Dismissed and Opinion filed May 7, 2015.




                                     In The

                      Fourteenth Court of Appeals

                              NO. 14-14-00605-CV

                         AMELIA V. KELLY, Appellant

                                       V.
                     MATTHEW D. WIGGINS, JR., Appellee

                 On Appeal from the 122nd Judicial District Court
                            Galveston County, Texas
                       Trial Court Cause No. 11CV0325

                                 OPINION

      This is an appeal from a 2014 order of judicial foreclosure in favor of
Matthew D. Wiggins, Jr.       The trial court signed the order when it granted
Wiggins’s motion to enforce a 2012 final judgment on a jury verdict and the lien
created in Wiggins’s favor by such judgment. In six issues, Amelia V. Kelly urges
the following:
      (1)    Is the Order of Judicial Sale void because the trial court no
             longer had jurisdiction to materially change its final judgment
             by ordering foreclosure upon Ms. Kelly’s homestead?
      (2)    By failing to conduct a trial on the merits, or even an
             evidentiary hearing before summarily ordering foreclosure, did
             the trial court violate Ms. Kelly’s constitutional right to due
             course of law, both procedural and substantive?
      (3)    Did the trial court violate the Texas Constitution’s bar on the
             forced sale of a homestead because no exception to the
             constitutional bar was established?
      (4)    Did the trial court err by impermissibly aiding Wiggins to reach
             what was exempt property of Ms. Kelly or to reach property
             subject to a claim of exemption without a trial on the merits of
             the claim of exemption?
      (5)    Did the trial court err in striking Ms. Kelly’s motion for “new”
             trial?
      (6)    Did the trial court err in allowing a judicial foreclosure without
             requiring Wiggins to remove the $1,000,000 mortgage lien
             Wiggins had caused to burden title to Ms. Kelly’s homestead,
             which would effectively chill any foreclosure sale upon the
             $660,000 judicially created lien?
In response, inter alia, Wiggins challenges this court’s appellate jurisdiction to
review the order of judicial foreclosure. For the reasons set forth below, we
dismiss this appeal for lack of appellate jurisdiction.

                                  I. INTRODUCTION

      In 2012, the trial court entered a final judgment following jury trial. In
addition to the trial court’s recitation of the jury’s answers, the trial court’s
material judgment recitals are:

      (1)    Plaintiff, AMELIA V. KELLY, recover Judgment from
             Defendant MATTHEW D. WIGGINS, JR., and D. L.
             Hammaker declaring that the foreclosure conducted on January
             5, 2010 is void and that title did not pass from Plaintiff
             AMELIA V. KELLY to Defendant MATTHEW D. WIGGINS,

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           JR., and that all right, title and interest of MATTEW D.
           WIGGINS, JR. in and to the property (hereafter referred to as
           the “Subject Property”) [described specifically] remains vested
           in Plaintiff, AMELIA V. KELLY.
     (2)   The Subject Property is free and clear of any liens and claims of
           any party to the cause, subject only to (1) a lien against the
           Property created by this Judgment in favor of Defendant
           MATTHEW D. WIGGINS, JR. in the amount of $660,000.00
           found by the jury for the purchase, preservation and
           improvement of the property, (2) any other liens of record that
           were otherwise valid and existing on January 5, 2010, which
           remain outstanding at the time of the judgment, and (3) the
           reimbursement rights of Defendant MATTHEW D. WIGGINS
           for property taxes that have been paid by MATTHEW D.
           WIGGINS since the verdict was delivered in this case on
           February 13, 2012, which were not included in the amount
           found by the jury for the purchase, preservation and
           improvement of the property.
     (3)   Plaintiff, AMELIA V. KELLY, shall have all such Writs and
           Orders as shall become, in Plaintiff’s behalf, necessary to
           enforce the execution hereof, and to recover title and possession
           to the Subject Property and title in fee simple to the Property is
           hereby quieted in the name of Plaintiff AMELIA V. KELLY
           and Defendant MATTHEW D. WIGGINS is divested of all
           right, title and interest in the Property.
     (4)   Plaintiff AMELIA V. KELLY have and recover attorneys’ fees
           . . . in the amount of $50,000.00 against Defendant MATTHEW
           D. WIGGINS, JR.
     (5)   Defendant MATTHEW D. WIGGINS, JR. have and recover
           attorneys’ fees . . . in the amount of $50,000.00 against Plaintiff
           AMELIA V. KELLY.
Both Kelly and Wiggins appealed from this judgment and both subsequently
dismissed their appeals. See Kelly v. Wiggins, No. 14-12-00710-CV, 2013 WL
85083, at *1 (Tex. App.—Houston [14th Dist.] Jan. 8, 2013) (mem. op., per
curiam); Kelly v. Wiggins, No. 14-12-00687-CV, 2012 WL 5247354, at *1 (Tex.


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App.—Houston [14th Dist.] Oct. 23, 2012) (mem. op., per curiam). Mandates
issued on these appeals in late 2012 and early 2013.

       In March 2014, Wiggins filed a motion to enforce final judgment and for
order of judicial foreclosure and applications for temporary restraining order and
for temporary injunction in the same underlying cause. Through affidavits and
other documentation attached to his motion, Wiggins urged that (a) the property
became the property of the bankruptcy estate of debtor Kelly; (b) a March 13, 2014
bankruptcy court order declared the property abandoned by the bankruptcy estate;
(c) neither Kelly nor the bankruptcy trustee made any payments on either the
mortgage lien or the Wiggins lien on the property; and (d) Wiggins has paid all
costs associated with the property.

       Kelly responded to Wiggins’s motion with a plea in abatement (in favor of
an alleged first-filed action in the Galveston County 405th Judicial District Court
pertaining to the same subject) and a motion to dismiss (for lack of jurisdiction
alleging the trial court’s plenary power had expired).              Kelly also specifically
denied that (a) Wiggins has paid all costs; (b) Kelly has made no payments on the
mortgage; or (c) Kelly took possession of the home by breaking into it. Kelly
attached no evidence regarding these denied facts.

       On April 3, 2014, the trial court denied Kelly’s plea in abatement and the
motion to dismiss. On June 23, following hearings on March 251 and May 12, the
trial court entered an order of judicial foreclosure (the judicial foreclosure order) as
follows:

       ORDERED that a the lien in favor of Matthew D. Wiggins, Jr. set
       forth in the Court’s Final Judgment of June 22, 2012, for the amount
       1
         The March 25 hearing began as a hearing on the temporary injunction but was recessed
in short order for the trial court to consider pleadings and authority on the other matters. The
record does not reflect that proceedings reconvened that day.

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      of $660,000 found by the jury to be for the purchase, preservation and
      improvement of the property should be and hereby is judicially
      foreclosed as the subject property [described specifically].
On July 23, Kelly timely appealed in this cause.

      On October 1, Kelly filed a petition for writ of mandamus urging the same
six issues she raises in this appeal. This court stayed the imminent foreclosure sale
and requested a response from Wiggins.          On October 30, we denied Kelly’s
petition for writ of mandamus, noting that Kelly failed to demonstrate entitlement
to mandamus relief. See In re Kelly, No. 14-14-00789-CV, 2014 WL 5492809, *1
(Tex. App.—Houston [14th Dist.] Oct. 30, 2014, orig. proceeding) (mem. op., per
curiam). A new execution order of sale issued. On November 25, Kelly filed
another petition for writ of mandamus urging the same six issues outlined above.
We again denied the petition along with the requested stay. See In re Kelly, No.
14-14-00944-CV, 2014 WL 7524979, *1 (Tex. App.—Houston [14th Dist.] Nov.
26, 2014, orig. proceeding) (mem. op., per curiam). We now consider Kelly’s
current appeal.

                                    II. ANALYSIS

      As we must, we first consider Wiggins’ challenge to this court’s appellate
jurisdiction over the judicial foreclosure order.

      Ordinarily, a litigant may take an appeal only from a final judgment. Bally
Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Royal Indep. Sch.
Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008,
no pet.) (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)). The
legislature has also authorized certain appeals from interlocutory orders. See, e.g.,
Tex. Civ. Prac. & Rem. Code Ann. § 51.014. However, Texas courts construe
these statutes strictly. Jackson, 53 S.W.3d at 355. It is undisputed that the judicial


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foreclosure order is neither a final judgment nor an interlocutory order subject to
direct appeal. In fact, as noted above, the parties each dismissed their appeals from
the final judgment in this cause.

      This court has recently articulated the general rule that “post-judgment
orders made for the purpose of enforcing or carrying into effect a prior judgment
are not subject to appeal because they are not final judgments.”           Walter v.
Marathon, 422 S.W.3d 848, 855 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(citing Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (1956); In re
Doe, 397 S.W.3d 847, 849 (Tex. App.—Fort Worth 2013, orig. proceeding); Wall
St. Deli, Inc. v. Boston Old Colony Ins. Co., 110 S.W.3d 67, 69 (Tex. App.—
Eastland 2003, no pet.); Katz v. Inglehart, No. B14–91–1376–CV, 1992 WL
56862, at *1 (Tex. App.—Houston [14th Dist.] March 26, 1992, writ denied) (not
designated for publication)). Although Kelly argues that the judicial foreclosure
order is an erroneous enforcement of the prior final judgment, Kelly does not assert
that it is something other than a post-judgment enforcement order.

      We nonetheless must determine whether the judicial foreclosure order is a
post-judgment enforcement order. In the 2012 judgment, the trial court affirmed
Kelly’s rights in the subject property, but the court also established a judicial lien
against the property in favor of Wiggins for $660,000. In so doing, the court
acknowledged Kelly’s debt obligation to Wiggins for $660,000 and rendered the
subject property as security for the payment of that debt. See Tex. Bus. & Com.
Code Ann. § 24.002(8) (defining “lien”); Tex. Civ. Prac. & Rem. Code Ann.
§ 12.001(3) (same). Thus, by making the subject property security for Kelly’s
indebtedness to Wiggins, foreclosure was an inherent possibility in the event that
Kelly failed to satisfy her debt. See Gevinson v. Manhattan Constr. Co. of Okla.,
449 S.W.2d 458, 465 (Tex. 1969) (“The purpose of foreclosure is to subject

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property covered by a lien to payment of the indebtedness secured by the lien.”).
Therefore, the trial court’s judicial foreclosure order in light of Kelly’s non-
payment of her debt qualifies as a post-judgment enforcement order because it is
not (a) inconsistent with the original judgment; (b) a material change in the
substantive adjudicative portions of the judgment; or (c) an order that requires the
performance of obligations not required by the judgment. See Custom Corporates,
Inc. v. Security Storage, Inc., 207 S.W.3d 835, 839 (Tex. App.—Houston [14th
Dist.] 2006, no pet.).

      We find further support for the conclusion that the trial court’s judicial
foreclosure order is a post-judgment enforcement order in Jong Ik Won v.
Fernandez, 324 S.W.3d 833 (Tex. App.—Houston [14th Dist.] 2010, no pet.). In
that case, we affirmed the ability of a party to satisfy a judgment through an
execution sale of real property without having to establish a judgment lien as
provided by Chapter 52 of the Texas Property Code. Id. at 834–35. We explained
that “[e]xecution is a method of enforcing a judgment.” Id. at 834. We further
noted the “well-settled law that a judgment lienholder can foreclose on a judgment
lien in an independent suit or through an execution sale.” Id. at 835 n.2 (emphasis
added) (citing Baker v. West, 36 S.W.2d 695, 697 (Tex. 1931)); see also Katz v.
Bianchi, 848 S.W.2d 372, 375 (Tex. App.—Houston [14th Dist.] 1993, orig.
proceeding) (“Trial courts must have some power to enforce settlements and other
judgments, or else such judgments would be hollow . . . . Trial courts have broad
discretion in the enforcement of their judgments.”).




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       In sum, we conclude that the judicial foreclosure order is a post-judgment
enforcement order.        Accordingly, in line with our Walter precedent, we lack
jurisdiction to consider this appeal from a post-judgment enforcement order.2

                                      III. CONCLUSION

       Because we have determined that we are without jurisdiction over this
appeal, it is dismissed.



                                             /s/       Sharon McCally
                                                       Justice



Panel consists of Justices Boyce, McCally, and Donovan.




       2
         In Walter, we also determined that a challenge to such post-judgment enforcement
orders are properly brought through a mandamus proceeding because there is no adequate
remedy by appeal. Walter, 422 S.W.3d at 856. And under certain circumstances, courts should
construe a litigant’s appeal as a petition for writ of mandamus where, to do otherwise, would
elevate form over substance. See, e.g., CMH Homes v. Perez, 340 S.W.3d 444, 453 (Tex. 2011).
But in this case, Kelly has already availed herself twice of this appellate remedy for review of an
erroneous post-judgment enforcement order: as outlined above, this court has previously
considered Kelly’s identical issues on two petitions for writ of mandamus and determined that
she is not entitled to relief.

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