N&J Enterprises, LLC v. Kerry Owens and James Handy

• Court: Court of Appeals of Texas
• Decided: March 10, 2011
• Docket: 02-11-00004-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00004-CV

N&J ENTERPRISES, LLC APPELLANT

V.

KERRY OWENS AND JAMES APPELLEES HANDY

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FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

Appellant N&J Enterprises, LLC attempts to appeal from the trial court’s

order dated October 25, 2010, in Ha T.N. Frasier v. Robert L. Frasier, No. 231-

374356-04, in which the trial court denied N&J Enterprises’s motion to release

escrow funds; ordered the release of $25,000 ―under file number 2041000030‖ to

Appellee Kerry Owens, a receiver; ordered Owens to pay $5,000 to Appellee

1 See Tex. R. App. P. 47.4. James Handy, another receiver; and ordered Owens to distribute the remaining

$20,000 ―in accordance with the prior orders of this court.‖

On January 11, 2011, we notified N&J Enterprises that this court was

concerned that the order N&J Enterprises was attempting to appeal did not

appear to be a final judgment or an appealable interlocutory order and also that

there was no indication that the case had been reinstated after its abatement due

to bankruptcy.2 See Tex. R. App. P. 8.3. We informed N&J Enterprises that its

appeal was subject to dismissal for want of jurisdiction unless, by January 21,

2011, it filed a response showing grounds for continuing the appeal and a notice

of bankruptcy, a motion conforming to rule of appellate procedure 8.3, or a copy

of the trial court’s order reinstating the case.

N&J Enterprises filed a motion to reinstate and attached a certified copy of

the federal court’s January 4, 2010 order dismissing the bankruptcy case, but it

did not address our concern that the trial court’s October 25, 2010 order was not

a final judgment or an appealable interlocutory order. See, e.g., Art Inst. of

Chicago v. Integral Hedging, L.P., 129 S.W.3d 564, 570–73 (Tex. App.—Dallas

2003, no pet.) (noting an exception to the one final judgment rule for discrete

orders in receivership but observing that partial advances against a final fee

award during a pending receivership are not subject to appeal under the

2 This court was notified that a suggestion of bankruptcy had been filed in this case on September 16, 2009, and that the trial court had ordered the case abated on February 22, 2010.

2 exception). Compare Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(1) (Vernon

2008) (stating that a person may appeal from an interlocutory order that appoints

a receiver), with Lehman v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)

(―[T]he general rule, with a few mostly statutory exceptions, is that an appeal may

be taken only from a final judgment.‖). Accordingly, we dismiss this appeal for

want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).

PER CURIAM

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: March 10, 2011