Environmental Industrial Services Group, Inc. D/B/A EISG, Inc., Barry Esene, and Ruthie Esene v. Holt Texas LTD

• Court: Court of Appeals of Texas
• Decided: January 17, 2024
• Docket: 04-23-00832-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-23-00832-CV

ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC. d/b/a EISG, Inc., Barry Esene, and Ruthie Esene, Appellants

v.

HOLT TEXAS LTD, Appellee

From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2021-CI-13443 Honorable Christine Vasquez-Hortick, Judge Presiding

PER CURIAM

Sitting: Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice

Delivered and Filed: January 17, 2024

DISMISSED FOR WANT OF JURISDICTION

The underlying dispute in this appeal involves a bill of review that sought to set aside a

2020 money judgment against appellants. An appeal of the final judgment in the bill of review is

currently pending in this court in Cause Number 04-23-00067-CV. The notice of appeal in this

case, however, challenges a post-judgment order directing the Bexar County District Clerk to

release funds held in the trial court’s registry. The order at issue in this appeal required the funds

in question to be disbursed to a receiver appointed after the entry of the 2020 judgment challenged

in the bill of review. 04-23-00832-CV

Generally, a direct appeal may challenge only “a final judgment or certain interlocutory

orders expressly made appealable by statute.” Sunnyland Dev., Inc. v. Shawn Ibrahim, Inc., 597

S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (citing TEX. CIV. PRAC. & REM. CODE

ANN. §§ 51.012, 51.014(a)); see also Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

“Orders made for the purpose of enforcing or carrying into effect an already-rendered judgment

generally are not final judgments or decrees, and therefore cannot be appealed.” Sintim v. Larson,

489 S.W.3d 551, 556 (Tex. App.—Houston [14th Dist.] 2016, no pet.); In re Doe, 397 S.W.3d

847, 849 (Tex. App.—Fort Worth 2013, no pet.); Qualia v. Qualia, 37 S.W.3d 128, 129 (Tex.

App.—San Antonio 2011, no pet.). “An appeal from a post-judgment order that is not appealable

must be dismissed for lack of jurisdiction.” Sunnyland, 597 S.W.3d at 3; see also Lovall v. Yen,

No. 14-07-00770-CV, 2008 WL 361373, at *1–2 (Tex. App.—Houston [14th Dist.] Feb. 12, 2008,

no pet.) (mem. op.) (dismissing appeal of post-judgment order that “was merely a ministerial act

incident to the final judgment, providing for disbursement of funds directed by the [final]

judgment, akin to a writ of execution”).

On November 28, 2023, we issued an order noting that the post-judgment order appellants

seek to challenge does not appear to be either a final judgment or an appealable interlocutory order.

See, e.g., Qualia, 37 S.W.3d at 129; Lovall, 2008 WL 361373, at *1–2. We therefore ordered

appellants to show cause why this appeal should not be dismissed for want of jurisdiction. In our

order, we cautioned appellants that if they did not file an adequate response, we would dismiss the

appeal for want of jurisdiction.

On December 27 and 28, 2023, appellants filed two amended notices of appeal purporting

to change the style of this case to “Leesen, LLC and Diogu Law Firm PLLC v. Craig Noack and

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Noack Law Firm, PLLC.” 1 On December 29, 2023, appellants filed a response to our show cause

order. In their response, appellants argued that the challenged post-judgment order is final and

appealable because it is void. As support for this proposition, appellants cited several opinions

holding that a judgment may be final for the purposes of appeal even if it is void. See State ex rel.

Latty v. Owens, 907 S.W.2d 484, 485–86 (Tex. 1995); Newsom v. Ballinger Indep. Sch. Dist., 213

S.W.3d 375, 380 (Tex. App.—Austin 2006, no pet.); In re Vlasak, 141 S.W.3d 233, 237–38 (Tex.

App.—San Antonio 2004, orig. proceeding); see also PNS Stores, Inc. v. Rivera, 379 S.W.3d 267,

272 (Tex. 2012) (defining void judgment). However, none of appellants’ cited authority holds that

a post-judgment order is final or otherwise appealable because it is purportedly void. See Sintim,

489 S.W.3d at 556 (“Even if a trial court signs an interlocutory order that is void for lack of

jurisdiction, this court still has no jurisdiction to entertain an interlocutory appeal from that order

absent statutory authority.”) (internal quotation marks omitted); see also In re Fluid Power Equip.,

Inc., 612 S.W.3d 130, 134 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (noting that

post-judgment orders made for the purpose of enforcing or carrying out a prior judgment “are not

subject to appeal” but may be reviewable by mandamus).

Appellants’ response to our show cause order did not address the issue raised in that order:

that the challenged post-judgment order appears to be a non-appealable “[o]rder[] made for the

purpose of enforcing or carrying into effect an already-rendered judgment[.]” Sintim, 489 S.W.3d

at 556; Qualia, 37 S.W.3d at 129; Lovall, 2008 WL 361373, at *1–2. Because we conclude the

1 Diogu Law Firm PLLC represents appellants, while Leesen LLC appears to have paid the funds held in the trial court’s registry. Craig Noack and Noack Law Firm, PLLC are the court-appointed receiver and his law firm. The record before us does not indicate that Diogu Law Firm PLLC or Leesen LLC were parties to this lawsuit below or that they intervened before the trial court rendered a final judgment. See State v. Naylor, 466 S.W.3d 783, 795 (Tex. 2015).

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challenged post-judgment order is not an appealable order, we dismiss this appeal for want of

jurisdiction.

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