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Izen v. Ryals

Court of Appeals of Texas, Fourteenth District

April 18, 2019

JOE ALFRED IZEN, JR.; RAY EDWARDS; AND BONNIE EDWARDS, Appellants
v.
KENNETH E. RYALS, TRUSTEE OF THE EAST TEXAS INVESTMENTS TRUST, Appellee

          On Appeal from the 55th District Court Harris County, Texas Trial Court Cause No. 2014-43610A

          Panel consists of Justices Christopher, Bourliot, and Spain.

          MEMORANDUM OPINION

          CHARLES A. SPAIN JUSTICE

         This is a dispute over real estate. The trial court granted summary judgment in favor of appellee Kenneth E. Ryals, Trustee of the East Texas Investments Trust (the "Trust"), and declared that as between the Trust and appellant Joe Alfred Izen, Jr., the Trust owned the property. The trial court later severed the Trust's title and declaratory-judgment claims against Izen and made the summary judgment final and appealable. Izen's primary issue on appeal is whether the trial court erred by granting summary judgment in favor of the Trust.

         Because there is no final, appealable judgment for our review as to appellants Ray Edwards and Bonnie Edwards, we dismiss their interlocutory appeal. We overrule Izen's issues[1] and affirm the trial court's judgment.

         I. Background

         This case involves an approximately 3.4-acre tract of land along the Eastex Freeway in Houston (the "property"). The Trust acquired title to the property by general warranty deed in 2002. This property was at issue in two prior suits, one in 2004 in Harris County Civil Court of Law No. 1 and one in 2007 in the 55th District Court of Harris County. Both cases resulted in final judgments in which the Trust was adjudicated to be the title owner of the property. In both cases, Izen was the attorney who represented the Trust. The 2007 case was captioned: "No. 2007-63116, Lisa Ogden, Steven Gayle, and Wayne Westbrook, Plaintiffs and Counter-Defendants vs. Kenneth Ryals as Managing Trustee of East Texas Investment[s] Trust, Defendant and Counter-Plaintiff." In pertinent part, the final judgment in the 2007 case, signed July 29, 2010, ordered that:

• Ryals, as trustee for the Trust, have and recover title in fee simple to the real estate against and from Ogden, W. Westbrook, and Gayle who take nothing on their claim for trespass to try title;
• Ryals, as trustee for the Trust, recover reimbursement of $160, 000 from the Trust for attorney's fees owed to Izen for various legal services performed for the Trust;
• Ryals, as trustee for the Trust, recover reimbursement of $8, 000 from the Trust for ad valorem taxes he paid and advanced for the benefit of the Trust;
• Ryals, as trustee for the Trust, have and recover against Ogden, W. Westbrook, and Gayle attorney's fees owed to Izen for services performed for the Trust in this case in the amount of $60, 000;
• the real estate awarded to the Trust by this judgment be sold at public auction;
• Ryals pay Izen $160, 000 and reimburse Ryals $8, 000 out of the first proceeds of such sale after payment of the sale costs; and
• Ryals, as trustee for the Trust, have all writs, including writs of execution and possession, necessary for the enforcement of the judgment.

         In 2012, this court affirmed the July 2010 final judgment. Ogden v. Ryals, No. 14-10-01052-CV, 2012 WL 3016856, at *1, *6 (Tex. App.-Houston [14th Dist.] July 24, 2012, no pet.) (mem. op.). Izen also represented the Trust in that appeal.

         In April 2013, Izen filed for the issuance of a writ of execution. On June 4, 2013, the Harris County Precinct One constable held a sale of the property under the writ of execution. Izen was the successful bidder and received a constable's deed dated October 28, 2013, and filed November 21, 2013. The constable's deed states in pertinent part:

On . . . the 4th day of June, 2013 . . ., I sold said hereinafter described land and premises at public venue . . ., and the premises hereinafter described were sold to JOE ALFRED IZEN for the bid of Two Hundred Forth Thousand and No/100($240, 000.00), Dollars . . . .
. . . I . . . have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said JOE ALFRED IZEN all of the estate, right, title and interest which the said LISA OGDEN, WAYNE WESTBROOK, AND STEVEN GAYLE had of, in and to the following land . . . .

         In 2014, CIG DT Holding, LLC, a cell phone tower company (the "Cell Tower"), brought an interpleader suit against Izen and the Trust, alleging that the Cell Tower was leasing a portion of the property and that both Izen and the Trust had demanded the Cell Tower make the 2014 annual rent payment to them. The Cell Tower requested that the trial court allow the rent to be paid into the court's registry.

         The Trust asserted counterclaims against the Cell Tower for recovery of rent, possession of the tract, declaratory relief canceling the lease or determining rights and obligations under the lease, and attorney's fees. The Trust alleged that Izen represented to the Cell Tower and Ray Edwards and Bonnie Edwards[2] that he is the owner of the property, collected rent from the Edwardses, and attempted to collect rent from the Cell Tower. The Trust asserted cross-claims against Izen for an accounting of rent collected, recovery of rent, declaratory relief canceling any lease, and attorney's fees. The Trust also asserted cross-claims against Izen for trespass to try title, breach of fiduciary duty, cancellation of the constable's deed, disgorgement of fees, and slander of title. The Trust alleged that the Edwardses were using and occupying the land without paying rent to the Trust. The Trust brought third-party claims against the Edwardses for recovery of rent, possession of the tract, declaratory relief canceling any lease, and attorney's fees.

         Izen asserted cross-claims against the Trust and third-party claims against Ryals individually for breach of contract, malicious prosecution, declaratory relief regarding the invalidity of a $25, 000 lien asserted by Ryals on the property, defamation, and confirmation of the constable's sale and deed.

         The Edwardses asserted a third-party claim against the Trust for filing frivolous claims and sought attorney's fees as sanctions.

         The case initially proceeded in the 80th District Court of Harris County and was transferred to the 55th District Court by agreed order signed February 25, 2016.

         In April 2016, the Trust filed a traditional motion for partial summary judgment on "its trespass to try title and to quiet title claims"[3] against Izen. The Trust argued that it was entitled to summary judgment as a matter of law because it could conclusively prove there were no genuine issues of material fact as to all the elements of its claims. The Trust further requested that the trial court declare the Trust the owner of the property and declare Izen's constable's deed invalid.

         Izen and the Edwardses filed a response, a traditional cross-motion for partial summary judgment, and a no-evidence motion for summary judgment. Izen and the Edwardses also filed a plea to the jurisdiction.

         The trial court initially signed an order granting the Trust's traditional motion for partial summary judgment on June 6, 2016.[4] On June 6, 2016, the trial court signed an order denying Izen's and the Edwardses' traditional cross-motion for partial summary judgment and no-evidence motion for summary judgment.[5] The Trust filed a motion to modify to correct two typographical errors in the June 6 order granting its traditional motion for partial summary judgment. The trial court granted the motion to modify, set aside the summary judgment signed on June 6, and entered an amended order. In its amended order signed July 25, 2016, the trial court stated that the Trust asked the court to grant summary judgment on its trespass-to-try-title and quiet-title claims against Izen. The trial court granted the Trust's traditional motion for partial summary judgment. In doing so, the trial court expressly stated that "[a]s between [the Trust] and Izen, [the Trust] is the owner of the Property" and "[t]he Constable's Deed is set aside." That same day, the trial court signed an order denying Izen's and the Edwardses' plea to the jurisdiction.

         The Trust filed a motion for severance of the partial summary judgment, which the trial court granted by order signed March 1, 2017. Specifically, the trial court severed out "[the Trust]'s causes of action for declaratory judgment and in trespass to try title brought against . . . Izen" into cause no. 2014-43610-A, and styled, "East Texas Investments Trust v. Joe Alfred Izen, Jr." The trial court did not sever out any other parties or claims. The trial court specifically ordered that the amended summary judgment signed on July 25, 2016, was now a final judgment and was appealable.[6]

         Izen and the Edwardses filed their original motion for new trial on March 31, 2017, which motion was overruled by operation of law as of May 15, 2017. See Tex. R. Civ. P. 306a(1), 329b(a), (c). Izen and the Edwardses filed their notice of appeal on May 30, 2017. See Tex. R. App. P. 26.1(a)(1). In their notice of appeal from cause no. 2014-43610-A, Izen and the Edwardses stated they:

desire to appeal the Order for Severance[7] and the Final Judgment of this Court entered on the 1st day of March, 2017, against the Defendants, Joe Alfred Izen, Jr., and Ray Edwards and Bonnie Edwards d/b/a Big Man Diesel, and in favor of Cross-Plaintiff, Kenneth Ryals, Trustee of the [the Trust], severing Cause No. 2014-43610 severing [sic] certain cause of action into Cause No. 2014-43160A and entering Final Judgment to the Court of Appeals.

         II. The Edwardses' Appeal

         The record reflects that claims involving the Edwardses were still pending at the time of the severance order. Nothing in the amended summary judgment or the severance order (1) unequivocally expresses an intent to finally dispose of the entire case or (2) effects an actual disposition of all parties and claims remaining in the case at the time the order was signed. See Lentino v. Frost Nat'l Bank, 159 S.W.3d 651, 653 (Tex. App.-Houston [14th Dist.] 2003, no pet.). The severance order only severs the Trust's declaratory-judgment and title claims against Izen and specifically makes only the amended summary judgment a final judgment.

         On March 27, 2019, notification was transmitted to all parties of the court's intent to dismiss the Edwardses' appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Izen's and the Edwardses' response has not shown that this court has jurisdiction to hear the Edwardses' appeal. Because there is no final judgment from which Ray Edwards and Bonnie Edwards may take an appeal, see Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001), we dismiss the Edwardses' appeal for lack of jurisdiction.

         III. Analysis in Izen's Appeal

         Izen brings five issues. First, he challenges the trial court's grant of the Trust's traditional motion for partial summary judgment and the denial of Izen's traditional cross-motion for partial summary judgment and no-evidence summary-judgment motion. Second, Izen challenges the trial court's denial of his plea to the jurisdiction. Third, Izen attacks the trial court's denial of his motion for new trial. Fourth, he challenges the trial court's actions in expunging notices of lis pendens filed by Izen and entering an injunction against him without requiring the Trust to post a bond. And fifth, Izen contends that a May 2018 federal-court jury verdict and final judgment established Izen's rights as a mortgagee in possession based on res judicata and collateral estoppel.

         A. Subject-matter jurisdiction over the Trust's claims

         We initially address issue two, as it challenges subject-matter jurisdiction, which is never presumed and cannot be waived. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44, 445 (Tex. 1993). "Whether the trial court has subject matter jurisdiction is a question of law that we review de novo." Appraisal Review Bd. of Harris Cty. Appraisal Dist. v. Spencer Square Ltd, 252 S.W.3d 842, 844 (Tex. App.-Houston [14th Dist.] 2008, no pet.). We conclude that the trial court had subject-matter jurisdiction over the Trust's claims.

         Izen does not dispute, and Texas law supports, that the trial court, as a district court, properly would have subject-matter jurisdiction over the Trust's title and declaratory-judgment claims.[8] However, Izen contends the Trust's claims were "crooked maneuverings" that constituted "an impermissible collateral attack on the mandatory terms of the [July 2010] Final Judgment." The Trust responds that it filed its claims to settle "the question of whether [the Trust] or Izen had title," not to attack the July 2010 final judgment, and that its claims were based on events occurring after the July 2010 final judgment.

         Our review of the Trust's live pleading (second amended cross-action against Izen) does not reveal that the Trust sought to "avoid the binding force" of any portion of the July 2010 final judgment. See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (defining collateral attack as "an attempt to avoid the binding force of a judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment currently stands as a bar against"). Regarding the July 2010 final judgment, the Trust alleged: "By final judgment in that suit, Ryals, as trustee, was, again, adjudicated the fee ...


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