Adam S. Howell v. Dyck-O'Neal, Inc., Assignee of Bank of America, N.A. Successor by Merger to BAC Home Loans Servicing, LP F/K/A Countrywide Home Loans Servicing, LP

IN THE
TENTH COURT OF APPEALS

No. 10-22-00036-CV

ADAM S. HOWELL,
Appellant
v.

DYCK-O'NEAL, INC., ASSIGNEE OF BANK OF AMERICA, N.A.
SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP
F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP,
Appellees

From the 40th District Court
Ellis County, Texas
Trial Court No. 104288

DISSENTING OPINION

The judgment for this appeal is where I started my review and detected the first

problem. The judgment is simply not one of the judgments that we have the authority to

issue, TEX. R. APP. P. 43.2, and is contrary to well established case law. If we have no

jurisdiction, which is purportedly why the Court is dismissing the appeal, we can render

no judgment other than to dismiss the appeal. See Hall v. Wilbarger County, 37 S.W.2d

1041, 1046 (Tex. Civ. App.—Amarillo 1931), affirmed, Wilbarger County v. Hall, 55 S.W.2d
797 (Tex. 1932). Since at least 1999, Ben Taylor has led the charge to cause Courts of

Appeals across the State to render judgments that comply with the rules and relevant

precedent, specifically including as it relates to the form of the judgment. 1 I had been on

the Court less than a year when he caught me, as the author of an opinion, in such an

error and filed an Amicus brief to further my education so that I could correct the

judgment on rehearing. See Young Materials Corp. v. Smith, 4 S.W.3d 84 (Tex. App.—Waco

1999, no pet.).

To support my argument that the judgment in this appeal was a problem, I looked

at a number of cases and distilled them down to the following list.

In reverse chronological order of their issuance:

In re Estate of Wilhelm, 10-19-00051-CV, Johnson, panel Gray, Johnson, and
Smith;

Garcia v. Meece, 10-19-00052-CV, Neill, panel Gray, Davis, and Neill;

Addington v. Bank of Am., N.A., 10-03-00342-CV, PC, panel Gray, Vance, and
Reyna.

Markowitz v. St. Joseph Reg’l Health Ctr., 01-03-00398-CV, PC, panel Radack,
Taft, and Bland.

Two other cases, which I will briefly mention, are Miller v. J.B. Vega, Corp., 04-07-00887-

CV, PC, panel Angelini, Marion, Simmons and De Lage Landen Fin. Servs. v. M.D.H. Oilfield

Servs. LLC, 02-22-00239-CV, Wallach, panel Sudderth, Wallach, and Gabriel.

The first two referenced above are the only ones in this group which actually

1
To some extent, Ben Taylor was picking up the banner flown by Justice Calvert. See Robert W. Calvert,
Appellate Court Judgments or Strange Things Happen on the Way to Judgment, 6 Tex. Tech L. Rev. 915 (1975).

Howell v. Dyck-O'Neal, Inc., et al. Page 2
discuss the limits on the form of the judgment—specifically, that we cannot vacate or

dismiss the trial court’s judgment/order and then dismiss the appeal. Wilhelm, which

incidentally is from the same members of the Court as the current appeal, states, “We

have no authority to dismiss the suit in the trial court and, at the same time, dismiss the

appeal. We have the authority, however, to vacate the trial court’s judgment and then

dismiss the case by agreement of the parties.” In re Estate of Wilhelm, No. 10-19-00051-CV,

2022 Tex. App. LEXIS 5032, at *2 (Tex. App.—Waco July 20, 2022, no pet.) (mem. op.).

And Garcia states, “We have no authority to dismiss the suit in the trial court and dismiss

the appeal. We have the authority, however, to vacate the trial court’s judgment and

dismiss the case by agreement of the parties.” Garcia v. Meece, No. 10-19-00052-CV, 2020

Tex. App. LEXIS 2935, at *1 (Tex. App.—Waco Apr. 8, 2020, no pet.) (mem. op.). While

both of these cases were settlement dismissals, that part of the statement cites and relies

on another Texas Rule of Appellate Procedure, specifically Rule 42.1(a)(2)(A).

Interestingly the Markowitz opinion noted that the parties motion/request was to

vacate the trial court’s judgment and dismiss the appeal. Although they did not further

discuss it, that Court did not do as the parties requested. Rather, the Court vacated the

trial court’s judgment and dismissed the case, citing Young Materials Corp. v. Smith, 4

S.W.3d 84 (Tex. App.—Waco 1999, no pet.), and dismissed the request to dismiss the

appeal as moot. See Markowitz v. St. Joseph Reg'l Health Ctr., No. 01-03-00398-CV, 2004

Tex. App. LEXIS 6344, at *1 (Tex. App.—Houston [1st Dist.] July 15, 2004, no pet.) (mem.

op.).

The point of this is that there is a distinction between dismissing the appeal and

Howell v. Dyck-O'Neal, Inc., et al. Page 3
dismissing the case. I believe that the cases cited in the opinion, Bahr v. Kohr, 928 S.W.2d

98 (Tex. App.—San Antonio 1996, writ denied), as well as Miller, see Miller v. J.B. Vega

Corp., No. 04-07-00887-CV, 2008 Tex. App. LEXIS 8287 (Tex. App.—San Antonio Nov. 5,

2008, no pet.) (mem. op.) and De Lage, see De Lage Landen Fin. Servs. v. M.D.H. Oilfield

Servs. LLC, No. 02-22-00139-CV, 2023 Tex. App. LEXIS 2108 (Tex. App.—Fort Worth Mar.

30, 2023, no pet. h.) (mem. op.), are examples in which the Court of Appeals rendered the

wrong type of judgment; but no one complained about it, notwithstanding the Court had

no authority to render the judgment it did. 2 In support of this view of these errant

judgments, I note that the San Antonio Court in Miller actually cited Young Materials Corp.

from this Court for the form of its judgment, notwithstanding that Young Materials Corp.

actually holds that the San Antonio Court’s judgment was not a proper form for the

judgment.

But the problems in this appeal are more fundamental than merely tinkering with

the form of the judgment. The error in the judgment is merely what caused me to keep

digging into the merits of the case and the manner of its disposition. After a couple of

times through the briefs and the proposed opinion it dawned on me: dismissal probably

is the correct judgment but not for the reasons stated in the opinion. Rather, we have no

jurisdiction because there is not a final judgment from which this appeal has been

brought. The docketing statement filed by the appellant expressly notes that the appeal

2
I note that there was no discussion or analysis of the propriety of the form of the judgment in these three
cases; and it does not appear that any justice on the panel raised the issue. In such a circumstance, I do not
believe these cases provide any proper precedent for the practice which appears to be contrary to the Rule
which this Court cites as authority for the form of its judgment.

Howell v. Dyck-O'Neal, Inc., et al. Page 4
is not of a final judgment. And the docketing statement and the notice of appeal clearly

make reference to the trial court’s “order” denying the motion to vacate signed on

October 27, 2021 as the order being appealed.

The order Howell is attempting to appeal is not a final judgment from which an

appeal can be taken; thus, it appears the appeal needs to be dismissed. However, to

properly get there, we should send the required notice in which we question our

jurisdiction. See TEX. R. APP. P. 42.3.

And if we dismiss for want of our jurisdiction, we cannot also vacate the trial

court’s order/findings. Moreover, I do not think that we need to or should vacate the

trial court’s order and findings because I think the trial court had jurisdiction to render

the order and make the findings. The parties are engaged in post-judgment collection

efforts. The motion to vacate, which the trial court denied, was filed on the date to which

post-judgment discovery had been extended and was due. While I have not done much

post-judgment-collection work, in practice or while on the Court, this looks like what I

would expect a trial court to have to deal with in such proceedings and would be part of

its jurisdiction to enforce “its” judgment, which, in this situation, is the domesticated

judgment from Kentucky. The trial court thus would have had the jurisdiction to deny,

but probably not grant, the motion which was the result of Howell resisting collection

efforts on the domesticated Kentucky judgment. I think the findings are unnecessary,

Howell v. Dyck-O'Neal, Inc., et al. Page 5
but not beyond the trial court’s jurisdiction to make. 3

We should send a notice which questions our jurisdiction. If we dismiss the appeal

for want of jurisdiction, we cannot also vacate the trial court’s order and findings.

Because that is what the Court attempts to do, I respectfully dissent.

TOM GRAY
Chief Justice

Dissenting Opinion delivered and filed June 14, 2023

3
Both parties tried to do a primer on collection law. We currently have more cases pending at this Court
which address collection efforts than I recall during the last 20 years here. It might not be a bad time to
have oral argument in one, or several, of these appeals.

Howell v. Dyck-O'Neal, Inc., et al. Page 6