Dismissed and Opinion filed May 7, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00605-CV

AMELIA V. KELLY, Appellant

V.

MATTHEW D. WIGGINS, JR., Appellee

On Appeal from the 122nd Judicial District Court

Galveston County, Texas

Trial Court Cause No. 11CV0325

O P I N I O N

This is an appeal from a 2014 order of judicial foreclosure in favor of 

Matthew D. Wiggins, Jr. The trial court signed the order when it granted 

Wiggins’s motion to enforce a 2012 final judgment on a jury verdict and the lien 

created in Wiggins’s favor by such judgment. In six issues, Amelia V. Kelly urges 

the following:
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(1) Is the Order of Judicial Sale void because the trial court no 

longer had jurisdiction to materially change its final judgment 

by ordering foreclosure upon Ms. Kelly’s homestead?

(2) By failing to conduct a trial on the merits, or even an 

evidentiary hearing before summarily ordering foreclosure, did 

the trial court violate Ms. Kelly’s constitutional right to due 

course of law, both procedural and substantive? 

(3) Did the trial court violate the Texas Constitution’s bar on the 

forced sale of a homestead because no exception to the 

constitutional bar was established? 

(4) Did the trial court err by impermissibly aiding Wiggins to reach 

what was exempt property of Ms. Kelly or to reach property 

subject to a claim of exemption without a trial on the merits of 

the claim of exemption? 

(5) Did the trial court err in striking Ms. Kelly’s motion for “new” 

trial?

(6) Did the trial court err in allowing a judicial foreclosure without 

requiring Wiggins to remove the $1,000,000 mortgage lien 

Wiggins had caused to burden title to Ms. Kelly’s homestead, 

which would effectively chill any foreclosure sale upon the

$660,000 judicially created lien?

In response, inter alia, Wiggins challenges this court’s appellate jurisdiction to 

review the order of judicial foreclosure. For the reasons set forth below, we

dismiss this appeal for lack of appellate jurisdiction.

I. INTRODUCTION

In 2012, the trial court entered a final judgment following jury trial. In 

addition to the trial court’s recitation of the jury’s answers, the trial court’s 

material judgment recitals are:

(1) Plaintiff, AMELIA V. KELLY, recover Judgment from 

Defendant MATTHEW D. WIGGINS, JR., and D. L. 

Hammaker declaring that the foreclosure conducted on January 

5, 2010 is void and that title did not pass from Plaintiff 

AMELIA V. KELLY to Defendant MATTHEW D. WIGGINS, 
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JR., and that all right, title and interest of MATTEW D. 

WIGGINS, JR. in and to the property (hereafter referred to as 

the “Subject Property”) [described specifically] remains vested 

in Plaintiff, AMELIA V. KELLY. 

(2) The Subject Property is free and clear of any liens and claims of 

any party to the cause, subject only to (1) a lien against the 

Property created by this Judgment in favor of Defendant 

MATTHEW D. WIGGINS, JR. in the amount of $660,000.00 

found by the jury for the purchase, preservation and 

improvement of the property, (2) any other liens of record that 

were otherwise valid and existing on January 5, 2010, which 

remain outstanding at the time of the judgment, and (3) the 

reimbursement rights of Defendant MATTHEW D. WIGGINS 

for property taxes that have been paid by MATTHEW D. 

WIGGINS since the verdict was delivered in this case on 

February 13, 2012, which were not included in the amount 

found by the jury for the purchase, preservation and 

improvement of the property.

(3) Plaintiff, AMELIA V. KELLY, shall have all such Writs and 

Orders as shall become, in Plaintiff’s behalf, necessary to 

enforce the execution hereof, and to recover title and possession 

to the Subject Property and title in fee simple to the Property is 

hereby quieted in the name of Plaintiff AMELIA V. KELLY 

and Defendant MATTHEW D. WIGGINS is divested of all 

right, title and interest in the Property.

(4) Plaintiff AMELIA V. KELLY have and recover attorneys’ fees 

. . . in the amount of $50,000.00 against Defendant MATTHEW 

D. WIGGINS, JR.

(5) Defendant MATTHEW D. WIGGINS, JR. have and recover 

attorneys’ fees . . . in the amount of $50,000.00 against Plaintiff 

AMELIA V. KELLY.

Both Kelly and Wiggins appealed from this judgment and both subsequently 

dismissed their appeals. See Kelly v. Wiggins, No. 14-12-00710-CV, 2013 WL 

85083, at *1 (Tex. App.—Houston [14th Dist.] Jan. 8, 2013) (mem. op., per 

curiam); Kelly v. Wiggins, No. 14-12-00687-CV, 2012 WL 5247354, at *1 (Tex. 
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App.—Houston [14th Dist.] Oct. 23, 2012) (mem. op., per curiam). Mandates 

issued on these appeals in late 2012 and early 2013.

In March 2014, Wiggins filed a motion to enforce final judgment and for 

order of judicial foreclosure and applications for temporary restraining order and 

for temporary injunction in the same underlying cause. Through affidavits and 

other documentation attached to his motion, Wiggins urged that (a) the property

became the property of the bankruptcy estate of debtor Kelly; (b) a March 13, 2014 

bankruptcy court order declared the property abandoned by the bankruptcy estate; 

(c) neither Kelly nor the bankruptcy trustee made any payments on either the 

mortgage lien or the Wiggins lien on the property; and (d) Wiggins has paid all 

costs associated with the property.

Kelly responded to Wiggins’s motion with a plea in abatement (in favor of 

an alleged first-filed action in the Galveston County 405th Judicial District Court 

pertaining to the same subject) and a motion to dismiss (for lack of jurisdiction 

alleging the trial court’s plenary power had expired). Kelly also specifically 

denied that (a) Wiggins has paid all costs; (b) Kelly has made no payments on the 

mortgage; or (c) Kelly took possession of the home by breaking into it. Kelly 

attached no evidence regarding these denied facts.

On April 3, 2014, the trial court denied Kelly’s plea in abatement and the 

motion to dismiss. On June 23, following hearings on March 251and May 12, the 

trial court entered an order of judicial foreclosure (the judicial foreclosure order) as 

follows:

ORDERED that a the lien in favor of Matthew D. Wiggins, Jr. set 

forth in the Court’s Final Judgment of June 22, 2012, for the amount 

 

1

The March 25 hearing began as a hearing on the temporary injunction but was recessed 

in short order for the trial court to consider pleadings and authority on the other matters. The 

record does not reflect that proceedings reconvened that day.
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of $660,000 found by the jury to be for the purchase, preservation and 

improvement of the property should be and hereby is judicially 

foreclosed as the subject property [described specifically]. 

On July 23, Kelly timely appealed in this cause. 

On October 1, Kelly filed a petition for writ of mandamus urging the same 

six issues she raises in this appeal. This court stayed the imminent foreclosure sale 

and requested a response from Wiggins. On October 30, we denied Kelly’s 

petition for writ of mandamus, noting that Kelly failed to demonstrate entitlement 

to mandamus relief. See In re Kelly, No. 14-14-00789-CV, 2014 WL 5492809, *1 

(Tex. App.—Houston [14th Dist.] Oct. 30, 2014, orig. proceeding) (mem. op., per 

curiam). A new execution order of sale issued. On November 25, Kelly filed 

another petition for writ of mandamus urging the same six issues outlined above. 

We again denied the petition along with the requested stay. See In re Kelly, No. 

14-14-00944-CV, 2014 WL 7524979, *1 (Tex. App.—Houston [14th Dist.] Nov. 

26, 2014, orig. proceeding) (mem. op., per curiam). We now consider Kelly’s 

current appeal. 

II. ANALYSIS

As we must, we first consider Wiggins’ challenge to this court’s appellate 

jurisdiction over the judicial foreclosure order.

Ordinarily, a litigant may take an appeal only from a final judgment. Bally 

Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Royal Indep. Sch. 

Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008, 

no pet.) (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)). The 

legislature has also authorized certain appeals from interlocutory orders. See, e.g.,

Tex. Civ. Prac. & Rem. Code Ann. § 51.014. However, Texas courts construe 

these statutes strictly. Jackson, 53 S.W.3d at 355. It is undisputed that the judicial 
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foreclosure order is neither a final judgment nor an interlocutory order subject to 

direct appeal. In fact, as noted above, the parties each dismissed their appeals from 

the final judgment in this cause. 

This court has recently articulated the general rule that “post-judgment 

orders made for the purpose of enforcing or carrying into effect a prior judgment 

are not subject to appeal because they are not final judgments.” Walter v. 

Marathon, 422 S.W.3d 848, 855 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(citing Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (1956); In re 

Doe, 397 S.W.3d 847, 849 (Tex. App.—Fort Worth 2013, orig. proceeding); Wall 

St. Deli, Inc. v. Boston Old Colony Ins. Co., 110 S.W.3d 67, 69 (Tex. App.—

Eastland 2003, no pet.); Katz v. Inglehart, No. B14–91–1376–CV, 1992 WL 

56862, at *1 (Tex. App.—Houston [14th Dist.] March 26, 1992, writ denied) (not 

designated for publication)). Although Kelly argues that the judicial foreclosure 

order is an erroneous enforcement of the prior final judgment, Kelly does not assert 

that it is something other than a post-judgment enforcement order. 

We nonetheless must determine whether the judicial foreclosure order is a 

post-judgment enforcement order. In the 2012 judgment, the trial court affirmed 

Kelly’s rights in the subject property, but the court also established a judicial lien 

against the property in favor of Wiggins for $660,000. In so doing, the court 

acknowledged Kelly’s debt obligation to Wiggins for $660,000 and rendered the 

subject property as security for the payment of that debt. See Tex. Bus. & Com. 

Code Ann. § 24.002(8) (defining “lien”); Tex. Civ. Prac. & Rem. Code Ann. 

§ 12.001(3) (same). Thus, by making the subject property security for Kelly’s

indebtedness to Wiggins, foreclosure was an inherent possibility in the event that 

Kelly failed to satisfy her debt. See Gevinson v. Manhattan Constr. Co. of Okla., 

449 S.W.2d 458, 465 (Tex. 1969) (“The purpose of foreclosure is to subject 
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property covered by a lien to payment of the indebtedness secured by the lien.”). 

Therefore, the trial court’s judicial foreclosure order in light of Kelly’s nonpayment of her debt qualifies as a post-judgment enforcement order because it is 

not (a) inconsistent with the original judgment; (b) a material change in the 

substantive adjudicative portions of the judgment; or (c) an order that requires the 

performance of obligations not required by the judgment. See Custom Corporates, 

Inc. v. Security Storage, Inc., 207 S.W.3d 835, 839 (Tex. App.—Houston [14th 

Dist.] 2006, no pet.).

We find further support for the conclusion that the trial court’s judicial 

foreclosure order is a post-judgment enforcement order in Jong Ik Won v. 

Fernandez, 324 S.W.3d 833 (Tex. App.—Houston [14th Dist.] 2010, no pet.). In 

that case, we affirmed the ability of a party to satisfy a judgment through an 

execution sale of real property without having to establish a judgment lien as 

provided by Chapter 52 of the Texas Property Code. Id. at 834–35. We explained

that “[e]xecution is a method of enforcing a judgment.” Id. at 834. We further 

noted the “well-settled law that a judgment lienholder can foreclose on a judgment 

lien in an independent suit or through an execution sale.” Id. at 835 n.2 (emphasis 

added) (citing Baker v. West, 36 S.W.2d 695, 697 (Tex. 1931)); see also Katz v. 

Bianchi, 848 S.W.2d 372, 375 (Tex. App.—Houston [14th Dist.] 1993, orig. 

proceeding) (“Trial courts must have some power to enforce settlements and other 

judgments, or else such judgments would be hollow . . . . Trial courts have broad 

discretion in the enforcement of their judgments.”).
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In sum, we conclude that the judicial foreclosure order is a post-judgment 

enforcement order. Accordingly, in line with our Walter precedent, we lack

jurisdiction to consider this appeal from a post-judgment enforcement order.2

III. CONCLUSION

Because we have determined that we are without jurisdiction over this 

appeal, it is dismissed.

/s/ Sharon McCally

Justice

Panel consists of Justices Boyce, McCally, and Donovan.

 

2

In Walter, we also determined that a challenge to such post-judgment enforcement 

orders are properly brought through a mandamus proceeding because there is no adequate 

remedy by appeal. Walter, 422 S.W.3d at 856. And under certain circumstances, courts should 

construe a litigant’s appeal as a petition for writ of mandamus where, to do otherwise, would 

elevate form over substance. See, e.g., CMH Homes v. Perez, 340 S.W.3d 444, 453 (Tex. 2011). 

But in this case, Kelly has already availed herself twice of this appellate remedy for review of an 

erroneous post-judgment enforcement order: as outlined above, this court has previously 

considered Kelly’s identical issues on two petitions for writ of mandamus and determined that 

she is not entitled to relief.