Burns v Bishop

• Decision Date: 07 June 2001
• Citation: 48 S.W.3d 459
• Parties: <!--48 S.W.3d 459 (Tex.App.-Houston 2001) JOHN BURNS, Appellant v. GEORGE BISHOP AND THE STATE OF TEXAS, Appellees NO. 14-98-00221-CV Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 459

48 S.W.3d 459 (Tex.App.-Houston [14th Dist.] 2001)

JOHN BURNS, Appellant v GEORGE BISHOP AND THE STATE OF TEXAS, Appellees

NO. 14-98-00221-CV

Court of Appeals of Texas, Houston (14th Dist.).

June 7, 2001.

On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 86-43060

[Copyrighted Material Omitted] Panel consists of Justices Draughn, Lee, and Dunn.^*

OPINION

D. Camille Hutson-Dunn, Justice

Appellant, John Burns, complains of the trial court's disposition of $100,172.42 in the registry of the court. The money was posted in connection with an appeal and settlement in a suit by his former associate in a bonding business. In the current dispute over the money left in the registry, the trial court awarded the money to creditors who were not parties to the original case.¹

In this case, the trial court awarded attorney's fees of $1,000 to the Harris County District Clerk and $1,000 to the State of Texas, and awarded thirty-four percent of the remaining money in the registry to George M. Bishop and 66 percent to the State. On appeal, Mr. Burns contends the money was not his, and therefore could not be awarded to his judgment creditors from other cases. He also contends proceedings outside Harris County rendered the award void. Bishop and the State are cross-appellants, each challenging Mr. Burns' standing on appeal, and each claiming the entire amount that remained in the registry of the court after the appeal and settlement deposit. We reverse the $1,000 award of attorney's fees to the District Clerk and render judgment deleting that award from the judgment. Otherwise, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Factual Summary

The trial court increased the supersedeas amount in the bonding business case in several stages. The money in the registry of the court originated in part from $170,000 Mr. Burns posted in stages, pursuant to the court's orders. Before the appellate opinion issued, he agreed with his former business associate to settle the case for less than the amount of the supersedeas funds in the registry of the court. The parties agree that Burns' former business associate deposited some of the currently disputed funds in the registry pursuant to that settlement agreement.

In the current proceeding, the appellant offered the trial court a promissory note that indicates he borrowed his initial supersedeas deposit, in the principal amount of $117,274.41, from a family limited partnership. He also offered a notarized, contemporaneous bill of assignment. The bill of assignment stated:

I, JOHN B. BURNS, depositor of a cash deposit in the sum of One Hundred Seventeen Thousand, Two Hundred Seventy-Four and 41/100 Dollars ($117,274.41) in lieu of supersedeas bond, deposited in the registry of the Court on December 3, 1991, in the above styled and numbered cause, do hereby assign and transfer and to be made payable [sic] to JCB 1991 Family Limited Partnership, all my cash refund up to and including the principal amount of $117,274.41 plus accrued interest, upon final disposition of the above styled and numbered cause.

The assignment to the partnership addressed only a cash refund of the principal from the note, with interest. The assignment did not address a cash refund of additional supersedeas funds Mr. Burns' opponent might later persuade the trial court to require Burns to deposit or the amount contractually required under the agreement settling the case.

However, his former business associate did win rulings requiring additional deposits. His wife, Carol Burns, a partner in the family partnership, later deposited $4,270.35 under her own name, but on his behalf. Peerless Insurance, the criminal bonding business insurer, deposited an additional $42,769.25 on his behalf from the "buildup fund" the bonding business had accumulated. A portion of this "buildup fund" belonged to his former business associate.

No cash refund ever occurred. The only release order in the record is an agreed order to pay out $70,000 to his former business associate's attorneys, signed after the appellate opinion, but before the mandate. Nevertheless, the parties to this appeal agree that the trial court distributed the supersedeas moneys according to the mandate.

Procedural Summary

The award challenged in this appeal involved procedures in several courts, consolidated before a single judge. The disputed money was deposited in the registry of the 125th District Court of Harris County, Texas. In the 215th District Court of Harris County, Appellee George Bishop obtained a judgment against Mr. Burns for attorneys fees Bishop claimed he had earned in another case. The State of Texas obtained a judgment on forfeitures of criminal bonds Burns had written in the 177th District Court.

The three courts' orders began to conflict, to overreach their jurisdiction, and to confuse the Harris County District Clerk. Both Bishop and the State obtained turnover orders directed to the Harris County District Clerk. The State obtained a judgment in garnishment (later vacated) against the Clerk in the 177th District Court. The State also intervened in the 125th District Court, seeking garnishment or application of the funds, but then non-suited its request. There was a dispute whether the funds were subject to turnover or garnishment orders. In the 215th District Court, Bishop obtained a writ of mandamus ordering the Clerk to pay Bishop from the funds remaining in the registry of the 125th District Court after the superceded judgment was satisfied. The 125th District Court tried to rule on the other courts' post-judgment orders, assigning a Master in Chancery, but had no jurisdiction over enforcement of the other courts' judgments.

Although the dispute was resolvable as a matter of law, the resolution still had to be made. Finally, all three judges signed an order consolidating the cases under the number of the case in which the supersedeas bond had been posted, and transferring them to the 177th District Court. The presiding judge assigned a visiting judge to determine the entire dispute.

The family partnership that had received the promissory note and assignment of the initial supersedeas deposit intervened after the consolidation in the 177th District Court, requesting the court to pay the money on deposit to the partnership.

The judgment creditors' claims exceeded the amount in the registry of the court. The trial court did not find the funds in the registry belonged to the partnership. It found the partnership's assigned claim of any refund was inferior to the judgment creditors' claims to the funds in the registry, and the partnership has not appealed. Instead, the court concluded John Burns had a claim to the funds in the registry, against which claim his creditors could collect. The court awarded $1,000 attorney's fees each to the District Clerk and the State. It then divided the remaining money in the registry of the court in rough proportion to the amounts of their claims.

PRELIMINARY JURISDICTIONAL ISSUES

Appellant's Standing

Appellees challenge the Appellant's standing to assert the partnership's claim to the disputed funds. The trial court necessarily found Mr. Burns had a legal or equitable interest in the deposited funds sufficient for it to award the money to his creditors. The Appellees' claims depend upon Mr. Burns having an interest in the money. Conversely, the partnership's interest under the assignment would affect his liability under the promissory note, with either positive or negative tax consequences. While the standing argument is skillfully framed, John Burns has standing to complain about rulings that affect his interests.

Jurisdiction for Cross-appeals

The State of Texas did not fail to invoke our jurisdiction when it did not file a notice of appeal in compliance with Texas Rules of Appellate Procedure 25 and 26. However, it would be unfair to the State to disclaim jurisdiction that had already attached under the old rules by applying new rules that would set a deadline on a date that passed before the rules were promulgated. Paragraph four of the Texas Supreme Court's order approving the revisions to the Texas Rules of Appellate Procedure allows the cross-appeals to be brought by complying with either the old rules or with the new rules. Accordingly, we find we have jurisdiction over all of the appellate claims the parties have made.

No Proceedings Outside Harris County

The Appellant contends the judgment is void under article V, section 7 of the Texas Constitution, which states in relevant part, "The Court shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law. Tex. Const. art. V, § 1-a(11) (Vernon 1993). After the visiting judge held the hearing in Harris County, when parties filed further evidence and written arguments with the 177th District Court in Harris County, they sent courtesy copies to the judge in San Angelo. Rendition was "by written memorandum filed with the clerk" in Harris County. Mr. Burns argues that, by considering courtesy copies of arguments and evidence in San Angelo, and by signing the final judgment in San Angelo, the trial judge held proceedings outside Harris County. The Appellant contends the judgment is therefore void. We disagree.

The salient issue is whether the visiting judge was conducting "proceedings" by thinking about the case in San Angelo, and by signing the judgment there. The term "proceeding," as used in article V, section 7, is very broad. Mellon Service Co. v. Touche Ross & Co., 946 S.W.2d 862, 868 (Tex. App. Houston [14th Dist.] 1997, no writ).² In Mellon, we quoted definitions from both Webster's dictionary and Black's Law Dictionary. We quoted the Webster's Dictionary definition as "a particular step or series of steps adopted for doing or accomplishing something." Id. (citing Webster's Third New International Dictionary of the English...