Opinion issued August 10, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00758-CV ——————————— RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Appellant V. HARRIS COUNTY, HARRIS COUNTY DEPARTMENT OF EDUCATION, PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, HARRIS COUNTY FLOOD CONTROL DISTRICT, HARRIS COUNTY HOSPITAL DISTRICT, CITY OF HOUSTON, HOUSTON INDEPENDENT SCHOOL DISTRICT, HOUSTON COMMUNITY COLLEGE SYSTEM, LYNDA DEWITT KALANTZAKIS, UNITED STATES OF AMERICA, BRIARGROVE PARK PROPERTY OWNERS, INC., AND DIVA INVESTMENTS, LLC, Appellees
On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2016-50307 MEMORANDUM OPINION
In this lawsuit for delinquent ad valorem taxes, appellant Rushmore Loan
Management Services, LLC (“Rushmore”) attempts to appeal from an order
disbursing excess proceeds from the court’s registry, an order denying Rushmore’s
motion to vacate the disbursement order and denying Rushmore’s claim for excess
proceeds, and a master in chancery’s report recommending denial of Rushmore’s
motion to vacate. Appellee Lynda Dewitt Kalantzakis challenges this Court’s
appellate jurisdiction to review the two orders and the master’s report. We dismiss
the appeal for want of jurisdiction.
Background
Appellee Harris County filed the underlying lawsuit to collect delinquent
property taxes for tax years 2014 and 2015 on behalf of itself and various taxing
units, including the City of Houston, Houston Independent School District, Houston
Community College System, Harris County Department of Education, Port of
Houston Authority of Harris County, Harris County Flood Control District, and
Harris County Hospital District (collectively “Harris County”). Harris County sued
appellees Lynda Dewitt Kalantzakis, who owned the real property; the United States
of America on behalf of the Department of Housing and Urban Development
(“HUD”), which had a lien on the property under a closed-end fixed-rate home
equity conversion deed of trust securing payment on a fixed-rate note, commonly
2 known as a reverse mortgage; and Briargrove Park Property Owners, Inc.
(“Briargrove”), which had a vendor’s lien on the property for unpaid annual
maintenance assessment fees. On May 5, 2017, the trial court entered judgment
awarding Harris County, among other things, delinquent taxes and foreclosure of the
tax lien and authorizing the sale of the property. The real property was sold at a tax
sale on November 7, 2017, and the excess proceeds from the tax sale were placed in
the trial court’s registry.1
On October 12, 2017, HUD assigned its interest in the deed of trust on the real
property to U.S. Bank National Association in care of its trustee, Rushmore.2
On December 28, 2017, Kalantzakis filed a petition to withdraw excess
proceeds from the court’s registry. She set her petition for a hearing on February 9,
2018. See TEX. TAX CODE § 34.04(a) (authorizing any person to “file a petition in
the court that ordered the seizure or sale setting forth a claim to the excess proceeds”
within two years of date of sale of property). Prior to the hearing, Harris County and
Briargrove also filed petitions to withdraw excess proceeds from the court’s
1 Appellee Diva Investments, LLC purchased the real property at the tax sale. 2 In its brief, Rushmore states that it is the “servicer for U.S. Bank National Association, not in its individual capacity but solely as trustee for the RMAC trust, Series 2016-CTT.”
3 registry.3 On February 26, 2018, the trial court signed an order granting these three
petitions and disbursing all the excess proceeds in the court’s registry to Kalantzakis,
Harris County, and Briargrove (“disbursement order”). The disbursement order
awarded $306,146.17 of the excess proceeds to Kalantzakis and the remainder of the
excess proceeds to Harris County and Briargrove.
On February 9, 2018, before the trial court signed the disbursement order,
Rushmore filed a third-party petition for excess proceeds based on the assignment
of the deed of trust on the property to it from HUD.4 Rushmore did not attach any
evidence to its petition and did not set its petition for a hearing.
On October 16, 2018, Rushmore filed a motion to vacate the part of the
disbursement order awarding excess proceeds to Kalantzakis because Rushmore
claimed that it had a lien on the property with statutory priority over Kalantzakis’s
right to any excess proceeds. See id. § 34.04(c). Rushmore argued that the trial court
retained plenary power to vacate its disbursement order because the order did not
dispose of Rushmore’s claim to the excess proceeds and therefore was not a final,
appealable order when it was signed. The trial court referred Rushmore’s motion to
a master in chancery, who held a hearing on Rushmore’s motion. At the end of the
3 Harris County claimed a right to excess proceeds for post-judgment delinquent taxes, penalties, and interest for tax year 2017. 4 Rushmore also asserted claims for redemption and declaratory judgment based on its redemption claim. Rushmore later nonsuited its claim for redemption.
4 hearing, Rushmore and Kalantzakis agreed to mediate but were ultimately unable to
reach any agreement. Rushmore subsequently set its motion to vacate for submission
before the master in chancery.
On September 3, 2019, the master in chancery issued a report to the referring
district court recommending denial of Rushmore’s motion to vacate as an improper
collateral attack on the court’s disbursement order, which the master in chancery
concluded was an appealable post-judgment order. The master further recommended
denying Rushmore’s claim for excess proceeds as moot because no proceeds
remained in the court’s registry.
On September 10, 2019, Rushmore filed a notice of appeal to the referring
district court requesting de novo review of the master’s report under Tax Code
section 33.74. See id. § 33.74(a) (“Any party is entitled to a hearing by the judge of
the referring court” if party files appeal with referring court within ten days after
master gives required notice). The record on appeal does not indicate that the trial
court held a hearing. On September 13, the trial court signed an order denying
Rushmore’s motion to vacate and denying Rushmore’s claim for excess proceeds as
moot. This appeal followed.
Appellate Jurisdiction
The parties dispute whether this Court has appellate jurisdiction to review the
two orders and the master’s report listed in Rushmore’s notice of appeal. Rushmore
5 argues that the trial court’s disbursement order was not a final order, and thus was
not immediately appealable, because it did not dispose of all parties and all claims,
specifically Rushmore’s claim for excess proceeds. Rushmore contends that the
order denying its motion to vacate its claim for excess proceeds was a final,
appealable order. Kalantzakis argues that the only appealable order was the court’s
disbursement order, which resolved all claims to the excess proceeds. Rushmore did
not timely appeal that order.5 For different reasons, we agree with Kalantzakis that
we lack appellate jurisdiction to consider the merits of Rushmore’s appeal.
A. Standard of Review and Governing Law
Whether this Court has appellate jurisdiction is an issue of law that we review
de novo. Caress v. Fortier, 576 S.W.3d 778, 781 (Tex. App.—Houston [1st Dist.]
2019, pet. denied) (citing Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840
(Tex. 2007)).
In general, Texas appellate courts only have jurisdiction to review final
judgments, although we also have jurisdiction to review certain interlocutory orders
when specifically authorized by statute. TEX. CIV. PRAC. & REM. CODE § 51.012
(authorizing appeals from final judgments in certain civil cases in district courts);
5 Harris County waived its right to file an appellate brief in this Court. Diva Investments also filed a waiver, stating that it had settled its dispute with Rushmore prior to the appeal proceedings. Briargrove did not file a waiver or an appellate brief.
6 Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 788 (Tex. 2019); Royal
Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th
Dist.] 2008, no pet.) (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001)). A judgment is final for purposes of appeal if it finally disposes of all
remaining parties and claims. Lehmann, 39 S.W.3d at 200. With few exceptions not
applicable here, there is generally only one final judgment in a case. TEX. R. CIV. P.
301 (“Only one final judgment shall be rendered in any cause except where it is
otherwise specially provided by law.”); Lehmann, 39 S.W.3d at 192.
Texas courts strictly construe statutes authorizing appeals of interlocutory
orders. Kelly v. Wiggins, 466 S.W.3d 324, 327 (Tex. App.—Houston [14th Dist.]
2015, no pet.); Baylor Coll. of Med. v. Tate, 77 S.W.3d 467, 469–70 (Tex. App.—
Houston [1st Dist.] 2002, no pet.). Most post-judgment orders issued to effect or
enforce a judgment are not appealable because these orders are neither a final
judgment nor an appealable interlocutory order as authorized by statute. Sunnyland
Dev., Inc. v. Shawn Ibrahim, Inc., 597 S.W.3d 1, 2 (Tex. App.—Houston [14th Dist.]
2020, no pet.); Jack M. Sanders Family Ltd. P’ship v. Roger T. Fridholm Revocable,
Living Tr., 434 S.W.3d 236, 242 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
Non-appealable post-judgment orders must be challenged by a petition for writ of
mandamus. Sunnyland Dev., 597 S.W.3d at 3. A direct appeal from a non-appealable
7 post-judgment order must be dismissed for lack of jurisdiction. Id.; Kelly, 466
S.W.3d at 328–29.
In a delinquent tax proceeding such as this one, the final judgment is the order
granting judgment to the taxing units for unpaid taxes. Ragsdale, 273 S.W.3d at 763;
Mount Vernon United Methodist Church v. Harris Cty., No. 01-18-01114-CV, 2019
WL 6869333, at *2 (Tex. App.—Houston [1st Dist.] Dec. 17, 2019, pet. denied)
(mem. op.). An order granting or denying a petition for disbursement of excess
proceeds from a tax foreclosure sale under section Tax Code 34.04 is a post-
judgment order. Ragsdale, 273 S.W.3d at 764; Mount Vernon United Methodist
Church, 2019 WL 6869333, at *2. A post-judgment order “may be appealable if an
appeal is statutorily authorized or if the order has the nature of a mandatory
injunction that resolves property rights.”6 Mount Vernon United Methodist Church,
2019 WL 6869333, at *2 (quoting Jack M. Sanders Family Ltd. P’ship, 434 S.W.3d
at 242).
The proceeds from tax foreclosure sales are governed by Tax Code sections
34.03 and 34.04. Section 34.04(a) allows any person to “file a petition in the court
6 On appeal, Rushmore does not argue that either of the two orders or the master’s report have the nature of a mandatory injunction that resolves property rights. See TEX. R. APP. P. 38.1(i) (“The [appellate] brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”).
8 that ordered the seizure or sale setting forth a claim to the excess proceeds” within
two years after the property was sold. TEX. TAX CODE § 34.04(a). The court must
order proceeds to be paid to each party that establishes its claim to the proceeds. Id.
§ 34.04(c). If no claimant establishes entitlement to the proceeds within this period,
the “clerk shall distribute the excess proceeds to each taxing unit participating in the
sale in an amount equal to the proportion its taxes, penalties, and interests bear to
the total amount of taxes, penalties, and interest due all participants in the sale.” Id.
§ 34.03(b).
Section 34.04(e) authorizes interlocutory appeals from orders “directing that
all or part of the excess proceeds be paid to a party.” Id. § 34.04(e). This Court and
at least one of our sister courts of appeals that have considered the issue have
construed section 34.04(e) to allow interlocutory appeals only from orders granting
a petition to withdraw excess proceeds but not from orders denying a petition to
withdraw excess proceeds. Mount Vernon United Methodist Church, 2019 WL
6869333, at *2; Baldwin v. Harris Cty., No. 01-19-00235-CV, 2020 WL 2026366,
at *2 (Tex. App.—Houston [1st Dist.] Apr. 28, 2020, no pet.) (per curiam) (mem.
op.); see 2012 Props., LLC v. Garland Indep. Sch. Dist., No. 05-15-01002, 2016 WL
3902585, at *2 (Tex. App.—Dallas July 14, 2016, pet. denied) (mem. op.).
9 B. Post-Judgment Orders
As Rushmore concedes in its brief, the final judgment in this case is the May
5, 2017 order granting judgment to Harris County for unpaid taxes. See Ragsdale,
273 S.W.3d at 763; Mount Vernon United Methodist Church, 2019 WL 6869333, at
*2. Rushmore does not challenge the 2017 final judgment. Instead, Rushmore
challenges the post-judgment proceedings initiated under Tax Code section 34.04
and various orders signed by the trial court during the post-judgment proceedings.
Specifically, Rushmore challenges (1) the February 26, 2018 disbursement order;
(2) the September 3, 2019 master in chancery report; and (3) the September 13, 2019
order denying Rushmore’s motion to vacate the disbursement order and denying
Rushmore’s claim for excess proceeds.
1. Disbursement Order
The parties primarily dispute whether the trial court’s disbursement order was
appealable when signed. Rushmore argues that the order was not appealable when it
was signed because it was not a final order in that it did not resolve all claims by all
parties, specifically Rushmore’s claim for excess proceeds. Kalantzakis argues that
the disbursement order was immediately appealable under Tax Code section 34.04
because it was a final order. Kalantzakis contends the order was final because
Rushmore did not have a valid claim to excess funds because its petition stated a
10 claim for redemption “and only suggested a claim to excess proceeds as an
alternative argument.”7
The determinative issue is not whether the disbursement order was a final
order, as Rushmore and Kalantzakis dispute. There is generally only one final
judgment in a case, which is, as Rushmore concedes, the 2017 judgment to Harris
County for the unpaid taxes. See TEX. R. CIV. P. 301; Lehmann, 39 S.W.3d at 192.
The disbursement order is a post-judgment order. See Ragsdale, 273 S.W.3d at 764;
Mount Vernon United Methodist Church, 2019 WL 6869333, at *2. Thus, the
determinative issue is whether we have statutory authority to review the post-
judgment disbursement order. Carter, 573 S.W.3d at 788; Ragsdale, 273 S.W.3d at
763.
Tax Code section 34.04(e) authorizes appeals from orders “directing that all
or part of the excess proceeds be paid to a party.” TEX. TAX CODE § 34.04(e). This
Court and at least one of our sister courts has strictly construed subsection (e), as we
must, to authorize appeals only from orders granting a petition to withdraw excess
proceeds but not from orders denying a petition to withdraw excess proceeds. Mount
Vernon United Methodist Church, 2019 WL 6869333, at *2; Baldwin, 2020 WL
7 Kalantzakis cites no case law or other authority supporting her argument that an alternative claim asserted in a petition is invalid but rather merely “suggest[s] a claim.” To the contrary, Texas Rule of Civil Procedure 48 allows parties to plead alternative claims for relief. TEX. R. CIV. P. 48.
11 2026366, at *2; 2012 Props., 2016 WL 3902585, at *2; see also Tate, 77 S.W.3d at
469–70 (stating that appellate courts must strictly construe statutes authorizing
appeals of interlocutory orders). Because the disbursement order granted
Kalantzakis’s, Harris County’s, and Briargrove’s petitions to withdraw excess
proceeds, it is an appealable order.
While Rushmore acknowledges that Tax Code section 34.04(e) authorizes an
appeal of a disbursement order, Rushmore argues that the order must dispose of all
parties and claims and thus be final in order to immediately appeal it. Rushmore
relies on four opinions from our sister courts to support this argument. See generally
Ragsdale, 273 S.W.3d at 761–66; Johnson v. Ameriquest Mortg. Co., No. 14-04-
00121-CV, 2004 WL 1066750 (Tex. App.—Houston [14th Dist.] May 13, 2004, no
pet.) (per curiam) (mem. op.); Nelson v. Lubbock Cent. Appraisal Dist., No. 07-02-
0349-CV, 2003 WL 1987959 (Tex. App.—Amarillo 2003, no pet.) (mem. op.); In
re Household Fin. Corp. III, No. 14-08-00673-CV, 2008 WL 5220542 (Tex. App.—
Houston [14th Dist.] Dec. 11, 2008, orig. proceeding) (mem. op.). Each of these
opinions is distinguishable because they construed a prior version of section
34.04(e).
Section 34.04(e) was amended in 2009. The version of that section in effect
until August 31, 2009, stated, “[A]n order under this section is appealable.” Act of
May 17, 2001, 77th Leg., R.S., ch. 1430, § 27, sec. 34.04, 2001 Tex. Gen. Laws
12 5109, 5118 (amended 2009) (current version at TEX. TAX CODE § 34.04(e)). Section
34.04(e) now states, “An order under this section directing that all or part of the
excess proceeds be paid to a party is appealable.” TEX. TAX CODE § 34.04(e). All the
cases cited by Rushmore precede 2009, and their construction of the pre-2009 statute
is inapposite to our construction of the post-2009 amendment.
The plain language of the current version of section 34.04(e) does not support
Rushmore’s argument because it expressly states that an order “directing that all or
part of the excess proceeds be paid to a party is appealable.” See id. (emphasis
added). This Court’s post-2009 opinions have consistently stated that such an order
is appealable. See Baldwin, 2020 WL 2026366, at *2; Mount Vernon United
Methodist Church, 2019 WL 6869333, at *2.
Moreover, other interlocutory orders need not finally dispose of all parties and
claims to be appealable. For example, a governmental unit may appeal the denial of
its plea to the jurisdiction, which does not finally dispose of any parties or claims.
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). Likewise, a party may appeal an
order granting or refusing a temporary injunction, neither of which finally disposes
of all parties and claims. See id. § 51.014(a)(4). We derive our authority to review
an order that is not a final judgment from statutes, which we strictly construe. See
Carter, 573 S.W.3d at 788; Ragsdale, 273 S.W.3d at 763 (citing Lehmann, 39
S.W.3d at 195). Section 34.04(e) does not expressly limit appellate review of orders
13 disbursing excess proceeds to final orders that dispose of all parties and claims
seeking excess proceeds. See TEX. TAX CODE § 34.04(e).
To the contrary, the statute expressly states that an order disbursing only part
of the excess proceeds is appealable. Id. While the trial court’s order disposed of all
proceeds in the court’s registry, Rushmore only claims that it was entitled to the
proceeds that were disbursed to Kalantzakis. Thus, we conclude that the
disbursement order was appealable when signed.
Although the disbursement order was immediately appealable, Rushmore did
not timely appeal that order.8 See TEX. R. APP. P. 26.1(b) (requiring, in accelerated
appeal, notice of appeal to be filed within twenty days after judgment signed unless
party timely files motion for new trial, which extends deadline to file notice of appeal
to ninety days after judgment signed), 26.3 (allowing appellate court to extend
deadline to file notice of appeal upon party’s motion within fifteen days after
deadline for filing notice of appeal); see also TEX. R. APP. P. 28.1(a) (providing that
appeals from interlocutory orders are accelerated appeals). The disbursement order
was signed on February 26, 2018, but Rushmore did not file its notice of appeal until
8 Assuming without deciding that Rushmore’s motion to vacate the disbursement order could be construed as a motion for new trial—which neither party argues— Rushmore’s motion was filed on October 16, 2018, nearly eight months after the disbursement order, and thus the motion to vacate did not extend the deadline to file a notice of appeal. See TEX. R. CIV. P. 329b(a); TEX. R. APP. P. 26.1(a).
14 September 27, 2019. Because Rushmore did not timely perfect an appeal from the
February 26, 2018 order disbursing excess proceeds, we lack jurisdiction to review
that order. See TEX. R. APP. P. 25.1(b), 26.1.
2. Master in Chancery Report
Although Rushmore listed the master in chancery’s report in its notice of
appeal, it offers no argument on appeal supporting this Court’s jurisdiction to review
the report. See TEX. R. APP. P. 38.1(i). The report merely “suggest[ed]” that the
referring trial court deny Rushmore’s motion to vacate and petition for excess
proceeds, but it did not decide anything. In a subsequent order, the trial court adopted
the recommendations in the master’s report. Because we generally lack jurisdiction
to review post-judgment orders and because Rushmore points to no authority
allowing this Court to review the master’s report, we conclude that we lack
jurisdiction to review the master’s report.
3. September 13, 2019 Order
Rushmore contends that the trial court’s September 13, 2019 order adopting
the master’s report was a final order because it disposed of all parties and claims,
namely Rushmore’s claim for excess proceeds.
The September 13 order included two rulings: (1) denial of Rushmore’s
motion to vacate the disbursement order; and (2) denial of Rushmore’s claim for
excess proceeds as moot.
15 Rushmore does not point to any statutory authority showing our appellate
jurisdiction to review an order denying a motion to vacate a prior post-judgment
order. Neither the Tax Code nor section 51.014 of the Texas Civil Practice and
Remedies Code, which governs appeals from interlocutory orders, authorizes
appellate courts to review such an order. See TEX. CIV. PRAC. & REM. CODE § 51.014.
As with most post-judgment orders, this part of the September 13 order is neither a
final judgment nor an interlocutory order subject to appellate review. See Sunnyland
Dev., 597 S.W.3d at 2; Jack M. Sanders Family Ltd. P’ship, 434 S.W.3d at 242; see
also Rubio v. Harris Cty., No. 14-19-00545-CV, 2019 WL 5615564, at *3 (Tex.
App.—Houston [14th Dist.] Oct. 31, 2019, no pet.) (per curiam) (mem. op.) (“The
Order Denying Reconsideration is not independently appealable.”).
Nor is the part of the order denying Rushmore’s claim for excess proceeds
appealable. Section 34.04(e) authorizes an appeal only from an order granting a
petition to disburse excess proceeds; it does not authorize an appeal from an order
denying a petition to disburse excess proceeds. TEX. TAX CODE § 34.04(e); Mount
Vernon United Methodist Church, 2019 WL 6869333, at *2; Baldwin, 2020 WL
2026366, at *2; see 2012 Props., LLC, 2016 WL 3902585, at *2. We therefore lack
jurisdiction to review the trial court’s September 13, 2019 post-judgment order.
16 Conclusion
We dismiss the appeal for want of jurisdiction.
April L. Farris Justice
Panel consists of Chief Justice Radack and Justices Goodman and Farris.