John Donovan Justice

On Appeal from the 152nd District Court Harris County, Texas
Trial Court Cause No. 2005-63424

MEMORANDUM OPINION

Appellant 2000 IIG, Inc., appeals from the trial court's order to release to appellee Asif Waheed the injunction bond funds being held in the court registry, claiming the trial court failed to consider damages suffered by appellant due to the injunction. Appellees Rockfort Builders, Inc., and Asif Waheed seek dismissal of the appeal and sanctions, asserting this court lacks jurisdiction because there is no final, appealable order. For the reasons set forth below, we dismiss the appeal for want of jurisdiction.

I. Background

In October 2005, appellees filed this case seeking a temporary injunction to prevent appellant from foreclosing on a deed of trust and promissory note it was holding on property located at 6407 Rodrigo, Houston, Harris County, Texas. Appellees owned an interest in the property. In their underlying petition to the injunction, appellees raised claims against appellant and other defendants for breach of fiduciary duty, fraud, and related claims. Appellees deposited $13,500.00 in the court registry to satisfy the bond requirement. Appellant did not file a counterclaim (e.g., claim for wrongful injunction or malicious prosecution), but, instead, only filed a general denial. On December 28, 2005, the trial court granted appellees' temporary injunction, enjoining a number of defendants, but specifically appellant, from selling the property.

Before a trial on the merits was conducted, appellee Rockfort Builders filed for Chapter 11 Bankruptcy. The bankruptcy court ordered Rockfort Builders to pay appellant $6,000.00 monthly on the note, which allowed the stay to continue and prevented foreclosure on the property by appellant. Rockfort Builders made three payments; however, the third payment was late. Thus, the bankruptcy stay was lifted and appellant foreclosed on the property on July 4, 2006.

On November 26, 2007, appellees non-suited their claims against appellant and other defendants, and the other defendants with counterclaims concurrently non- suited their counterclaims against appellees. On January 21, 2009, appellees nonsuited their claims against appellant a second time. In December 2009, the trial court entered orders of dismissal, disposing for want of prosecution any and all remaining claims and counterclaims.

In 2015, appellant filed a motion to withdraw the funds deposited by appellees from the registry of the court. Thereafter, Rockfort Builders filed its amended motion for release of temporary restraining order and injunction bond funds from the registry of the court. After considering the competing motions, on November 4, 2016, the trial court granted appellees' motion and released the injunction bond funds, with accrued interest, to appellee Waheed.

On this day came to be heard Plaintiffs' First Amended Motion for the Release of Temporary Restraining Order and Injunction Bond Funds from the Registry of the Court filed by Rockfort Builders, Inc. and Asif Waheed. After due consideration of the Motion, any response, and argument of counsel, the Court determines that the Plaintiffs' First Amended Motion of for the Release of Funds from the Registry of the Court should be GRANTED.
IT IS, THEREFORE, ORDERED that the Harris County District Clerk shall immediately release and pay the current balance of $17,084.05 from the Registry of the Court, plus any additional accrued interest, in the Clerk's customary manner, whether in cash, money order, check, or other negotiable instrument in the following manner:

(a) Payable to: "Kaiser, P.C. IOLTA Account, 2211 Norfolk, Suite 528, Houston, Texas 77098, for the benefit of Asif Waheed[]", the sum of $17,084.05, plus all interest accrued upon such principal sum through the date of payment by the Clerk.

Appellant filed a motion to reconsider, conceding that appellant did not file an affirmative claim before the nonsuit filed by appellees in January 2009. Appellant argued, however, that it did file a claim for damages in 2015 "via its motion to release/withdraw funds and in addition [appellant] responded to [appellees]." Appellant argued that the four months of delay of foreclosure cost appellant $35,591.45. The trial court denied appellant's motion to reconsider December 5, 2016. This appeal timely followed.

II. Analysis

Appellant asserts it was damaged during the "injunction period" and the trial court abused its discretion by not considering its alleged damages before releasing the bond funds to appellee Waheed.

Appellees filed a motion to dismiss and motion for sanctions challenging our jurisdiction over the trial court's post-judgment release of the bond funds. Appellees contend the trial court's order releasing the bond funds was a ministerial order of disbursement and non-appealable.

A. Jurisdiction

Generally, appeals may be taken only from final judgments unless a statute or rule allows an interlocutory appeal. Lehmann v. Har Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Sintim v. Larson, 489 S.W.3d 551, 556 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Here, the trial court issued an Order of Dismissal in this case in or around December 8, 2009, disposing for want of prosecution any and all remaining claims and counterclaims. This was a final and appealable order. No party has appealed this order.

Here, appellant challenges a bond disbursement order issued seven years post-judgment. We have previously held that a "bond disbursement order is not a final appealable order." Lovall v. Yen, No. 14-07-00770-CV, 2008 WL 361373, at *2 (Tex. App.—Houston [14th Dist.] Feb. 12, 2008, no pet.). In Lovall, the bond disbursement order provided for disbursement of funds directed by the judgment, akin to a writ of execution. See id.

However, where a post-trial order releasing funds imposes obligations not directed by the judgment, an appellate court has jurisdiction to review that order. See Schroeder v LND Mgmt., LLC, 446 S.W.3d 94, 98 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Here, the order releasing funds back to the appellees, who deposited the funds, supports the take nothing judgments entered by the trial court in 2009. Therefore, this appeal must be dismissed for lack of jurisdiction. See Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012) ("Unless specifically authorized by statute, Texas appellate courts only have jurisdiction to review final judgments.").

B. Sanctions

Appellees included in their appellate brief a motion for sanctions arguing that appellant's appeal is frivolous and that appellant should be sanctioned pursuant to Rule 45 of the Texas Rules of Appellate Procedure. Under Rule 45, a court of appeals may—on motion of any party or on its own initiative, after notice and a reasonable opportunity for response—award "just damages" as a sanction if it determines that an appeal is frivolous. Tex. R. App. P. 45; Lane-Valente Indus. (Nat'l), Inc. v. J.P. Morgan Chase, N.A., 468 S.W.3d 200, 206 (Tex. App.—Houston [14th Dist.] 2015, no pet.). We may award just damages under Rule 45 if, after considering everything in our file, we make an objective determination that the appeal is frivolous. Riggins v. Hill, 461 S.W.3d 577, 583 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). When deciding whether an appeal is objectively frivolous, we review the record from the viewpoint of the advocate and decide whether the advocate had a reasonable basis to believe the case could be reversed on appeal. Lane-Valente, 468 S.W.3d at 206.

The imposition of sanctions is a discretionary decision exercised with prudence and caution and only after careful deliberation. Lane-Valente, 468 S.W.3d at 206. Rule 45 does not require that a court award sanctions in every frivolous appeal. Id. Instead, "we will do so only in truly egregious circumstances." Sintim, 489 S.W.3d at 559.

Having considered the appeal in light of these principles, we find this appeal does not present egregious circumstances and decline to award damages.

III. Conclusion

Accordingly, we grant appellees' motion to dismiss and deny their motion for sanctions under Tex. R. App. P. 45. We dismiss the appeal for want of jurisdiction.

/s/ John Donovan

Justice Panel consists of Justices Christopher, Donovan, and Jewell.