Opinion
NO. 01-19-00235-CV
04-28-2020
JACQUELYN BALDWIN, Appellant v. HARRIS COUNTY, THE HARRIS COUNTY DEPARTMENT OF EDUCATION, THE PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, THE HARRIS COUNTY FLOOD CONTROL DISTRICT, THE HARRIS COUNTY HOSPITAL DISTRICT, THE CITY OF HOUSTON, THE HOUSTON INDEPENDENT SCHOOL DISTRICT, AND THE HOUSTON COMMUNITY COLLEGE SYSTEM, Appellees
On Appeal from the 270th District Court Harris County, Texas
Trial Court Case No. 2015-24015
MEMORANDUM OPINION
Appellant, Jacquelyn Baldwin, attempts to appeal the trial court's post-judgment order denying her "Petition to Withdraw Excess Proceeds from the Registry of the Court" in the underlying delinquent property tax proceeding. Appellees have filed a motion to dismiss this appeal for want of jurisdiction. We grant the motion and dismiss the appeal.
Background
On April 4, 2018, the trial court signed its final judgment in favor of appellees in the underlying delinquent property tax suit. On December 28, 2018, Baldwin filed her petition to withdraw excess proceeds from the tax foreclosure sale of property. The trial court denied the petition in a post-judgment order signed on April 1, 2019. On April 8, 2019, Baldwin filed a notice of appeal from the order denying her petition to withdraw excess proceeds.
Specifically, Baldwin filed a "Motion for Amended Appeal" challenging the denial of her petition to withdraw excess proceeds. We construe this filing as a notice of appeal.
Excess Proceeds from Tax Foreclosure Sale
The proceeds from tax foreclosure sales are governed by sections 34.03 and 34.04 of the Tax Code. Section 34.04(a) allows 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 after the property was sold. TEX. TAX CODE § 34.04(a). The court shall order the proceeds to be paid to each party that establishes its claim to the proceeds. See 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).
Jurisdiction
This Court has jurisdiction only over appeals from final judgments and those interlocutory orders specifically authorized by statute. See Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012); CMH Homes v. Perez, 340 S.W.3d 444, 447-48 (Tex. 2011); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001); see also TEX. CIV. PRAC. & REM. CODE § 51.014 (authorizing appeals from certain interlocutory orders).
Appellees have filed a motion to dismiss this appeal for want of jurisdiction, asserting that the order denying Baldwin's petition for excess proceeds is neither a final judgment nor an appealable order from which an interlocutory appeal is authorized. The Clerk of this Court separately notified Baldwin that this Court might dismiss this appeal for want of jurisdiction on these grounds unless Baldwin timely filed a response demonstrating this Court's jurisdiction over the appeal. See TEX. R. APP. 42.3(a), 43.2(f). Baldwin's response failed to demonstrate that this Court has jurisdiction over the appeal.
The Order is Not a Final Judgment
A judgment is final for purposes of appeal if it disposes of all pending parties and claims. McFadin v. Broadway Coffeehouse, LLC, 539 S.W.3d 278, 283 (Tex. 2018) (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)). In a delinquent property tax proceeding, as is the case here, the final judgment is the order granting judgment to the taxing units for the unpaid taxes. See Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Here, the final judgment in the underlying delinquent property tax proceeding was signed on April 4, 2018.
A post-judgment order made for the purpose of enforcing or carrying into effect a prior judgment is not a final judgment, and it is not subject to appeal absent specific legislative authorization. Walter v. Marathon Oil Corp., 422 S.W.3d 848, 855 (Tex. App.—Houston [14th Dist.] 2014, no pet.). An order from a proceeding under Tax Code section 34.04 for distribution of excess proceeds from a tax foreclosure sale is a post-final-judgment proceeding; it is not a final judgment. See Royal Indep. Sch. Dist., 273 S.W.3d at 764.
Accordingly, the post-judgment order denying Baldwin's petition for excess proceeds is not a final judgment. Because the order is not a final judgment, we next examine whether an interlocutory appeal of the order is authorized by statute.
An Interlocutory Appeal is Not Authorized
The trial court denied Baldwin's petition for failure to satisfy the requirements of section 34.04 of the Tax Code, which governs claims for excess proceeds from a tax foreclosure sale. TEX. TAX CODE § 34.04. Section 34.04(e) provides that an order "directing that all or part of the excess proceeds be paid to a party is appealable." TEX. TAX CODE § 34.04(e). Although the statute provides that an order granting withdrawal of excess proceeds is appealable, no provision of the statute authorizes an appeal of an order denying withdrawal of excess proceeds. See 2012 Properties, LLC v. Garland Indep. Sch. Dist., No. 05-15-01002, 2016 WL 3902585, at *2 (Tex. App.—Dallas July 14, 2016, pet. denied); Nichols v. County of Dallas, No. 05-09-01426-CV, 2011 WL 5027490, at *1 (Tex. App.—Dallas Oct. 24, 2011, pet. denied) (mem. op.).
The canon of statutory construction, "expressio unius est exclusio alterius," literally "the specific mention of one is the exclusion of the other," requires us to presume that the legislature's specific mention of one thing "is equivalent to an express exclusion of all others." Johnson v. Second Injury Fund, 688 S.W.2d 107, 108-09 (Tex. 1985) (quoting State v. Mauritz-Wells Co., 175 S.W.2d 238, 241 (Tex. 1943)). Applying that canon of construction, we presume that when the legislature authorized appeals of orders under section 34.04 directing that all or part of the excess proceeds be paid to a party, the legislature prohibited appeals from other orders regarding excess proceeds. See 2012 Properties, 2016 WL 3902585, at *3. Moreover, we strictly construe statutes granting interlocutory appeals because they comprise a narrow exception to the general rule that interlocutory orders are not immediately appealable. See CMH Homes, 340 S.W.3d at 447-48.
In dismissing a similar attempt to appeal the denial of a motion for excess proceeds, the Dallas Court of Appeals explained:
Section 34.04 of the Tax Code governs claims for excess proceeds from a tax foreclosure sale. Section 34.04(e) provides, "An order under this section directing that all or part of the excess proceeds be paid to a party is appealable." TEX. TAX CODE ANN. § 34.04(e). This provision does not permit an appeal of an order denying a petition for excess proceeds. Nichols v. County of Dallas, No. 05-09-01426-CV, 2011 WL 5027490, at *1 (Tex. App.—Dallas Oct. 24, 2011, pet. denied) (mem. op.).2012 Properties, 2016 WL 3902585, at *2-4. We agree with our sister court's reasoning and similarly hold that our Court lacks jurisdiction to hear an interlocutory appeal of an order denying the withdrawal of excess funds.
* * *
An order to pay proceeds is the order resolving the ultimate question of how some or all of the funds in the court's registry are to be distributed and thus is a final determination as to the funds ordered paid. An order denying payment of excess proceeds does not resolve the question of the disposition of any of the funds and leaves that issue pending before the trial court. Thus, the legislature's decision to allow appeals from orders to pay proceeds but not from orders denying payment of proceeds has a rational basis and is not arbitrary, capricious, or nonsensical.
* * *
Applying section 34.04(e) to this appeal, we have jurisdiction to review the trial court's order granting [former property owner's] petition for excess proceeds, but we do not have jurisdiction to review the trial court's order denying appellant's petition for excess proceeds.
The Order Does Not Function as a Mandatory Injunction
Finally, although an order in a post-final-judgment proceeding is not a final judgment, such an 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." Jack M. Sanders Family P'ship v. Roger T Fridholm Revocable Living Trust, 434 S.W.3d 236, 242 (Tex. App.—Houston [1st Dist.] 2014, no pet.); see also Alexander Dubose Jefferson & Townsend LLP v. Chevron Phillips Chem. Co., L.P., 540 S.W.3d 577, 586-87 (Tex. 2018) (holding that some post-judgment orders can be final and appealable judgments if they function similarly to mandatory injunctions).
Recently, a panel of our Court issued an unpublished decision holding that, under certain circumstances, the denial of a motion for excess funds can be appealable as having the nature of a mandatory injunction resolving property rights. See Mount Vernon United Methodist Church v. Harris County, No. 01-18-01114-CV, 2019 WL 6869333, at *2 (Tex. App.—Houston [1st Dist.] Dec. 17, 2019, pet. filed). In Mount Vernon, an order denying appellant's petition for excess proceeds was held to be appealable because (1) the record reflected that appellant was the only party to file a petition for excess proceeds during the two-year period after the sale of the property, and (2) the order was entered after the two-year period expired. Id. Our Court reasoned as follows:
The trial court's order denying appellant's petition for excess funds, which was entered after the two-year period expired, effectively resolved the question of the disposition of the excess funds because at that point, no claimant had established that it had a right to the funds, and the clerk was required to "distribute the excess proceeds to each taxing unit" without any further intervention by the court. TEX. TAX CODE § 34.03(b); cf. Jack M. Sanders Family P'ship, 434 S.W.3d at 242. Appellees, the taxing units, were effectively awarded the excess proceeds by default.Id. Our Court concluded that, under the "unique facts in this case," the order "functions similarly to a mandatory injunction, and therefore, we hold that we have jurisdiction over appellant's appeal." Id. at 3.
The decision in Mount Vernon distinguishes 2012 Properties on the basis that, there, the trial court denied the petition for excess funds before section 34.04(a)'s two-year deadline for a party to establish its right to the proceeds had expired. See id. "As a result, the denial of the order in 2012 Properties, L.L.C did not resolve any property rights with respect to the funds. Pursuant to the statute, the money was required to remain in the court's registry for the rest of the two-year period unless a party established its entitlement to all or some of the proceeds during that time." Id.
Mount Vernon is not applicable to this case because, like the order in 2012 Properties, the trial court's April 1, 2019 order denying Baldwin's petition for excess funds was issued prior to the expiration of the two-year time period. The April 4, 2018 final judgment ordered property sold in execution of the judgment. The record, however, does not indicate a date on which the subject property was sold. Baldwin's December 28, 2018 petition for withdraw of excess proceeds asserts that the "subject property was sold in March or April 2018." But the property could not have been sold in March 2018 because the judgment ordering the property to be sold was not signed until the following month. Assuming Baldwin's assertion that the property was sold in April 2018 (the same month as the final judgment), the trial court denied Baldwin's petition for excess proceeds on April 1, 2019, approximately one year after the earliest date that the property could have been sold in execution of the judgment. Because the petition was denied approximately a year before the expiration of the two-year deadline, this case is like 2012 Properties rather than Mount Vernon. As explained in 2012 Properties, our Court lacks jurisdiction to review the order on appeal.
Conclusion
For the foregoing reasons, the order denying Baldwin's petition to withdraw excess proceeds is not a final judgment and an interlocutory appeal of the order is not authorized. See CMH Homes, 340 S.W.3d at 447. Accordingly, we dismiss Baldwin's appeal of the order for want of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). We dismiss any pending motions as moot.
PER CURIAM Panel consists of Chief Justice Radack and Justices Landau and Hightower.