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Estate Land Company v. Wiese

Court of Appeals of Texas, Fourteenth District

December 21, 2017

ESTATE LAND COMPANY, AARON WIESE AND KAMAL BANNAN (BANANI), Appellant
v.
ANTHONY WIESE, Appellee

         On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 2009-00136

          Panel consists of Chief Justice Frost, Justice Donovan, and Justice Wise.

          MEMORANDUM OPINION

          JOHN DONOVAN, JUSTICE.

         This appeal arises in connection with a partition case. After the property at issue was sold, appellants Estate Land Company, Aaron Wiese, and Kamal Banani (Bannan) complain the trial court erred in denying appellants' amended motion to compel the post-judgment deposition of a receiver. Appellants contend on appeal that (1) the trial court lacked jurisdiction to sign the May 23, 2016, order denying the amended motion to compel the post-judgment deposition of the receiver as a final judgment had been signed by the court on May 15, 2013; (2) the trial court's order denying the amended motion to compel the post-judgment deposition of the receiver contradicts the final judgment, is void, and should be set aside; (3) this court's memorandum opinion of March 10, 2015, is the controlling law and the trial court's order denying the amended motion to compel the post-judgment deposition of the receiver is an impermissible attempt to enforce the final judgment; and (4) the trial court abused its discretion by signing the order denying the amended motion to compel the post-judgment deposition of the receiver as the appellants are permitted by Rule 621a to conduct post-judgment discovery, including the deposition of the receiver. We dismiss for want of jurisdiction.

         I. Background

         In 1999, Aaron Wiese ("Aaron") and his brother, Anthony ("Tony") Wiese, jointly purchased three properties in Houston, Texas: 812 Main Street; 110-114 Main Street; and I-10 McKee-Chapman ("McKee-Chapman"). In 2001, along with Kamal Bannan, they purchased a fourth property, 3302 Polk Street. The parties secured financing, and the record reflects that both Aaron and Tony were equally responsible for the entire amounts of the loans. After disagreements between the brothers arose, Tony sued appellants in 2009 seeking partition of the properties and reimbursement for contributions he had made to the properties. He also requested injunctive relief regarding a lease on the property at 812 Main Street ("Pearl Lease").

         In February 2013, the case proceeded to a bench trial. Thereafter, in May 2013, the trial court signed a first amended final judgment and order of sale. Because the trial court found the properties were incapable of partition, the trial court appointed a receiver, Donald Worley, and ordered the sale of the properties pursuant to Rule 770 of the Texas Rules of Civil Procedure.

         Aaron did not agree with the judgment of the trial court partitioning two of the properties (812 Main and 110-114 Main) and appealed the final judgment. This Court affirmed the final judgment and issued a Memorandum Opinion dated March 10, 2015. The Texas Supreme Court denied review in July 2016.

         In connection with the sale of one property, 110-114 Main, the trial court issued several post-judgment orders. On December 18 and 23, 2015, respectively, over appellants' objections, the trial court signed a First Amended Decree Confirming Sale of 110-114 Main Street ("Decree Confirming Sale") and an Order Granting Motion to Turnover Net Sales Proceeds of 110-114 Main to Donald Worley, Receiver ("Turnover Order").[1] Thereafter, on May 23, 2016, the trial judge signed an order denying Aaron's motion to compel the post-judgment deposition of the receiver ("Deposition Order"). Appellants filed a notice of appeal in which they sought to appeal from the Deposition Order. This appeal concerns only the appellants' attempt to appeal from the Deposition Order.

         Decree Confirming Sale

         After the judgment was final, the court-appointed receiver, Worley, began marketing the properties for sale. In August 2015, Worley obtained two earnest money contracts for the sale of the 110-114 Main property, and presented to the trial court a contract from Zimmerman Interests, Inc. On August 31, 2015, the trial court approved the contract from Zimmerman Interests, Inc., and authorized Worley to "take all reasonable step[s] to finalize the sale of the 110-114 Main property. . . ."

         In December 2015, Worley finalized the terms of the sale to Zimmerman Interests, Inc., and filed a report of sale with the trial court. On December 18, 2015, the trial court signed the First Amended Decree Confirming Sale of 110-114 Main Street, ordering the fees for the receiver and broker be calculated from the reduced sales price, approving and confirming the sale to Zimmerman Interests, Inc., and ordering that "the net sales proceeds, after payments of all fees of indebtedness, including payment to extinguish all valid mortgages, liens, other valid encumbrances, and reasonable and necessary receiver, legal and brokerage fees, if any, shall be distributed" among Tony, Aaron, and Kamal.

         Turnover Order

         In order to close the sale and insure title to 110-114 Main, Stewart Title requested a court order directing it to release the net sales proceeds from the sale to the receiver, Worley, who would then make the distributions in accordance with the final judgment. On December 23, 2015, the trial court signed the Turnover Order, wherein it ordered Stewart Title to turn over the net sales proceeds of 110-114 Main to Worley. It further ordered Worley to deposit the net sales proceeds in an IOLTA trust account and then make the distributions in ...


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