In the Guardianship of De Villarreal, No. 13-08-00408-CV (Tex. App. 4/2/2009)

• Decision Date: 02 April 2009
• Docket Number: No. 13-08-00408-CV.,13-08-00408-CV.
• Parties: IN THE GUARDIANSHIP OF RAQUEL CANTU DE VILLARREAL, AN INCAPACITATED PERSON.
• Court: Texas Court of Appeals

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IN THE GUARDIANSHIP OF RAQUEL CANTU DE VILLARREAL, AN INCAPACITATED PERSON.

No. 13-08-00408-CV.

Court of Appeals of Texas, Thirteenth District, Corpus Christi.

Memorandum Opinion Delivered and Filed April 2, 2009.

On Appeal from the County Court at Law No. 2 of Cameron County, Texas.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and BENAVIDES.

MEMORANDUM OPINION

Memorandum Opinion by Justice RODRIGUEZ.

This appeal arises from the guardianship proceeding of Raquel Cantú de Villarreal ("Doña Raquel"). Doña Raquel, an elderly widow, is the mother of seven adult children, including appellants, Ignacio Villarreal Cantú, Consuelo Villarreal Cantú, Fernando Villarreal Cantú, and Martha Guadalupe Villarreal Cantú, and appellee, Raquel Villarreal Cantú, appearing herein individually and in her capacity as permanent guardian of the person of Doña Raquel.¹ Disputes between the children regarding Doña Raquel's care and custody and the disposition of her sizeable estate have given rise to a series of highly contentious legal proceedings, including three appeals and two original proceedings.²

We will not address the factual and procedural underpinnings of these disputes herein except as necessary to address the legal issues pertinent to this appeal. See Tex. R. App. P. 47.1, 47.4.

In this proceeding, Ignacio, Fernando, Consuelo, and Martha appeal two post-judgment orders of the trial court. We affirm, in part, and dismiss, in part, as further stated herein.

I. Background

On February 12, 2008, Doña Raquel's children entered into an "Irrevocable Family Settlement Agreement, Assignment, and Release and Rule 11 Agreement," which purported to settle all claims and controversies between the children regarding their mother's care and support and the ownership, transfer, and control of her property. Pursuant to the settlement agreement, the children agreed, inter alia, to create a trust and fund it with the portions of their mother's estate that they controlled. The agreement provides, in part:

All parties agree that the estate of Raquel Cantú de Villarreal consists of the 34 million pesos in the form of a check in a court in Mexico and whatever money that is in the temporary guardian of the estate's accounts in the United States. By copy of this Agreement all parties shall instruct their attorneys to take all necessary steps to have these funds released and delivered to [the] below mentioned Mexican Trust that shall be created. The money in the accounts in the United States of the temporary guardian of the estate, Jaime Diaz, shall also be placed in such Mexican Trust. This mentioned Mexico property shall be administered by a Mexican Trust to be drafted by Carlos Lugo and Miguel Angel Abramo Martinez.

The following properties belong to the seven children of Raquel Cantú de Villarreal and shall be placed into hotchpotch and distributed among and between the seven children of Raquel Cantú de Villarreal[:] a) all shares of San Pedro Impulsora De Immuebles Especiales S.A. de C.V., and any and all assets of such company[;] b) real estate properties in Exhibits "1" and "2" . . . and c) the below mentioned properties that are stated to be part of Hotchpotch.³

The trial court approved the settlement and incorporated it into the final judgment in the case by a first amended order signed on February 14, 2008.

Alleging that Ignacio, Consuelo, and Martha breached the agreement and failed to abide by the judgment, Raquel moved for an accounting and for contempt and asked for a temporary restraining order and temporary and permanent injunctions. The gravamen of Raquel's complaint was that appellants withdrew the 34 million pesos referenced in the settlement agreement from the possession of the Mexican court, but failed to deposit the monies into the Mexican trust as required by the agreement and judgment.

On June 11, the trial court entered an order granting Raquel's motion. The order reads, in part:

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that IGNACIO VILLARREAL CANTÚ, FERNANDO VILLARREAL CANTÚ, CONSUELO VILLARREAL CANTÚ and/or MARTHA VILLARREAL CANTÚ are Ordered within 10 days from the entry of this Order, to deposit the $35,000,000.00 pesos⁴ listed in Paragraph 14 of the "Irrevocable Family Settlement Agreement, Assignment, and Release and Rule 11 Agreement" (attached hereto and fully incorporated into this Order) into an account created for the benefit of the trust referenced in said paragraph 14 of the "Family Settlement Agreement, Assignment, and Release and Rule 11 Agreement."

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that IGNACIO VILLARREAL CANTÚ, FERNANDO VILLARREAL CANTÚ, CONSUELO VILLARREAL CANTÚ and/or MARTHA VILLARREAL CANTÚ are Ordered, within 10 days from the entry of this Order, to provide a detailed accounting to this Court as to the whereabouts of said $35,000,000.00 pesos listed in paragraph 14 of the "Irrevocable Family Settlement Agreement, Assignment, and Release and Rule 11 Agreement." Said accounting is to include the financial institution where said funds are on deposit, the name of the person under whose name the funds are on deposit, the signatories on said account, the type of account, and the account number.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that IGNACIO VILLARREAL CANTÚ, FERNANDO VILLARREAL CANTÚ, CONSUELO VILLARREAL CANTÚ and/or MARTHA VILLARREAL CANTÚ, in a manner consistent with the above terms of this Order, deposit said funds into an account which will be under the joint control of Ignacio Villarreal and Marcelo Villarreal[.]

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that IGNACIO VILLARREAL CANTÚ, FERNANDO VILLARREAL CANTÚ, CONSUELO VILLARREAL CANTÚ and/or MARTHA VILLARREAL CANTÚ are enjoined from selling, encumbering or otherwise transferring any of the real estate properties described in Exhibits 1 and 2 of the "Irrevocable Family Settlement Agreement, Assignment, and Release and Rule 11 Agreement" in any manner inconsistent with the disposition of said properties as provided in said Family Settlement Agreement.

IT IS THEREFORE ORDERED that a final hearing on PETITIONER RAQUEL VILLARREAL'S SECOND AMENDED MOTION FOR ACCOUNTING OF THE $34 MILLION PESOS WITHDRAWN BY RESPONDENTS AND THE REAL ESTATE PROPERTY WHICH IS THE SUBJECT OF THIS LAWSUIT, AND TEMPORARY INJUNCTION be set on June 27, 2008, at 1:30 p.m. . . At such time, IGNACIO VILLARREAL CANTÚ, FERNANDO VILLARREAL CANTÚ, CONSUELO VILLARREAL CANTÚ and/or MARTHA VILLARREAL CANTÚ are ORDERED to appear before this Court to show their compliance with this Court's Order herein to show why this Court's Order should be vacated.

On June 27, Ignacio, Fernando, Consuelo and Martha failed to appear, and accordingly, the trial court entered an order for issuance of writs of attachment against them.

This appeal ensued. In their first issue, appellants contend that the order entered by the trial court on June 11, 2008, is a void temporary injunction because: (1) it is not based on a verified application; (2) it is not supported by any evidence admitted at the injunction hearing; and (3) it fails to set a bond. In their second issue, appellants argue that the June 27 order for issuance of writs of attachment should be reversed, and the writs ordered withdrawn, because: (1) the motion for contempt was not verified; (2) the trial court lacked the authority to enforce a temporary injunction that was on appeal; and (3) the underlying temporary injunction must be reversed and the injunction dissolved because it fails to comply with Texas Law.

II. Jurisdiction

Generally, appeals may be taken only from final judgments.Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Accordingly, a party may not appeal an interlocutory order unless authorized by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding); see Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex. 2007). If we lack jurisdiction, we must dismiss the attempted appeal. See Kilroy v. Kilroy, 137 S.W.3d 780, 783 (Tex. App.-Houston [1st Dist.] 2004, no pet.).

Given that the orders under review in this appeal are post-judgment orders of the trial court, rather than a final judgment, we will examine our jurisdiction over each of these orders individually.

III. Post-Judgment Order of June 11

A court has the inherent power to enforce its judgments, even after the expiration of its plenary power, and the court may employ suitable methods in doing so. See Tex. R. Civ. P. 308; Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982);Ex parte Gorena, 595 S.W.2d 841, 844 (Tex. 1979);see also In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d 178, 179 (Tex. 2003) (holding that the "trial court has an affirmative duty to enforce its judgment" under Rule 308). Generally, an order made for the purpose of carrying into effect an already-entered judgment is not a final judgment or decree and cannot be appealed as such. See Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (Tex. 1956); see also Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 2008) (providing that final judgments of trial courts are appealable); Tex. R. Civ. P. 301 ("Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law."). The "usual writs and orders to aid in execution to collect a final money judgment are not, in general, appealable orders." Schultz v. 5th Jud. Dist. Court of Appeals of Dallas, 810 S.W.2d 738, 740 (Tex. 1991). If the order is not an appealable one, jurisdiction does not attach in the court of appeals. Id. at n.6. On the other hand, some post-judgment orders are appealable. Id. at 740 (finding that a turnover order, which resolved property rights and acted "in the nature of a mandatory injunction," was appealable). As a general rule, for instance, turnover orders⁵ are final, appealable orders.See Burns v. Miller, Hiersche, Martens &...