Richard O. Harris, Individually and as Trustee of Richard O. Harris Profit Sharing Trust v. Richard K. Archer, M.D., Individually and as Trustee of the Richard K. Archer, M.D., P.A. Profit Sharing Plan & Trust and Reba Land, Inc. and Steven W. Sterquell, Individually and as Trustee of the Steve W. Sterquell Profit Sharing Plan

Opinion

NO. 07-01-0071-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

PANEL E

NOVEMBER 8, 2004

______________________________

RICHARD O. HARRIS, INDIVIDUALLY AND AS TRUSTEE OF RICHARD O. HARRIS PROFIT SHARING TRUST, APPELLANT

V.

RICHARD K. ARCHER, M.D., INDIVIDUALLY AND AS TRUSTEE OF THE RICHARD K. ARCHER, M.D., P.A. PROFIT SHARING PLAN & TRUST AND REBA LAND, INC., APPELLEES AND CROSS-APPELLANTS

V.

STEVE W. STERQUELL, INDIVIDUALLY AND AS TRUSTEE OF STEVE W. STERQUELL PROFIT SHARING TRUST, CROSS-APPELLEES

_________________________________

FROM THE 47^TH DISTRICT COURT OF RANDALL COUNTY;

NO. 40,125-A; HONORABLE HAL MINER, JUDGE _______________________________

Before JOHNSON, C.J., and QUINN, J., and BOYD, S.J. ⁽¹⁾

ORDER

Pending before the Court is a Motion to Review Excessiveness of Security and for Temporary Relief filed by Richard K. Archer, Individually and as Trustee of the Richard K. Archer, M.D., P.A. Profit Sharing Trust (collectively, "Archer") and Reba Land, Inc. Archer and Reba seek relief from a trial court order increasing the amount of security required to suspend enforcement of this court's judgment, pending appeal to the Texas Supreme Court. See Tex. R. App. P. 24. ⁽²⁾ We deny relief.

Steve W. Sterquell, Individually and as Trustee for the Steve W. Sterquell Profit Sharing Plan (collectively, "Sterquell") and Richard O. Harris, Individually and as Trustee of the Richard O. Harris Profit Sharing Trust (collectively, "Harris"), sued Archer and Reba. Following jury trial, judgment was entered in favor of Sterquell for $916,635.22; a take-nothing judgment was entered as to Harris. Archer and Reba superseded Sterquell's judgment and appealed. Harris appealed the take-nothing judgment.

On appeal, this court reduced the judgment in favor of Sterquell to $574,424 and, as reduced, affirmed. Harris's take-nothing judgment was reversed and judgment was rendered for Harris in the amount of $574,424. See Harris v. Archer, 134 S.W.3d 411 (Tex.App.-Amarillo 2004, pet. filed). Archer and Reba filed a petition for discretionary review in the Texas Supreme Court, which remains pending. Mandate as to our judgment has not been sought, and none has issued. See TRAP 18.1(a),(c).

Subsequent to the filing of petition for discretionary review in the Supreme Court by Archer and Reba, and after this court lost plenary power over its judgment, the trial court entered an order reciting that it held a hearing, reviewed evidence, and found that, "[T]he decision of the court of appeals, and the post-judgment interest that has accrued since the date of the judgment, constitute a change of circumstances which warrants modification of the amount of security to suspend enforcement of judgment heretofore deposited by [Archer and Reba]." The order specified an increased amount of security required of Archer and Reba in order to suspend enforcement of judgment. Archer and Reba move for appellate review of the order pursuant to TRAP 24.4(a) and (c).

Having granted temporary stay of the trial court's order, we now consider the additional relief Archer and Reba request: (1) staying of all efforts to collect on the judgment pending further proceedings; (2) remand to the trial court for entry of findings of fact; and (3) after entry of findings of fact, entry of a scheduling order for full briefing on the merits. ⁽³⁾

The complaint Archer and Reba make as to the trial court's order is that it requires them to post security to prevent enforcement of this court's judgment in favor of Harris even though no mandate has issued. They argue that the trial court abused its discretion by acting contrary to controlling law in making its order, see TRAP 24.4(a)(5), because the appellate court judgment is not final until mandate issues. Based upon their premise that the appellate judgment is not final until mandate issues, Archer and Reba further reason that Harris cannot execute on the appellate court judgment and the trial court cannot require security to be posted for something which does not exist. Archer and Reba rely on State v. Miller, 183 S.W.2d 278 (Tex.Civ.App.-Waco 1944, no writ), and In re Long, 984 S.W.2d 623 (Tex.1999), for support. They cite Miller for the proposition that the judgment of a court of appeals is not a final judgment while the appeal is pending before the Supreme Court, and Long for the proposition that neither a trial court judgment nor the modification of that judgment by a court of appeals can be enforced until all appeals relating to the judgment are exhausted and mandate enforcing the appellate court judgment is issued.

In Miller, the question was whether the appellate court should issue a writ of prohibition and an injunction to prevent what the relators urged was a trial court proceeding re-litigating issues determined in a previous suit between the parties. The court of appeals noted that its affirmance of the trial court judgment in the prior suit became a final judgment of the court of appeals when the Supreme Court refused application for writ of error, and that once the appellate judgment became final it was enforceable by any appropriate writ which the court of appeals was authorized to issue. Miller, 183 S.W.2d at 280.

In Long, the trial court enjoined the Dallas County District Clerk from collecting certain types of fees as filing fees. The Clerk appealed. The notice of appeal filed by the Clerk operated as a supersedeas bond. Id. at 625. As relevant to this proceeding, the court of appeals modified the injunction and, as modified, affirmed it. Dallas County v. Sweitzer, 881 S.W.2d 757, 771 (Tex.App.-Dallas 1994, writ denied). Sweitzer's application for writ of error was denied by the Supreme Court. The court of appeals subsequently issued mandate which contained an order enjoining the Dallas County District Clerk from collecting certain filing fees. The trial court later held the Clerk in contempt for collecting fees which the court of appeals had adjudged improper. The Supreme Court held that the Clerk could not be held in contempt for collecting the filing fees before the court of appeals issued mandate. Long, 984 S.W.2d at 626.

Long and Miller are inapposite. The matter now before us does not present the question of whether our judgment is final for the purpose of precluding a subsequent suit between Archer, Reba, Sterquell and Harris, as was the issue in Miller. And, in Long there was no dispute about how the type or amount of security to supersede judgments of the trial and appellate court was determined. The question was at what point, if any, the Clerk violated a court order to stop collecting the filing fees in question.

Contrary to the contention of Archer and Reba, issuance of mandate by an appellate court is not necessary to render its judgment final. See Universe Life Ins. Co. v. Giles, 982 S.W.2d 488, 491 (Tex.App.-Texarkana 1998, pet. denied). Mandate is official notice of the appellate court action to the court below, advising it of the action of the appellate court and directing that the appellate court's judgment be recognized and obeyed. The rules concerning mandate are procedural, and are not necessary to jurisdiction of the trial court to take further action. Id.

Moreover, a judgment creditor is not required to wait until a judgment becomes final by the exhaustion of all appeals before having execution issued. Once a judgment is final for purposes of appeal, the creditor is generally entitled to have the judgment enforced and execution issued. See Tex. R. Civ. P. 627; Hood v. Amarillo Nat'l Bank, 815 S.W.2d 545, 548 (Tex. 1991). But, it is the policy of this state to allow enforcement of the judgment to be suspended pending appeal, provided the judgment creditor is secured against loss which might be suffered through an unsuccessful appeal. See Bryan v. Luhning, 106 S.W.2d 403, 404 (Tex.Civ.App.-Galveston 1937, no writ).

The part of our judgment by which we reversed the trial court's take-nothing judgment as to Harris and rendered judgment for him places Harris in the posture of a judgment creditor. The trial court did not abuse its discretion in considering our judgment, which is final for purposes of appeal, as a change of circumstances within the meaning of TRAP 24.3(a).

Archer and Reba do not present a record showing that they requested the trial court to make findings of fact. ⁽⁴⁾ Absent a showing of such request, we deem nothing to be presented for our review as to the matter and decline to direct the trial court to make findings of fact. See TRAP 33.1(a). And, in view of our conclusion that the trial court did not abuse its discretion in considering our decision and judgment as a change of circumstances, we also decline to stay the trial court's order pending further briefing.

We vacate our stay of the trial court's order dated August 12, 2004. The relief sought in the motion presented by Archer and Reba is denied.

Phil Johnson

Chief Justice

Quinn, J., not participating.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. Reference to a rule of appellate procedure hereafter will be by reference to "TRAP_."

3. We address only arguments made by Archer and Reba which are material to the relief they request. See TRAP 47.1.

4. Our review is limited because Archer and Reba have not presented a clerk's record or transcript of the trial court hearing.

the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. Borth's last visit with Kelleher was January 3, 1994. Even assuming arguendo that the limitations period began on this date, her action would still be precluded on January 3, 1996.

2. This proposition has been recently stated in Shah v. Moss, 45 Tex. S. Ct. J. 247, 252-253, 2001 Tex. LEXIS 131 (December 20, 2001).