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Ctmi, LLC v. Fischer

Court of Appeals of Texas, Fifth District, Dallas

May 15, 2018

CTMI, LLC, MARK BOOZER, AND JERROD RAYMOND, Appellants
v.
RAY FISCHER AND CORPORATE TAX MANAGEMENT, INC., Appellees

          On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-11-08088

          Before Justices Lang, Brown, and Whitehill

          MEMORANDUM OPINION

          DOUGLAS S. LANG JUSTICE.

         CTMI, LCC, Mark Boozer, and Jerrod Raymond ("CTMI") appeal from the trial court's order granting Ray Fischer and Corporate Tax Management, Inc.'s ("Fischer") "Motion to Release Funds Held in the Registry of the Court" following a judgment by the Texas Supreme Court that awarded conditional appellate attorney fees. CTMI asserts the trial court abused its discretion in granting the motion because "a fair reading of the plain language of the [f]inal [j]udgment" leads to the conclusion that "[Fischer] is not entitled to recover any appellate attorney's fees." Fischer argues in response that this Court should dismiss the appeal because: (1) the trial court's motion "is as a matter of fact and law not an appealable order"; and (2) CTMI's "putative [n]otice of [a]ppeal filed on November 10, 2016 was untimely."

         We conclude we have jurisdiction over CTMI's appeal. Further, we affirm the trial court order in part and reverse and render in part.

         I. Factual and Procedural Background

         This appeal stems from an original lawsuit filed by CTMI against Fischer in connection with CTMI's purchase of Fischer's business. In the original lawsuit, CTMI sued Fischer for declaratory relief in the trial court, arguing a provision of the parties' "[a]sset [p]urchase [a]greement [was] an unenforceable 'agreement to agree.'" Fischer counterclaimed for breach of the agreement.

         The trial court rendered judgment for Fischer, concluding the asset purchase agreement was enforceable and accordingly denying CTMI's request for declaratory relief. CTMI then appealed the trial court's judgment to this Court. See CTMI, LLC v. Fischer, 479 S.W.3d 279 (Tex. App.-Dallas Aug. 20, 2013, pet. granted). This Court "reversed the judgment of the trial court" and concluded the provision was "unenforceable as a matter of law." See Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016). Fischer then appealed our decision to the Texas Supreme Court. The Texas Supreme Court "reverse[d] [this Court's] judgment and render[ed] judgment reinstating the trial court's denial of CTMI's claim for declaratory relief." Id. at 244.

         The trial court's judgment that was reinstated by the Texas Supreme Court denied CTMI's request for declaratory relief and contained provisions for appellate attorney's fees. The language of the judgment pertaining to appellate attorney's fees provides as follows:

IT IS FURTHER ORDERED ADJUDGED AND DECREED that Plaintiffs Ray Fischer and RY Fischer & Associates, Inc. f/k/a Corporate Tax Management, Inc. have and recover from and against Defendants CTMI, LLC, a Texas Limited Liability Company, Mark Boozer, an individual, and Jerrod Raymond, an individual, jointly and severally, all costs, fees, and expenses, including reasonable and necessary attorney's fees, incurred by Plaintiffs in the enforcement of this Judgment.
IT IS FURTHER ORDERED ADJUDGED AND DECREED that in the event of an unsuccessful appeal by any of the Defendants to the Court of Appeal [sic], against one or more of the Plaintiffs, the reasonable and necessary [sic] which will be incurred by one or more of the Plaintiffs would be $20, 000 relating to such appeal to the Court of Appeals.
IT IS FURTHER ORDERED ADJUDGED AND DECREED that in the event of an unsuccessful appeal by any of the Defendants to the Supreme Court of Texas, against one or more of the Plaintiffs, the reasonable and necessary [sic] which will be incurred by one or more of the Appellees would be $10, 000 relating to an unsuccessful petition for review and $10, 000 if the petition for review is granted, through full briefing to the Texas Supreme Court argument and rendition of opinion.

(Emphasis added.)

         After the Texas Supreme Court issued its mandate, Fischer filed discovery requests in the trial court against CTMI to "aid in [Fischer's] collection and enforcement of the [f]inal [j]udgment, particularly attorney's fees awarded in the [f]inal [j]udgment." CTMI did not respond to Fischer's discovery requests. Accordingly, Fischer filed a "Motion to Compel Post-Judgment Discovery" in the trial court.

         CTMI filed a response to Fischer's motion compelling post-judgment discovery, contending (1) Fischer "never served post-judgment discovery upon [CTMI], (2) Fischer did "not have an enforceable judgment against [CTMI] for recovery of appellate attorney fees in this case, " and (3) Fischer did "not allege nor can they demonstrate, even if it is ultimately determined that [CTMI] [is] required to pay appellate attorney fees, that [CTMI] do[es] not have the ability or willingness to pay them, thus obviating the necessity of unnecessary, burdensome and harassing "post-judgment" discovery requests." The trial court granted Fischer's motion to compel post-judgment discovery.

         Next, CTMI filed a "Motion to Confirm Judgment and Suspend Discovery" ("motion to confirm"), stating, in part, that CTMI "dispute[d] whether [they] owe[d] appellate attorneys' fees" and "dispute[d] the necessity of [Fischer's] discovery requests." Further, CTMI "ask[ed] that [the trial court] solve both issues by suspending postjudgment discovery until [the trial court] rule[d] on whether [CTMI] actually owe[d] the appellate attorneys' fees." Additionally, CTMI stated it would "aid this process by depositing $49, 750.00 into the Court's registry for disbursement to the proper party upon the Court's ruling."

         On the heels of the motion to confirm, CTMI filed a "Motion to Tender Funds into the Court Registry Pending Decision on Defendants' Motion to Confirm Judgment and Suspend Discovery." In that motion, CTMI stated it "tender[ed] the sum of [sic] $49, 750.00 into the [trial] court's registry." The sum was, in fact, paid into the court's registry. The trial court did not rule on CTMI's motion to confirm.

         After CTMI deposited the funds, Fischer filed a "Motion to Release Funds Held in the Registry of the Court" contending that "[p]ursuant to the terms of the [f]inal [j]udgment and [m]andate, the funds… held in the [trial] [c]ourt's registry belong to [Fischer]." The trial court granted Fischer's motion and ordered the District Clerk to release to Fischer the $49, 750.00.

         On November 10, 2016, CTMI filed in the trial court a "Notice of Appeal" to appeal the trial court's "Order Granting Plaintiffs' Motion to Release Funds Held in the Registry of the Court." The same day, on November 10, 2016, CTMI filed in this Court their "First Motion to Extend Time to File Notice of Appeal" explaining CTMI was not "served with notice that the [t]rial [c]ourt had entered the order releasing the funds" until November 4, 2016. On November 29, ...


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