Saturday, February 15, 2014
Effect of Release of Judgment on pending appeal
RELEASE BY JUDGMENT CREDITOR MOOTS APPEAL
Appeal cannot proceed after appellee files release of judgment. Houston Court of Appeal issues dismissal order.
Appellant R. F. Bearden appeals from a judgment in favor of appellee Walton Houston Galleria Office, L.P. On November 21, 2013, appellee filed a release of judgment, which provides:
Plaintiff WALTON HOUSTON GALLERIA, L.P. hereby Releases, Relinquishes, and Discharges the Final Judgment signed by the Court in this case on April 17, 2013 ("judgment"), which judgment was in favor of the Plaintiff and against the Defendant R.F. BEARDEN, and Plaintiff WALTON HOUSTON GALLERIA, L.P. hereby Releases, Acquits, and Discharges the Defendant R.F. BEARDEN from that judgment.
On December 3, 2013, appellee filed a motion to dismiss the appeal as moot. "An unconditional release of judgment operates as a total relinquishment of all rights of the judgment creditor in the judgment. It is a complete discharge of the debt created by the judgment and a complete surrender of the judgment creditor's rights in the judgment." Rapp v. Mandell & Wright, P.C., 123 S.W.3d 431, 435 (Tex. App.-Houston [14th Dist.] 2003, pet. denied).
Because appellee unconditionally released the judgment, we do not have jurisdiction over appellant's appeal. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 392 (Tex. 2000).
Appellant argues that this court has jurisdiction over his appeal because the judgment is void and therefore subject to appeal. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995). However, a party affected by void judicial action need not appeal. State ex rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995). If the judgment is void, it cannot be enforced against appellant, just as it cannot be enforced due to appellee's release. See Custom Corporates, Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 837 (Tex. App.-Houston [14th Dist.] 2006, no pet.). Even if this court had jurisdiction over appellant's appeal and determined the judgment is void, the result to appellant is the same.
Accordingly, the appeal is dismissed.
SOURCE: HOUSTON COURT OF APPEALS - 14-13-00578-CV - 1/9/2014 Bearden v. Walton Houston Galleria Office LP