in Re: Woody K. Lesikar as Trustee of the Woodrow v. Lesikar Family Trust

Petition for Writ of Prohibition Granted; Petition for Writ of Mandamus Denied; and Memorandum Opinion filed June 7, 2007 Petition for Writ of Prohibition Granted; Petition for Writ of Mandamus Denied; and Memorandum Opinion filed June 7, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-01041-CV ____________ IN RE WOODY K. LESIKAR, as Trustee of the Woodrow V. Lesikar Family Trust, Relator ORIGINAL PROCEEDING WRIT OF PROHIBITION & WRIT OF MANDAMUS M E M O R A N D U M   O P I N I O N In this original proceeding, relator, Woody K. Lesikar, seeks a writ of prohibition, prohibiting the respondent, the Honorable Robert May, from exercising contempt jurisdiction with respect to part of the final judgment. Alternatively, relator seeks mandamus relief to set aside the trial court=s show cause order and to dismiss the motion for contempt. We conditionally grant the writ of prohibition Relator, Woody Lesikar, and real party in interest, Carolyn Moon, are the son and daughter of Woodrow V. Lesikar, who is now deceased. Woodrow=s will created a family trust, and special trusts for both Woody and Carolyn. In 2003, Carolyn sued Woody, the trustee of the Woodrow Lesikar trust. The trial court signed a final judgment on September 13, 2005. Woody appealed the final judgment, and on November 21, 2005, the trial court entered an order setting the amount necessary to suspend enforcement of the judgment at $345,000. Woody filed a supersedeas bond, which the trial court approved. The final judgment, in part, ordered that certain QTIP funds were to be held in the family trust until the death of Margie (widow of Woodrow). The judgment further ordered the manner of disposition of these funds after Margie=s death. This portion of the judgment required the division of the QTIP funds within 30 business days of the death of Margie, with equal portions divided between the Carolyn Moon Special Trust and the Woody Lesikar Special trust, and payment of the distribution to Carolyn=s trust was ordered delivered to the office of her attorney on or before 5 p.m. of the 30 business day after Margie=s death. Margie died on February 18, 2006, which was after the approval and filing of the supersedeas bond in this case. On February 22, 2006, Carolyn filed a motion to modify the amount and conditions of the supersedeas bond. She filed an amended motion to modify on April 4, 2005. Because the final judgment provided for distribution to Carolyn of her half of the QTIP funds that were available after Margie=s death, Carolyn also sought distribution of part of the funds, on the ground that she was having financial difficulties. After a hearing, the trial judge issued an order April 12, 2006, that did not amend or modify the supersedeas bond, but which ordered Carolyn=s half of the $250,000 QTIP funds deposited into the registry of the court. The order also stated that, in the future, the court would distribute these funds to Carolyn as needed. Woody filed a motion in this court, asking that we vacate the trial court=s order requiring the deposit of half the QTIP funds into the registry of the court. We issued an order on September 28, 2006, finding that the trial court had no jurisdiction to enter the order because the trial court=s jurisdiction as to supersedeas was limited by Rule 24 and the trial court=s order exceeded this limited grant of power.[1] However, because we found the trial court=s order did not fall within the listed types of rulings an appellate court can review under rule 24.4(a), we denied the motion to vacate the order. In October 2006, Carolyn Moon filed a motion for contempt, claiming that Woody had violated the final judgment by not distributing to Carolyn her half of the $250,000 QTIP funds. The trial court set this motion for a hearing on December 11, 2006, which was stayed by our order of December 7, 2006. Woody first seeks a writ of prohibition, claiming that the trial court does not have jurisdiction to enforce the final judgment by contempt when an appeal is perfected and the judgment has been superseded. An appellate court may issue a writ of prohibition to protect and enforce its jurisdiction.[2] Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex. 1989). Once an appeal has been perfected, the appellant has the right to supersede and suspend enforcement of the judgment. Ex parte Kimbrough, 135 Tex. 624, 146 S.W.2d 371, 372 (1941). If the appellant fails to exercise its right to supersede the judgment, it will be subject to the trial court=s contempt jurisdiction. In re Sheshtawy, 154 S.W.3d 114, 124-25 (Tex. 2004). Woody argues that, by exercising contempt jurisdiction, the trial court is interfering with our exclusive jurisdiction over the final judgment. The supreme court has held that an appellate court retains the Aoverarching power@ to stay any actions, including contempt proceedings, in the trial court if it interferes with our jurisdiction or the subject matter of the appeal. Sheshtawy, 154 S.W.3d at 124. In the appeal, Woody has raised an issue claiming the trial court erred in finding Carolyn was entitled to any funds from the trust because she violated the in terrorem clause. Woody asserts that the trial court will interfere with the subject matter of the appeal if the trial court partially enforces the judgment by contempt because a finding by this court in Woody=s favor on the issue concerning the in terrorem clause could result in a holding that Carolyn was not entitled to any distribution under the trust. In support of this argument, Woody cites to Atkins v. Snyder, 597 S.W.2d 779 (Tex. Civ. App.BFort Worth 1980, orig. proceeding). In Atkins, the trial judge held James Karten in contempt for failing to return a child to his ex-wife. Id. at 780. The judge issued an order, fining Karten in the amount of $750. Id. Karten appealed this order and while this order was on appeal, the ex-wife filed a second motion for contempt to enforce payment of the $750 awarded in the first contempt order. Id. at 781. The second contempt motion was set for hearing, but Karten filed a petition for writ of prohibition. Id. The appellate court noted that, once an appeal has been properly perfected, the appellate court has exclusive jurisdiction over the subject matter of the appeal and this exclusive jurisdiction terminates the trial court=s power of the subject matter of the appeal during the pendency of the appeal. Id. at 782 (citing Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 482 (Tex. 1964) and Ex parte Travis, 123 Tex. 480 ,73 S.W.2d 487, 489 (1934)). Accordingly, the court found the trial court=s attempt to hold Karten in contempt for failing to pay the $750 while the appeal was pending clearly interfered with the appellate court=s jurisdiction and the appellate court granted the petition. 597 S.W.2d at 782. We agree with Woody that the trial court=s attempted exercise of contempt jurisdiction in this case interferes with our jurisdiction over the pending appeal. Because the final judgment in this case includes a provision directing the division and distribution of the QTIP funds, and Woody has raised an issue in the appeal that challenges this provision of the judgment, it interferes with this court=s exclusive jurisdiction over the subject matter of the appeal for the trial court to exercise contempt jurisdiction regarding the distribution of the QTIP funds. Woody also claims he is entitled to a writ of prohibition because the trial court has no authority to enforce a superseded judgment pending appeal. Although Woody posted a supersedeas bond, the parties dispute whether this bond covers the QTIP funds because those funds did not become available and subject to the judgment=s requirement of disposition until after the supersedeas bond was posted. The record shows that Carolyn was the party that filed the motion to modify supersedeas the QTIP funds became available. The record also shows that Woody did not oppose modification of the supersedeas to cover these funds. At the hearing on April 7, 2006, before the trial court entered the order requiring deposit of Carolyn=s portion of the funds into the registry of the court, Woody=s counsel stated on the record: A[m]y discussions with Ms. Bayless [Carolyn=s counsel] have been that we would be willing to increase the bond to accommodate a cash, part of the cash portion of the judgment that wasn=t in place when the original bond hearing was done because Margie was still alive and so we had no idea what that value would be.@ This tends to show that Woody did not consider these funds to be covered by the original supersedeas bond. No order approving modification of the supersedeas bond was ever entered. However, Woody argues that the original supersedeas bond covers the entire judgment, including the QTIP funds. Although Woody agrees that the trial court did not include the amounts of the QTIP funds in its calculation of the bond amount, he claims that does not change the effect of the filing of the bond. Woody states that the bond is intended to cover the entire judgment, even if the calculation of the amount of the bond could not have included the amount of the QTIP funds which were contingent upon the death of Margie. At most, Woody claims it might justify requiring additional security. We agree that, because the judgment is superseded, no execution can issue. Tex. R. App. P. 24.1(f). If the supersedeas bond currently in place is insufficient, there is a remedy. The rules provide for modification of the amount of the supersedeas. See Tex. R. App. P. 24.3. The trial court retains continuing jurisdiction to modify the amount of security Arequired to continue the suspension of a judgment=s execution.@ Id. at 24.3(a)(2). Although Carolyn previously filed a motion to modify the amount of the security, she also requested payment. The trial court=s order in response to her motion to modify did not modify the security currently in place. The option to seek modification of the amount of supersedeas remains available to Carolyn. Although a trial court has the power to exercise contempt jurisdiction when a judgment has not been superseded, Sheshtawy, 154 S.W.3d at 124, the judgment in this case has been superseded, and therefore, the trial court could not exercise contempt jurisdiction. AOnce an appeal has been perfected, the appellate court may protect its jurisdiction by issuance of a writ of prohibition if the trial court attempts to enforce its judgment through a contempt proceeding.@ Elizondo v. Williams, 643 S.W.2d 765, 767 (Tex. App.BSan Antonio 1982, orig. proceeding). Accordingly, we find that Woody is also entitled to relief because the trial court is interfering with our jurisdiction by attempting to enforce the judgment pending appeal through a contempt proceeding. In the alternative, Woody seeks mandamus relief to require the trial court to set aside its show cause order and to dismiss the motion for contempt. Woody claims mandamus relief is available to prevent enforcement of the superseded final judgment while the appeal is pending. Because we have already held that Woody is entitled to relief by writ of prohibition, we need not address whether Woody is entitled to mandamus relief. Accordingly, we conditionally grant the petition insofar as it requests a writ of prohibition. We are confident the trial court will refrain from exercising contempt jurisdiction in the underlying case and the writ of prohibition will issue only if the trial court does not. We deny the request for mandamus relief. PER CURIAM Petition Conditionally Granted and Memorandum Opinion filed June 7, 2007. Panel consists of Justices Anderson, Hudson, and Guzman. [1] Rule 24.3 provides a trial court with continuing jurisdiction to do the following: (1) order the amount and type of security, (2) decide the sufficiency of sureties, and (3) if circumstances change, modify the amount or type of security. Tex. R. App. P. 24.3(a). The trial court=s order did not state it was setting the type or amount of modified security. Instead, it ordered the funds into the registry of the court and stated that it would distribute these funds to Carolyn, as she needed them, in the future. In ruling on Woody=s motion, we found the trial court=s ruling, which ordered Carolyn=s half of the QTIP funds into the registry of the court for subsequent distribution, was not an order pursuant to Rule 24.3(a). Thus, we held the trial court had exceeded the limited grant of continuing jurisdiction under Rule 24.3. [2] A writ of prohibition operates like an injunction issued by a superior court to prevent action in a court of inferior jurisdiction. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 682 (Tex. 1989).