Jessie Lacy v. Potter County
Jessie Lacy v. Potter County
Opinion
Before BOYD, C.J., and QUINN and REAVIS, JJ.
Samuel Brown Silverman appeals from the trial court's order granting taxing entities of Potter County excess proceeds from an order of sale in the amount of $5,036.28. Presenting two issues, he contends (1) the trial court's ex parte hearing denied him due process resulting in reversible error because he was not given notice under Rule 21a of the Texas Rules of Civil Procedure in a contested case where pleadings were properly served and a hearing date was set; and (2) the trial court's failure to respond to a timely and proper request for findings of fact and conclusions of law is presumed harmful where Potter County, et al. was awarded ex parte all of the excess proceeds. For the reasons expressed herein, we reverse and remand.
In 1994, judgment was entered against Jessie Lacy for delinquent taxes on a parcel of real property and an order of sale for real property ensued to satisfy the debt. An excess of $5,036.28 was deposited with the Potter County Clerk in 1996 and a notice of excess funds was given to Jack Weinberger. Eunice L. Weinberger, Individually and as the Independent Executrix of the Estate of Jack Weinberger, the legal and equitable beneficiary of a deed of trust securing the purchase-money lien of the property against which taxes were assessed, assigned the lien to Silverman, who filed a petition to claim the excess proceeds. The Amarillo Hospital District, as a taxing entity of Potter County, filed an application for a portion of the excess proceeds to satisfy a medical debt of Jessie Lacy, deceased. On August 28, 2001, the trial court ordered that the hospital district recover $637.66 and that Silverman recover the remainder of the excess proceeds totaling $4,398.62. On September 4, 2001, the trial court set aside its August 28 order and granted a new hearing on the ground that the taxing entities had not been given notice of the hearing. Thereafter, Potter County filed a motion to release the entire amount of excess funds. Without notice to Silverman, on September 10, 2001, the trial court ordered the excess proceeds be released to the taxing entities of Potter County.
By its brief, Potter County candidly acknowledges and stipulates that the trial court's order of September 10, 2001 be reversed and the cause remanded to the trial court for further proceedings on the ground that no reporter's record of the hearing was made. Agreeing with Potter County we reverse the judgment of the trial court and remand the cause for further proceedings.
Don H. Reavis
Justice
Do not publish.
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NO. 07-11-0116-CR
NO. 07-11-0117-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 13, 2011
______________________________
JUAN FRANCISCO PACHECO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NOS. 61,408-B & 62,495-B; HONORABLE JOHN B. BOARD, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Pending before this Court are Appellant's Motions to Withdraw Appeals in which he represents that he no longer wishes to pursue these appeals. The motions are signed by Appellant's attorney. Tex. R. App. P. 42.2(a). Appellant did not, however, sign the motions as required by Rule 42.2(a) of the Texas Rules of Appellate Procedure. Rather, Appellant's signature is affixed to documents entitled Appellant's Consent to Motion to Withdraw Appeals in which he confirms that he wishes to withdraw these appeals. Therefore, we suspend the operation of that portion of Rule 42.2(a) insofar as it requires that Appellant's signature be affixed to the Motions to Withdraw Appeals and accept Appellant's signature on his Consent to Withdraw Appeals as satisfying the requirements of Rule 42.2(a). See Tex. R. App. P. 2. No decision of this Court having been delivered, the motions are granted and the appeals are dismissed. No motions for rehearing will be entertained and our mandates will issue forthwith.
Patrick A. Pirtle
Justice
Do not publish.
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