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In re Fuentes

Court of Appeals of Texas, First District

July 27, 2017


         Original Proceedings on Petitions for Writ of Mandamus

          Panel consists of Chief Justice Radack and Justices Higley and Bland.



         In this original proceeding, the relators seek relief from the trial court's denial of their requests to enforce a supersedeas bond, which was filed to stay execution of a divorce decree while that decree is on appeal.[1]

         The trial court's divorce decree between Miguel Fuentes and Evangelina Lopez Guzman Zaragoza awarded Evangelina three residential properties in El Paso, Texas, in addition to other property and money. Miguel and several third parties have appealed the decree, and their appeal is pending in our court. See Miguel Zaragoza Fuentes, et. al. v. Evangelina Lopez Guzman Zaragoza, Case No. 01-16-00251-CV (Tex. App.-Houston [1st Dist.]). Miguel posted a bond to supersede the judgment. Before the divorce decree was final and before Miguel posted the bond, Evangelina filed a copy of the decree in the El Paso County real property records and took possession of the three properties awarded to her. Her possession of these properties became the source of the present ancillary dispute.

         Miguel moved the trial court to enforce the supersedeas bond, claiming that Evangelina's continued possession of the properties violates the bond. When the trial court denied that relief, Miguel filed a motion seeking enforcement of the bond and a petition for a writ of mandamus with this court. Third party appellants Elsa Esther Carrillo Anchondo and her wholly owned company, Eagle Ridge Properties, LLC, filed similar requests for relief.

         Miguel and the Carillo relators request that this court enforce the supersedeas bond and order that Evangelina (1) withdraw her El Paso County filings and (2) surrender physical possession of the properties pending appeal. We deny the motions filed in the appeal as moot and consider the requests as petitions for writ of mandamus. We conditionally grant the petitions.


         Evangelina petitioned for divorce against Miguel in Harris County, Texas in May 2014. On December 21, 2015, the trial court signed its final decree of divorce. [2] Although titled in Eagle Ridge's name, the trial court's findings of fact and conclusions of law in the divorce proceeding attribute ownership of three residential properties in El Paso County to Miguel. In the decree, the trial court determined that the El Paso properties were part of Miguel and Evangelina's marital estate, and it awarded the properties to Evangelina. The decree states that it may "serve as a muniment of title to transfer ownership of all property awarded to any party in this Final Decree of Divorce."

         Ownership of the El Paso properties before the decree

         Before the trial court signed the final decree, the Carillo relators and other third parties petitioned to intervene in the case, claiming that Evangelina was improperly seeking to have property they owned considered as marital assets to distribute as marital property in the divorce. See Fuentes v. Zaragoza, 2017 WL 976079, at *1. In particular, they claimed that the El Paso properties are owned by Eagle Ridge, a company that, in turn, is owned solely by Carillo, and not by Miguel. They assert that, before the divorce decree was signed, Eagle Ridge was the owner of record in the El Paso real property records and the properties were occupied by Carillo and her family.

         Transfer pursuant to the decree

         After the trial court signed the decree, Evangelina filed it with the El Paso county clerk two days later, on December 23, 2015, claiming it as a muniment of title for the El Paso properties. Five days later, on December 28, 2015, Evangelina took physical possession of the properties from Carillo. Evangelina did not obtain a writ of execution or a writ of forcible entry and detainer before seizing the properties.

         Evangelina's actions were immediately challenged. On December 30, 2015, the Carillo relators filed a pleading in the trial court seeking a temporary restraining order and a temporary injunction for wrongful execution. The Carillo relators claimed that Evangelina had violated Texas Rule of Civil Procedure 627 by filing the decree in the property records and taking possession of those properties less than 30 days after issuance of the decree. See Tex. R. Civ. P. 627 (providing that execution on judgment may not issue until "after the expiration of thirty days from the time a final judgment is signed").

         The next day, the trial court issued a temporary restraining order, reciting that "execution has begun to occur within 30 days of the signing of the Final Judgment without application under TRCP 628." The following week, the court held a hearing on the Carillo relators' wrongful execution claim. It denied their request for a temporary injunction, explaining that it believed it lacked authority to grant the relief requested:

I thought I had made a finding or a statement on the record that whether you call it an execution or a [muniment] of title, I do not believe that was proper, but I do not believe sitting here in Harris County that I have any authority to order people in El Paso County to do anything . . . .

         The Carillo relators did not appeal the trial court's interlocutory order. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(4) (authorizing appeal of interlocutory order that "grants or refuses a temporary injunction").

         The Carillos relators, however, obtained a temporary restraining order from the El Paso District Court the next day. That temporary restraining order took the El Paso properties from Evangelina's possession. The parties ultimately agreed to place the properties in the possession of a court-appointed receiver while the case proceeded in the El Paso court.

         Meanwhile, the trial court set the supersedeas bond at $278.3 million, and Miguel appealed that order. Our court reversed the order and ordered that the bond be set at $25 million. See Fuentes v. Zaragoza, No. 01-16-00251-CV, 2016 WL 3023811, at *1 (Tex. App.-Houston [1st Dist.] May 26, 2016, order). Miguel posted a $25 million supersedeas bond with the Harris County District ...

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