









Opinion filed November 17, 2005












 








 




Opinion filed November 17, 2005
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh Court of Appeals
                                                                   __________
 
                                                          No. 11-04-00291-CV 
 
                                                    __________
 
                          CAPROCK INVESTMENT CORP., Appellant
 
                                                             V.
 
    MONTGOMERY
FIRST CORP. AND ELTON MONTGOMERY, Appellees
 

 
                                          On
Appeal from the 29th District Court
 
                                                      Palo
Pinto County, Texas
 
                                                   Trial
Court Cause No. 39,500
 

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




Montgomery First Corporation and Elton Montgomery
(MFC and Montgomery) brought a suit to quiet title against Caprock Investment
Corp. (Caprock).  On December 29, 2003,
the trial court entered final judgment against Caprock.  In the judgment, the trial court awarded
attorney=s fees to
MFC and Montgomery in the amount of $28,500. 
Caprock appealed the judgment. 
While the appeal was pending, a writ of execution was issued directing
any sheriff or constable to seize and sell Caprock=s
non-exempt property in satisfaction of the judgment.  The writ of execution was returned nulla
bona.[1]
Caprock owns a promissory note in the principal
amount of $180,000 and is attempting to enforce this note against MFC and
Montgomery.  To satisfy its judgment for
attorney=s fees
against Caprock, MFC and Montgomery filed a motion for turnover relief seeking
to obtain the promissory note and all causes of action related to the note.  On November 12, 2004, the trial court granted
the motion and ordered the sheriff to take possession of the note.  This appeal followed.  We vacate the order of the trial court.
In Caprock Investment Corp. v. Montgomery First
Corp. and Elton Montgomery, No. 11-04-00097-CV, issued the same day as this
opinion, this court reversed the trial court=s
judgment awarding attorney=s
fees to MFC and Montgomery.  Because MFC
and Montgomery no longer have that judgment against Caprock, the turnover order
of November 12, 2004, is vacated.[2]
 
JIM R. WRIGHT
CHIEF JUSTICE
 
November 17, 2005
Not designated for publication. 
See TEX.R.APP.P. 47.2(a).
Panel
consists of: Wright, C.J., and
McCall,
J., and McCloud, S.J.[3]




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


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


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


