Date: 11-14-2017

Case Style:

Case Number: 05-17-00976-CV

Judge: Carolyn Wright

Court: Texas Court of Appeals, Fifth District on appeal from the 95th Judicial District Court of Dallas County

Plaintiff's Attorney: Joseph Abuzaid

Defendant's Attorney: Meghana Karan Wadhwani, Chad M. Ruback and Carlos Cortez

Description: In 2016, Abuzaid obtained a $1.4 million judgment against Muamar Anani and David
Wittmer (“the Anani judgment”). During the course of that litigation, Abuzaid was represented
by a series of attorneys. A dispute arose between Abuzaid and one of his attorneys, Carlos
Cortez, about the terms of Cortez’s engagement. The trial court granted Cortez leave to
withdraw. After he withdrew, Cortez’s law firm, Modjarrad & Associates, P.C., d/b/a MAS Law
Firm (“MAS”) filed a petition in intervention in the Anani lawsuit to recover for the legal
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services rendered to Abuzaid. MAS obtained a default judgment against Abuzaid for over
$250,000 (“the default judgment”). On MAS’s motion, the trial court severed the default
judgment, and Abuzaid timely appealed. The trial court then signed the Anani judgment,
awarding Abuzaid $1.4 million in actual damages and attorney’s fees, and Anani appealed.
On July 17, 2017, EFYU JO, LLC (“LLC”) filed an ex parte emergency motion for
turnover relief in the severed intervention asserting it was the “assignee and successor in
interest” of the default judgment. LLC sought to collect on the default judgment by requiring
Abuzaid to turn over the Anani judgment to the Dallas County Sheriff for sale. The next day, the
trial court granted LLC’s motion and ordered Abuzaid to turn over the Anani “judgment and all
other documents required to effectuate the turnover” to the Dallas County Sheriff for sale and for
the proceeds of that sale to be applied to satisfy the default judgment. In the order, the trial court
also “transferred” the judgment to the sheriff and directed the sheriff to sell the judgment
immediately.
The Dallas County Sheriff subsequently posted notice the Anani judgment would be sold
at a public auction. Before the sale occurred, Abuzaid deposited $10 with the trial court clerk
and filed an affidavit stating he had a negative net worth. He also filed a notice of filing net
worth affidavit in lieu of supersedeas bond, stating a writ of execution had already issued to
enforce the default judgment and requesting the clerk to issue a writ of supersedeas to prevent
further proceedings on that writ.
LLC filed a motion to strike the net worth affidavit, asserting Abuzaid’s efforts to
supersede the default judgment were untimely. In that motion, LLC claimed the Anani judgment
had already been turned over to LLC “in full and final satisfaction” of the default judgment.
Because execution was “complete,” LLC asserted the district clerk could not issue a writ of
supersedeas.
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The district clerk nevertheless issued the writ, which halted the sheriff’s sale. LLC then
supplemented its objection and motion to strike Abuzaid’s affidavit asserting Abuzaid’s efforts
were untimely because the trial court had turned the judgment over to the Sheriff in full and final
“enforcement” of the default judgment. LLC also complained Abuzaid’s affidavit was not
sufficiently detailed to comply with Texas Rule of Appellate Procedure 24.2(c)(1) and was not
prepared in accordance with “generally accepted accounting principles.” LLC requested the trial
court to both strike the affidavit and declare the writ of supersedeas void. Following a hearing,
the trial court granted LLC’s motion and struck Abuzaid’s net worth affidavit on the specific
grounds that it was untimely. The trial court did not make a determination regarding the
sufficiency of Abuzaid’s net worth affidavit or make a determination regarding Abuzaid’s net
worth. See TEX. R. APP. P. 24.2(c)(3).
A judgment debtor is entitled to supersede a judgment for money during the pendency of
an appeal. McCullough v. Scarbrough, Medlin & Assocs., Inc., 362 S.W.3d 847, 849 (Tex.
App.—Dallas 2012, no pet.) (citing Miga v. Jensen, 299 S.W.3d 98, 100 (Tex. 2009)).
Moreover, there is no deadline to supersede a judgment. See generally TEX. R. APP. P. 24; In re
Holder, No. 09-10-00197-CV, 2010 WL 2541882, at *3 (Tex. App.—Beaumont June 24, 2010,
orig. proceeding) (mem. op.) (per curiam) (rule 24 does not place a time limit on superseding a
judgment); cf. Magnolia Petroleum Co. v. McClendon, 123 Tex. 10, 12, 65 S.W.2d 484 (1933)
(under former rules, right to suspend judgment by filing supersedeas bond exists even after
appeal bond and transcript have been filed). If enforcement has already begun, it must cease
when the judgment is superseded. TEX. R. APP. P. 24.1(f).
LLC’s motion to strike was based, in part, on its claim the net worth affidavit was filed
too late to supersede the default judgment because the trial court had already turned over the
Anani judgment to LLC. However, the trial court ordered Abuzaid to turn over the Anani
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judgment to the Sheriff and directed the Sheriff to sell the judgment and for the proceeds to be
applied to satisfy the default judgment. See TEX. CIV. PRAC. & REM. CODE ANN. § 31.002(b)(1)
(West 2015) (under turnover statute, court may order judgment debtor to turn over nonexempt
property that is in debtor’s possession or is subject to debtor’s control, together with all
documents or records related to the property, to designated sheriff or constable for execution).
So, at most, the order allowed the Sheriff to sell the Anani judgment “as under a writ of
execution.” Moreover, the default judgment remains unsatisfied and is on appeal, and Abuzaid
is entitled to supersede it and to prevent any further enforcement of it. See TEX. R. APP. P.
24.1(f); see also Anderson v. Lykes, 761 S.W.2d 831, 833 (Tex. App.—Dallas 1988, orig.
proceeding) (filing of supersedeas bond to suspend underlying judgment suspends trial court’s
right to enforce that judgment under the turnover statute), disapproved on other grounds, Walker
v. Packer, 827 S.W.2d 833, 842 (Tex. 1992); In re Bradberry, No. 12-12-00162-CV, 2012 WL
3201928, at *1 (Tex. App.—Tyler Aug. 8, 2012, orig. proceeding) (mem. op.) (“A judgment
creditor has a statutory right to have execution issued to enforce a judgment pending appeal,
unless and until a valid supersedeas bond has been filed.”).
We conclude the trial court erred in striking Abuzaid’s affidavit as untimely. Because
that was the sole basis of the trial court’s ruling, we need not consider appellant’s remaining
complaints. See TEX. R. APP. P. 47.1.

Outcome: We reverse the trial court’s order and remand for further proceedings consistent with this opinion.

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Defendant's Experts:

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