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No. 14-01-00453-CV, 7/10/2003. Civil Litigation Click here for the full text of this decision FACTS:Because this court has sometimes allowed trial courts to adjudicate post-mandate claims to a judgment, but the panel opinion did not, the court granted rehearing en banc to settle the conflict. HOLDINGThis fee dispute arose after and was collateral to the underlying asbestos case, and could in no way affect that judgment. Nothing the trial court did was inconsistent with the Texas Supreme Court’s mandate: the defendant in the underlying case (Owens-Corning) paid $10 million, and the clients or their assignees (the trial attorneys) got it all. So when a dispute arose post-judgment about who the proper trial attorney was, the trial court had jurisdiction to decide. In Harris County Children’s Protective Services v. Olvera, 971 S.W.2d 172 (Tex. App. � Houston [14th Dist.] 1998, pet. denied), the court reached the unimpeachable conclusion that a final mandate assessing appellate costs does not authorize the trial court to enter a new judgment adding attorney’s fees to the old one. The opinion is somewhat ambiguous on whether this was a question of jurisdiction or a question of simple error. Although the court stated the trial court had “no jurisdiction” to do anything beyond the appellate mandate, the court also found the trial court “abused its discretion” in entering the new awards. Jurisdictional matters are reviewed de novo, not for abuse of discretion; if the trial court had no jurisdiction, it had no discretion in the case to abuse. Further, the proper disposition in jurisdictional cases is to set aside the trial court’s judgment and dismiss the appeal; in Olvera, the court reversed and rendered judgment. The Olvera court quoted Myers v. Myers, 515 S.W.2d 334 (Tex. App. � Houston [1st Dist.] 1974, writ dism’d), for the proposition that trial courts on remand have “no jurisdiction to review, interpret or enforce” an appellate mandate. This language � often quoted by intermediate appellate courts � comes from Conley v. Anderson, 164 S.W. 985, 986 (Tex. 1913), in which the TexasSupreme Court stated “no district court ha[s] jurisdiction to review [our] judgment, nor to interpret and enforce it, but must observe it as it was framed by this court.” Perhaps that statement was true in 1913, but it cannot possibly be true today, the court states, and asks, “If trial courts cannot ‘enforce’ appellate judgments, why has the Supreme Court said they must? If lower courts cannot ‘interpret’ appellate mandates, why has the court authorized us to use its related opinion to do just that?” Myers shows this language has never been applied literally. If anything, the case stands for the proposition that a judgment ordering “payment to Mrs. Myers” can be satisfied by paying her attorneys. In this case, the Supreme Court’s mandate required Owens-Corning to pay “Roy Malone, et al.” Interpreting “et al.” to mean his three co-plaintiffs may be easy, but it is an interpretation nonetheless. If no one can interpret Supreme Court mandates, then the panel opinion violated its own rule. Moreover, if defendants must pay the person named in the mandate � and no one else� they will sometimes have to pay the dead. If the judgment has been assigned to someone else, they will have to pay twice. This court has not construed mandates so strictly. Clearly, trial courts must obey appellate mandates, and they abuse their discretion if they do not. But it is not a matter of jurisdiction � they do not suddenly step out into thin air. Trial courts retain their constitutional jurisdiction to perform duties collateral to and consistent with those mandates. For example, they may: adjudicate turnover disputes; issue writs of execution, and adjudicate disputes related thereto; create, modify, or terminate trusts set up for minors or the incapacitated; consider motions for contempt and to enforce; recalculate prejudgment interest; and discharge a judgment lien after bankruptcy. None of these duties are mentioned in most appellate mandates, yet trial courts undoubtedly have jurisdiction to perform them long after a mandate has issued. It is hard to see why these activities constitute “enforcing” the judgment, but deciding who should get the proceeds (as in this case) does not. There is a great difference between a court’s power to act and whether its act was proper. In Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000), the Texas Supreme Court reversed a long line of cases holding statutory prerequisites “jurisdictional,” noting the serious and long-lasting consequences of such a categorization. As in Kazi, the court believes the trial court’s jurisdiction depends on the nature of the underlying claim, not whether it properly follows the appellate mandate. Here, the trial court clearly had jurisdiction of the underlying claim. The court need not address cases in which plenary jurisdiction expired or specific issues were remanded because in this case there was a new filing � a post-judgment interpleader. Trial courts unquestionably have quasi in rem jurisdiction to determine who owns funds tendered into the registry. Indeed, they must have such jurisdiction; they cannot simply toss the money back out the clerk’s window. Here, Owens-Corning interpleaded the judgment amount into the court registry; that was jurisdiction enough. The Kazi Court branded as “perverse” the consequences of treating judicial errors as jurisdictional, and thus perpetually void. As noted at the outset, this court and others have decided many post-judgment interpleaders over the years; if this court had no jurisdiction, they are all subject to collateral attack. The trial court’s order in this case included not only whom Owens-Corning should pay, but the releases it should receive in return; if the order is void, are the releases as well? And the successful appellate lawyers would no doubt be surprised to learn the $1 million fee they received is void – even though everyone agreed to it – as parties cannot bestow subject-matter jurisdiction by consent. OPINION:Brister, C.J. Fowler, Seymore and Guzman, join. Edelman, J., concurs in the result only. DISSENT:Hudson, J.; Yates, Anderson and Frost, JJ. “While the majority reaches a fair result, I fear it has been achieved by violence to the jurisprudence of both this Court and others. If not rectified by the Texas Supreme Court, there will be no finality in the law. Our appellate mandates will not mark the end of litigation. Rather, there will be new issues raised in the trial court after our mandate has issued, and new appeals arising from the trial court’s post-mandate proceedings.”

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