in the Estate of Donna Fells

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-17-00487-CV
__________________

IN THE ESTATE OF DONNA FELLS

__________________________________________________________________

On Appeal from the County Court at Law No. 1
Jefferson County, Texas
Trial Cause No. 109304
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MEMORANDUM OPINION

This appeal arises from a dispute involving the administration of an estate. In

her brief, Margy Rand, the independent executor of the Estate of Donna Fells, raises

two issues that complain about the trial court’s November 2017 order releasing funds

trapped in the registry of the court. The funds came from the proceeds of a sale of

real property, which was owned in common by the Estate, Daniel Fells, Jr., and

Daniel’s wife.

1
 In her first issue, Rand argues the trial court no longer possessed plenary

power over the funds when the court distributed them to Daniel. In issue two, Rand

argues the trial court’s order distributing the funds is void because the funds in the

court’s registry belonged to the Estate. We affirm.

Background

Donna Fells died in 2013. After Donna died, Daniel, Donna’s stepson, sued

Rand in her capacity as the executor of Donna’s estate and asked the trial court to

partition a parcel of real property that he and his wife owned in common with the

Estate. 1 Daniel also sued Rand to collect what he claimed represented his share of

the rents the Estate collected from tenants who were renting a building on the

property. Finally, Daniel sued the Estate for the taxes he paid on the property, which

he claimed should have been paid by the Estate.

Following a bench trial in May 2016, the trial court resolved the parties’

claims. The judgment the court issued following the trial includes language of

finality. No one appealed from the trial court’s October 2016 final judgment.

1
In the Estate of Fells, No. 09-12-00569-CV, 2013 Tex. App. LEXIS 13203,
at *2-4 & n.1 (Tex. App.—Beaumont Oct 24, 2013, pet. denied) (In the opinion in
2013, we noted the trial court severed the claims surrounding the property held in
common—the claims now at issue here—into a separate cause.) The severed claims
resulted in the current appeal.
2
 In the judgment, the trial court found the property the parties owned in

common could not be divided and ordered the property sold. The judgment also gave

Daniel relief on some of his other claims. Daniel was awarded $52,2002 for his share

of the rents the court found the Estate owed him. The judgment also awards Daniel

$2,078, the amount Daniel claimed he paid in taxes on behalf of the Estate.

The judgment set out how any money resulting from the future, court-ordered

sale would be divided. The judgment provides:

[T]he net proceeds from the sale shall be divided as follows: First,
[Daniel] shall receive 75% of the net proceeds; Second, the remaining
25% of the net proceeds, allocated as [the Estate’s] share, shall be
deposited into the registry of the court for further distribution by the
Court.

As relevant to the issues in this appeal, the judgment provides that Daniel

would be paid first from the proceeds of the future, court-ordered sale. It did so, as

follows:

If the sale proceeds are not sufficient to pay these items, it is
further ORDERED that [Daniel] have judgment against the [Estate]
. . . for the balance due [Daniel].

About a year after the trial court ordered the property to be sold, the sale

occurred. The proceeds from the sale, less expenses, were $87,850. As directed by

2
To simplify the math, we have rounded all figures in the opinion to the
nearest round number.

3
the judgment, the title company handling the sale deposited the Estate’s share of the

proceeds, $21,851, into the registry of the court. Within a month, Rand moved to

release the funds. Daniel objected, arguing that based on the judgment, he was

entitled to be paid first from the funds.

In November 2017, the trial court conducted an evidentiary hearing on the

Estate’s motion. At the conclusion of the hearing, the court issued an order denying

the motion. In the same order, the court disbursed $21,851 (the Estate’s share of the

funds trapped from the court-ordered sale) to Daniel. The Estate appealed from the

order disbursing the funds, complaining the trial court should not have distributed

the funds to Daniel.

Issues

In two appellate issues, the Estate challenges the trial court’s jurisdiction over

the funds the court distributed in its November 2017 order. In issue one, the Estate

argues that, by the time the trial court ordered the funds released, the trial court no

longer had plenary power to alter the terms of the October 2016 judgment. The Estate

concludes that the order releasing the funds is void. In issue two, the Estate argues

the trial court did not have subject-matter jurisdiction over the funds because the

Legislature gave independent executors—not courts—the right to decide how

property that belongs to estates should be distributed.

4
 Plenary Power to Alter a Final Judgment

We review appellate issues challenging a trial court’s subject-matter

jurisdiction using a de novo standard of review.3 In its appeal, the Estate argues the

trial court’s order distributing the funds is void because the trial court signed the

order after its plenary power to alter the final judgment of October 2016 expired.

Once signed, trial courts have only a limited period of time in which to alter

a final judgment. Generally, absent a party filing a timely motion for new trial, the

Rules of Procedure allow a trial court thirty days from the date of the final judgment

to vacate, modify, correct, or reform a judgment. 4 If a party files a timely motion for

new trial, the Rules of Civil Procedure expand that window for an additional thirty

days, which begins to run on the date the post-judgment motion to vacate, modify,

correct, or reform the judgment is overruled.5 If the trial court’s plenary power

expires before it changes the judgment, the court’s “judgment cannot be set aside by

the trial court except by bill of review[.]” 6

3
See Worsdale v. City of Killeen, 578 S.W.3d 57, 66 (Tex. 2019); Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010); Escobar v. Escobar, 711 S.W.2d
230, 231 (Tex. 1986).
4
Tex. R. Civ. P. 329b(d).
5
See id. 329b(e).

5
 Thus, a trial court cannot make a judicial change in a final judgment after

losing its plenary power over the judgment.7 A judgment signed by a court that no

longer has plenary power to change its final judgment is void. According to the

Estate, the trial court’s November 2017 order distributes the funds in a way that

differs from the distribution required by the final judgment. For that reason, the

Estate concludes the November 2017 order is void.

Trial courts do have the power to issue post-judgment orders that enforce their

judgments.8 A trial court’s enforcement power lasts “until the judgment is

satisfied.”9 But such orders (absent the court still having plenary power of the

judgment) may not contain terms inconsistent with the terms of the judgment. Put

another way, a trial court may not, by order, materially change “the substantive

adjudicative portions of” a final judgment that it no longer has plenary power to

alter. 10

6
Id. 329b(f).
7
See In re Elizondo, 544 S.W.3d 824, 829 (Tex. 2018); Tex. Dep’t of Transp.
v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 167 (Tex. 2013).
8
Tex. R. Civ. P. 308; Alexander Dubose Jefferson & Townsend LLP v.
Chevron Phillips Chem. Co., L.P., 540 S.W.3d 577, 581 (Tex. 2018).
9
Chevron Phillips, 540 S.W.3d at 581 (cleaned up).

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 Here, the order at issue in the appeal distributed funds trapped in the registry

of the court. Such orders, disbursing funds held in the registry, are allowed when

they enforce an earlier-filed judgment. 11 In other words, funds deposited into the

court’s registry “are always subject to the control and order of the trial court, and the

court enjoys great latitude in dealing with them.” 12

Analysis

The trial court signed a final judgment in which it required the property to be

sold. When the property sold, the title company deposited the Estate’s share of the

proceeds into the registry of the court. None of the parties appealed from the October

2016 judgment, and it became final. Regardless of that judgment’s finality, however,

the trial court had subject-matter jurisdiction over the funds trapped in the court’s

registry so long as the court distributed them in a manner that was consistent with

its judgment. 13

10
Custom Corporates, Inc., v. Sec. Storage, Inc., 207 S.W.3d 835, 839 (Tex.
App.—Houston [14th Dist.] 2006, no pet.) (cleaned up).
11
Schroeder v. LND Mgmt., LLC, 446 S.W.3d 94, 97 (Tex. App.—Houston
[1st Dist.] 2014, no pet.).
12
Madeksho v. Abraham, Watkins, Nichols & Friend, 112 S.W.3d 679, 687
(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (cleaned up).
13
Schroeder, 446 S.W.3d at 98; Custom Corporates, 207 S.W.3d at 839.
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 In our opinion, the distribution the court made is consistent with the judgment.

The judgment directed the net proceeds payable to the Estate from the sale to be paid

into the registry of the court. Importantly, the judgment created a preference in the

proceeds of the sale to satisfy the obligation the trial court determined the Estate

owed Daniel for taxes and back-due rent. 14 We overrule the Estate’s first issue.

In issue two, the Estate argues the trial court did not possess subject-matter

jurisdiction over the funds trapped in the registry of the court. According to the

Estate, the Estates Code gives independent executors of estates, not courts, the right

to decide how to use the assets that belong to estates. 15 But regardless of the merit

(or lack of merit) in that argument, the preference the trial court created existed by

virtue of the terms the trial court chose to place in its final judgment. The judgment

became final when the Estate failed to appeal from the final judgment.

If creating a preference favoring Daniel was an error, it was a judicial one. As

such, the alleged error could have been challenged by the Estate had it pursued an

appeal.

14
As previously explained, the trial court’s October 2016 judgment awarded
Daniel a priority in the funds generated from the court-ordered sale.
15
See Tex. Estates Code Ann. §§ 22.031(b), 402.001.
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 The doctrine of res judicata forecloses the Estate from now attempting to

relitigate whether the final judgment contains an error that gave Daniel a preference

in the funds generated by the sale, but that is an error in the 2016 judgment which

the Estate could have appealed.16 The Estate simply allowed the October 2016

judgment to become final.17 Thus, we have no jurisdiction to consider the Estate’s

complaint alleging the trial court should not have given Daniel priority in the

proceeds from the court-ordered sale. 18 We dismiss the Estate’s second issue for

want of jurisdiction.

Mandamus

In two issues, in arguments like those raised in its appeal, the Estate suggests

the trial court abused its discretion by distributing the funds to Daniel. But we

reached the Estate’s complaints to resolve its challenges to the order distributing

funds, as that order was subject to being appealed. For that reason, we need not

address the Estate’s conditional request asking that we treat its brief as a petition for

mandamus relief.19

16
See Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex. 1971).
17
See Tex. R. App. P. 26.1.
18
Tex. R. App. P. 42.3(a), 43.2(f).

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 AFFIRMED.

_________________________
HOLLIS HORTON
Justice

Submitted on July 1, 2019
Opinion Delivered November 21, 2019

Before McKeithen, C.J., Horton and Johnson, JJ.

19
See Cook v. Stallcup, 170 S.W.3d 916, 919-20 (Tex. App.—Dallas 2005,
no pet.) (explaining that, because post-judgment order enforcing the court’s
judgment function like judgments, they can be appealed).
10