In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00344-CV ___________________________
ROGER LIVERMAN AND AARON LIVERMAN, Appellants
V.
DENTON COUNTY, TEXAS, PAUL JOHNSON, LARA TOMLIN, RICK DANIEL, LINDSEY SHEGUIT, AND KATHERYN HALL, Appellees
On Appeal from the 16th District Court Denton County, Texas Trial Court No. 16-08473-16
Before Sudderth, C.J.; Gabriel and Kerr, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
In two issues, Roger and Aaron Liverman, pro se, appeal from the trial court’s
final judgment granting summary judgment for Katheryn Hall, Roger’s daughter and
Aaron’s sister. We will affirm.
Background
This case arises from a dispute between the Livermans and Hall involving
mechanic’s liens that the Livermans filed against Hall’s home in 2008. See Liverman v.
State, 470 S.W.3d 831, 833–34 (Tex. Crim. App. 2015). As a result of those filings, the
Livermans were charged with and convicted of securing the execution of documents
by deception. See id.; see also Tex. Penal Code Ann. § 32.46(a)(1) (setting out offense’s
elements). This court reversed the Livermans’ convictions and acquitted them,1 and
the court of criminal appeals affirmed both decisions in 2015. Liverman, 470 S.W.3d at
839.
In October 2016, the Livermans sued Hall, Denton County, Denton County
District Attorney Paul Johnson, and three assistant district attorneys (Lara Tomlin,
Rick Daniel, and Lindsey Sheguit) for malicious prosecution. The Livermans sued
Johnson and the assistant district attorneys in their individual and official capacities.
In response, they, along with Denton County, filed a plea to the jurisdiction asserting
1 Liverman v. State, 448 S.W.3d 155, 159 (Tex. App.—For Worth 2014) (mem. op.) (reversing Roger’s conviction), aff’d, 470 S.W.3d at 839; Liverman v. State, 447 S.W.3d 889, 892–93 (Tex. App.—Fort Worth 2014) (mem. op.) (reversing Aaron’s conviction), aff’d, 470 S.W.3d at 839.
2 that governmental immunity barred the Livermans’ claims against them. The trial
court granted the jurisdictional plea and dismissed with prejudice the Livermans’
claims against Denton County, Johnson, and the assistant district attorneys. At that
time, the Livermans’ claims against Hall remained pending.
The Livermans filed an interlocutory appeal challenging the dismissal of their
claims against Denton County, Johnson, and the assistant district attorneys. Liverman
v. Denton Cty., No. 02-17-00240-CV, 2017 WL 6377437 (Tex. App.—Fort Worth Dec.
14, 2017, no pet.) (mem. op.). We affirmed the trial court’s dismissal of the
Livermans’ claims against Denton County and against Johnson and the assistant
district attorneys in their official capacities. Id. at *2–3. But we concluded that we
lacked jurisdiction over the Livermans’ complaint about the trial court’s dismissal of
their claims against Johnson and the assistant district attorneys in their individual
capacities and so dismissed that portion of the appeal. Id. at *2 (“The assertions of
immunity by Johnson, Tomlin, Daniel, and Sheguit were personal defenses, not ones
based on the governmental unit’s immunity, and therefore do not fall within the
purview of section 51.014(8).”); see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(8)
(providing for an appeal from an interlocutory order granting a governmental unit’s
plea to the jurisdiction), § 101.001(3)(B) (defining “governmental unit” to include a
county as a political subdivision of the state).
Our mandate issued in March 2018. In August 2018, Hall moved for summary
judgment on her limitations affirmative defense, arguing that the Livermans’ 3 malicious-prosecution claim against her is time-barred. See Tex. Civ. Prac. & Rem.
Code Ann. § 16.002(a) (“A person must bring suit for malicious prosecution . . . not
later than one year after the day the cause of action accrues.”). The trial court granted
summary judgment for Hall and signed a final judgment. The Livermans appeal from
that judgment.
The Livermans’ “Motion Concerning Files on Record from Cause No 02-17-00240-cv”
In their motion, the Livermans ask us to judicially notice the appellate record in
their first appeal in this case. We grant the motion and will take judicial notice of the
appellate record filed in cause number 02-17-00240-CV.
Analysis
The trial court’s interlocutory order granting Johnson’s and his assistant district
attorneys’ jurisdictional plea and dismissing the Livermans’ claims against them in
their individual capacities merged into the trial court’s final judgment. See H.B. Zachry
Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex. 1963) (holding that prior interlocutory
orders merge into subsequent order disposing of remaining parties and issues, creating
a final and appealable judgment); Wilkins v. State Farm Mut. Auto. Ins. Co., 58 S.W.3d
176, 182 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“An order, even if
interlocutory, is nevertheless final and appealable if it has merged into a subsequent
order which, by its nature, is a final appealable order.”). Even though they appeal
from the final judgment, the Livermans do not challenge the trial court’s granting the
4 jurisdictional plea and dismissing their individual-capacity claims against Johnson and
the assistant district attorneys. We therefore cannot and will not address whether this
ruling was in error. See Tex. R. App. P. 38.1(f), (i), 47.1; Pat Baker Co. v. Wilson, 971
S.W.2d 447, 450 (Tex. 1998) (“It is axiomatic that an appellate court cannot reverse a
trial court’s judgment absent properly assigned error.”); see also Sonat Expl. Co. v. Cudd
Pressure Control, Inc., 271 S.W.3d 228, 236 (Tex. 2008) (“It is of course true that an
appellate court cannot reverse on a ground an appellant has never raised.”); Obgomo v.
Am. Homes 4 Rent Props. Two, LLC, No. 02-14-00105-CV, 2014 WL 7204552, at *2
(Tex. App.—Fort Worth Dec. 18, 2014, pet. dism’d w.o.j.) (mem. op.) (observing that
an appellate court cannot reverse based on a ground not presented in the appellate
briefs). Instead, they challenge only the trial court’s granting Hall’s summary-judgment
motion, and they assert that the trial court failed to acknowledge our mandate in their
first appeal. We address each issue in turn.
In their first issue, the Livermans challenge the trial court’s granting Hall’s
summary-judgment motion based on her limitations defense, but they make no
argument and cite to no authority showing that limitations do not in fact bar their
malicious-prosecution claim. Rather, they argue that the trial court erred by granting
Hall’s summary-judgment motion and by signing a final judgment disposing of all
parties and all claims because (1) the trial court violated the Livermans’ due-process
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00344-CV ___________________________
ROGER LIVERMAN AND AARON LIVERMAN, Appellants
V.
DENTON COUNTY, TEXAS, PAUL JOHNSON, LARA TOMLIN, RICK DANIEL, LINDSEY SHEGUIT, AND KATHERYN HALL, Appellees
On Appeal from the 16th District Court Denton County, Texas Trial Court No. 16-08473-16
Before Sudderth, C.J.; Gabriel and Kerr, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
In two issues, Roger and Aaron Liverman, pro se, appeal from the trial court’s
final judgment granting summary judgment for Katheryn Hall, Roger’s daughter and
Aaron’s sister. We will affirm.
Background
This case arises from a dispute between the Livermans and Hall involving
mechanic’s liens that the Livermans filed against Hall’s home in 2008. See Liverman v.
State, 470 S.W.3d 831, 833–34 (Tex. Crim. App. 2015). As a result of those filings, the
Livermans were charged with and convicted of securing the execution of documents
by deception. See id.; see also Tex. Penal Code Ann. § 32.46(a)(1) (setting out offense’s
elements). This court reversed the Livermans’ convictions and acquitted them,1 and
the court of criminal appeals affirmed both decisions in 2015. Liverman, 470 S.W.3d at
839.
In October 2016, the Livermans sued Hall, Denton County, Denton County
District Attorney Paul Johnson, and three assistant district attorneys (Lara Tomlin,
Rick Daniel, and Lindsey Sheguit) for malicious prosecution. The Livermans sued
Johnson and the assistant district attorneys in their individual and official capacities.
In response, they, along with Denton County, filed a plea to the jurisdiction asserting
1 Liverman v. State, 448 S.W.3d 155, 159 (Tex. App.—For Worth 2014) (mem. op.) (reversing Roger’s conviction), aff’d, 470 S.W.3d at 839; Liverman v. State, 447 S.W.3d 889, 892–93 (Tex. App.—Fort Worth 2014) (mem. op.) (reversing Aaron’s conviction), aff’d, 470 S.W.3d at 839.
2 that governmental immunity barred the Livermans’ claims against them. The trial
court granted the jurisdictional plea and dismissed with prejudice the Livermans’
claims against Denton County, Johnson, and the assistant district attorneys. At that
time, the Livermans’ claims against Hall remained pending.
The Livermans filed an interlocutory appeal challenging the dismissal of their
claims against Denton County, Johnson, and the assistant district attorneys. Liverman
v. Denton Cty., No. 02-17-00240-CV, 2017 WL 6377437 (Tex. App.—Fort Worth Dec.
14, 2017, no pet.) (mem. op.). We affirmed the trial court’s dismissal of the
Livermans’ claims against Denton County and against Johnson and the assistant
district attorneys in their official capacities. Id. at *2–3. But we concluded that we
lacked jurisdiction over the Livermans’ complaint about the trial court’s dismissal of
their claims against Johnson and the assistant district attorneys in their individual
capacities and so dismissed that portion of the appeal. Id. at *2 (“The assertions of
immunity by Johnson, Tomlin, Daniel, and Sheguit were personal defenses, not ones
based on the governmental unit’s immunity, and therefore do not fall within the
purview of section 51.014(8).”); see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(8)
(providing for an appeal from an interlocutory order granting a governmental unit’s
plea to the jurisdiction), § 101.001(3)(B) (defining “governmental unit” to include a
county as a political subdivision of the state).
Our mandate issued in March 2018. In August 2018, Hall moved for summary
judgment on her limitations affirmative defense, arguing that the Livermans’ 3 malicious-prosecution claim against her is time-barred. See Tex. Civ. Prac. & Rem.
Code Ann. § 16.002(a) (“A person must bring suit for malicious prosecution . . . not
later than one year after the day the cause of action accrues.”). The trial court granted
summary judgment for Hall and signed a final judgment. The Livermans appeal from
that judgment.
The Livermans’ “Motion Concerning Files on Record from Cause No 02-17-00240-cv”
In their motion, the Livermans ask us to judicially notice the appellate record in
their first appeal in this case. We grant the motion and will take judicial notice of the
appellate record filed in cause number 02-17-00240-CV.
Analysis
The trial court’s interlocutory order granting Johnson’s and his assistant district
attorneys’ jurisdictional plea and dismissing the Livermans’ claims against them in
their individual capacities merged into the trial court’s final judgment. See H.B. Zachry
Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex. 1963) (holding that prior interlocutory
orders merge into subsequent order disposing of remaining parties and issues, creating
a final and appealable judgment); Wilkins v. State Farm Mut. Auto. Ins. Co., 58 S.W.3d
176, 182 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“An order, even if
interlocutory, is nevertheless final and appealable if it has merged into a subsequent
order which, by its nature, is a final appealable order.”). Even though they appeal
from the final judgment, the Livermans do not challenge the trial court’s granting the
4 jurisdictional plea and dismissing their individual-capacity claims against Johnson and
the assistant district attorneys. We therefore cannot and will not address whether this
ruling was in error. See Tex. R. App. P. 38.1(f), (i), 47.1; Pat Baker Co. v. Wilson, 971
S.W.2d 447, 450 (Tex. 1998) (“It is axiomatic that an appellate court cannot reverse a
trial court’s judgment absent properly assigned error.”); see also Sonat Expl. Co. v. Cudd
Pressure Control, Inc., 271 S.W.3d 228, 236 (Tex. 2008) (“It is of course true that an
appellate court cannot reverse on a ground an appellant has never raised.”); Obgomo v.
Am. Homes 4 Rent Props. Two, LLC, No. 02-14-00105-CV, 2014 WL 7204552, at *2
(Tex. App.—Fort Worth Dec. 18, 2014, pet. dism’d w.o.j.) (mem. op.) (observing that
an appellate court cannot reverse based on a ground not presented in the appellate
briefs). Instead, they challenge only the trial court’s granting Hall’s summary-judgment
motion, and they assert that the trial court failed to acknowledge our mandate in their
first appeal. We address each issue in turn.
In their first issue, the Livermans challenge the trial court’s granting Hall’s
summary-judgment motion based on her limitations defense, but they make no
argument and cite to no authority showing that limitations do not in fact bar their
malicious-prosecution claim. Rather, they argue that the trial court erred by granting
Hall’s summary-judgment motion and by signing a final judgment disposing of all
parties and all claims because (1) the trial court violated the Livermans’ due-process
and equal-protection rights by not addressing their pending default-judgment motions
5 before granting Hall’s summary-judgment motion, and (2) D.A. Johnson and his
assistant district attorneys did not move for summary judgment.
After our mandate issued but before Hall moved for summary judgment, the
Livermans moved for no-answer default judgments against Hall, Johnson, and the
assistant district attorneys. See Tex. R. Civ. P. 239. As noted, the Livermans’ claims
against Johnson and the assistant district attorneys had already been dismissed.
Because no claims were pending against Johnson and the assistant district attorneys,
the trial court could not have rendered a default judgment against them. The trial
court also could not have rendered a no-answer default judgment against Hall because
a trial court cannot render such a default judgment after a defendant has filed an
answer. See id. (providing in relevant part that “at any time after a defendant is
required to answer, the plaintiff may . . . take judgment by default against such
defendant if he has not previously filed an answer”); Davis v. Jefferies, 764 S.W.2d 559,
560 (Tex. 1989). The trial court therefore did not err by ruling on Hall’s summary-
judgment motion before ruling on the default-judgment motions. We overrule this
part of the Livermans’ first issue.
The Livermans also complain as part of their first issue that the trial court erred
by signing a final judgment that granted Hall’s summary-judgment motion and
“disposed of all parties and all claims” because the summary-judgment motion “did
not include all defendants.” Again, by this time, the Livermans’ claims against
Johnson and the assistant district attorneys had been dismissed, and only the 6 Livermans’ claim against Hall remained outstanding. In granting summary judgment
for Hall, the trial court disposed of the remaining party and the remaining claim and
thus properly signed a final judgment disposing of all parties and claims. We overrule
the rest of the Livermans’ first issue.
In their second issue, the Livermans contend that the trial court failed to
acknowledge this court’s mandate from their earlier interlocutory appeal in this case.
According to the Livermans, our mandate ordered the trial court and the Livermans
to draft memoranda on jurisdiction. The Livermans contend that because the trial
court failed to do so before hearing and ruling on Hall’s summary-judgment motion, it
was in contempt of the mandate.
A mandate is an appellate court’s formal command directing the trial court to
comply with the appellate court’s judgment. See Tex. Parks & Wildlife Dep’t v. Dearing,
240 S.W.3d 330, 347 (Tex. App.—Austin 2007, pet. denied); see also Tex. R. App. P.
51.1(b); Lewelling v. Bosworth, 840 S.W.2d 640, 642 (Tex. App.—Dallas 1992, orig.
proceeding) (“A mandate is the official notice of the action of the appellate court,
directed to the court below, advising it of the action of the appellate court and
directing it to have its judgment duly recognized, obeyed, and executed.”). Upon
receiving the appellate court’s mandate, the trial court has a mandatory, ministerial
duty to enforce the appellate court’s judgment. See Dearing, 240 S.W.3d at 347; see also
Tex. R. App. P. 51.1(b).
7 Our mandate in the Livermans’ interlocutory appeal recited our judgment and
commanded the trial court to “observe the order of the Court of Appeals.” But
nothing in our judgment or opinion ordered either the trial court or the Livermans to
draft anything, much less a memorandum on jurisdiction. See Liverman, 2017 WL
6377437, at *1–3. See generally Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)
(“In interpreting the mandate of an appellate court, however, the [trial] court should
look not only to the mandate itself, but also to the opinion of the court.”). We have
independently reviewed the record and conclude that the trial court followed our
mandate. Accordingly, we overrule the Livermans’ second issue.
Conclusion
Having overruled the Livermans’ two appellate issues, we affirm the trial
court’s judgment.
/s/ Elizabeth Kerr Elizabeth Kerr Justice
Delivered: April 25, 2019