Thomas v. Thomas

• Decision Date: 21 February 1996
• Docket Number: No. 10-94-258-CV,10-94-258-CV
• Citation: Thomas v. Thomas, 917 S.W.2d 425 (Tex. App. 1996)
• Parties: Hubert Michael THOMAS, Appellant, v. Diana Jane THOMAS, Appellee.
• Court: Texas Court of Appeals

Page 425

917 S.W.2d 425

Hubert Michael THOMAS, Appellant, v.Diana Jane THOMAS, Appellee.

No. 10-94-258-CV.

Court of Appeals of Texas Waco.

Feb. 21, 1996.

Amy Grubbs Thomas, Mexia, for appellant.

LaNelle L. McNamara, McNamara & McNamara, Waco, for appellee.

Before CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

Appellants, Hubert Michael Thomas(Michael), Michael's present wife and attorney, Amy Thomas(Amy)(collectively known as the Thomases), and Michael Thomas, P.C., bring fourteen points of error appealing the granting of a permanent turnover order for collection of a judgment in favor of Michael's ex-wife, Diana Thomas(Diana).We affirm in part and reverse and render in part.

In an effort to collect overdue and unpaid alimony installments, the appellee, Diana, filed suit against Michael for breach and anticipatory repudiation of an alimony contract.On December 15, 1992, a jury awarded Diana $100,000 in damages and $10,500 in attorneys fees.The trial court reduced the judgment against Michael to $68,000 in damages plus pre-judgment interest at the rate of 6% per annum on each installment after it became due and payable, and for post-judgment interest at the rate of 10% per annum beginning on December 15, 1992.Michael did not file any post-judgment motions.However, Diana requested a new trial or modification of the judgment.Her requests were overruled by operation of law, and the judgment became final on March 31, 1993.

On May 20, 1993, Diana filed a verified motion for an ex parte temporary turnover order ¹ in the 77th District Court of Limestone County, alleging that the judgment was wholly due and unpaid.The motion requested an order that monies due and owing to Michael, as fees for legal services rendered by him, including monies due and owing to him as the attorney in a specific case, be paid into the registry of the trial court pending notice and hearing.The trial court granted the temporary turnover order on May 20, 1993.

The hearing on the motion for the turnover order was set for May 26, 1993, and citation and notice of hearing was issued to Michael.In addition, Robert Hanley, the opposing attorney in a suit tried by Michael, was ordered to deliver into the registry of the court funds that were presently or in the future to be paid to Michael or Michael Thomas, P.C. under the terms of the judgment in that cause.After a conference call between all the interested parties, an agreement was reached concerning payment of the contested funds.Thereafter, a check for $60,000, representing the amount of funds due in the previous case, was deposited into the registry of the court by Robert Hanley.

On or about May 27, 1993, Michael filed a motion to recuse Judge Black for allegedly engaging in ex parte conversations with Diana.Judge David Walker presided over the recusal hearing and denied the motion.On or about June 29, 1993, Michael filed an application with this court for a writ of mandamus to void the temporary turnover order and to remove Judge Black from the case.This court denied the motion on July 14, 1993.

In July and August, several attempts at settlement were made.The settlement talks broke down over $1,000 in attorney's fees Diana claimed she incurred in the mandamus proceedings regarding Judge Black's recusal and $2,589 in fees and costs related to the turnover action.

On September 8, 1993, Judge Black voluntarily recused himself in this cause.Sometime thereafter, Judge R. Wayne Lawrence of the Third Judicial District Court was appointed to preside in this cause.On or about September 15, 1993, an additional $16,500 was delivered into the registry of the court by Michael.

Judge Lawrence scheduled a hearing for November 10, 1993 to consider making the turnover order permanent and releasing the funds to Diana.At the hearing, Michael argued that he did not own the funds deposited into the registry of the court by Robert Hanley.He claimed that the property actually belonged to Michael Thomas, P.C., the name of his incorporated law firm.He argued that, since the funds did not belong to him, they were not subject to the turnover order.

In addition, there was some question during the turnover proceedings as to the viability of the professional corporation itself.Evidence was produced at trial that showed Michael Thomas, P.C. was incorporated in 1983 and Michael was the registered agent and sole stockholder of the corporation.He also was listed as one of two directors of the corporation.There was no evidence at trial concerning the relationship of the other director to the corporation, or whether he was involved in the day to day operations of the business.Moreover, evidence was also produced at trial that showed that Michael Thomas, P.C. had failed to file franchise tax returns as required in Texas, which resulted in the forfeiture of the corporate charter in 1987.Furthermore, Michael Thomas, P.C. apparently had failed to file income tax returns since 1987.In addition, Michael's individual 1991 tax return was introduced into evidence to show that he reported all income as "self-employment income."However, the corporation was never dissolved.Michael claimed he was unaware of the forfeiture and continued to practice law as a corporation during the time of forfeiture.The corporate charter was not reinstated until 1994 after Diana had brought these facts before the trial court.

On January 26, 1994, Judge Lawrence granted turnover relief and instructed Diana to prepare a proposed order.Two days later, Diana notified Michael that the proposed order would be delivered in person to Judge Lawrence at or before 10:00 a.m. on January 31.Michael notified the court that he had not been afforded sufficient time to review the proposed order and requested that no order be signed ex parte.He also notified the court of his intent to appeal the turnover order and requested that the funds in the registry not be disbursed until the order became final.

On February 2, Diana filed a motion for Rule 13 sanctions based upon the discovery that the corporate charter of Michael Thomas, P.C. had been forfeited.She requested the right to reopen the evidence to introduce evidence of the forfeiture.On March 11, the court held a hearing on the motion to reopen evidence and for sanctions and attorney's fees.The court granted the motion on March 25.On April 26, the court entered the turnover order and sanctions, and permitted Diana to immediately withdraw the funds from the registry of the court.

Michael, Amy, and Michael Thomas, P.C. all bring points of error in this appeal.²However, Diana claims that this court lacks the jurisdiction to hear the corporation's appeal.At trial, it was not a party to the suit, nor was judgment rendered against it.Michael and Amy both filed separate cost bonds to preserve their appeals.However, the corporation did not execute an appeal bond, nor was it included as a principal on the cost bond of either Michael or Amy.SeeTEX.R.APP.P. 40(a)(stating that a party must file a timely cost bond to preserve appeal).

Appeal bonds are to be liberally construed.Shults v. State, 682 S.W.2d 260, 261(Tex.1984).Multiple appellants may perfect an appeal by filing one bond on behalf of all appellants.Ramirez v. Pecan Deluxe Candy, 839 S.W.2d 101, 104(Tex.App.--Dallas1992, writ denied).The law is well settled that our jurisdiction is invoked by the timely filing of the original bond, even though it is defective or insufficient.Pollak v. Metroplex Consumer Ctr., Inc., 722 S.W.2d 512, 514(Tex.App.--Dallas 1986, no writ).An appellant who shows that he was omitted from the cost bond because of mistake or accident is entitled to amend the bond by adding his name to it.³Powell v. City of McKinney, 711 S.W.2d 69, 70(Tex.App.--Dallas1986, writ ref'd n.r.e.) However, we do not have jurisdiction over a co-appellant who files a separate late bond that does not amend a prior timely appeal bond.Pollak, 722 S.W.2d at 514.

We may not dismiss an appeal for procedural defects of form or substance without allowing a reasonable opportunity to correct the defect.TEX.R.APP.P. 83;SeeWoods Explor. & Producing Co. v. Arkla Equip. Co., 528 S.W.2d 568, 570(Tex.1975).After being informed by this court that the corporation had not properly perfected its appeal, we gave Michael Thomas, P.C. fifteen days to amend the cost bond ⁴ of either Michael or Amy by adding the corporation's name to it and providing affidavits that the original omission of the corporation from the cost bond was due to accident or mistake.Michael, apparently acting on the behalf of Michael Thomas, P.C., asked for an extension of time to file the amended bond which this court granted.We granted the motion to amend on November 29, 1995, and Diana filed a motion to dismiss the appeal on December 4, 1995.

The corporation has failed to perfect its appeal for the second time.In response to our invitation to Michael Thomas, P.C. to amend one of the timely filed appeal bonds to include itself, the corporation filed a supplemental transcript that consisted of a separate bond.While amending a bond of a party already properly before the court can give us jurisdiction over the amending party, filing a separate bond has the practical effect of filing an untimely bond which ultimately denies this court jurisdiction over that party.SeeRamirez, 839 S.W.2d at 104(stating that an appellate court has no jurisdiction over attempted appeals by co-appellants who have not timely filed a bond).

In addition, even if Michael Thomas, P.C. had filed an amended bond, the corporation did not perfect its appeal because it failed to prove through affidavits or other information that the corporation was omitted from the original cost bond of either Michael or Amy because of mistake or accident.SeePowell, 711 S.W.2d at 70(holding that a party who establishes that he was inadvertently omitted from the...