to result to the
                      j u d g m e n t d e b t o r if e n f o r c e m e n t is not s u s p e n d e d , ami the harm that is likely lo result to others if
                      e n f o r c e m e n l is s u s p e n d e d . The appellate court m a y review the trial c o u r l ' s d e l e n n i n a t i o n and suspend
                      e n f o r c e m e n t of Ihe j u d g m e n l . w i t h or without securily. or r e f u s e to s u s p e n d the j u d g m e n t , if security is
                      required, recovery is limited to the g o v e r n m e n t a l e n i i t y ' s jciual d a m a g e s resulting from suspension of ihe
                      jtulgmeni.

     (b) l.esser Ainoinit.                T h e trial court m u s t lower the a m o u n t of security required bv (a) to an a m o u n t that will
            not cause the judgment d e b t o r substantial e c o n o m i c harm if, after notice to all parties and a hearing, the court
             finds thai posting a bond, deposit, or securily in ihe a m o u n t required by (al is likely to cause ihe judgmenl
            debtor subslanliai e c o n o m i c h a r m .

     (c)     Determination of Net Worth.
                                                                                                                                               P a g e 3 of 4
                                                              Tex. R. A p p . P. Rule 2 4


           (1)   Jiidginetil      Debtor's      Affiilavit   Requireil;   Contents;      Prinm       Facie   Erulence.     - A judgmenl debtor who
                  provides a bond, deposit, o r security u n d e r (a)( 1 )(A) in an a m o u n t based on the d e b t o r ' s nel worth must
                  simuHaneously file with t h e trial court clerk an a f f i d a v i t that suues the d e b t o r ' s net w o r t h and slates
                 c o m p l e t e , detailed i n f o n n a t i o n c o n c e r n i n g the d e b t o r ' s assets and liabilities f r o m which nel worth can be
                  ascerliiined. An affidavit that m e e t s these re<]iui emeiits is prima facie e v i d e n c e of the d e b t o r ' s nel worth
                  for the purpose of esfablishing the a m o u n t of the bond, deposit, o r security required to suspend
                  e n f o r c e m e n t of the j u d g m e n t . A trial court clerk must reccivc and file a net-worth a f f i d a v i t tendered for
                  filing by a j u d g m e n l deblor.

           (2)   Contest;      Discovery.         —A j u d g m e n l creditor m a y file a eontcst to Ihc d e b t o r ' s claimcd nel worth. The
                  contest need not be sw'orn. T h e creditor may c o n d u c t reasonable d i s c o v e r y c o n c e r n i n g ilie judgment
                  d e b t o r ' s nel worth.

           (3)    Hearing;      Burden         of Proof;     Findings;    Additional      Security.     —The trial court m u s t hear u j u d g m e n t
                  c r e d i t o r ' s contest of the j u d g m e n t d e b t o r ' s claimcd net worth p r o m p t l y after a n y d i s c o v e r y has been
                  c o m p l e i e d . T h e j u d g m e n t d e b t o r has the burden of p r o v i n g net worth. T h e trial court m u s t issue an order
                  that stales Ihe d e b t o r ' s net worth and states with parlicularily the factual basis for that d e t e r m i n a t i o n . If
                  the trial courl orders additional or other security to supersede the j u d g m e n l , the e n f o r e e m e i u of the
                 j u d g m e n t wil! be s u s p e n d e d for Iwenty days after Ihe trial c o u r t ' s order. If Ihe j u d g m e n t d e b t o r does not
                  c o m p l y with the order w i t h i n that period, the j u d g m e n t may b e e n f o r c e d against ihe j u d g m e n t deblor.

     (d)   /ly'iiiicfiOH       -The trial cvaus m a y e n j o i n the jutAgmeril debtor f r o m dissipating or t i a n s f e r r i n g assets to avoid
           satisfaciion of the i u d g m e n t . but the trial court m a y not m a k e any order that interferes with the judgment
           d e h i o r ' s use, transfer, c o n v e y a n c e , or dissipation of asscis in the normal c o u r s c of business.

24.3 Continuing        Trial Court Jurisdiction;             Duties   of Judgment       Debtor.

     (a) Conlwuing          Jurisdiction.         —Even after the trial c o u r t ' s plenary power expires, the trial courl has continuing
           jurisdiction to do llie f o l l o w i n g :

           (1)    o r d e r t h e amounf and type of security and de c ide the sufficiency of sureties; and

           (2)    if c i r c u m s t a n c e s c h a n g e , m o d i f y Ihe a m o u n t o r type of .security required to c o n t i n u e the suspension of
                  a j u d g m e n t ' s execution.

     (b) Duties      of Judgmenl         Debtor.        —If. after jurisdiction attaches in an appellate courl. the trial court orders or
           m o d i f i e s the securily o r d e c i d e s the sufficiency of sureties, the j u d g m e n t d e b l o r must n o t i f y the appellate court
           of t h e trial c o u r t ' s action.

24.4 Appellate       Review.

     til) Motions;      Review.         A party m a y seek review of the trial c o u r t ' s ruling by m o t i o n tiled in the c o u r l of appeals
           w i t h jurisdiction or potential jurisdiction ove r t h e appeal f r o m Ihe j i i d g m e n i in ihe ease. A party may seek
           review of the court of appeals' ruling on the motion by petition for writ of m a n d a m u s in ihe S u p r e m e Courl.
           T h e appellate court m a y r e v i e w :

           (1)    the s u l h c i c n e y o r e x c e s s i v e n e s s of the a m o u n t of security, b u t when the j u d g m e n l is f o r money, the
                  appellate court m u s t not m o d i f y the a m o u n t of security to exceed the limits i m p o s e d by R u l e 24.2(n|( I):

           (2)    the sureties on any b o n d ;

           (3)    the type of securily;

           (4)    Ihc d e t e r m i n a t i o n vvhcilier to permit suspension of e n f o r c e m e n t ; and

           (5)    the trial c o u r t ' s e \ e i e i s e of discretion u n d e r R u l e 24.3(a).

     lb)   Grounds      of Review.             R e v i e w may be based both on c o n d i t i o n s as they exisied at ihc time the trial court
           signed an order and on c h a n g e s in those c o n d i t i o n s a f t e r w a r d .

     (c) Temporary         Orders.      --The appellale courl may issue any temporary orders necessary to preserve the parlies
                                                                                                                                                              P a g e 4 ol" 4
                                                                     Tex. R. A pp. P. R u l e 2 4


                 rights.

          (d) Action       by Appellate       Court.       —The motion must be heard at the earliest p r a c t i c a b l e lime. T h e appellate c o n n
                 m a y require that the a m o u n t of a bond, deposit, or other security be increased or d e c r e a s e d , a n d thai another
                 bond, deposit, or security be p r o v i d e d and a p p r o v e d by the trial court clerk. T h e a p p e l l a t e court m a y require
                 other c h a n g e s in the trial court order. T h e appellate court m a y r e m a n d to the trial court for entry of findings
                 of fact o r for the taking of e v i d e n c e .

          (e)    Effect    of Ruling.         —If the a p p e l l a t e court orders additional or other security to s u p e r s e d e the j u d g m e n t ,
                 e n f o r c e m e n t will be s u s p e n d e d f o r 2 0 d a y s after the a p p e l l a t e c o u r t ' s order. If the j u d g m e n t d e b t o r does not
                 c o m p l y with the order within that period, the j u d g m e n t m a y b e e n f o r c e d . W h e n a n y additional b o n d , deposit,
                 or security has been filed, the trial court clerk must n o t i f y the appellate court. T h e posting of additional
                 security will not release (he previously posted security or affect any alternative security a r r a n g e m e n t s that the
                 j u d g m e n t d e b t o r previously m a d e unless s p e c i f i c a l l y o r d e r e d by t h e appellate court.


History

A m e n d e d by Texas S u p r e m e Court. M i s c . D o c k e t N o . 0 8 - 9 1 1 5 and T e x a s Court of C r i m i n a l A p p e a l s . M i s c . D o c k e t
No. 08-103. S e p t e m b e r I, 2008.

Texas Rules
Copyright © 2015 by Matthew Bender & Company. Inc. a member of (he LexisNexis Group. All rights reserved.
Appendix 4
                                                                 Tex. R. App. P. Rule 43
                                                  T h i s d o c u m e n t is current through February 4, 2 0 1 5


Texas Court Rules > STATE RULES > TEXAS RULES OF APPELLATE                                                                        PROCEDURE                  > SECTION
TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS


Rule 43 Judgment of the Court of Appeals
   43.1 Time.          —The court of a p p e a l s should r e n d e r its j u d g m e n t p r o m p t l y a f t e r s u b m i s s i o n of a case.

   4 3 . 2 Types of Judgment.                —The court of a p p e a l s m a y :

          (a)   a f f i r m the trial c o u r t ' s j u d g m e n t in w h o l e o r in part;

          (b)    m o d i f y t h e trial c o u r t ' s j u d g m e n t and a f f i r m it a s m o d i f i e d ;

          (c)   reverse t h e trial c o u r t ' s j u d g m e n t in w h o l e o r in part and render the j u d g m e n t that t h e trial court should have
                rendered;

          (d)   reverse the trial c o u r t ' s j u d g m e n t and r e m a n d t h e c a s e f o r f u r t h e r p r o c e e d i n g s ;

          (e)    vacate the trial c o u r t ' s j u d g m e n t and d i s m i s s t h e case; or

          (f)   dismiss the appeal.

   43.3 Rendition          Appropriate          Unless     Remand         Necessary.           - W h e n r e v e r s i n g a trial c o u r t ' s j u d g m e n t , t h e court must
          render t h e j u d g m e n t that the trial court should have r e n d e r e d , except w h e n :

          (a)   a r e m a n d is necessary f o r f u r t h e r p r o c e e d i n g s ; o r

          (b)   the interests of j u s t i c e require a r e m a n d f o r a n o t h e r trial.

   43.4    Judgment         for    Costs     in Civil      Cases.        —In a civil c a s e , the court of a p p e a l s ' j u d g m e n t should a w a r d to t h e
          prevailing party the appellate costs - including preparation c o s t s for t h e c l e r k ' s record and the r e p o r t e r ' s record -
          that w e r e incurred by that parly. But t h e court of a p p e a l s m a y tax costs o t h e r w i s e as r e q u i r e d by law o r f o r good
          cause.

   43.5    Judgment         Against        Sureties      in Civil      Cases.          W h e n a court of a p p e a l s a f f i r m s the trial court j u d g m e n t , o r
          m o d i f i e s that j u d g m e n t a n d r e n d e r s j u d g m e n t against t h e appellant, t h e court of a p p e a l s m u s t r e n d e r j u d g m e n t
          against t h e sureties on t h e a p p e l l a n t ' s s u p e r s e d e a s b o n d , if any, for the p e r f o r m a n c e of t h e j u d g m e n t and f o r any
          costs taxed against the appellant.

   4 3 . 6 Other     Orders.        - T h e court of a p p e a l s m a y m a k e any o t h e r appropriate o r d e r that t h e l a w and t h e nature of the
          c a s e require.

Texas Rules
Copyright © 2015 by Mauhew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.
Appendix 5
                                                                         Tex. R. Civ. P. 296
                                                     T h i s d o c u m e n t is c u r r e n t t h r o u g h F e b r u a r y 4. 2 0 1 5


Texas Court Rules > STATE RULES                                       > TEXAS RULES OF CIVIL PROCEDURE   > PARTII. RULES
OF PRACTICE IN DISTRICT AND                                           COUNTY COURTS   > SECTION 11. Trial of Causes > a
FINDINGS BY COURT


Rule 296 Requests for Findings of Fact and Conclusions of Law

In any c a s e t r i e d in t h e district or c o u n t y c o u r t w i t h o u t a j u r y , a n y p a r t y m a y request t h e c o u r t t o s t a t e in w r i t i n g its f i n d i n g s
of fact and c o n c l u s i o n s of law. S u c h request shall h e e n t i t l e d " R e q u e s t f o r F i n d i n g s o f Fact a n d C o n c l u s i o n s of L a w " and
shall be filed w i t h i n t w e n t y d a y s a f t e r j u d g m e n t is s i g n e d w i t h t h e clerk of the c o u r t , w h o shall i m m e d i a t e l y call s u c h
request to the attention o f the j u d g e w h o tried the case. T h e party m a k i n g the request shall s e r v e it o n all o t h e r parties in
a c c o r d a n c e w i t h Rule 2 1 a .

Texas Rules
Copyright © 2015 by Matthew Bender & Company. Inc. a member of the LexisNexis Group. All rights reserved.
Appendix 6
                                                                     Tex. R. Civ. /'. MO
                                                  T h i s d o c u n i c n l is c u r r e n l througli F e b r u a r y 4, 2 0 1 5


Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE     > PART II. RULES
OF PRyiCTICE IN DISTRICT AND COUNTY COURTS    > SECTION II. Trial of Causes > J. NEW
TRIALS


Rule 320 Motion and Action of Court Thereon

N e w trials m a y be g r a n t e d and j u d g m e n t set a s i d e for g o o d c a u s e , o n m o t i o n or on the c o u r t ' s o w n m o t i o n on s u c h t e r m s
as the c o u r t shall direct. N e w trials m a y b e g r a n t e d w h e n the d a m a g e s are m a n i f e s t l y too s m a l l or t o o large. W h e n it a p p e a r s
to the c o u r t that a n e w trial s h o u l d be g r a n t e d on a point or p o i n t s that a f f e c t o n l y a p a r t of the m a t t e r s in c o n t r o v e r s y a n d
that s u c h p a r t is c l e a r l y s e p a r a b l e w i t h o u t u n f a i r n e s s to the parties, the c o u r t m a y g r a n t a n e w trial as t o that part only,
provided thai a s e p a r a t e trial on u n l i q u i d a t e d d a m a g e s a l o n e shall n o t be o r d e r e d if liability i s s u e s are c o n t e s t e d . Each
m o t i o n for n e w trial shall be in w r i t i n g and signed by the p a r t y o r his attorney.

Texas Rules
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.
Appendix 7
                                                                       Tex. R. Civ. P. 321
                                                    T h i s d o c u m e n t is c u r r c n l t h r o u g h F c b m a r y 4, 2 0 1 5


Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE     > PART II. RULES
OF PRACTICE IN DISTRICT AND COUNTY COURTS     > SECTION 11. Trial of Causes > 1. NEW
TRIALS


Rule 321 Form

Each point r e l i e d upon in a m o t i o n for n e w trial or in arrest o f j u d g m e n t shall b r i e f l y r e f e r to that part of the ruling of the
court, c h a r g e g i v e n to the jury, o r c h a r g e r e f u s e d , a d m i s s i o n or r e j e c t i o n o f e v i d e n c e , or o t h e r p r o c e e d i n g s w h i c h arc
d e s i g n a t e d to b e c o m p l a i n e d of. in s u c h a w a y that the o b j e c t i o n can b e clearly identified a n d u n d e r s t o o d b y the court.

Texas Rules
Copyright © 2015 by Matthew Bender & Company. Inc. a member of the LexisKexis Group. All rights reserved.
Appendix 8
                                                                             Tex. R. Civ. P. 322
                                                        T h i s d o c u m e n l is c u r r e n t t h r o u g h F e b r u a r y 4 . 2 0 1 5


Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE     > PARTU. RULES
OF PIIACTICE IN DISTRICT AND COUNTY COURTS    > SECTION II. Trial of Causes > .1. NEW
TRIALS


Rule 322 Generality to Be Avoided

G r o u n d s of o b j e c t i o n s c o u c h e d in g e n e r a l t e r m s - a s that the c o u r t e r r e d in its c h a r g e , in s u s t a i n i n g or o v e r r u l i n g e x c e p t i o n s
In the p l e a d i n g s , a n d in e x c l u d i n g or a d m i t t i n g e v i d e n c e , the v e r d i c t of the j u r y is c o n t r a r y to law. a n d the like - shall nol
be c o n s i d e r e d b y the court.

Texas Rules
Copyrighl © 2015 by Mallhcw Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.
Appendix 9
                                                                          Tex. R. Civ. P. 621
                                                      T h i s d o c u m e n l is c u r r c n i t h r o u g h F e b r u a r y 4 . 2 0 1 5


Texas Court Rules                     > STATE RULES   > TEXAS RULES OF CIVIL PROCEDURE                                                                                 >      PART VI.
RULES RELATING                        TO ANCILLARY PROCEEDINGS  > SECTION 3. Executions


Rule 621 Enforcement of Judgment

T h e j u d g m e n t s of the district, c o u n t y , a n d j u s t i c e c o u r t s shall b e e n f o r c e d by e x e c u t i o n or o t h e r a p p r o p r i a t e p r o c e s s . S u c h
e x e c u t i o n or o t h e r p r o c e s s shall be r e t u r n a b l e in thirty, sixty, o r n i n e t y d a y s as r e q u e s t e d by the plaintiff, his agent o r
attorney.

Texas Rules
Copyright © 2015 by Matthew Bender & Company. Inc. a member of the LexisNcxis Group. All rights reserved.
Appendix 10
                                         Tex. Civ. Prac. & Rem. Code § 34.004
                                    T h i s d o c u m c n i is currenl through llic 2013 3ici Culled Session


Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES    CODE                                                           > TITLE 2. TRIAL.
JUDGMENT. AND APPEAL       > SUBTITLE  C. JUDGMENTS  > CHAPTER                                                           34. EXECUTION  ON
JUDGMENTS       > SUBCHAPTER A. ISSUANCE AND LEVY OF WRIT


§ 34.004. Levy on Property Conveyed to Third Party

Property that the j u d g m e n t d e b t o r has sold, m o r t g a g e d , or c o n v e y e d in trust may not be seized in execution if t h e purchaser,
mortgagee, o r trustee points out other property of the d e b t o r in t h e county that is .sufficient to satisfy t h e e x e c u t i o n .


History
Enacted by A c t s 1985. 69lh Leg,, ch, 9 5 9 (S,B. 7 9 7 ) , § 1. e f f e c t i v e S e p t e m b e r 1. 1985,

LexisNexis @ Texas Annotated .Statutes
Copyright © 2015 by Matthew Bender & Company. Int. a member of the LexisNexis Group All rights reserved.
Appendix 11
                                                Tex. Civ. Prac. & Rem. Code $ 34.005
                                          T h i s d o c u m e n t is c u r r e n t t h r o u g h the 2 0 1 3 3rd C a l l e d S e s s i o n


Texas Statutes and Codes > CIVIL PRACTICE AND REMEDIES   CODE                                                                                > TITLE 2. TRIAL.
JUDGMENT. AND APPEAL      > SUBTITLE C. JUDGMENTS   > CHAPTER                                                                                34. EXECUTION  ON
JUDGMENTS      > SUBCHAPTER A. ISSUANCE AND LEVY OF WRIT


§ 34.005. Levy on Property of Surety
   (a)    11" the f a c e of a writ of e x e c u t i o n or the e n d o r s e m e n t of the clerk s h o w s that o n e of t h e p e r s o n s a g a i n s t w h o m it
          is issued is s u r e t y for another, the o f f i c e r m u s t first levy on the p r i n c i p a l ' s p r o p e r t y that is s u b j e c t t o e x e c u t i o n and
          is locatcd in the c o u n t y in w h i c h the j u d g m e n t is r e n d e r e d .

   (b)    If p r o p e r t y o f the principal c a n n o t be f o u n d that, in the o p i n i o n of the officer, is s u f f i c i e n t to s a t i s f y the e x e c u t i o n ,
          the o f f i c e r shall levy first on the p r i n c i p a l ' s p r o p e r t y that can be f o u n d and then o n as m u c h o f the p r o p e r t y of the
          surety as is n e c e s s a r y to s a t i s f y the e x e c u t i o n .


History
Enacted b y Acts 1985. 69th I x g . . ch. 9 5 9 ( S . B . 7 9 7 ) . S I. e f f e c t i v e S e p t e m b e r I. 1985.

I.cxisNcxis ® Texas Annotated Stalutcs
Copyright © 2015 by Matthew Bender & Company. Inc. a member of the I.exisNexis Group All rights reserved.
