Barber Family Corporation v. Neotis Roberson

• Court: Court of Appeals of Texas
• Decided: October 7, 2022
• Docket: 06-22-00060-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00060-CV

BARBER FAMILY CORPORATION, Appellant

V.

NEOTIS ROBERSON, Appellee

On Appeal from the County Court at Law Cass County, Texas Trial Court No. CCL-07-C-222

Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

The Barber Family Corporation has attempted to appeal from the trial court’s July 22,

2022, order denying its motion to quash writ of execution. The issue before this Court is

whether we have jurisdiction to hear the appeal. We conclude that we do not and dismiss the

appeal for want of jurisdiction.

Our jurisdiction is constitutional and statutory in nature. See TEX. CONST. art. V, § 6;

TEX. GOV’T CODE ANN. § 22.220 (Supp.). Unless we are given specific authority over an

interlocutory appeal from a particular type of order, we have jurisdiction only over appeals from

final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The trial court’s

July 22, 2022, order denying the Barber Family Corporation’s motion to quash writ of execution

does not appear to be a final judgment or an appealable interlocutory order. See Bank One, N.A.

v. J.D.C. Recovery, Inc., No. 03-06-00012-CV, 2006 WL 2727939, at *1 (Tex. App.—Austin

Sept. 22, 2006, no pet.) (mem. op.) (“Writs of execution and orders incident to writs of execution

are not reviewable by appeal.”); Qualia v. Qualia, 37 S.W.3d 128, 129 (Tex. App.—San Antonio

2001, no pet.) (same); Gonzales v. Daniel, 854 S.W.2d 253, 255–56 (Tex. App.—Corpus Christi

1993, no writ) (finding that “an order sustaining a motion to quash execution is no more a final,

appealable judgment than any other such order incident to the writ of execution”); TEX. CIV.

PRAC. & REM. CODE ANN. §–51.014 (Supp.) (identifying appealable interlocutory orders).

By letter of August 4, 2021, we notified the Barber Family Corporation, through counsel,

of this potential defect in our jurisdiction and afforded it the opportunity to demonstrate proper

grounds for our retention of the appeal.

2 The Barber Family Corporation responded to our letter, through counsel, but its response

failed to demonstrate proper grounds for our retention of this appeal. Counsel maintains that the

trial court’s February 17, 2016, final judgment is void and, therefore, subject to collateral attack.

He asserts that the motion to quash was the vehicle by which the Barber Family Corporation

sought to collaterally attack the allegedly void judgment. This argument is premised on

attachments to the response to our jurisdictional defect letter that are not a part of the record

before us and that, therefore, we cannot consider. “An appellate court cannot consider

documents cited in a [response] and attached as appendices if they are not formally included in

the record on appeal.” In re O.M.H., No. 06-12-00013-CV, 2012 WL 2783502, at *1 n.2 (Tex.

App.—Texarkana July 10, 2012, no pet.) (mem. op.) (quoting Gonzales v. Villarreal, 251

S.W.3d 763, 777 n.17 (Tex. App.—Corpus Christi 2008, pet. dism’d w.o.j.) (citing Burke v. Ins.

Auto Auctions, 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied)).

Further, “collateral attacks on final judgments are generally disallowed because it is the

policy of the law to give finality to the judgments of the courts.” Browning v. Prostok, 165

S.W.3d 336, 345 (Tex. 2005). While “a void judgment may be collaterally attacked,” “[a]

judgment is void only when it is apparent that the court rendering judgment ‘had no jurisdiction

of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the

particular judgment, or no capacity to act.’” Id. at 346 (quoting Browning v. Placke, 698 S.W.2d

362, 363 (Tex. 1985)). The Barber Family Corporation’s response and the record demonstrate

that the 2016 judgment is not void.

3 In light of the foregoing, we dismiss the appeal for want of jurisdiction.

Josh R. Morriss, III Chief Justice

Date Submitted: October 6, 2022 Date Decided: October 7, 2022